1 The accused, [DYF], (the “Accused”), claimed trial to one charge of rape under s 375(1)(a), punishable under s 375(2), of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The charge read as follows: ¹

2 At the conclusion of the trial, I convicted the Accused of the charge and sentenced him to imprisonment for a term of 14 years and six months and caning of 12 strokes. As the Accused has appealed against his conviction and sentence, I set out below the full grounds of my decision.

3 I begin by outlining the undisputed facts.

4 At the time of the alleged offence, the Accused was 36 years old. At the material time, he was working as managing director of [Company X]. ²

5 The complainant (“Complainant”), who was working at [Company Y] as a customer service officer, came to be acquainted with the Accused through work, as he was a client of [Company Y]. The Complainant left [Company Y] after working there for over four years, but subsequently rejoined the company in February 2020. As the Accused was still a client of [Company Y] at that time, he and the Complainant would occasionally contact each other. ³

6 As the Accused and the Complainant coincidentally shared the same birthday, they agreed to meet for dinner on 15 September 2021 to celebrate both their birthdays. They arranged to meet at 5.30pm at The Queen & Mangosteen (“Restaurant”), a restaurant located at Vivocity shopping mall (“Vivocity”). This was the first time they were meeting in person. ⁴

7 On 15 September 2021, the Accused arrived at the Restaurant at about 5.40pm, followed by the Complainant who arrived at about 5.45pm. The Complainant ordered fish and chips while the Accused ordered a lamb T-bone, and they also shared a portion of calamari. They each had a glass of red wine (Merlot house pour) as there was a one-for-one promotion for happy hour. The Accused subsequently ordered two bottles of Marrenon Orca red wine. Together, the Accused and the Complainant finished both bottles of this wine. As the Complainant was feeling quite drunk, she told the Accused that she wanted to go home, and he offered to send her home. ⁵ The Complainant was then living at [address redacted] (“Unit”).

8 At about 8.35pm, the Accused and the Complainant left the Restaurant. They made their way, first to the toilet, and then to the carpark of Vivocity. At about 8.43pm, the Accused drove the Complainant home from Vivocity in his car. The drive from Vivocity to the Complainant’s home took about 35 minutes. The Complainant sat in the front passenger seat. ⁶ The Accused’s car was equipped with a front-facing dashboard camera, which captured the route taken by the car, as well as audio facilities which captured the conversation inside the car during the journey from Vivocity to the Complainant’s home. The audio-recording was admitted in evidence at trial; and a transcript prepared by the police of the conversation captured on the audio recording was also admitted. It should be noted that at trial, the Accused disagreed with various portions of the transcript prepared by the police; and in the course of re-examination, defence counsel applied for (and was granted) leave to put into evidence the Accused’s own transcription of the audio-recording (which contained the Accused’s notes and comments). ⁷

9 On arriving at the Complainant’s block of flats, the Accused parked his car in the open-air carpark. The Complainant and the Accused then walked from the carpark to the lift. Part of their journey on foot from the carpark to the lift was captured on CCTV video footage which was admitted in evidence at trial. ⁸ CCTV video footage showed the Accused and the Complainant entering the lift at about 9.23pm and taking the lift up to the 8th floor. ⁹

10 At the 8th floor, the Accused followed the Complainant into the Unit. They went to the toilet, where the Complainant started trying to vomit into the toilet bowl, while the Accused patted her back. Thereafter, the Accused remained in the Unit, where he engaged in penile-vaginal intercourse with the Complainant on the bed in her bedroom. ¹⁰

11 CCTV video footage from police cameras (“POLCAM) showed the Accused leaving the Complainant’s Unit at about 9.50pm. At about 9.52pm, the Complainant made a “999” call to the police. The First Information Report (“FIR”) logged by the police of this “999” call noted that “Caller was crying throughout the call and did not speak up … Only managed to get her location address briefly, and the line was cut off”. ¹¹ At about 9.54pm, the Complainant also sent a text message to the Accused which stated: “You are too much”. ¹²

12 Following the Complainant’s “999” call, police officers from Yishun North Neighbourhood Police Centre were dispatched to the Unit and arrived at about 10.05pm. The Complainant was completely naked when the two police officers arrived at the Unit. She told these police officers that she had been raped. ¹³ The officers’ body-worn camera footage of their interaction with the Complainant was admitted into evidence at trial. ¹⁴ A transcript of this interaction was also prepared by the police and admitted at trial. ¹⁵

13 The Complainant was escorted to KK Women’s and Children’s Hospital (“KK Hospital”) for a medical examination. This was at about 4am on 16 September 2021. The examining doctor, Dr Han Youxiang Jonathan (“Dr Han”), reported finding old tears in the Complainant’s hymen at the 3 and 9 o’clock position, as well as a fresh 1cm laceration at her posterior fourchette that was tender on palpation with no active bleeding. ¹⁶

14 On 16 September 2021, the Complainant provided her urine and blood specimens at 4am and 4.58am respectively for toxicological analysis. Analysis showed that her urine and blood specimens contained 178mg/100ml and 82mg/100ml of ethanol respectively. ¹⁷

15 At about 2.00am on the same day, the Accused was placed under arrest by officers from the Serious Sexual Crime Branch (“SSCB”) of the Criminal Investigation Department. ¹⁸

16 On 16 September 2021 at around 9.15am to 9.20am, the Accused’s blood was drawn for toxicological analysis. There was no ethanol detected in the Accused’s blood specimen. ¹⁹

17 The police subsequently recorded two statements from the Accused. His first statement, under section 22 of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), was recorded at 5.49pm on 16 September 2021 in a video-recorded interview (“VRI”); while his second statement, under s 23 of the CPC, was recorded on 30 January 2024. At trial, the Defence acknowledged that these two statements were voluntarily given, and that no threat, inducement or promise was made to the Accused before or during the recording of these statements. ²⁰ The Defence also confirmed that the Accused did not suffer from erectile dysfunction at the material time. ²¹

18 The Prosecution’s case was that the Complainant lacked capacity to consent to the sexual intercourse due to alcohol intoxication at the material time. This was based not only on the Complainant’s testimony, but also on evidence as to how much alcohol she had consumed, as well as the signs and symptoms of intoxication that she exhibited both before and after the sexual intercourse. ²² In this connection, the Prosecution adduced evidence, inter alia, from two expert witnesses, Associate Professor Teo Eng Swee (“Prof Teo”) of the Health Sciences Authority (“HSA”) and Dr Charles Mak Chia Meng (“Dr Mak”) of the Institute of Mental Health (“IMH”).

19 In any event, even assuming the Complainant had the capacity to consent at the material time, she did not in fact consent to the sexual intercourse. In this respect, the Prosecution relied on the Complainant’s testimony, which was corroborated by the laceration on her vagina, her behaviour following the incident, as well as her contemporaneous accounts to the police and her boss at [Company Y] (whom she called at the first available opportunity). Additionally, according to the Prosecution, the Accused’s evidence was plagued with grave inconsistencies, which justified a finding that his credit had been impeached. ²³

20 Lastly, the Prosecution submitted that the Accused could not avail himself of the defence of mistake under s 79 of the Penal Code. This was because he was aware at the material time that the Complainant was severely intoxicated. In fact, his subsequent behaviour betrayed his guilty mind. ²⁴

21 The Accused, on the other hand, claimed that the sexual intercourse was consensual. ²⁵ First, the Accused disagreed with the Prosecution on the issue of the Complainant’s capacity to consent to the sexual intercourse. The Accused argued that the Complainant’s own testimony about the events of the night of 15 September 2021 was both internally and externally inconsistent, and could not be believed. ²⁶ According to the Accused, the Complainant’s observed behaviour did not show her to be lacking the capacity to consent; and no weight should be given to the opinion evidence of the Prosecution’s expert witness Dr Mak.

22 Further, the Accused argued that the Prosecution was unable to prove the factual lack of consent from the Complainant beyond a reasonable doubt. According to the Accused, not only was the Complainant’s account of events internally and externally inconsistent, there was objective evidence corroborating the Accused’s account of consensual sexual intercourse. ²⁷

23 In the alternative, the Accused relied on the defence of mistake, claiming that he had believed in good faith, having exercised due care and attention, that the Complainant did not lack the capacity to consent and that she consented to the sexual intercourse. ²⁸ In respect of the inconsistencies highlighted by the Prosecution in his evidence, the Accused argued that these inconsistencies were not of such scale and nature as to affect his credibility, ²⁹ and that he had moreover given cogent explanations for these inconsistencies.

24 In support of its case, the Prosecution called 14 witnesses to testify at trial, with an additional 17 witnesses providing evidence through conditional statements. I summarise below the evidence of the key Prosecution witnesses.

25 The Complainant testified that the Accused was a customer of [Company Y], with whom she had become acquainted during the first period of her employment with [Company Y]. During this period, she communicated with the Accused via email and telephone calls on the office line. ³⁰ Her communications with the Accused were for work-related purposes, and she never met the Accused in person during this period. ³¹

26 After leaving [Company Y] and then rejoining it in February 2020 for a second period of employment, the Complainant had to work from home due to the COVID-19 pandemic, and had to use her personal phone to make calls. ³² The Accused was able to obtain her phone number after one occasion on which she forgot to privatise her phone number when calling him to finalise a shipment. ³³ Subsequently, the Complainant and the Accused would contact each other via WhatsApp and phone calls. Their conversations were mainly about work-related matters. ³⁴ In the course of their interaction, she came to know that she and the Accused shared the same birthday. ³⁵

27 Sometime in September 2021, about two weeks prior to their birthdays, the Accused suggested to the Complainant that they should meet up for a meal to celebrate their birthdays. ³⁶ This was to be the first time that they met in person. On 14 September 2021, the Complainant and the Accused exchanged text messages in which they arranged to meet for dinner the following day at the Restaurant. ³⁷ In cross-examination, the Complainant was taken through some of the other messages between her and the Accused, which included her sending him two songs – one of which, she agreed, “would be described as a romantic ballad” ³⁸ – and “cartoon character” emojis. ³⁹ The Complainant agreed with defence counsel’s suggestion that some of these messages with the Accused were “friendly exchanges between two individuals who [had] a certain personal rapport” and that these “friendly exchanges” had “nothing” to do with “business or work”. ⁴⁰ However, she disagreed with the suggestion that she had a “friendly personal relationship” with the Accused or that she was “looking forward to meeting him” on the day of the incident. ⁴¹

28 On 15 September 2021, the Complainant arrived at the Restaurant at about 5.45pm for dinner with the Accused. ⁴² During the dinner, she and the Accused talked about work. At trial, the Complainant testified that at one point, the Accused asked her if she was keen to join his company and suggested that he could “[settle]” her mother’s nursing home fees. ⁴³ At trial, the Complainant testified that this suggestion had caused her to wonder if he was proposing a “transaction” in the sense of “having an affair outside”, since “no bosses will be willing to … settle … anybody nursing home fees …at that kind of figure”. ⁴⁴ She clarified, however, that there was no verbal “request” to that effect from the Accused, and it was her “own assumption”. ⁴⁵ In any event, she responded by telling the Accused that since he knew her boss well, he should know better than to ask her such a question. ⁴⁶

29 As to the food and drinks consumed in the course of dinner, the Complainant recalled ordering fish and chips for herself. She also recalled drinking a considerable amount of wine. This started with her and the Accused having a glass of red wine each, as there was a one-for-one “Happy Hour” promotion. The Accused then suggested drinking more red wine and proceeded to order a bottle of red wine despite the Complainant telling him that she did not want to drink so much. ⁴⁷

30 According to the Complainant, there were two reasons why she did not want to drink so much. As she was living alone at the time, she wanted to be able to go home sober. ⁴⁸ Moreover, she had already stopped drinking alcohol for a period of time. When she was living overseas between December 2016 and December 2019, she had hardly drunk any alcohol; and since returning to Singapore in December 2019, she had drunk alcohol on fewer than five occasions, and even then, had drunk only around two glasses of red wine on each occasion. ⁴⁹ In fact, on the occasions when she did drink, she would feel tired after around two glasses of alcohol. ⁵⁰ She felt, therefore, that her tolerance for alcohol had “dropped quite a fair bit”. ⁵¹

31 Despite the Complainant saying that she did not want to drink so much, the Accused ordered a second bottle of red wine while they were drinking from the first bottle. In all, the Complainant and the Accused finished two bottles of red wine. ⁵² According to the Complainant’s estimation, she herself drank at least one bottle of red wine in total. ⁵³ She recalled “feeling quite drunk” and telling the Accused that she “wanted to go home”. In response, the Accused stated that he would “call a valet” to send her home. ⁵⁴ The Complainant understood this to mean that he would call “a private driver” to drive his car and to send both of them back to their respective homes. ⁵⁵

32 In cross-examination, the Complainant was referred to CCTV footage from the Restaurant, which showed the interaction between her and the Accused during the dinner. The Complainant agreed that at certain points in the CCTV footage, she could be seen feeding the Accused some food and snatching his wine glass; and at one point, he could be seen holding her hand for several seconds. ⁵⁶ Based on the CCTV footage, she accepted defence counsel’s suggestion that the mood appeared “quite flirty and playful as the night progressed”. However, she asserted that this was “[u]nder the alcohol influence”; ⁵⁷ and she disagreed that there was “chemistry” between her and the Accused. ⁵⁸ In fact, she had no recollection of doing things such as feeding the Accused and snatching his wine glass. ⁵⁹ According to the Complainant, insofar as events in the Restaurant were concerned, she could only remember what happened up to 7.01pm, when she was shown following the Accused out of the restaurant as he wanted to smoke. She could also remember smoking “a few puffs” when asked to do so by the Accused and then walking back to the Restaurant after he finished smoking, but was unable to recall much of what happened thereafter. ⁶⁰ While she was able to recall “some of the images thereafter” when shown the CCTV footage, she could not recall exact details. ⁶¹

33 The Complainant could not remember how she left the Restaurant, what she did after leaving the Restaurant, or how she got into the Accused’s car. ⁶² At trial, the Complainant was shown CCTV footage of her leaving the Restaurant, entering and then exiting a toilet in Vivocity, walking with the Accused around Vivocity, and going down an escalator with him. Her evidence was that she had no recollection of any of these events. ⁶³ It was also pointed out to her that the footage showed the Accused putting his hand on her shoulder and holding on to her hand at various points: she noted that from the footage, she appeared to be “try[ing] to shake him off” and/or to “pull [herself] away” at these points but stated that she could not actually remember doing these things. ⁶⁴

34 The next thing that the Complainant could remember was being “half awake” and finding herself in the Accused’s car. ⁶⁵ She recalled opening her eyes because she “wanted to vomit”. ⁶⁶ It was then that she saw the Accused driving the car; and she felt “shocked” because he had been drinking as well and should not have driven. ⁶⁷ When she was referred to the police transcript of the in-car audio-recording, the Complainant was unable to recall most of the conversation shown in the transcript. She could recall, however, asking for a plastic bag because she “wanted to vomit”; and she also recalled grabbing and vomiting into a tissue box which was in the Accused’s car. ⁶⁸ In her conditioned statement and in examination-in-chief, she also gave evidence that at some point during the car journey, the Accused wanted her to give him a blowjob: she “[could not] remember the exact details” but she thought the Accused might have conveyed this request for a blowjob through some “hand sign”. ⁶⁹ In cross-examination, however, she acknowledged that she was “not sure” about this as she was “under the alcohol influence” at the time. ⁷⁰

