Ex-Grab driver acquitted of attempted rape of intoxicated 19-year-old passenger
Former Grab driver Tan Yew Sin leaving the High Court on Sep 29, 2020. (Photo: TODAY/Raj Nadarajan)
Davina Tham
27 Apr 2022 12:45PM (Updated: 27 Apr 2022 12:45PM)
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SINGAPORE: A High Court judge on Wednesday (Apr 27) acquitted a former Grab driver of the attempted rape of an intoxicated 19-year-old passenger in 2018.
Tan Yew Sin, 47, was cleared of a total of three charges of attempted rape, sexual assault and outrage of modesty after contesting the allegations at trial.
He was accused of committing the offences in his car in the early hours of May 19, 2018, after accepting a booking to ferry the girl from Wildseed Bar at Seletar Aerospace Park to her home.
Justice Pang Khang Chau found that the girl, though intoxicated, had the capacity for consent and demonstrated this in her behaviour throughout the night.
The judge also found that even if the girl was not able to consent, Tan could reasonably have been mistaken that she was able to.
The sexual acts occurred in the car after they had reached the passenger's home. At trial, Tan admitted to the sexual encounter, but argued that it was consensual.
He testified that he thought the girl wanted sex and that he was trying to return her identity card to her handbag when he turned around and "next thing I know, we end up kissing".
The prosecution's case was that the girl did not consent to the sexual acts, and was so intoxicated that she would not have been able to consent. Her identity is protected by gag order.
LACK OF CAPACITY FOR CONSENT
Justice Pang said the girl had consumed five pints of beer that night and was intoxicated, but this fact alone was insufficient to establish her lack of capacity for consent.He said that a lack of capacity for consent would require her to be unable to understand the nature and consequence of what she was consenting to due to intoxication.
Noting that the girl was emotional and crying, and showed motor impairment such as an unstable gait, the judge said that drinking a substantial amount of alcohol or behaving unusually did not indicate a lack of capacity for consent.
He also noted that the girl could not remember the sexual encounter with Tan. However, he said that the inability to form memories due to alcohol intoxication did not mean she was unable to perform cognitive functions.
Related:
Sex acts 'consensual', says lawyer of ex-Grab driver on trial for attempted rape of passenger
SHE WAS ABLE TO CONSENT, SAYS JUDGE
Justice Pang said the question to be decided was not whether the girl was intoxicated, but whether she lost the capacity to "understand and decide" on her actions.He said that the girl demonstrated this ability at multiple points during the night and cited a number of instances.
At the bar where she had been drinking, she repeatedly rejected a friend's offer to drive her home and said she was okay. The girl testified that she did this to avoid worrying her friend. Justice Pang said this demonstrated her ability to look beyond her immediate needs and consider her friend that night.
Later, after the car reached her home, the girl told Tan she was not ready to leave. She was searching for her wallet to pay the driver then, and this showed her awareness of the circumstances under which she would be ready to leave the car, said the judge.
After the girl failed to access her residence, Tan asked her if she was okay and she said that she was. She testified that she responded in this way because she did not know Tan and did not want to say much, which also demonstrated awareness of her surroundings, said Justice Pang.
In the car, the girl was emotional, thumping herself on the chest with her fist and banging her head on the window, but would stop each time Tan urged her to stop. This showed an awareness of what Tan was saying to her and her decision to accept his suggestion, said the judge.
After the sexual acts, Tan asked the girl if she was okay, to which she replied yes and asked him to continue driving. This showed her ability to assess whether she wanted to leave or remain in the car with Tan even after the sexual encounter, said the judge.
For reasons unknown, the victim did not go home and was found by another Grab driver at around 4.40am, lying in the middle of the road with her underwear and shorts missing.
DEFENCE OF A REASONABLE MISTAKE
Justice Pang also agreed with the defence's secondary argument that even if the girl was indeed unable to consent, Tan could have been mistaken and held the reasonable belief that she was able to consent.The judge noted that the factors he gave for determining that the girl had the capacity to consent were external, physical manifestations of her behaviour.
He said the girl was able to respond relevantly and appropriately to Tan's questions and suggestions during the night.
As part of his analysis, Justice Pang noted that the girl was unable to recall the sexual encounter and could not give evidence as to whether she consented.
The assessment of whether there was consent therefore depended largely on the credibility of Tan's testimony, said the judge.
He said that Tan's version of events had been consistent since his first police statement after his arrest, and added that the man could not have known back then that the girl was unable to recall what happened.
"I find the accused's testimony credible and accept his version of events," said Justice Pang.
The judge also relied on in-car camera recordings of the exchange in Tan's car and CCTV footage of the girl from the bar and her residence to make his findings.
Speaking to reporters after the verdict, defence lawyer Chenthil Kumarasingam said that Tan wanted to get back to his life and that his family had been through a "a lot" in the past four years.
"Him going back to his life is really all that he wants at the moment," said the lawyer.
Tan could have been jailed for up to 20 years, fined or caned for attempted rape or sexual assault by penetration.
For outrage of modesty, he could have been jailed for up to two years, fined, caned, or given any combination of these punishments.
