Explainer: Why was a former Grab driver acquitted of sexually assaulting his 19-year-old passenger?

SINGAPORE — The acquittal on Wednesday (April 27) of a 48-year-old former Grab driver accused of sexually assaulting a 19-year-old passenger has attracted considerable public interest over aspects such as the large age gap between them and the point that the woman was intoxicated at the time.

Mr Tan Yew Sin claimed trial to one charge each of attempted rape, sexual assault and outrage of modesty. The married man was accused of committing the acts in his car after picking up the young woman, then 19, from a bar in the early hours of May 19 in 2018. She had drunk about five pints of beer during the evening with some friends.

High Court judge Pang Khang Chau acquitted Mr Tan, who said that the sexual acts with the woman were consensual, after finding that the prosecution could not prove beyond a reasonable doubt that the woman lacked the capacity to consent to the sexual acts.

Some online users expressed dissatisfaction with the verdict, and alleged that Mr Tan had used his older age and position as a private-hire driver to take advantage of a younger victim. 

However, others sympathised with Mr Tan, claiming that he will not be able to recover his reputation despite being acquitted of the charges. 

TODAY spoke to lawyers to break down the judgement, and explored the reasons set out by Justice Pang for Mr Tan’s acquittal. 

WHAT DOES AN ACQUITTAL MEAN? 

Experts explained that that at the end of a trial, if the judge renders a verdict that the charges have not been proved by the prosecution, then the result is an acquittal, where the accused is found to be not guilty.  

Law lecturer Alexander Woon from the Singapore University of Social Sciences said that this means the judge has found that the charges levelled against the accused were not proven beyond reasonable doubt.

“It does not mean that the judge believed one side or the other," Mr Woon added.

“Importantly, the acquittal in this case does not mean that the judge found that the complainant was lying. He simply found that it was not beyond reasonable doubt that she lacked the capacity to consent to the sexual activities.” 

An acquittal differs from a discharge not amounting to an acquittal, which usually happens when the prosecution withdraws the charge before the judge delivers a verdict, Mr Woon said. 

Lawyer Amolat Singh from Amolat and Partners said that a discharge not amounting to an acquittal is usually given when there is a lack of evidence or if evidence is not immediately available. 

In the case of an acquittal, such as in Mr Tan’s case, the accused cannot be taken back to court unless the prosecution appeals against the acquittal.

Lawyer Anand Nalachandran of Forte Law said that whether legal proceedings end in an acquittal or a discharge not amounting to an acquittal is not tied to the severity of the charges.

“It is not dependent on the nature or gravity of the offence,” he said. “It depends on the conduct and stage of the proceedings.”

LAWYERS NOT SURPRISED BY VERDICT

Lawyers told TODAY that for Mr Tan to be found guilty of a sexual assault, rape or outrage of modesty charge, the prosecution had to not only prove that the sexual acts were committed, but that the woman did not or could not consent to them. 

The lawyers agreed that although it had been proved that the sexual acts occurred, it could not be proved beyond reasonable doubt that they were carried out without the woman's consent. 

Lawyer Rajan Supramaniam from Regent Law LLC said that in this case, the accused was consistent in his account of the incident, while the woman’s account was not “compelling”. Thus, the accused could not be found guilty beyond reasonable doubt. 

The woman testified during the trial that she could not remember the encounter and could not give evidence as to whether she had consented to the sexual acts. The prosecution thus argued that she did not consent, and in any event, she was so intoxicated that she could not consent to any sexual activity.

However, she could be heard crying and interacting with Mr Tan during the car ride in audio recordings taken from the in-car camera.

“The evidence found does not corroborate (the prosecutor's stance), especially the in-car camera footage, as well as her conduct and her responses, when it was mentioned that she was aware of her surroundings,” Mr Rajan said.

Agreeing, Mr Woon said that sexual activity is “not wrong per se”, but it “only becomes morally and legally wrong when it is done without mutual consent”. 

“Therefore, since lack of consent is an element of the offence, the prosecution needs to prove lack of consent beyond reasonable doubt in order for the accused to be convicted.” 

Mr Woon added that a “foundational principle of criminal law is the presumption of innocence''. 

“That’s why it’s important to treat the accused as innocent unless and until he is proved guilty beyond reasonable doubt in a court of law.”