35 Next, according to the Complainant, she remembered the Accused saying “[a]rrived already” when they were downstairs from her house, at which point she brought the tissue box out of the car and left it on the road “behind the car”. ⁷¹ She did not have any recollection of how she got from the carpark to the lift lobby. ⁷² When referred to the CCTV footage showing her waiting for the lift together with the Accused, the Complainant was able to recall that she felt “very weak” at the time and noted that the footage showed her needing “someone to hold” on to her. ⁷³

36 Upon entering her flat, the Complainant removed her shoes and placed them on the shoe rack. ⁷⁴ She did not realise that the Accused had also entered her flat until she turned and saw his shoes. She was “shocked”, but as she was feeling tired and intoxicated, she went into her bedroom to lie on her bed. ⁷⁵

37 Per the Complainant’s conditioned statement, the next thing she remembered was lying on her bed and feeling “like vomiting”. ⁷⁶ She recalled the Accused being on top of her and trying to remove her clothes. She could not remember exactly which item of clothing he was trying to remove, but she was aware of “someone … touching [her] clothing”. ⁷⁷ She tried to push the Accused away but did not have the strength. When she told the Accused that she wanted to vomit, he got off her, and she went to the kitchen toilet to vomit into the toilet bowl. ⁷⁸ She could not remember whether the Accused supported her as she walked to the toilet, ⁷⁹ but was certain that the Accused was beside her when she was “squatting down” in the toilet and “try[ing] to vomit”. ⁸⁰ After she vomited, she returned to her bedroom with the Accused supporting her. ⁸¹

38 The Complainant next remembered “feeling something pushing against [her] vagina with force”. ⁸² When she opened her eyes, she found herself naked: she knew that it was the Accused’s penis that was pushing against her vagina because “when [she] was awake for that few moments”, she could see that he was on top of her naked body. ⁸³ She did not know what had happened to her clothes and had no recollection of removing them. ⁸⁴

39 As the Complainant had not consented to sexual intercourse with the Accused, she was “really shocked and felt lost”. ⁸⁵ At the same time, she felt that she had no control over her body and no energy to fight back. ⁸⁶ She described herself as “drifting in and out” at this juncture. ⁸⁷ She remembered asking the Accused to stop; and when asked in cross-examination to describe how she asked the Accused to stop, she recalled using her hand to touch his head or forehead, “like trying to push him away”, but could not remember if she said anything. ⁸⁸ She could recall that when she pushed at the Accused with her hand, he “did pause and [stopped] and got off [her]”. ⁸⁹ She did not know if he stopped “for good” as she could not remember the “exact details” thereafter. ⁹⁰ All she knew was that “the next moment, [she] fell unconscious again”. ⁹¹ She described this as being a state in which she was “totally black[ed] out and totally unconscious”, “not aware what is going on”. ⁹²

40 Sometime later, the Complainant became aware that she was totally naked. She jumped off her bed to look for the Accused “around [her] home” but could not find him. ⁹³ She also searched for her phone as she wanted to call for help. ⁹⁴ Upon finding her phone, she tried to make an emergency “999” call, but mistakenly placed a call to her friend ⁹⁵ before eventually making an emergency “999” call at 9.49pm. ⁹⁶ At trial, after listening to the playback of the audio recording of this “999” call, the Complainant described her emotions during this phone call as having been “unstable”. ⁹⁷ The transcript prepared by the police of this “999” call showed that it lasted less than two minutes and that the Complainant was crying for the entire duration of the call. ⁹⁸ She did not state the nature of her emergency, but in response to a question from the “999” operator as to whether she was “okay”, she stated that she was “not okay”. The operator managed to elicit information from her about her address and told her to “calm down” as officers were on the way.

41 Following her “999” call, the Complainant made four calls to the Accused as she wanted to confront him about why he had sexually assaulted her. The Accused did not answer these calls. ⁹⁹ The Complainant then sent the Accused a text message at 9.55pm which stated, “You are too much”. At trial, her evidence was that she meant that the Accused was “too much as in he did not get [her] consent”, and what he had done to her was sexual assault. ¹⁰⁰

42 At 9.56pm, the Complainant called her boss, [C]. At trial, she was unable to remember what she told [C] during this phone call. ¹⁰¹ However, she recalled that she had called [C] because the Accused was one of [Company Y]’s customers and [C] knew the Accused; and she needed “someone” to know what she was “facing at that point of time”. She also wanted [C] to know that she would not be able “to fully concentrate on [her] work during that period”. ¹⁰²

43 On [C]’s part, he gave evidence in his conditioned statement that he was unable to hear what the Complainant was saying in this phone call at 9.56 pm because she was “crying very loudly”. ¹⁰³ He did hear the Complainant uttering the Mandarin words “侵犯” and saying that the police had arrived before she hung up. On checking the meaning of the Mandarin words “侵犯”, [C] “understood it to be like someone invading her or attacking her in close contact”. ¹⁰⁴ He then realised that “something bad had happened to [the Complainant]”; and from the manner in which she had “reacted during the phone call with the words … she used”, he suspected that it was “sexual related”. ¹⁰⁵ [C] subsequently received two more phone calls from the Complainant at 10.09pm and 10.24pm respectively, during which the latter was still “crying, crying, non stop”. ¹⁰⁶ She told him that she was “scared about her reputation” and “afraid” that her colleagues would “find out … this thing”. ¹⁰⁷ She did not explain to [C] what she was afraid of her colleagues finding out. ¹⁰⁸ At some point during these two phone calls, [C] also spoke to a female police officer on the Complainant’s phone and told the officer that he “could not hear [the Complainant] properly as she was crying throughout”. ¹⁰⁹ Eventually, at about 11.03pm, he had a fourth phone conversation with the Complainant when he called her back after noticing that he had several missed calls from her. It was then that she told him “that the person involved was [the Accused]”. ¹¹⁰ According to [C], it was during this phone conversation that the Complainant stated that she “felt like asking the police to give her a knife so that she could kill herself” and “asked why it had to be her”. ¹¹¹ She also sent him a number of text messages later, between 1.44am and 2.05am, stating that she did not want to handle the account of [Company X] (the Accused’s company) or to see the Accused again. ¹¹²

44 In the meantime, after having failed to pick up the Complainant’s calls, the Accused called her mobile number at 9.57pm. She did not pick up his call. ¹¹³ At 10.05pm, two police officers – Sgt Vernis Chua Xin Ni (“Sgt Vernis”) and SI Lim Kai Shen Lucius (“SI Lucius”) – arrived at the Unit. At this point, Sgt Vernis’ body-worn camera (“BWC”) was switched on. Part of the interaction between the Complainant and the two police officers was captured on the BWC footage, which was played at trial. According to Sgt Vernis, the time reflected on her BWC footage was “about [seven] minutes slower than real time”. ¹¹⁴

45 The Complainant testified that when the police officers arrived at the Unit, she was “behind the main door crying”. ¹¹⁵ She felt “very frightened” and “very lost”, and remembered thinking that she needed “a female police officer … to come and rescue [her] and help [her]”. ¹¹⁶

46 The Complainant was unable to remember what she told the police officers who arrived at the Unit after the incident. ¹¹⁷ The BWC footage showed that at some point following the police officers’ arrival, the Complainant told Sgt Vernis that she needed to speak to her “boss”, before calling [C] and telling him, inter alia, “Boss … you don’t tell others”. ¹¹⁸ When referred to the transcript of this BWC footage at trial, the Complainant recalled that what she had meant was that she did not want “others” to know about the sexual assault she had experienced because she did not know “how others would see [her] at that point of time”. ¹¹⁹

47 On their part, both Sgt Vernis and SI Lucius gave evidence that when they arrived at the Unit, they heard a female voice – which they later established to be the Complainant’s – “wailing while requesting for a female officer” and “claim[ing] that she had been raped”. ¹²⁰ Upon the door being opened, Sgt Vernis entered the Unit and found the Complainant “completely naked and crying hysterically”. ¹²¹ When Sgt Vernis asked the Complainant if she wanted to get dressed, the latter replied that she was “very scared [she] get pregnant”. ¹²² After covering the Complainant with a towel, Sgt Vernis sought to gather the facts of the case from her and was able to ascertain the Accused’s name and contact number. At some point, the Complainant stated that she needed to call her boss and did so (see [46] above). The Complainant also went to the toilet after stating that she “wanted to vomit”. ¹²³ At trial, Sgt Vernis testified that she believed the Complainant to be drunk at the time because she was “crying non-stop”, “dragging out her sentences” when she spoke, ¹²⁴ and appeared “a little bit unsteady” when walking. She also recalled – with reference to part of the BWC footage – that the Complainant did not vomit in the toilet but vomited on her return to the bedroom, and that she handed the Complainant some tissue because of the vomiting. ¹²⁵

48 At about 10.26pm, two other police officers – Sgt Nur Raudha binte Sheikh Abdul Nazir (“Sgt Raudha”) and SC/Sgt R Sabarish (“Sgt Sabarish”) – arrived at the Unit. Sgt Raudha’s evidence was that the Complainant was covered by a “piece of cloth” but otherwise naked when she and Sgt Sabarish arrived. ¹²⁶ At this juncture, according to Sgt Raudha, the Complainant was “in distress” and “crying uncontrollably”; ¹²⁷ and they had “a bit of difficulty calming her down”. ¹²⁸ As Sgt Raudha was rubbing the Complainant’s back and consoling her, she could smell “alcohol smell” on the latter’s breath. ¹²⁹ The two female officers then spoke to the Complainant together, in the course of which she informed them that she had met her client at the Queen and Mangosteen earlier that day to celebrate their birthdays; that she had become drunk after they both drank wine; that the client had offered to send her home; that she had subsequently declined his offer to accompany her to her unit; and that he had followed her into the flat anyway and eventually sexually assaulted her in her bedroom. ¹³⁰ Sgt Raudha’s evidence was that the Complainant was still crying while answering questions from the officers, and that she “only managed to make out short sentences” in answer to their questions. ¹³¹

49 At about 11.30pm on 15 September 2021, ASP See Kwee Tan Maybelin (“ASP Maybelin”) – one of the investigation officers (“IOs”) in charge of the case – arrived at the Unit together with DSP Muhammad Fadzridin Fadzil Amir (“DSP Fadzridin”). ¹³² Upon approaching the Complainant’s bedroom, ASP Maybelin found that the bedroom smelled strongly of alcohol and vomit. ¹³³ The Complainant was then on the bed, “continuously crying”, “not in a very good emotional state”, and “not really responding to the questions” being asked of her by the police. ¹³⁴ At some point, the Complainant was asked to show ASP Maybelin the clothing and footwear which she had worn earlier in the evening. ASP Maybelin also spoke to her about what had happened that evening, but was unable to recall at trial the details of the Complainant’s responses. ¹³⁵

50 DSP Mohammad Amin s/o Majid (“DSP Amin”), who was the officer in charge of the SSCB at the time of the incident, arrived at the Unit at about 1.10am on 16 September 2021. He found ASP Maybelin “trying to calm [the Complainant] down” as the latter was then “shrieking”. Both he and ASP Maybelin sat on the floor to speak to the Complainant, who was then seated either on a chair or on the armrest of a chair. At this point, he could tell that the Complainant had been consuming alcohol because while she was speaking to them, he smelled alcohol from her breath. ¹³⁶ At trial, DSP Amin recalled that the Complainant informed them about having gone for dinner and drinks with a “client who shared the same birthday” and having had “a bit too much to drink”. The Complainant told them that the client had sent her home; that upon entering the Unit, she had gone to the toilet to vomit before going to her bedroom; and that penile-vaginal rape had then allegedly taken place in the bedroom. ¹³⁷

51 The Complainant was subsequently brought to KK Hospital, where she was examined by Dr Han at about 4am on 16 September 2021. The Complainant described her state of mind at that juncture as being “tired, emotional, unstable” and “very lost”. ¹³⁸ At trial, Dr Han testified that the medical examination would have started with his asking the Complainant for her bio-data and past medical history before asking her about the incident. ¹³⁹ According to Dr Han’s report, the Complainant recounted having dinner with the Accused (“her client”), during which “they ordered two bottles of red wine as well as a few additional glasses of red wine”. ¹⁴⁰ She then gave him the following account of events: ¹⁴¹

52 At trial, Dr Han explained that for the history-taking, he asked open-ended questions and jotted down the information provided by the Complainant before organising his notes and typing up the eventual medical report. ¹⁴² The phrases indicated in open inverted commas in his report represented the Complainant’s exact words, while “[e]verything else” would have been paraphrased by him. ¹⁴³ Dr Han recalled that the history-taking in this case was “more challenging than normal” because the Complainant was “distressed”, “in tears”, and “wanted to even give up the [medical] examination” at one point, saying that she “just wanted to sleep and rest”. ¹⁴⁴ He observed that she was intoxicated, as he could “smell her alcohol breath” while seated about one metre away from her, and he saw her retching during the interview and even vomiting into a plastic bag. ¹⁴⁵ In addition, as she was walking to the examination couch, he saw that “her gait was not steady”, and she “was swaying to … some extent”. ¹⁴⁶

53 In respect of the physical findings from the examination, Dr Han’s report noted, inter alia, a “fresh 1cm laceration” at the Complainant’s posterior fourchette (the lower end of the opening of the vagina) ¹⁴⁷ which was “tender on palpation but there was no active bleeding”. ¹⁴⁸ He observed that “the edges of the wound looked raw” and that healing of the wound did not appear to have started yet. ¹⁴⁹ At trial, Dr Han’s evidence was that a laceration on the posterior fourchette would potentially be caused by “trauma from straddle injury, sexual penetration, foreign body insertion or violence”. When asked to explain the circumstances in which sexual penetration could cause such an injury, Dr Han testified that “[a] posterior fourchette laceration is usually the … most common occurrence of genitalia injury following sexual assault”. ¹⁵⁰ He explained that “for sexual penetration, usually pain would be a limiting factor”, in that the “person receiving penetration may tell the person giving penetration to stop or to change position”; further, that in consensual sexual intercourse “where both parties are stimulated accordingly”, there would usually be “natural lubrication from arousal” which would “help with entry” and “thus reduce the chances of laceration at the external genitalia”. ¹⁵¹ In response to defence counsel’s questions in cross-examination, Dr Han agreed that a laceration of the posterior fourchette could occur even in the absence of any “resistance” during sexual penetration, although he noted that this was “less likely”. He also agreed that such an injury might “even not be related to any sexual activity”, and that at the point of examining the Complainant, he would not be able to determine whether the laceration seen on her posterior fourchette was “due to consensual or non-consensual intercourse”. ¹⁵²

54 In the course of the medical examination, Dr Han also took, inter alia, a vulva swab, a low vaginal swab, a high vaginal swab, an endocervical swab, an urethral swab, a low anal swab and a high anal swab. ¹⁵³ At trial, Dr Han was informed that semen was found on the vulva swab, the low vaginal swab and the urethral swab, and that tests were also indicative of the presence of semen on the high vaginal swab. ¹⁵⁴ When asked by the Prosecution whether, if the Accused had ejaculated externally (ie, on the Complainant’s stomach), he would expect there to be semen on the swabs taken from the low and high vaginal areas, Dr Han testified that he would not expect semen to be found in those areas. Dr Han explained that if the Complainant had wiped herself down (ie, wiped off the semen from her stomach), and then proceeded to wipe her external genital area, that could potentially bring semen downwards and contaminate the swabs taken. However, even if the Complainant had done this (ie, wiped herself down by wiping off the semen from the stomach and then wiped her genitalia), Dr Han still would not expect to find semen in the high vaginal swab because he would assume that if the Complainant were to wipe herself down, she “would not wipe … all the way into her vagina because that is usually very uncomfortable”. ¹⁵⁵ Further, as Dr Han explained, the high vaginal swab was taken using a speculum that would usually extend about 6 to 7cm into the vagina: as such, for a substance to be found on the high vaginal swab, the penetration had to be about 6 to 7cm into the vagina. ¹⁵⁶

55 The Prosecution also led evidence at trial of the amount of alcohol consumed by the Complainant on the night of 15 September 2021. ASP Ong Lee Peng (“ASP Ong”) testified that her review of the CCTV footage from the Restaurant showed the Complainant to have consumed one glass of Merlot house pour and about nine glasses (including one tasting portion) of Marrenon Orca wine. ¹⁵⁷ In the course of investigations, ASP Ong was able to establish that a standard portion of wine – as poured by the Restaurant staff – was about 100ml–125ml, while a tasting portion “would be lesser than a standard portion”. ¹⁵⁸ Having reviewed the CCTV footage from the Restaurant, ASP Ong’s observation was that the Complainant “either finished or almost finished her glass” before it was refilled. ¹⁵⁹ Through her investigations, ASP Ong was also able to establish that the alcohol concentration of the Merlot house pour was 14%, while the alcohol concentration of the Marrenon Orca was 15%. ¹⁶⁰

56 Based on the above evidence, ASP Ong also calculated the pure ethanol content in the following drinks:

(a) One glass of Merlot house pour of 125ml: 17.5ml of pure ethanol. ¹⁶¹

(b) One glass of 100ml of Marrenon Orca wine: 15ml of pure ethanol. ¹⁶²

(c) Eight glasses of 100ml of Marrenon Orca wine: 120ml of pure ethanol. ¹⁶³

(d) One bottle of 750ml of Marrenon Orca wine: 112.5ml of pure ethanol. ¹⁶⁴

57 As noted above at [14], analysis of the blood specimen provided by the Complainant at 4.58am on 16 September 2021 showed her blood alcohol concentration at that time to be 82 mg/100ml. ¹⁶⁵ Prof Teo of the Forensic Medicine Division at the HSA was called as an expert witness to opine on the Complainant’s likely blood alcohol concentration at the time of the incident on 15 September 2021.

58 In the interests of clarity, I highlight five points about Prof Teo’s evidence. First, it should be noted that Prof Teo’s evidence was that the terms “blood alcohol concentration”, “blood alcohol level” and “blood ethanol level” were used interchangeably. ¹⁶⁶ The Defence did not dispute this. For consistency and ease of reference, the term “blood alcohol concentration” (“BAC”) is used in these written grounds.

59 Second, in calculating the various likely BAC values, Prof Teo employed – in the alternative – the “backward calculation” method and the “forward calculation” method. In examination-in-chief, Prof Teo explained that the backward calculation method involved “trying to calculate … a BAC in the past” using a known BAC at a specific point in time. ¹⁶⁷ In the present case, this would mean taking, as a starting point, the Complainant’s BAC of 82 mg/100ml as at 4.58am on 16 September 2021 and then, assuming a certain hourly rate of elimination of alcohol from the bloodstream, working backwards to derive an estimated value for the Complainant’s BAC at a point in time prior to 4.58am on 16 September 2021. The “forward calculation” method, on the other hand, involved taking, as a starting point, the number of drinks ingested by the individual in question, and applying an algorithm (the “Widmark equation”) to derive an estimated BAC at a later point in time after the consumption of the last drink. ¹⁶⁸ In the present case, Prof Teo was initially asked by the Prosecution to assume that the Complainant had consumed seven standard drinks. In this connection, as Prof Teo explained in his second report dated 19 June 2023, a “standard drink” is a “hypothetical alcoholic beverage which contains a defined fixed amount of alcohol”. ¹⁶⁹ Generally speaking, a standard drink “can be said to contain about 8g to 10g of ethanol”; and roughly, “1ml of pure ethanol is about 0.79g of ethanol”, which would mean that “10g of ethanol is equivalent to about 12.66 ml of ethanol”. ¹⁷⁰ In the context of the forward calculation method, one standard drink would thus contain 12.7ml of pure ethanol (rounding up from 12.66 ml); and an assumed quantity of seven standard drinks would translate into 88.9ml of pure ethanol.

60 Third, it should be noted that Prof Teo prepared several reports. His first report, dated 13 November 2021, used the “backward calculation method” to derive the Complainant’s likely BAC at certain points in time on the night of 15 September 2021. ¹⁷¹ His second report, dated 19 June 2023, used the “forward calculation” method to derive the Complainant’s likely BAC at certain points in time on 15 September 2021. ¹⁷² Shortly thereafter, he prepared a corrigendum of the second report dated 21 July 2023 to correct some errors in that report. ¹⁷³ Subsequently, on 6 September 2025, he also prepared a corrigendum of his first report to correct errors in that report. ¹⁷⁴ The final, corrected versions of his first and second reports are found in exhibit P5 at P5-4 to P5-12 and at P5-13 to P5-17 respectively.

61 Fourth, it should also be noted that although Prof Teo was initially asked to assume (for the purposes of the “forward calculation” method in his second report) that the Complainant had consumed seven standard drinks (and thus 88.9ml of pure ethanol), he was asked in examination-in-chief to perform additional “forward calculations” in two other alternative scenarios: one in which the total amount of pure ethanol consumed was 137.5ml and another in which the total amount of pure ethanol consumed was 130ml. The Prosecution explained that while there was no “absolutely reliable evidence as to how much was drunk” by the Complainant, these two other alternative scenarios were based on “a more accurate estimate” of the amount of wine consumed by the Complainant, based on what could be observed from the CCTV footage as well as the Complainant’s own testimony. ¹⁷⁵ The scenario involving 137.5ml of pure ethanol took into account ASP Ong’s evidence that in her review of the CCTV footage from the Restaurant, she observed the Complainant consuming one glass of Merlot house pour with an alcohol concentration of 14% and nine glasses (including one tasting portion) of wine with an alcohol concentration of 15% (see [55] above). The scenario involving 130ml of pure ethanol, on the other hand, was based on the Complainant’s unchallenged testimony that of the two bottles of Marrenon Orca wine ordered on the night of 15 September 2021, she estimated that she herself had consumed “at least one bottle”. ¹⁷⁶ In this connection, I was satisfied that there was no prejudice to the Accused, as the Defence had nearly a month in which to review the additional calculations prior to cross-examining Prof Teo.

62 Fifth, on the issue of how quickly alcohol might be eliminated from an individual’s bloodstream, Prof Teo testified that various studies had shown “a wide range” of elimination rates which could vary from 10mg/100ml per hour to 35 mg/100ml per hour. ¹⁷⁷ Prof Teo cited medical literature in which it was stated that “[a]s a generalisation, it has traditionally been assumed that blood alcohol declines after the peak is reached at the rate of around 15 milligrams per hour” ¹⁷⁸ (“peak BAC” being defined as “the highest level” that one’s BAC would reach if one drank alcohol and then stopped drinking). ¹⁷⁹ Prof Teo explained that “two different persons may have two different elimination rates” and that even the elimination rate of “the same person” may vary “from time to time”, ¹⁸⁰ but that the elimination rate of 15 mg/100ml per hour was an “average” rate which usually applied to “naïve drinkers … [who] have never drunk alcohol” or “social drinkers, that means they drink small amounts of alcohol, maybe in the region of one to two glasses of wine in a social situation in each event”. ¹⁸¹ Compared to “naïve” drinkers and social drinkers, regular drinkers who drank alcohol every day or heavy drinkers who drank the equivalent of five to seven standard drinks daily would have higher elimination rates. ¹⁸²

63 In the course of his testimony at trial, Prof Teo produced calculations estimating the Complainant’s BAC at 9.23pm on 15 September 2021 (the undisputed time of arrival at her block of flats) based alternatively on the backward calculation method and the forward calculation method, and using three different assumed alcohol elimination rates (10mg/100ml per hour, 15mg/100ml per hour, and 35mg/100ml per hour). ¹⁸³ A table setting out Prof Teo’s calculations was admitted in evidence as exhibit P5B. I reproduce this table below:

64 Having produced the above calculations, Prof Teo testified that there were two factors which could affect the BAC figures derived from these calculations. First, his calculations assumed that the Complainant had consumed the alcohol on an empty stomach. ¹⁹⁷ On the other hand, if she had eaten food while drinking the alcohol, then the BAC values in the above table would “probably be an overestimate of the true BAC”. ¹⁹⁸ This was because if an individual ate food while drinking the alcohol, his or her body would take a longer time to absorb the ethanol from the stomach, particularly if the food in question was “very high in protein and fat” ¹⁹⁹ – as compared to an individual drinking alcohol on an empty stomach. This meant that an individual who ate food while drinking alcohol would take a longer time to reach peak BAC, and his or her peak BAC would also be lower – as compared to an individual drinking alcohol on an empty stomach. ²⁰⁰ Prof Teo cautioned, however, that it was “not possible to really quantify exactly … how much later and how much lower”. ²⁰¹ At one point, he suggested that there might be a difference of “50 to 100mg/100ml” between the calculated BAC of an individual assumed to be drinking on an empty stomach and the actual BAC if the same individual ate while drinking the same amount of alcohol. However, he cautioned that these suggested figures were simply “an assumption”, and that there was no scientific basis for them. ²⁰²

65 The second assumption underlying the calculation of the BAC values in the table above related to the length of time taken for the consumption of the alcohol. In calculating the above BAC values, Prof Teo assumed that the alcohol was “ingested over a relatively short period of time, in the region of 15, 30 minutes”. If, on the other hand, the alcohol in question was consumed over a period of around three hours (as per the facts of the present case), this “would also lead to a lower peak in the BAC”. ²⁰³ Prof Teo was unable to say exactly how much lower the peak BAC would be in a scenario where the Complainant consumed the alcohol over three hours. ²⁰⁴

66 Having made the above qualifications to his evidence, Prof Teo did proceed to suggest that one way to obtain a “very conservative estimate” as to how much lower an individual’s true peak BAC could be in a scenario where the alcohol was consumed in a three-hour period might be to “minus 45” from the calculated peak BAC figure, on the basis that the individual in question would be eliminating the alcohol at the “traditional elimination rate” of 15 mg/100ml per hour. ²⁰⁵ Noting that the calculated peak BAC figure would have been derived on the assumption that the individual drank the alcohol over a short period of time (eg, half an hour), Prof Teo stated that his suggestion was a “proxy method” for estimating what the peak BAC might be if the same individual drank the same amount of alcohol over three hours. ²⁰⁶ In cross-examination, Prof Teo was asked for his comments on an article, John Searle, “Alcohol calculations and their uncertainty” (2015) 55(1) Medicine, Science and the Law 58, ²⁰⁷ which – according to the Defence – posited a “dilution model” for “calculat[ing] a BAC level where [one would] have to take into consideration the time at which the drinking session begins”. ²⁰⁸ Prof Teo’s evidence was that the “dilution model” was an attempt to account “for how many hours the alcohol has been drunk and then factor in the elimination”, but that there was “no scientific basis to say that this is a correct way of doing it”. ²⁰⁹

67 In re-examination, Prof Teo also clarified that the suggested subtraction of 45mg (based on an elimination rate of 15mg/100ml per hour) assumed that most of the alcohol was consumed at “the beginning of the drinking session”. ²¹⁰ He posited that if, instead, the alcohol were consumed steadily over three hours, “a midpoint would probably be a reasonable estimate”. ²¹¹ Using the BAC figure of 146mg/100ml in the table above (derived from the forward calculation method and premised on seven standard drinks having been consumed) as an example, the “midpoint” BAC would be the midpoint of the range of figures between 146 and 101 – the latter being derived by subtracting 45mg from the figure of 146 mg/100ml. In other words, assuming the Complainant had steadily consumed seven standard drinks of 12.7ml of pure ethanol each over three hours, Prof Teo’s estimation was that her BAC would be “roughly in the range of 120-plus” mg/100ml. ²¹²

68 Finally, Prof Teo also provided three extracts from medical literature showing the general spectrum of behaviour expected from persons at various BAC levels. ²¹³ The information set out in these extracts was not disputed by the Defence at trial; and for ease of reference, copies of the three extracts are attached to these written grounds as Annex 1, Annex 2 and Annex 3 respectively.

69 In his testimony, Prof Teo went through the range of behaviour to be expected at certain BAC levels. For example, referring to the extract at Annex 1 from Pekka Saukko & Bernard Knight, Knight’s Forensic Pathology (CRC Press, 4th Ed, 2013) (“Knight’s Forensic Pathology”) at p 584, and taking the BAC value of 195.7mg/100ml (derived from the backward calculation method and premised on an elimination rate of 15mg/100ml per hour) from the above table, Prof Teo noted that an individual with such a BAC would be expected to exhibit the range of behaviour applicable at a BAC range of 150 to 200 mg/100ml, ²¹⁴ ie, “obvious drunkenness, nausea, staggering gait”. ²¹⁵ This was explained by Prof Teo as: ²¹⁶

70 Dr Mak, a psychiatrist with the IMH, was called as the Prosecution’s second expert witness. He produced two reports: a first report dated 25 October 2023, ²¹⁷ and a supplementary report dated 3 October 2025. ²¹⁸ The first report was prepared after an interview which Dr Mak conducted with the Complainant on 23 October 2023 and contained, inter alia, information provided by the Complainant about her personal background, drinking history, relationship with the Accused, and the incident of alleged rape on 15 September 2021. The supplementary report contained, inter alia, responses by Dr Mak to the opinions expressed by the Defence’s expert witness, Dr Jacob Rajesh, in the latter’s report dated 4 September 2025. ²¹⁹ In preparing his reports, Dr Mak had access not only to the information provided by the Complainant, but also to the CCTV footage from the Restaurant, Vivocity and the Complainant’s HDB block; the audio recording from the Accused’s in-car dashboard camera; Dr Han’s medical report; Dr Teo’s expert reports; and the various reports from the HSA Forensic Medical Division. Dr Mak’s evidence dealt with three main areas: the effects of alcohol – generally speaking – on the behaviour of individuals; his opinion as to the Complainant’s likely BAC level at the time of the incident and his observations as to the effects of alcohol on the Complainant; his analysis of the framework to be used for assessing an individual’s capacity to consent to an activity and his comments on how this would apply in the Complainant’s case in terms of her capacity to consent to sexual activity at the material time.

71 Using the table from Knight’s Forensic Pathology (Annex 1) for illustration purposes, Dr Mak explained that the expected behavioural effects of alcohol set out in this table were premised on the individual in question being a “casual” or “social” drinker, ie, “a person who drinks on social basis … with his or her friends, but not on a habitual and heavy basis”. ²²⁰ Such an individual would “expect to see a larger degree of … symptoms within a specific range”, ²²¹ whereas a “heavy and habitual drinker” (ie, a person who drinks alcohol on a daily basis and may fulfil the diagnostic criteria for alcohol use disorder) “may not exhibit the large degree of symptoms” set out for the various BAC ranges in Annex 1.