HOW CAN DRUNK PEOPLE BE FOUND TO CONSENT?

In his oral judgement on the case, Justice Pang noted from a previous apex court decision that the mere fact that the alleged victim was intoxicated was not enough to establish a lack of capacity for consent.

She appeared to be inhibited and said that she did not remember the sexual encounters due to an alcoholic blackout, but it did not mean that she was “not able to perform cognitive functions”, Justice Pang said. 

The judge referred to expert evidence estimating that the teenager would have had a blood alcohol level of between 164 and 182mg/100ml around 3am to 4am when the incidents took place. By comparison, the legal limit for driving is 80mg/100ml.

He added that based on expert opinion, “alcohol-induced blackout merely means that alcohol has affected the ability of the brain to encode memories, and that a person experiencing alcohol-induced blackout may still retain the ability to understand the nature and consequences of their actions”. 

The judge added that the “ultimate inquiry” was not whether she was intoxicated per se, but whether she lost the capacity to “understand and decide”. 

He provided six instances across the evening of the incident to show that the passenger still had the “capacity to understand and decide”. 

One was when she repeatedly rejected her friend’s offer at the bar to drive her home, that it was to avoid worrying her friend, which Justice Pang took to show that she could look beyond her immediate needs and consider her friend’s.

Because of this and other factors, the prosecution failed to prove beyond a reasonable doubt that she lacked the capacity to consent, he added. 

Associate Professor Chen Siyuan, a law lecturer from the Singapore Management University, said that consent to sexual activity, even when made while intoxicated, is “still consent as long as there is a voluntary and conscious acceptance of what is being done”.

However, while it is clear that a victim who is unconscious from intoxication has no ability to consent, a victim may have “crossed the line into incapacity” well before becoming unconscious. 

“Whether that is the case is evidently a fact-sensitive inquiry,” he said.

For instance, one should consider if evidence indicates that the person has the ability to make decisions and choices. Those who are incapacitated may lack the ability to make any decisions, “much less the particular decision whether to have sexual intercourse or engage in any sexual act”. 

Agreeing, Lawyer Diana Ngiam from Quahe Woo & Palmer LLC said that the above basis is applied in convicting intoxicated people who commit crimes such as assaulting people. 

“The (accused persons) normally don’t remember doing all that, but the law still deems that they knew (they were attacking someone) and intended what they were doing,” she said. 

“If I extrapolate that to the current situation, it is because of evidence relating to the behaviour of the complainant in the current case, the court was satisfied that the complainant knew or was in a position to consent to having sexual encounters.” 

THE IMPORTANCE OF OBJECTIVE EVIDENCE 

One crucial aspect of the case that led to its clear resolution was the existence of “objective evidence” in the form of audio recordings from the in-car camera. 

Justice Pang said that Mr Tan’s account was materially consistent with the first statement he gave to police after the arrest, and was also corroborated by the audio recordings. 

Ms Ngiam said that objective evidence is very important as it gives the court “a clearer glimpse to the demeanour and behaviour of the complainant”. 

“This will usually have quite a material bearing on the eventual assessment of the complainant’s state of intoxication,” she said. 

Without such evidence, establishing the facts of the case will become more complex. 

Mr Singh from Amolat and Partners said that for cases without such evidence, the facts have to be inferred from the conduct of both the accused and the alleged victim before and after the incident, as well as through physical evidence of assault. 

Mr Woon said that cases where there are no other witnesses besides the accused and the complainant often present “real difficulties”. 

“On the one hand, we do not want to discourage genuine victims of sexual assault from reporting by being too sceptical and potentially re-traumatising them.

“On the other hand, we need to adhere to the presumption of innocence of the accused and be mindful of the fact that sometimes, people make baseless allegations for a variety of reasons,” he said.

Although the judge acquitted Mr Tan on the grounds that he was not satisfied beyond reasonable doubt that the woman lacked the capacity to consent, he added "for completeness" that if he were wrong about that point, he had also concluded that Mr Tan's second defence had been made out.

The woman's demeanour and conduct on the evening would have led Mr Tan "to reasonably believe in good faith that she had the capacity to consent".

"If I were held to be wrong on the question of capacity to consent, I am prepared to find that the defence of mistake had been made out."