72 Elaborating on the general behavioural effects of alcohol, Dr Mak noted that alcohol had “a global effect on the brain”, which included “impairment of the cerebellum which is involved in coordination and balance”, as well as effects on other parts of the brain, such as “in the frontal and parietal lobes which are involved in attention, memory and executive functioning”. ²²² In respect of executive functioning, this related to decision-making and involved the prefrontal cortex. When an individual consumed alcohol, the prefrontal cortex would be impaired, which would in turn affect the individual’s capacity to weigh the benefits and potential consequences before coming to a decision. ²²³ At the same time, Dr Mak highlighted that the threshold for whether an individual had mental capacity to make a decision would differ, depending on the type of decision that needed to be made and its potential impact and consequences. In other words, at a certain BAC level, an individual might be said to have the mental capacity to make simple decisions – eg, whether to drink a cup of water – whereas at the same BAC level, the same individual might not have the mental capacity to make complex decisions such as legal or financial decisions. ²²⁴

73 Specifically in respect of alcoholic blackouts, Dr Mak testified that this was a phenomenon observed in “people who have been intoxicated to a significant level … [who] may have difficulty remembering certain details, certain events that may have occurred during the period of intoxication”. ²²⁵ Per Dr Mak’s evidence, alcoholic blackouts “occur at higher levels of intoxication”: in terms of BAC levels, scientific literature “tends to point to” alcoholic blackouts occurring at BAC levels of 140mg/100ml to 200mg/100ml. ²²⁶

74 Dr Mak explained that there were two types of alcoholic blackouts. The first – fragmentary blackouts – referred to the affected individual being able only to remember certain details and events which might have occurred. The second – en bloc blackouts – referred to a complete loss of memory of events which might have occurred over a discrete time period. ²²⁷ Further, as Dr Mak noted, “alcoholic memory blackout” was a “separate phenomenon” which “[did] not relate to the matter of mental capacity”, as the “mechanism” behind alcoholic blackouts was “an impairment in encoding of long-term memory”. An affected individual might appear to be functioning normally at the material time – eg, walking unsupported, making telephone calls, carrying on an apparently lucid conversation – and yet such an individual might at the same time have an alcoholic memory blackout in terms of not being able to encode long-term memories. ²²⁸ There were generally no external signs of an alcoholic blackout that other persons would be able to observe: as Dr Mak put it: ²²⁹

75 As to the Complainant’s likely BAC level at the time of the incident, Dr Mak opined in his first report that her BAC at the material time would likely have been “close to the level of 0.2% (200mg/100ml)”. ²³⁰ At trial, Dr Mak explained that he formed this view on the basis, firstly, of Prof Teo’s BAC calculations. ²³¹ Specifically, he noted that using the backward calculation method and applying an elimination rate of 15mg/100ml, ²³² Prof Teo had estimated the Complainant’s BAC to be 195.7mg/100ml as at 9.23pm on 15 September 2021 (ie, at the time of arriving at her block of flats) (see above at [63]). In Dr Mak’s view, the backward calculation method was “the most appropriate to be used in this matter” because it involved “an objective measure which [was] in the form of a blood ethanol level which had been obtained from the [Complainant]”. ²³³ Like Prof Teo, Dr Mak also referenced medical literature which indicated that generally, where food was ingested with alcohol, peak BAC “may be expected to occur at a later point of time” due to the ability of the food to “act as a sponge of sorts” for the alcohol. ²³⁴ In the Complainant’s case, Dr Mak opined that her behaviour as seen on CCTV footage suggested that her BAC would likely have approached peak level at around the time she was outside the lift lobby. This was because the footage showed that she was generally able to walk unsupported after leaving the Restaurant at around 8.30pm, whereas by the time she reached her lift lobby around 53 minutes later, she had “developed features in keeping with a staggering gait, with swaying of her torso, toppling forward and requiring assistance from the Accused to be physically stabilised”. ²³⁵

76 Second, according to Dr Mak, other sources of information apart from Prof Teo’s calculations supported the view that the Complainant’s BAC at the material time was likely close to 200mg/100ml. ²³⁶ The Complainant’s own account of the incident described features such as “alcoholic memory blackout phenomenon and also the impairment in her consciousness … that she had been drifting in and out of consciousness” – these being features “consistent with significant level of intoxication”. ²³⁷ In cross-examination, Dr Mak explained that it was not the role of a psychiatrist to determine whether an alleged victim’s account of events was true, and that he had to “note whether [the Complainant’s] reported symptoms [were] … in keeping with other sources of information” such as “observed” or “objective” findings. ²³⁸ In particular, there was evidence that the Complainant had “vomited in the car” and that CCTV footage from her lift lobby showed her exhibiting “a staggering gait” – both these things being features of “a BAC range at around the level of 0.2%”. ²³⁹

77 In examination-in-chief, Dr Mak also testified that the Complainant’s account of her condition at the time of the incident – including her description of having suddenly realised she was being raped and of “drifting in and out of consciousness” – was indicative of her having been in a state of stupor at the material time. ²⁴⁰ Dr Mak described “stupor” as being “a state of near unconsciousness where an individual is poorly responsive and may be only roused briefly by strong stimuli (such as loud noises or pain) with a tendency for the individual to drift back into near-unconsciousness”. ²⁴¹ Elaborating on this in cross-examination, Dr Mak stated that when it came to “impaired consciousness or what we know generally as drowsiness”, there was “a continuum”, with stupor being “towards the end of this continuum before a person progresses into a comatose state … known as ‘coma’ when a person is not rousable”. ²⁴²

78 Further, according to Dr Mak, it was medically possible for someone who was in a state of stupor as a result of alcohol intoxication – such as the Complainant – to regain consciousness and not fall back into unconsciousness. ²⁴³ Asked whether the Complainant could have been able to “not just wake up, but also call the police, text the accused, [call] her boss” if she had indeed been at “the higher end of the continuum” of impaired consciousness, Dr Mak’s evidence was that she “may have been able to perform these actions”, but that there “would still have been some evidence of impairment in terms of the quality that she carrie[d] out these actions with [sic]”. ²⁴⁴ In this connection, he noted that there appeared to be a degree of impairment in the quality of some of the Complainant’s actions. For example, in respect of the “999” emergency call, Dr Mak noted that the audio-recording of the call showed that it was “very difficult” for the “999” operator to obtain the Complainant’s address despite this being a “relatively straightforward piece of information”. ²⁴⁵ Dr Mak also observed that the BWC footage of the Complainant’s interaction with the first responder police officers and her actions in subsequently calling her boss showed “some degree of impairment” in the quality of these actions: inter alia, she was “unclothed and also in a very emotionally labile state”. ²⁴⁶ As for the text message sent by the Complainant to the Accused in which she stated “You are too much”, Dr Mak noted that it appeared to show “an understanding that she had felt wronged and she had vented anger towards the accused”, but added that he could not glean much from this message since it “only involve[d] four words”, and that actions such as getting hold of her mobile phone and locating the Accused’s contact number would have been “fairly simple and routine” actions. ²⁴⁷

79 Having assessed the Complainant’s likely BAC at the time of the incident to have been close to 200mg/100ml and having considered the evidence available of her behaviour, Dr Mak opined that she would likely not have had the mental capacity to consent to sexual intercourse at the material time. He explained his position by first setting out in his second expert report an analytical framework for assessing mental capacity for consent (“Analytical Framework”). ²⁴⁸ There were two main stages to this analytical framework:

(a) The first stage – the diagnostic test – would be to assess “if an impairment of the mind exist[ed]” in respect of the individual in question. Impairment of the mind could be caused by a number of conditions – including, for example, psychiatric disorders and neurocognitive disorders (dementia), or temporary conditions such as alcohol or substance intoxication, or delirium from acute mental illnesses.

(b) The second stage – the functional test – would involve consideration of the individual’s ability to:

(i) Understand the information relevant to the decision.

(ii) Retain that information.

(iii) Use or weigh that information as part of the process of making a decision.

(iv) Communicate his or her decision.

80 In setting out the second stage of the Analytical Framework, Dr Mak stated in his report that the four limbs of the functional test which he had outlined were those set out “as per the Mental Capacity Act 2008”; and that while he “acknowledge[d] that this [was] a criminal case … the principles of Mental Capacity [were] widely applied across broad contexts when psychiatrists [were] called upon to comment on the matter of consent”. ²⁴⁹ Dr Mak also stressed that mental capacity was dynamic (ie, time-specific), in that an individual could change his or her decision about a matter at any point of time; further, that “the threshold for mental capacity to be met [would] differ according to potential for impact and consequences as a result of the action” (see [72] above). ²⁵⁰ In his evidence-in-chief, he elaborated that in his opinion, the threshold for mental capacity to consent to sexual intercourse would be “at a higher level” than that required for “a decision with regard to a very simple matter, such as asking for a glass of water”. He explained that this was because sexual intercourse was “not a simple decision” but a “deeply intimate act” with “potential consequences, such as the possibility of unwanted pregnancy, sexually transmitted diseases, to name just a few”. ²⁵¹

81 Applying the first stage of the Analytical Framework, Dr Mak opined that at the time of the incident on 15 September 2021, the Complainant’s mental capacity would have been impaired due to a state of alcohol intoxication. ²⁵² In forming this opinion, he was guided, firstly, by Prof Teo’s “backward calculation” estimate of the Complainant’s BAC as having been close to 200mg/100ml – specifically, 195.7mg/100ml – as at the time of arrival at her lift lobby on 15 September 2021 (see [75] above). That her “alcohol intoxication was severe and that she was likely to have been within a BAC range of 0.15 (150mg/100ml) to 0.2 (200mg/100ml)” was further attested to by the evidence of her having vomited, her staggering gait at the lift lobby, and her own account of events (which indicated that she had suffered from an alcoholic blackout and that she had been “[d]rifting in and out of consciousness”). Specifically, Dr Mak noted that the vomiting was “a feature within the BAC range of 0.2 to 0.3 [200 to 300mg/100ml]”; that the staggering gait was “a feature within the BAC range of 0.15 (150mg/100ml) to 0.2 (200mg/100ml)”; that alcoholic blackouts typically occurred “at a BAC level of around 0.2 [200mg/100ml]”; and that her account of “drifting in and out of consciousness” indicated “at the very least, drowsiness, which is a feature known to occur as individuals approach a BAC level of 0.2 [200mg/100ml]”. ²⁵³

82 In his evidence-in-chief, Dr Mak testified that an individual who was experiencing a BAC of around 200mg/100ml would be “significantly impaired” in “multiple domains” of the brain involved in matters relating to attention, memory and executive functioning – ie, matters relating to decision-making. Significant impairment in these areas would give rise to concerns about the individual’s “ability to understand and retain information, and to weigh up this information in order to come to a decision”. ²⁵⁴

83 Following from the conclusions drawn at the first stage of the Analytical Framework, Dr Mak opined that on applying the functional test at the second stage, the Complainant’s severe intoxication would have led to substantial impairment of her mental faculties in multiple cognitive domains such as attention, memory and executive functioning. These were the cognitive domains relevant to an individual’s ability to understand and retain information and to weigh this information in order to come to a decision. In addition, the Complainant’s account of “drifting in and out of consciousness” at the material time indicated that her ability to communicate changes to a decision she had made would have been affected. Significant impairment to these domains would raise “serious concerns” about the Complainant’s ability to fulfil the limbs of the functional test. In short, bearing in mind the higher threshold for the mental capacity required to decide to engage in sexual intercourse, an individual who was experiencing a BAC close to 200mg/100ml (such as the Complainant) was not likely to have the mental capacity to consent to sexual intercourse. ²⁵⁵

84 At the close of the Prosecution’s case, I found that there was sufficient evidence, which was not inherently incredible, to satisfy each element of the charge of rape. The Defence elected not to make any submissions at that juncture; and I therefore called on the Accused for his defence. He elected to give evidence and also called a factual witness (his wife) as well as an expert witness (Dr Jacob Rajesh).

85 I first summarise the Accused’s account of events at trial.

86 By way of background, the Accused testified that he had first come to know the Complainant “more than 10 years ago” when he was with his former company, [Company Z]. [Company Z] was a customer of [Company Y] where the Complainant was then working as a customer service staff tasked with accepting bookings. ²⁵⁶ It was in the course of a work-related conversation during this period of time that the two of them discovered that they shared the same birthday. ²⁵⁷

87 The Accused came into contact with the Complainant again sometime around end July 2021, when he emailed her to place a booking on behalf of his current company, [Company X]. The Complainant called him on her own mobile phone to clarify his booking. This was how he got her mobile number. ²⁵⁸

88 Subsequently, the Accused did not have much contact with the Complainant between early August and September 2021. He claimed, however, that the Complainant would “occasionally” text him, “asking [him] what [he] was doing and things unrelated to business”; ²⁵⁹ and that she was the one who “proposed coming out to celebrate [their] birthday” – a proposal to which the Accused agreed. This happened sometime around end-August to early September 2021. ²⁶⁰

89 According to the Accused, the Complainant was the one who decided that they should meet at a venue in Capital Tower. On 15 September 2021, she suggested changing the venue to Vivocity, in view of the rising number of COVID-19 cases; and they agreed to meet at 5.30pm at the Restaurant. On the same day, the Complainant also sent the Accused a “Daruma” toy figurine as a gift. ²⁶¹

90 The Accused recalled that he ordered a beer when he arrived at the Restaurant at 5.30pm on 15 September 2021, while the Complainant (who arrived shortly after) ordered the red wine which was the “house pour”. The Accused was able to recall that as there was a one-for-one promotion for the house pour wine that day, he himself had the other glass of house pour red wine. ²⁶² They both ordered food, with the Complainant having fish and chips while the Accused had lamb chops, as well as a bottle of wine. ²⁶³

91 In examination-in-chief, the Accused testified that he and the Complainant conversed on a variety of topics in the course of dinner. Inter alia, they spoke about how he had come to establish [Company X]; and he also “casually” asked her if she was interested in a “pricing role” that was then “open for hiring” in [Company X]. According to the Accused, it was in the course of discussing the potential job scope and salary that the Complainant asked him whether it was possible “to not include the increment [in her salary] into CPF” and to give her the increment “through claims or cash” instead. The Complainant explained that “her mother was in a nursing home and needed subsidies” for which the Complainant would not be eligible if her income exceeded a certain amount. The Accused replied that this could not be done, as he was “not the major shareholder, and everything had to be in black and white”, with all allowances declared to CPF. ²⁶⁴

92 At about 7.01pm (the time shown on the CCTV footage from the Restaurant), the Accused walked outside the Restaurant to smoke a cigarette. The Complainant came with him and even took “some puffs of [his] cigarette”, telling him that she “would need to smoke” if she “had some drinks”. On returning to the dinner table, they chatted about other topics such as the Complainant’s marital history, the Accused’s family situation, and numerology. They finished the first bottle of wine as they were chatting and went on to order a second bottle. ²⁶⁵ In this connection, the Accused disputed the Complainant’s evidence that she had tried to stop him from ordering a second bottle of wine: he claimed that it was the Complainant, on the contrary, who had asked if he could still drink and who had said that she “could still drink too”. ²⁶⁶ At some point, the Accused walked out of the Restaurant to smoke another cigarette, and the Complainant again followed him. This time, he offered her a cigarette; and as they were smoking, they chatted about “the clubs that [they] used to frequent” in the past. According to the Accused, the Complainant spoke about how she frequented clubs such as Dragonfly and Shanghai Dolly when she was young, and he teased her about being “a true chiongster”. ²⁶⁷

93 At about 7.54pm (the time shown on the CCTV footage from the Restaurant), the Accused and the Complainant returned to the dinner table where they continued to eat and drink. The Accused’s evidence in examination-in-chief was that by this stage, “the whole night felt like two people who had just started dating”: he and the Complainant were feeding each other, throwing tissue at each other, sharing jokes and having “a lot of fun”. The Complainant also “grabbed [his] cup, first wanting to drink from [his] cup and then wanting to distribute the wine among the two glasses”. The Accused felt that it was “like [they] were in love … teasing each other, having fun the whole time”. ²⁶⁸ In fact, his recollection was that by the time they left the Restaurant at about 8.30pm, “the two of [them] were quite passionate”: his “hand was on her shoulder and she did not push it away”. ²⁶⁹ According to the Accused, it was after they left the Restaurant that he offered to send the Complainant home: there was never any mention of his getting a valet to send the two of them home.

94 At trial, the Accused was also brought through the CCTV footage which showed him and the Complainant leaving the Restaurant and walking through Vivocity. In offering his own account of this part of the evening, the Accused’s evidence was that the Complainant’s attempts to shrug him off and to push him away – as seen from the CCTV footage – were mainly due to her concerns about there being “so many people” around them, as Vivocity was “a hot area where many people who work[ed] in the … industry [would] visit after work”. ²⁷⁰ Nevertheless, the Accused described the two of them feeling “as though [they] were in love without even realising it”: ²⁷¹ his evidence was that whenever they were “in an area where there was not a lot of people, [his] hand would interlock with hers, and she would not push [his] hand away. ²⁷²

95 The Accused was also brought through the audio-recording of the in-car conversation between him and the Complainant. Inter alia, he recalled the Complainant saying at one point that she “wanted to vomit and needed tissue”, whereupon he “handed her tissue”. ²⁷³ Following this, the Complainant asked for a plastic bag, but as the Accused did not have a plastic bag, he handed her a tissue box. According to the Accused, however, she did not vomit. Indeed, the Accused alleged that she proceeded to hold on to his left arm as he was driving, placed her head on his shoulder, and kissed his left cheek. ²⁷⁴ Further along in the car journey, while she was still “lying on [his] shoulder”, he “stopped the car and turned around, and … asked if she was okay”: according to the Accused, it was at this point that they “kissed with [their] tongues” for the first time in the car. A few minutes after this episode, there was a second, longer episode of kissing “when the tongue was involved”. It was also at this point that the Complainant said in a “coquettish” voice, “You made me drunk”, to which the Accused replied, “It’s okay, I’m here”. ²⁷⁵

96 It should be highlighted that in the course of his testimony, the Accused remarked several times that he disagreed with parts of the transcript prepared by the police of the in-car audio recording. He repeatedly referred to a transcript which he said he himself had prepared after listening to the audio-recording with his “gaming headset” on. ²⁷⁶ The Accused’s transcript of the in-car audio recording was not served on the Prosecution prior to the trial, nor was it adduced in evidence during his examination-in-chief. It was only after the Prosecution had completed its cross-examination of the Accused that his counsel applied for leave to put in the said transcript as a defence exhibit. ²⁷⁷ In the interests of fairness to the Accused, leave was given for his transcript to be admitted in evidence (exhibit D4), subject to the Prosecution being permitted to further cross-examine him on this new document. I will say more about this document in the course of these written grounds.

97 As to the events which occurred upon arrival at the Complainant’s block of flats, the Accused testified that as he was turning into the car park of the Complainant’s block, she “suddenly sat up”; and when he asked her “[w]hat happened”, she replied, “Baby, I want to vomit”. ²⁷⁸ He therefore quickly parked the car, whereupon she alighted. When the Accused went to the other side of the car to check on her, he found her “squatting on the pavement … [holding] the tissue box in her hand” and making retching noises. He did not check inside the tissue box to see if she had vomited, but could see that there was no vomit on the ground. ²⁷⁹ He then asked if she needed him to send her upstairs, whereupon she nodded. At trial, the Accused asserted that in sending the Complainant up to her flat, he had simply wanted to “take care of her”; and he had no expectation that there would be sex or physical intimacy when they got to her flat. ²⁸⁰

98 The Accused further testified that as he and the Complainant walked underneath a sheltered walkway and cut through a void deck, the latter was leading the way as her block of flats was “a very old block” with “many lifts”, and he did not know which lift to take to get to her flat. ²⁸¹ He recalled holding onto the Complainant while they were walking; and he continued trying “to hold her and kept asking whether she was okay” even after she “brushed [his] hands off at one point, saying, ‘I’m not drunk, you don’t need to hold on to me’”. ²⁸² In cross-examination, the Accused explained that although the Complainant had claimed not to be drunk and “could still walk”, he “was afraid that she would trip and fall”. ²⁸³

99 When asked whether the Complainant was by then more drunk than him, the Accused stated that he could neither “agree nor disagree with this statement”. ²⁸⁴ Further, he declined to confirm that the Complainant was able to “walk stably by herself” and instead gave a number of responses which eventually ended in his stating that he was unable “[a]t that time” to “assess” whether she could walk in a straight line. ²⁸⁵ When the relevant CCTV footage was played in court by the Prosecution, however, and it was pointed out that the footage showed him with his arm wrapped around the Complainant’s back and his hand holding onto her upper arm at one point, the Accused agreed that he was physically supporting her at this point because she was not walking steadily. ²⁸⁶ He agreed, moreover, that the footage showed the Complainant stumbling forward on what appeared to be flat ground illuminated by ceiling lights; that she was swaying back and forth as they stood waiting for the lift at the lift lobby; that she stumbled forward again towards the lift doors while they were closed; and that he physically supported her both at the lift lobby and inside the lift. ²⁸⁷

100 Once they were inside the lift, according to the Accused, the Complainant was the one who pressed the lift buttons for her floor; and when the lift doors opened, she was able to walk to her flat and to open the metal gate and main door of her unit. ²⁸⁸ She put her shoes in the shoe cabinet, switched on a light in the living room, and walked to the toilet in the kitchen area. When the Accused followed her, he saw her squatting by the toilet bowl, with her fingers in her mouth. He then patted her on the back. He did not know whether she actually vomited, but he recalled that the toilet was not flushed. ²⁸⁹

101 Following this, the Complainant walked to her bedroom, where she sat on the bed and told the Accused that she was “very tired”. She then “fell back onto the bed”. ²⁹⁰ It was at this point that the Accused walked over to the bed, and bending down next to the Complainant, told her, “It’s very late, I have to go, you have already arrived home”. ²⁹¹ At this point, according to the Accused, he was “propped” up on the bed with his hands on each side of the Complainant’s body and his legs “dangling” off the bed. ²⁹²

102 Having told the Complainant that he had to go, the Accused was about to push himself up from the bed when she grabbed his forearm. ²⁹³ Per the Accused’s account of events, the Complainant opened her eyes, their eyes met, and they “kissed with the tongue involved”. ²⁹⁴ Their hands were “all over each other”. ²⁹⁵ The Accused recalled unzipping the Complainant’s dress and was certain that she “did help [him] to undress herself”, although he could not be certain whether the dress was removed from below or from the top. ²⁹⁶

103 In evidence-in-chief, the Accused described in detail the ensuing sexual activity, which – according to him – involved him, inter alia, kissing the Complainant’s neck and breast and licking her nipples while they continued to kiss and touch each other. While she “was touching [his] lower body”, he “became erected”. ²⁹⁷ He recalled that she “helped [him] to undress [herself]” and that he “pulled her bra strap down”, but was certain that he “was not the person who removed her bra completely”. ²⁹⁸ He also recalled that she “lifted her butt and removed the underwear until her feet”, and he “helped to remove the underwear totally” before penetrating her. ²⁹⁹ He claimed that as he did so, she “was moaning out in satisfaction”; that “[t]he entire process was … very slow”; and that as his “body motion … accelerated”, she “was moaning in greater satisfaction … and with greater pleasure”. When he eventually ejaculated, he did so on “the lower part of [her] body”. ³⁰⁰

104 Following his act of ejaculation, the Complainant stood up and left the bedroom, but the Accused did not follow her and instead started putting on his clothes. ³⁰¹ The Accused’s evidence was that when the Complainant returned to the bedroom: ³⁰²

105 In cross-examination, the Accused stated that he was able to tell from the Complainant’s expression and the tone of her voice that she was “furious”. ³⁰³ He could not tell exactly why she was “furious” or whether she was “kidding” when she said she would call the police if he left. ³⁰⁴ After leaving the Unit and while returning a missed call from one of his customers, he saw that the Complainant called him several times as he was talking to the customer, but he did not pick up her calls. ³⁰⁵ He then received a text message from her which stated, “You are too much”. It was then that he ended the tele-conversation with his customer and called the Complainant back. When she failed to pick up his call, he “thought that she was throwing tantrums again” and continued driving. ³⁰⁶ He claimed that midway through his journey home, while listening to “a very emotional song” in the car, he “contemplated whether [he] should turn around” to “look for [the Complainant]”. ³⁰⁷ In the end, he “chose to return home” because he “would have no answers for [the Complainant] such as giving up [his] family members for her”. ³⁰⁸ He also testified that on reaching home, he deleted all his messages with the Complainant because his wife had the habit of checking his phone whenever he came home late. ³⁰⁹

106 At the conclusion of his evidence-in-chief, the Accused asserted that the entire sexual encounter with the Complainant was a consensual one. He claimed that if the Complainant had not held on to him that night as he was getting up from the bed, he would simply have left her flat. ³¹⁰ In cross-examination, he reiterated that the sexual intercourse with the Complainant was “very slow” and not at all forceful, and that she did not express any pain. He was also certain that she did not say “No” throughout the sexual encounter. ³¹¹ Further, according to the Accused, he “[did] not like to have sexual intercourse after drinking”. This was something his wife knew, and she would not initiate sex if she knew that he had been drinking outside “because she [knew] that [he] would ejaculate very quickly”. ³¹²

107 In the course of cross-examining the Accused, the Prosecution applied to impeach his credit pursuant to section 157 of the Evidence Act 1893 (2020 Rev Ed) (“EA”), in respect of alleged inconsistencies between his account of events at trial and the account given in his VRI statement of 16 September 2021, ³¹³ as well as the Case for the Defence (“CFD”) filed by him on 11 February 2025. ³¹⁴ My findings on the impeachment application are set out at [241]–[268] below.

108 The Accused’s wife was called as a factual witness for the purpose of corroborating his testimony about his sexual habits when drunk. The Accused’s wife testified that when the Accused was drunk, he would usually be “very lethargic”. She also stated that if there were to be any sexual intercourse when the Accused was drunk, she “would be the one taking the initiative” to “get him aroused”. ³¹⁵

109 Dr Jacob Rajesh (“Dr Rajesh”), a senior consultant psychiatrist from Promises (Winslow) Clinic, ³¹⁶ was called by the Defence as its expert witness on the issues relating to the effects of alcohol on individuals generally and on the Complainant specifically. He prepared two reports, one dated 4 September 2025 and the other dated 14 October 2025. ³¹⁷

110 I summarise below Dr Rajesh’s evidence on the following matters: the Complainant’s likely BAC at the time of the incident; the behavioural effects of alcohol, at various BAC levels, generally speaking; as well as the behavioural effects of alcohol observed specifically in respect of the Complainant.

111 On the subject of the Complainant’s likely BAC at the time of the incident, Dr Rajesh took the position in both his first report and his evidence-in-chief that he did not disagree with the range of BAC values calculated by Prof Teo in his first and second reports. ³¹⁸ In cross-examination, he also agreed that an elimination rate of 15mg/100ml per hour was an appropriate rate to use for “someone like the [Complainant], who [was] a social drinker”. ³¹⁹ At the same time, Dr Rajesh cautioned that “the calculations of estimated BAC [could] be imprecise”, as demonstrated by the fact that the BAC values calculated by Prof Teo using the forward calculation method were “significantly lower” than the BAC values obtained via the backward calculation method. ³²⁰

112 In his first report, Dr Rajesh opined that based on his “clinical findings”, the Complainant’s BAC at the time she reached her lift lobby on 15 September 2021 (ie, at 9.23pm) was possibly in the range of 130 to 150mg/100ml. ³²¹ By the term “clinical findings”, it appeared that Dr Rajesh was referring to the observations he made of the Complainant’s behaviour as seen in the CCTV footage from the Restaurant, Vivocity, and the void deck and lift lobby areas of the Complainant’s block of flats. In particular, in his first report, Dr Rajesh stated that he observed the Complainant walking “unassisted”, with “no evidence of unstable or staggering gait” when leaving the Restaurant, going to the Vivocity toilet, and going down an escalator with the Accused. ³²² He also opined that on arrival at her block, she appeared to be “walking normally with no gait disturbances” except for when she got to the lift lobby, where she was then seen “swaying while waiting for the lift”; and that she “did not manifest signs of incoordination as she was seen pressing the lift button for her unit inside the lift” – although he acknowledged that he was “unsure if she pressed the correct lift button”. ³²³ In his evidence-in-chief, Dr Rajesh added that in his view, the Complainant “did not appear to be unstable or unsteady on her feet inside the lift, which was a very short brief moment”, and noted, inter alia, that the Complainant’s conditioned statement showed that she was able to put her shoes in the shoe rack upon entering her flat as well as to realise “cognitively” the Accused’s presence in her flat. ³²⁴ As for the in-car audio recording, Dr Rajesh stated in his first report that having clarified with the Accused the “meaning” of the “conversations” in the car (which were in Mandarin), and having been supplied with an English translation thereof by defence counsel, he was of the view that “there was no evidence of slurred speech in the [Complainant]”, and that she was “able to maintain a conversation and respond adequately to the [Accused] in the conversation during the car journey home”. ³²⁵

113 In cross-examination, Dr Rajesh was referred to the table of updated BAC values calculated by Prof Teo during his testimony (exhibit P5B). It was explained to him by the Prosecution that in respect of the forward calculation method used in this table, the alternative quantities of 130ml and 137.5ml of pure ethanol which Prof Teo was asked to assume the Complainant had consumed were based on evidence given by other witnesses at trial. Having heard the Prosecution’s explanation, Dr Rajesh testified that it was “possible” that the Complainant’s BAC at the time of arrival at her lift lobby was higher than 130 to 150mg/100ml – but he asserted that it would have been “lower” than 219mg/100ml. ³²⁶ According to him, this was because the Complainant had consumed food together with the alcohol, which would tend to retard the absorption of the alcohol; and he cited a journal article in which it was stated that BACs in the case of alcohol ingested with food “may not reach a quarter of those achieved on an empty stomach”. ³²⁷ He acknowledged, however, that this statement was “more of a general description, from literature”, and that it did not provide a basis for determining – in the case of a specific individual such as the Complainant – how exactly the presence of food in the stomach would have affected the absorption of alcohol. In response to my question, he also acknowledged that one would not be able to state, specifically, that the Complainant would not have reached a quarter or more of the BAC value calculated for an individual drinking on an empty stomach. ³²⁸ He reiterated that his estimation of the Complainant’s likely BAC as having been in the range of 130 to 150mg/100ml was based “on the clinical manifestations” – in other words, on the clinical signs and symptoms that could be observed from available evidence. ³²⁹ Indeed, in his first report, Dr Rajesh stated that: ³³⁰

114 In his first report, Dr Rajesh stated that he agreed with the literature cited by Prof Teo on the different “clinical manifestations” exhibited by individuals at various levels of BAC (see the tables at Annex 1, Annex 2 and Annex 3 of these written grounds). ³³¹ Dr Rajesh also relied on an additional journal article adduced by the Defence; ³³² in particular, on a table in the article referred to by parties as “Dubowski’s table”. This was a table which set out – in somewhat greater detail than the three tables cited by Prof Teo – a list of the clinical signs and symptoms expected of individuals at various levels of BAC. A copy of this table is attached to these written grounds as Annex 4. It will be noted that Dubowski’s table sets out seven stages of alcohol influence and that the BAC ranges for these seven stages overlap: for example, the stage known as “excitement” corresponds to a BAC range of 0.09 to 0.25 (90mg/100ml to 250mg/100ml); the stage known as “confusion” corresponds to a BAC range of 0.18 to 0.30 (180mg/100ml to 300mg/100ml); and “stupor” corresponds to a BAC range of 0.25 to 0.40 (250mg/100ml to 400mg/100ml). In cross-examination, Dr Rajesh explained that Dubowski’s table provided for overlapping BAC ranges because “you can have overlapping symptoms”: he agreed with the Prosecution that it would be possible, for example, for someone to be at “the high end of confusion or the low end of stupor” and “in theory experience signs and symptoms from both of these categories”. ³³³

115 In respect of the stage known as “stupor”, Dr Rajesh highlighted in his second report that in Dubowski’s table, the clinical signs of stupor were said to occur “in the range of BAC between 0.25 and 0.40 (250mg/100ml and 400mg/100ml)”. ³³⁴ The various signs and symptoms of stupor were outlined in the table as:

116 Although Dubowski’s table stated that the clinical sign of stupor would generally occur in BAC ranges between 250mg/100ml and 400mg/100ml, Dr Rajesh relied on two of the three tables cited by Prof Teo (Annex 2 and Annex 3) in opining that the state of stupor would usually be seen at BAC levels above 300mg/100ml. ³³⁵ When queried by me at trial, he clarified that it was medically “not impossible” that an individual could reach a stage of stupor with a BAC level of 200mg/100ml, “especially if the 200 was reached quickly over a very short period of time”. ³³⁶

117 In his evidence-in-chief, Dr Rajesh also stated that a state of stupor in an intoxicated individual with a BAC of 300mg/100ml would last “at least 4 to 6 hours”, unless there was “medical intervention” whereby the individual was “taken to hospital and then assessed and then given appropriate supported treatment”. ³³⁷ Dr Rajesh’s evidence was that while an individual in a state of stupor could be aroused with loud noise or stimuli (eg, pain), such an individual would fall back into stupor once the noise or pain no longer existed, “[a]nd then the only way to come out of stupor is for the blood alcohol to start coming down over a period of time, which is 15, 20mg per hour and/or you’re taken to hospital and then you’re given appropriate treatment”. ³³⁸ Further, according to Dr Rajesh, it was “almost near to impossible for someone to be in a stupor state only for a few minutes”. ³³⁹

118 Nevertheless, Dr Rajesh accepted in cross-examination that there could be varying levels of severity for the state of stupor. As he explained: ³⁴⁰

119 In reply to the Prosecution’s questions in cross-examination, Dr Rajesh further acknowledged that the term “impaired consciousness” – as used in the description of “stupor” in Dubowski’s table – referred to a continuum of potential severities of impairment; and that there was no “minimum” number of signs or symptoms which must be experienced by an individual in order for a clinician to take the view that they were at a particular level of impairment. ³⁴¹

120 In respect of alcoholic blackouts, Dr Rajesh’s definition did not differ from Dr Mak’s. Dr Rajesh agreed that there were two types of alcoholic blackouts – complete (en bloc) or partial (fragmentary). ³⁴² He also agreed that a blackout was “the result of alcohol-induced disruption of memory formation” – in particular, from the effects of alcohol on the encoding process in the formation of memories; further, that someone experiencing a blackout would still be able to carry out normal activities, including “activities of daily living”, but would be “unable to remember events, which could be fragmentary or total loss of memory during the drinking episode”. ³⁴³ Dr Rajesh further opined that “[a] rapid rate of increase in blood alcohol concentration (BAC) is most consistently associated with the occurrence of an alcoholic blackout”, while noting that “not all subjects who drink rapidly and excessively experience blackouts”. ³⁴⁴

121 As to the effects of alcohol on the Complainant, given Dr Rajesh’s definition of stupor, he disagreed with Dr Mak’s opinion ³⁴⁵ that the Complainant was likely in a state of stupor between 9.23pm to 9.49pm on the day of the incident. ³⁴⁶ In his second report, Dr Rajesh summarised his reasons for disagreeing with Dr Mak. In gist, Dr Rajesh was of the view that the Complainant was “able to recollect most of the events around the material time”, as well as to perform actions such as pressing the lift button, opening the door of her flat, putting her shoes on the shoe rack, and telling the Accused that she wanted to vomit. She was also able to go to the kitchen toilet to vomit. ³⁴⁷ In respect of the actual sexual intercourse, Dr Rajesh found it significant that in the Complainant’s conditioned statement, she had stated that she “told the accused to stop as [she] did not want him to do that to [her] and [she] had not allowed him to insert his penis inside [her]” ³⁴⁸ : in his view, it showed that the Complainant “was aware of what [was] happening and she was able to communicate … her decision of not wanting to be penetrated”. ³⁴⁹ Following the alleged offence, the Complainant was able to call “999” and to give her address to the operator, to call her boss, and to text and call the Accused. When the police arrived at her door, she was able to ask for a female officer.

122 Having regard to the above observations, Dr Rajesh opined that the Complainant could not have been in an unconscious or near-unconscious state at the time of the incident. ³⁵⁰ Instead, according to him, her behaviour suggested a BAC of “between 0.09 which is 90mg to 0.25, 250mg”. ³⁵¹ He acknowledged that this was “a very wide range” of BAC values and that such a range of BACs would put an individual somewhere between the state of “excitement” and that of “confusion” (as defined in Dubowski’s table at Annex 4). ³⁵² In evidence-in-chief, however, he opined that in the Complainant’s case, it was “probably more of excitement”. ³⁵³ In response to my questions, Dr Rajesh clarified that an individual did not need to reach a state of stupor before losing the capacity to consent to sexual intercourse: the capacity to consent could be lost in the stages prior to stupor, including at the stage of excitement. ³⁵⁴ In evidence-in-chief, however, Dr Rajesh maintained the view expressed in his reports that it was “highly likely that the [Complainant’s] level of alcohol intoxication did not deprive her of the mental capacity to consent for the alleged offence”. ³⁵⁵ In this connection, it should be noted that the framework adopted by Dr Rajesh for analysing the issue of capacity to consent did not differ substantively from Dr Mak’s Analytical Framework. In his second report, for example, Dr Rajesh stated that: ³⁵⁶

123 It will be noted that Dr Rajesh’s opinion as to the Complainant’s likely BAC and the effects of the alcohol on her capacity to consent was based primarily on the conclusions he drew from the evidence made available to him: namely, the in-car audio recording, the CCTV footage, and the Complainant’s conditioned statement. In cross-examination, Dr Rajesh was taken through various pieces of evidence in relation to these matters. I summarise below the more noteworthy responses given by him when shown these pieces of evidence.

124 In respect of the in-car audio recording, Dr Rajesh agreed in cross-examination that there were “definitely limitations … on [his] side” because the conversation in question was in Mandarin, which he did not understand, and he had to rely on “what the [Accused] … told [him]” of what “was spoken in the car”. ³⁵⁷ After parts of the audio-recording were played in open court, Dr Rajesh agreed that there were some points at which the Complainant’s voice became softer. He maintained that he did not think she was slurring during the in-car conversation, as he could “still make out” some “English sentences” spoken by the Complainant. However, he accepted that he was not aware of how she “normally talk[ed] [as] a baseline” and that it would therefore be difficult for him to assess how her speech in the in-car audio recording was impaired vis-à-vis her baseline state. ³⁵⁸ He also accepted that there were some points in the audio recording where no verbal response could be heard from the Complainant when she was asked by the Accused if she was “okay”. He clarified that he did not take these portions of the audio-recording into account when he opined in his first report that the Complainant was able to maintain a conversation and to respond adequately to the Accused. ³⁵⁹

125 Dr Rajesh was also shown the portion of the Accused’s VRI statement (exhibit P68A) in which the Accused had informed the police about the Complainant “resting” on him in the car, as well as the Accused’s own transcript of the in-car audio recording (exhibit D4) in which the Accused had recorded himself telling the Complainant, inter alia, to “lie first, reach le then wake up”. ³⁶⁰ Dr Rajesh accepted that this evidence showed that the Complainant was experiencing drowsiness prior to reaching her lift lobby, ³⁶¹ and that according to some of the medical literature adduced by Prof Teo at trial, drowsiness was a symptom corresponding to a BAC range of 100mg/100ml to 200mg/100ml – whereas lethargy or sleepiness would among the expected behaviours for a BAC range of 200mg/100ml to 300mg/100ml. ³⁶² He maintained, however, that he did not view the Complainant’s drowsiness as having been “significant” since she was still able to “navigate”, to press the lift button and to open her front door. ³⁶³

126 In this connection, however, it should be noted that after Dr Rajesh was shown parts of the CCTV footage from the void deck and the lift lobby, he accepted that the Complainant was walking with the Accused’s arm around her body when crossing the void deck (and therefore not walking “unassisted”); that she appeared to stumble at one point; that she was swaying “back and forth and side to side” while waiting for the lift; and that she stumbled again towards the lift doors while they were closed. ³⁶⁴ He accepted that this evidence showed “incoordination while standing” and a staggering gait on the Complainant’s part; and that the latter was one of the expected behaviours for a BAC in the range of 150mg/100ml to 200mg/100ml (or even 200mg/100ml to 300mg/100ml). ³⁶⁵ As to the Complainant’s act of pressing the lift button, it was pointed out to him that the Accused himself had pressed the lift button after the Complainant did so: he agreed that if in fact the Complainant had pressed the wrong lift button (as she alleged), such behaviour would amount to sensory motor incoordination, ³⁶⁶ which was a symptom of the stage known as “excitement” in Dubowski’s table (Annex 4). In addition, he agreed that looking at the footage from inside the lift, it was actually not possible to tell to what extent the Complainant was “alert”. ³⁶⁷

127 In respect of the car journey, Dr Rajesh also stated that he was told by the Accused that the Complainant “had nausea in the car, but she did not vomit in the car”, and that she vomited in the kitchen toilet. ³⁶⁸ On being informed that the Prosecution’s case was that the Complainant had vomited three times (in the car, on alighting from the car, and in the toilet) prior to sexual intercourse, Dr Rajesh acknowledged that these instances of vomiting would be symptoms corresponding to a BAC range of 200mg/100ml or more – although he added that one “would need to look at the other signs”. ³⁶⁹

128 In respect of the actual act of sexual intercourse, after having been brought through the Complainant’s evidence, Dr Rajesh agreed that while she was able to recollect some of the events, it would not be right to say that she could recollect most of the events. As for the Complainant’s description of herself “drifting in and out”, Dr Rajesh opined that this was better characterised as “drifting in and out of drowsiness” or “drifting in and out of sleep”. ³⁷⁰ He acknowledged that if someone was in a state of sleep (and not merely at the “initial” stage of starting to “drift” into sleep), he or she would not have the capacity to understand the nature of an act of sexual intercourse, to understand its consequences, to weigh a decision whether or not to engage in that act, and to communicate the decision. ³⁷¹

129 In re-examination, Dr Rajesh elaborated on the above answers by explaining that this was “because when somebody is asleep, first of all, they’re not aware of their surroundings, and then they obviously cannot respond to someone wanting to have sex with them, meaning they can’t give consent when somebody’s asleep, because they’re not awake and alert”. ³⁷² Moreover, the act of waking up from sleep in itself did not necessarily indicate that the individual in question had the capacity to consent to sexual intercourse: waking up was only “the first initial step; and such an individual would still have to understand who the other person was, understand the nature of the act of sexual intercourse, and “agree or disagree to proceed”. ³⁷³ Dr Rajesh further acknowledged that the fact that the Complainant told the Accused to “stop” after realising that she was being or had been penetrated would not “tell us whether she had capacity to consent at the point of being penetrated”. ³⁷⁴

130 In respect of the events which followed the act of sexual intercourse, Dr Rajesh accepted – after having heard the audio-recording of the Complainant’s “999” call – that it was “difficult” for the operator to get her address “straightaway”, and that the Complainant was “quite emotional and crying … and upset”. ³⁷⁵ He accepted that she could be described as having been in an “exaggerated emotional state” (ie, one of the clinical signs of the stage of “confusion” in Dubowski’s table) at the time the first responder police officers arrived at her flat. ³⁷⁶ It should be noted that although Dr Rajesh had in his second report referred to the Complainant asking for a female officer because “she was undressed”, he clarified at trial that this was purely his own inference; ³⁷⁷ and he agreed in cross-examination that the Complainant’s failure to put on any clothes despite the presence of strangers (the police officers) in her home reflected “quite a significant level of disinhibition”. ³⁷⁸

131 At the conclusion of cross-examination, Dr Rajesh agreed with the Prosecution that in light of the additional evidence he had been taken through, he could no longer say that it was “highly likely” that the Complainant had mental capacity to consent to sexual intercourse at the time of the alleged offence. ³⁷⁹

132 From the evidence set out above, it will be apparent that the actus reus of the rape charge was not disputed by the Accused, who admitted to have engaged in penile-vaginal penetration of the Complainant on the night of 15 September 2021. The issues to be determined at the end of the trial were thus as follows:

(a) whether the Complainant had the capacity to consent to sexual intercourse at the material time;

(b) if the Complainant had the capacity to consent to sexual intercourse, whether she did in fact consent to having sex with the Accused; and

(c) if the Complainant did not have the capacity to consent to sex with the Accused and/or did not in fact give such consent, whether the Accused could rely on the defence of mistake under s 79 of the Penal Code.

133 Parties were agreed that the Prosecution bore the burden of establishing, beyond a reasonable doubt, the lack of consent from the Complainant to the sexual penetration (see Pram Nair v Public Prosecutor [2017] 2 SLR 1015 (“Pram Nair”) at [45]). In this connection, as the Court of Appeal pointed out in Pram Nair (at [62]), it “may be more … logical” to approach the issue of the Complainant’s capacity to consent before considering whether there was factual consent:

134 Parties were also agreed that in respect of the defence of mistake, the burden was on the Accused to establish this defence on a balance of probabilities (Pram Nair at [110], citing Public Prosecutor v Teo Eng Chan [1987] SLR(R) 567 at [26]); and that he had to show “that ‘by reason of a mistake of fact’ he ‘in good faith’ believed himself to be justified by law in doing what he did to [the Complainant]”.

135 In respect of the issue of capacity to consent, the Court of Appeal noted in Pram Nair (at [93]) that the question of whether a particular complainant was able or unable to consent was one of fact. Having reviewed a number of authorities, the Court of Appeal identified (at [96]) the following relevant general principles:

136 These general principles were reiterated by the Court of Appeal in its subsequent judgment in Mustapah bin Abdullah v Public Prosecutor [2023] SGCA 30 (“Mustapah”). In Mustapah, the court also emphasised (at [104]) that there is “a vital difference between submission and consent”: a person might submit to sexual contact in the sense of offering no physical resistance to the offender carrying out the act, but this did not mean that they necessarily consented to the act. The concept of consent thus encompassed the following (Mustapah at [103]):

(a) voluntary participation on the part of the person at the receiving end of the conduct, after having exercised his/her intelligence, based on the knowledge of the significance and moral quality of the act;

(b) agreement to submission while in free and unconstrained possession of his/her physical and moral power to act in a manner he/she wants;

(c) the exercise of a free and untrammelled right to forbid or withhold what is being consented to; and

(d) voluntary and conscious acceptance of what is proposed to be done by a person and concurred in by the person at the receiving end of the conduct.

137 In their closing submissions, the Defence suggested that the “functional test” adopted by Dr Mak in his framework for analysing capacity to consent wrongly applied “the threshold under the ‘Mental Capacity Act’” instead of the “touchstone” of “voluntary and conscious acceptance”. ³⁸⁰ In gist, the Defence’s argument appeared to be that Dr Mak erred in opining that a higher level or “threshold” of mental capacity would generally be required for important decisions with “major implications” (such as a decision to have sexual intercourse), as compared to the level of mental capacity required for simple decisions (such as a decision to have a drink of water). According to the Defence, this was because Dr Mak did not appreciate that “consent to sexual activity, even when made while intoxicated, [was] still consent as long as there [was] a voluntary and conscious acceptance of what [was] being done”. ³⁸¹

138 I found the Defence’s arguments to be devoid of merit. To begin with, Dr Mak made clear in his report his awareness that the provisions in the Mental Capacity Act 2008 (2020 Rev Ed) (“Mental Capacity Act”) for assessing a person’s ability to make decisions may not be directly applicable to criminal cases. ³⁸² At the same time, he also made it clear that the four-limb test set out in the Mental Capacity Act was “widely applied across broad contexts when psychiatrists are called upon to comment on the matter of consent”. This was reiterated by Dr Mak in cross-examination when he explained that assessing capacity to consent was “a bread-and-butter matter for psychiatrists”: ³⁸³

139 When asked about the functional test set out by Dr Mak as part of his Analytical Framework for assessing capacity to consent, the Defence’s expert Dr Rajesh testified that he agreed with the test as a statement of principle. Indeed, as I noted earlier, in opining on the issue of capacity to consent, Dr Rajesh set out essentially the same test, albeit in slightly different language, at [40] of his second report. ³⁸⁴

140 Both Dr Mak’s and Dr Rajesh’s formulations of the functional test for assessing an individual’s capacity to consent thus emphasised, inter alia, the need for the individual to understand the nature of the proposed act or activity as well as the potential consequences of such act or activity, and the ability to weigh the information in deciding whether or not to engage in it. In the circumstances, there was simply no basis for the Defence to disagree with Dr Mak that a higher threshold of mental capacity would generally be required for a decision to have sexual intercourse, as compared to the threshold of mental capacity required for a decision to drink water. The Defence did not dispute Dr Mak’s description of sexual intercourse as a “deeply intimate act”. Obviously, an act of drinking water would not be of the same “intimate” nature. Both Dr Mak and Dr Rajesh also acknowledged that sexual intercourse involved potentially grave consequences such as “potentially becoming pregnant and getting sexually transmitted diseases”. ³⁸⁵ On the other hand, obviously, a decision to drink water would not carry potential consequences of similar gravity. As the Prosecution pointed out, a child might be able to consent to a drink of water but would likely lack the maturity and understanding to grasp the nature and consequences of sexual intercourse. ³⁸⁶ That consent to an act requires an understanding of “the nature and consequence of that to which that person has allegedly given his consent” is expressly recognised in s 90(b) of the Penal Code (Pram Nair at [96(a)]).

141 At [142]–[206] below, I explain how I applied the above general principles in assessing the Complainant’s capacity to consent to sexual intercourse with the Accused.

142 In determining whether the Complainant had the capacity to consent to sexual intercourse at the material time, I first considered the Complainant’s own evidence. Per the Complainant’s conditioned statement, she was not awake or not conscious shortly before and at the point of sexual penetration. Her evidence was that after she vomited in the kitchen toilet, the Accused “supported [her] back to [her] bedroom”, and the next thing she then remembered was “feeling something pushing against [her] vagina with force” and “open[ing] her eyes”. ³⁸⁷ In examination-in-chief, the Complainant elaborated on this: she described herself as having been “awake for that few moments” when she felt his penis pushing against her vagina. ³⁸⁸ At this point, she could see the Accused on top of her, but she felt that she did not have any control over her body or any energy to fight back. ³⁸⁹ She explained that this was the moment when she felt herself “drifting in, drifting out”. ³⁹⁰ She recalled asking the Accused to “stop” – which, in cross-examination, she clarified by explaining that she recalled using her hand to push his head or forehead ³⁹¹ – but then “fell unconscious again” in “the next moment”. ³⁹² Her evidence was that this state of unconsciousness was akin to “totally black out … [she] was not aware what [was] going on”. ³⁹³

143 I found the Complainant’s evidence as to her state of unconsciousness shortly before and at the point of sexual penetration to be internally consistent. First, it was consistent with her evidence that in the several years leading up to the incident on 15 September 2021, she had stopped drinking any alcohol during the period between December 2016 and December 2019 when she was living overseas, and that she had drunk alcohol on fewer than five occasions in the period between December 2019 and September 2021. ³⁹⁴ In other words, as at September 2021, the Complainant would have been unaccustomed to the effects of alcohol – especially alcohol consumed in large quantities. As she herself put it, as at September 2021, she would “feel tired” after two glasses of alcohol. ³⁹⁵ In this connection, it was not disputed that the Complainant drank considerably more than two glasses of alcohol on 15 September 2021. The Defence, having been provided with the CCTV footage from the Restaurant before the trial, did not challenge ASP Ong’s testimony that the footage showed the Complainant to have consumed one glass of Merlot house pour and about nine glasses (including one tasting portion) of Marrenon Orca wine in the course of the dinner. For that matter, the Defence also did not challenge the Complainant’s evidence estimating that she drank at least one bottle of red wine in total. ³⁹⁶

144 Second, the Complainant’s evidence about her incapacitated state shortly before and at the point of sexual penetration was consistent with her evidence of the condition she recalled being in during the car journey back to her flat. She could not remember how she left the Restaurant or got into the Accused’s car: ³⁹⁷ when the CCTV footage from Vivocity and the in-car audio recording were played in court, she had no recollection of the events shown on the CCTV footage or the conversation captured in the audio recording. ³⁹⁸ What she could recall of the car journey was feeling “very sick”, “want[ing] to vomit”, and actually vomiting “into a tissue box”. She also recalled having difficulty walking properly from the car to her flat and having to be supported by the Accused. Indeed, on entering her flat, she did not even realise that the Accused had entered the flat as well until she saw his shoes near the door; and despite feeling “shocked” by this realisation, she was “feeling tired and intoxicated”, so she simply went to lie down on her bed. ³⁹⁹ She described how she subsequently became aware that the Accused was lying on top of her and trying to remove her clothes: she did not have the strength to push him away, but he got off after she said that she wanted to vomit. It was at this point that she went to the kitchen toilet to vomit – after which he “supported [her] back to [her] bedroom”. ⁴⁰⁰

145 The Complainant’s account of her incapacitated state during the sexual intercourse was thus consistent with her evidence as to her unsteady and feeble condition during the car journey and prior to the sexual penetration. In cross-examination, the Complainant maintained the above account of events. She explained that she could not remember whether she was able to walk in a stable manner to the kitchen toilet to vomit or whether the Accused had to support her, but she was clear in her recollection of “need[ing] to vomit … need[ing] to find a toilet to vomit inside the toilet bowl” at that point in time. ⁴⁰¹ When asked by defence counsel why she did not ask the Accused to “get out of [her] house” at that point, she was able to explain that the only thing she could remember thinking about at the time was her need to vomit: she did not have the energy to “think or say” “other things”. ⁴⁰² When cross-examined about her recollection of the moment of sexual penetration, she maintained that she could not “remember the exact thing” but was certain that she was unconscious at that moment; and she reiterated that it was the “force” of “something … pushing against [her] vagina” which had “awake[ned]” her. ⁴⁰³ She also described seeing “a little bit of [the Accused’s] face” when she opened her eyes, and realising that she was naked when she tilted her head “a little bit” and saw no clothing on her upper body. ⁴⁰⁴

146 In short, therefore, the Complainant’s evidence at trial as to her lack of capacity to consent to sexual intercourse was internally consistent.

147 Next, I found that the Complainant’s evidence as to her lack of capacity was also consistent with other evidence adduced in the course of the trial – which I recapitulate below.

148 The first category of such corroborative evidence related to the Complainant’s likely BAC at the time of arrival at her HDB block (9.23pm). As the Prosecution noted in their closing submissions, ⁴⁰⁵ Prof Teo’s calculations indicated that the Complainant’s likely BAC as at 9.23pm would have been in the region of 200mg/100ml. I explain.

149 To begin with, as seen earlier (at [63] above), using the backward calculation method and adopting 15mg/100ml as the “average” rate of elimination, Prof Teo’s calculations showed a BAC of 195.7mg/100ml as at 9.23pm. On the other hand, using the forward calculation method and the same “average” elimination rate of 15mg/100ml, Prof Teo’s calculations showed that if the Complainant’s estimate of having drunk “at least one bottle” of red wine (ie, 130ml of pure ethanol) were accepted, the calculated BAC would be 219mg/100ml as at 9.23pm. Alternatively, based on ASP Ong’s evidence as to the number of glasses of wine which CCTV footage showed the Complainant to have consumed (ie, 137.5ml of pure ethanol), and using the same elimination rate of 15mg/100ml, the forward calculation method would produce a BAC value of 233mg/100ml as at 9.23pm.

150 Having considered the evidence, I rejected the Defence’s preference for the forward-calculated BAC of 146mg/100ml based on an assumed seven standard drinks (ie, 88.9ml of pure ethanol) having been consumed. As the Prosecution pointed out at trial, the seven standard drinks which Prof Teo was originally asked to assume actually constituted a very conservative estimate of the amount of alcohol consumed by the Complainant. Having viewed the CCTV footage from the Restaurant, I found ASP Ong’s evidence about the amount of alcohol consumed by the Complainant to be accurate: as ASP Ong observed, the CCTV footage showed the Complainant to have consumed one glass of Merlot house pour at the start of the evening and then a total of nine glasses of Marrenon Orca red wine thereafter. Having been given access to the same CCTV footage in advance of the trial, the Defence did not challenge ASP Ong’s evidence on the amount of alcohol consumed by the Complainant. Nor did the Defence challenge ASP Ong’s evidence as to the quantity of wine in a “standard portion” poured by the Restaurant’s staff and the pure ethanol content of the two wines in question. In my view, therefore, the figure of 233mg/100ml – based on consumption of 137.5ml of pure ethanol – was a reliable starting-point for estimating what the Complainant’s BAC would likely have been as at 9.23pm. In this connection, I make two points.

151 First, I have referred to the figure of 233mg/100ml as a “starting-point” from which to estimate the Complainant’s likely BAC as at 9.23pm because the BAC values set out in exhibit 5B were calculated by Prof Teo on the assumption that the Complainant had consumed all the alcohol within a relatively short time (ie, around half an hour) on an empty stomach – whereas in fact she had consumed the alcohol over the course of some two hours and 45 minutes while concurrently consuming food. It was not disputed that there was some element of over-estimation in the figures calculated by Prof Teo on the basis of these assumptions. The dispute between the parties concerned the extent to which the calculated BAC values should be reduced to account for the length of time taken to consume the alcohol and the consumption of food. I deal with this dispute at [153]–[155] below.

152 Second, while the expert witnesses noted that the backward calculation method was usually preferred, this was – as Dr Mak explained – because of the reliability of using a known BAC value from a specific point in time. ⁴⁰⁶ In the present case, on the other hand, there was objective evidence in the form of CCTV footage, showing the number of glasses of wine consumed by the Complainant; and as I have noted, the evidence as to the quantity of wine in each “standard pour” and the pure ethanol content of the wines was not disputed by the Defence. These factors thus bolstered the reliability of the forward-calculated BAC figure of 233mg/100ml. Further, by way of a sanity check, I observed that this figure of 233mg/100ml was fairly close to the alternative forward-calculated figure of 219mg/100ml based on the Complainant’s estimate of having drunk at least one bottle of red wine (which estimate the Defence also did not challenge), as well as the figure of 195.7mg/100ml based on the backward calculation method and an assumed elimination rate of 15mg/100ml.

153 As to the extent to which the calculated BAC value of 233mg/100ml should be reduced to account for the time taken to consume the alcohol and the consumption of food, the Prosecution acknowledged that since the Complainant consumed the alcohol over the course of two hours and 45 minutes (ie, close to three hours), “some of the alcohol would already have been eliminated from her bloodstream before the last drink was consumed”, such that the calculated BAC figure of 233mg/100ml – or for that matter, 219mg/100ml – was “likely to be an over-estimate of the [Complainant’s] actual BAC at 9.23pm”. ⁴⁰⁷ Neither the Prosecution nor the Defence objected to Prof Teo’s suggestion that one way to account for the time taken by the Complainant to consume the alcohol would be to deduct 45mg from the calculated BAC values, on the basis that the 15mg/100ml was traditionally agreed to be the “average” elimination rate, and in this case the Complainant had taken close to three hours to consume the alcohol. As seen from my earlier summary, however, Prof Teo also clarified that “if the drinking [was] spread out evenly over that 3 hours, then probably a midpoint would probably be a reasonable estimate”. ⁴⁰⁸ This particular portion of Prof Teo’s testimony was not refuted by the Defence’s expert Dr Rajesh. As such, based on Prof Teo’s reasoning and applying it to the forward-calculated BAC values of 219mg/100ml and 233mg/100ml, the adjusted BAC values (as at 9.23pm) would be around the midpoint between 174–188mg/100ml and 219–233mg/100ml – ie, in the range of 196.5–210.5mg/100ml. ⁴⁰⁹

154 The expert witnesses were agreed that the consumption of food together with the alcohol constituted a “confounding factor” (to use Dr Rajesh’s words), as this would generally lead to an individual’s peak BAC being reached later and at lower levels. However, I did not find that any of the expert witnesses was able to quantify reliably the extent to which the Complainant’s peak BAC would have been affected by her consumption of food. Dr Mak testified that the degree to which an individual’s peak BAC would be lowered in the event of consumption with food had not been scientifically proven. ⁴¹⁰ Although the Defence tendered a journal article in which it was suggested that the BACs of persons who consumed food together with alcohol “may not even reach a quarter of those achieved on an empty stomach”, ⁴¹¹ Dr Rajesh admitted that this was “more of a general description”, that it was not possible to tell exactly how the presence of food in the stomach would affect a specific individual’s absorption of alcohol, and that one could not actually say that the Complainant would not have achieved a quarter or more of the calculated BAC values. ⁴¹²

155 As for Prof Teo, as I noted earlier in summarising his evidence (at [64] above), he did suggest at one point that the difference between a peak BAC reached on an empty stomach and one reached after consuming food could be “in the region” of “around 50 to 100[mg/100ml]”. Critically, however, Prof Teo went on to concede that these figures were simply “an assumption”, for which there was no scientific basis. Given his concession as to the lack of any scientific evidence for the suggested figures of “50 to 100[mg/100ml]”, I did not find it appropriate to reduce the calculated BAC figures of 219mg/100ml and 233mg/100ml by as much as “50 to 100[mg/100ml]”. Instead, given that the expert witnesses were at least agreed that the consumption of food would generally lower peak BAC, I was of the view that it would be reasonable and fair to estimate the Complainant’s likely BAC at 9.23pm at the lower end of the range of 196.5–210.5mg/100ml. ⁴¹³

156 For the reasons explained above, I was of the view that the Complainant’s likely BAC as at 9.23pm would have been in the region of at least 200mg/100ml, if not higher. I should add that even employing the backward calculation method and applying an “average” elimination rate of 15mg/100ml to the known BAC of 82mg/100ml as at 4.58am on 16 September 2021, the BAC figure calculated by Prof Teo for 9.23pm on 15 September 2021 was 195.7mg/100ml. I did not find it appropriate to subtract “50–100” from this figure to account for the “confounding factor” of food consumption in the backward calculation method, since Prof Teo himself admitted that there was no scientific basis for these suggested figures – and since he also ended up opining that even with the consumption of food, the “lower peak” BAC would “probably … be not too far away from the calculated value, provided that the data that is used to calculate is accurate and reliable”. ⁴¹⁴ Further and in any event, as I explain at [165]–[191] below, the objective evidence of the Complainant’s clinical symptoms and behaviour in this case was consistent with a BAC in the region of at least 200mg/100ml.

157 Based on the sources cited by both the Prosecution’s and the Defence’s experts, the signs and symptoms associated with a BAC value in the region of 200mg/100ml could include “incoherent thoughts”, ⁴¹⁵ “mental confusion”, ⁴¹⁶ “[i]mpaired consciousness; sleep or stupor”. ⁴¹⁷ Thus, for example, Dr Mak’s evidence was that generally speaking, a BAC level of around 200mg/100ml reflected a “significant” level of intoxication. In Dr Mak’s second report, he cited a medical journal article in which it was reported that “[i]ntoxicated individuals progress towards behavioural changes such as in elation of mood and aggression at BAC levels above 0.1 (100mg/100ml), and drowsiness follows suit. By the time BAC levels reach 0.2 (200mg/100ml), slurred speech, unsteadiness and loss of consciousness may result”. ⁴¹⁸ Dr Mak also cited an extract from Knight’s Forensic Pathology which stated, inter alia, that the behavioural effects of alcohol at various ranges of BAC included the following: ⁴¹⁹

[emphasis added]

158 In his second report, Dr Mak also explained some of the terms used in the extract from Knight’s Forensic Pathology as follows: ⁴²⁰

159 In examination-in-chief, Dr Mak elaborated that “drowsiness” was “a general term referring to any impairment in a person’s consciousness level”, and that there was a continuum in which “stupor” would represent “a more severe impairment in a person’s consciousness level”, albeit still less severe than “coma” (a prolonged state of unconsciousness in which the individual could not be roused by stimuli). As seen earlier (at [82]), Dr Mak also explained that at a BAC of around 200mg/100ml, there would be a significant degree of impairment to the brain “in multiple domains” such as “attention, memory, and also executive functioning”, which would in turn give rise to concerns about the individual’s “ability to understand and retain information, and to weigh up this information in order to come to a decision”. ⁴²¹ Given that sexual intercourse was a “deeply intimate act” with grave potential consequences, the threshold for mental capacity to consent to sexual intercourse would be higher than that for mental capacity to decide on a simple matter such as “asking for a glass of water”. In Dr Mak’s opinion, therefore, individuals with a BAC of 200mg/100ml would likely not have the mental capacity to make decisions about whether to engage in sexual intercourse or not. ⁴²²

160 Insofar as the above evidence by Dr Mak related to the behavioural effects generally associated with a BAC of around 200mg/100ml, this evidence was not seriously disputed by the Defence. In his first report, for example, Dr Rajesh expressed agreement with the three tables extracted by Prof Teo from scientific literature (see Annexes 1 to 3 of these written grounds) and their descriptions of the “different clinical manifestations exhibited by people under the influence of alcohol linked to the blood alcohol levels”. ⁴²³ In his second report, Dr Rajesh noted that the table extracted from Knight’s Forensic Pathology (see Annex 1 to these written grounds) referred to the stage of “stupor” as occurring at BAC levels ranging between 200–300mg/100ml and 300–350mg/100ml, whereas the other two tables (at Annexes 2 and 3) referred to “stupor occurring at BAC levels at or above 300mg/100ml. ⁴²⁴ Dr Rajesh himself referenced Dubowski’s table (Annex 4) in his second report, noting that this table described “stupor” as occurring “in the range of BAC between 0.25 and 0.40 (250mg/100ml and 400mg/100ml). ⁴²⁵ As seen earlier (at [114]), Dr Rajesh accepted in cross-examination that Dubowski’s table provided for overlapping BAC ranges because individuals could have “overlapping” symptoms: there was no “discrete … cut-off”. ⁴²⁶

161 In his second report, Dr Rajesh also cited Dr Mak’s definition of “stupor” without expressing any objections to its accuracy. ⁴²⁷ Dr Rajesh elaborated on the definition of “stupor” by reproducing the description given in Dubowski’s table of the clinical signs and symptoms associated with “stupor”:

162 In short, therefore, there was no real disagreement between the Prosecution’s and the Defence’s experts on the clinical signs and symptoms generally associated with a BAC in the region of 200mg/100ml. As seen earlier, it was the Prosecution’s position that this was likely the Complainant’s BAC as at 9.23pm, whereas the Defence claimed that her likely BAC must have been much lower. I have already explained at [148]–[156] why I accepted the Prosecution’s position as to the Complainant’s likely BAC at the material time. This was obviously only one aspect of the inquiry into the Complainant’s capacity to consent to sexual intercourse with the Accused. Both parties’ expert witnesses acknowledged that any conclusions drawn from the Complainant’s BAC had to be supplemented by clinical observations based on the evidence available of her symptoms and behaviour at the material time: indeed, Dr Rajesh noted that such clinical criteria would be “more objective”. The experts’ position was in line with the observations of the Court of Appeal in Pram Nair (at [102]), where the court held that:

163 In this connection, the Prosecution contended, firstly, that Complainant’s consciousness was – as a result of her severe intoxication – significantly impaired to the extent that she was either unconscious or asleep at the point when the Accused began having sex with her; indeed, that she was at the stage of “stupor” at that point. Further and in any event, even if the Complainant could not be said to have been in a state of “stupor” at the material time, the Prosecution contended that her mental capacity was nevertheless sufficiently impaired to the extent that she lacked capacity to consent to sexual intercourse. ⁴²⁸ In contrast, the Defence took the position that the Complainant could not have suffered any significant impairment of consciousness, let alone a loss of consciousness, at the point of sexual intercourse; that even if her account of “drifting in and out” were to be believed, this would not have amounted to a state of “stupor”; and that the evidence did not show any lack of capacity to consent on her part. ⁴²⁹

164 Having reviewed the evidence adduced, I found that the Complainant’s severe intoxication – and correspondingly the severe impairment of her mental capacity – were borne out not only by her likely BAC level at the material time, but also by objective evidence of the symptoms and behaviour she exhibited. I accepted the Prosecution’s submission that her symptoms and behaviour demonstrated a “gradual progression towards a state of severe impairment”, ⁴³⁰ to the point of being unconscious or asleep at the point when the Accused began having sex with her. Further, I found that even if she did not lose consciousness at that point, the degree of impairment she sustained to her mental capacity was such that she was incapable in any event of consenting to sexual intercourse. At [165]–[192] below, I outline the objective evidence of the clinical symptoms and behaviour which I relied on in arriving at these findings.

165 First, the CCTV footage from the Restaurant showed that as the Complainant drank steadily throughout the dinner, her behaviour became progressively more disinhibited vis-à-vis the Accused. When shown the CCTV footage in court, the Complainant agreed that it showed her, inter alia, feeding the Accused food, eating food fed to her by the Accused, snatching back her wine glass from the Accused after he took it from her and then finishing the wine in the glass, ⁴³¹ and throwing tissue paper at the Accused. ⁴³² She also agreed that the CCTV footage appeared to show the Accused holding her hand at some point during the dinner. ⁴³³ Asked by defence counsel in cross-examination whether she agreed that “the mood was quite flirty and playful as the night progressed”, the Complainant agreed – but pointed out that this was “[u]nder the alcohol influence”. ⁴³⁴

166 I accepted the Complainant’s evidence that her apparent high spirits and playfulness were the result of alcohol intoxication – as opposed to some sort of romantic or sexual attraction. As the Prosecution pointed out, there was no prior romantic or sexual relationship between the Complainant and the Accused: the Complainant knew the Accused primarily as one of her company’s customers. The Accused himself testified that at the dinner, he had chatted to the Complainant about his wife and his five children. ⁴³⁵ The Defence also did not dispute the Complainant’s evidence that as at September 2021, she had been in a relationship with the same person since March 2020. Moreover, from the CCTV footage, it was clear that the Complainant’s loss of inhibitions was progressive: at the start of the dinner, she appeared to greet the Accused in an entirely staid manner; and the various instances of playful or even flirtatious behaviour pointed out by the Defence in cross-examination came about largely after 7.30pm, ⁴³⁶ when she had been drinking for at least two hours after her arrival at the Restaurant. ⁴³⁷

167 Per Dubowski’s table (Annex 4), “sociability”, “talkativeness” and “decreased inhibitions” would constitute some of the clinical signs and symptoms of the state of “euphoria” – a state usually associated with a BAC between 30mg/100ml and 120mg/100ml. As an alternative reference, the table from Knight’s Forensic Pathology provided by Prof Teo (Annex 1) lists “loquaciousness”, “progressive loss of inhibitions” and “laughter” as some of the behaviours associated with a BAC between 50mg/100ml and 100mg/100ml.

168 I note that in their closing submissions, the Defence appeared to suggest that in enumerating disinhibition as one of the factors which would “contribute to concerns over [the Complainant’s] mental capacity”, Dr Mak “blurred” the “line” between “incapacity to consent and valid consent despite being in a state of alcohol intoxication”. ⁴³⁸ With respect, this suggestion was baseless and mischievous. The extract from Dr Mak’s testimony which was reproduced in the Defence’s closing submissions in support of this suggestion was quoted out of context and in disregard of his other responses. In particular, Dr Mak expressly confirmed in cross-examination that he “would not base [his] opinion on a person’s mental capacity solely upon a small degree of loss of inhibition”, that evidence of some degree of disinhibited behaviour was insufficient for him to assess an individual’s mental capacity, and that he “would have to have good reason” before opining that “someone had suffered impairment in [the] four limbs of the functional test”. ⁴³⁹ As for Dr Mak’s statement about the Complainant’s “disinhibitions” and “difficulties” in “impulse control” contributing to “significant concerns over her mental capacity”, this statement was clearly made in the context of Dr Mak’s view that by the time of arrival at her HDB block, the Complainant “had progressed well beyond the point of mere disinhibition”. ⁴⁴⁰ In his words, she was: ⁴⁴¹

169 As will be seen in [170]–[191] below, the Complainant’s progressive loss of inhibitions was joined by other clinical signs and symptoms as the evening wore on.

170 On leaving the Restaurant, while the Complainant was not seen staggering or stumbling at this stage, there was evidence of some degree of disorientation – or at least some impairment of her cognitive abilities. As the Prosecution pointed out, she appeared confused and flummoxed by the fact that the Restaurant’s exit point was cordoned off – despite the fact that it had already been cordoned off earlier in the evening when she arrived. In contrast, the Accused was able quickly to perceive that the rope being used to cordon off the exit could simply be removed so as to allow them both to walk out.

171 After leaving the Restaurant and going to the public toilet in Vivocity, the Complainant showed further signs of disorientation when leaving the toilet. Despite having walked down a passageway to get to the toilet, she turned in the wrong direction upon exiting the toilet and took a number of steps towards a closed door instead of traversing the same passageway back. As the Prosecution highlighted, this happened despite there being nothing confusing about the layout of the passageway and the toilet exit: the passageway was straight and fairly long, with the female toilet being located near the end of this passageway, near a closed door marked with an “Exit” sign. Indeed, the relevant CCTV footage showed that the other 13 individuals seen exiting the toilet in the same period of time had no difficulties in recognising the direction in which to head when they exited.

172 In his second report, Dr Mak opined that the above behaviour demonstrated “difficulties” on the Complainant’s part in “processing information about her surroundings”. ⁴⁴² At the very least, this “[s]lowed information processing” would – per Dubowski’s table (Annex 4) – constitute another of the clinical signs of the state of “euphoria” which generally occurs at BACs between 30mg/100ml and 120mg/100ml. It should be noted that the next stage of alcoholic intoxication after “euphoria” is “excitement”, which generally occurs at BACs between 90mg/100ml and 250mg/100ml, with one of the associated clinical signs being “impairment of perception, memory, and comprehension”; whereas “disorientation” would be one of the clinical signs associated with the state of “confusion” at BAC levels between 180mg/100ml and 300mg/100ml. Paul J et al, “Ethanol Forensic Toxicology”, (2017) 45(4) Journal of the American Academy of Psychiatry and the Law Online at 429–438 (“Ethanol Forensic Toxicology”) (Annex 3), on the other hand, lists “disorientation” as one of the symptoms associated with a BAC of 100mg/100ml and 200mg/100ml.

173 I mention these various possibilities because as Dr Rajesh acknowledged at trial, the overlapping BAC ranges in Dubowski’s table indicated that it would be possible for an individual to display “overlapping symptoms” from two of the defined stages of alcoholic influence. In determining the Complainant’s likely level of intoxication and the degree of impairment of her mental capacity at the time of sexual intercourse, it was crucial not to focus on only one or two pieces of evidence, but instead, to examine “multiple sources of information”, as Dr Mak put it.

174 In the interests of completeness, I add that in the CCTV footage showing the Complainant walking through Vivocity with the Accused, she did not appear to be staggering or stumbling. At trial, Dr Mak suggested that the Complainant’s BAC levels would have continued to rise after she left the Restaurant and that her peak BAC was likely reached around the time when she arrived at her lift lobby. As I will explain below, the next few pieces of evidence did in fact appear to show progressive impairment of the Complainant’s mental capacity after she left Vivocity in the Accused’s car and when she eventually arrived at her lift lobby.

175 In respect of the car journey back to the Complainant’s flat, the in-car audio-recording appeared to show her behaving in an excitable manner at the start of the journey: ⁴⁴³ she could be heard loudly repeating the numbers “97422” – which numbers, according to the Accused, referred to the ages of his five children. Certain tapping noises audible at the start of the audio-recording were explained by the Accused as having been made by the Complainant when she took some “Care Bears” from his dashboard, “tapped” him and “[teased]” him as he drove the car out of the carpark. ⁴⁴⁴ Notably, while the Accused disputed the accuracy of the transcript prepared by the IO of the audio-recording and sought to rely at trial on his own transcription, even his transcription showed the Complainant behaving in an apparently excitable and not entirely logical manner early in the car journey: at 8.39pm, for example, the Accused’s transcription revealed that the Complainant removed her seatbelt, prompting the Accused to exclaim, “Why you take out seat belt, you don’t jump out ar…you don’t scare me ar…”. ⁴⁴⁵

176 As the car journey progressed, however, the Complainant could be heard mumbling and her responses became increasingly indistinct. Between 8.41pm and 8.44pm (referring to the time-stamps on the in-car recording), for example, the Accused could be heard asking the Complainant several times if she was “okay”, without any responses being heard from her. Again, while the Accused disputed the accuracy of the transcript prepared by the IO of the audio-recording and sought to rely at trial on his own transcription, even his transcription noted that the Complainant was “mumbling” at certain points and apparently responding to him with unintelligible noises such as “emmm” at other points. ⁴⁴⁶ The lack of intelligible responses from the Complainant became even more noticeable towards the later part of the car journey: for example, the Accused’s own transcription showed no coherent responses from the Complainant from 8.59pm onwards other than “emmm”, coughing sounds, and – at one point – “I want to vomit”. ⁴⁴⁷ As an aside, I add that although the Accused made annotations in his transcription to the effect that the “emmm”s uttered by the Complainant represented her “making cute voice”, ⁴⁴⁸ no explanation was offered by the Defence as to what “making cute voice” meant; and having listened to the audio-recording, I found no basis for describing the inarticulate mumbling by the Complainant as “making cute voice”.

177 As the Prosecution further pointed out, even when the Complainant’s responses were intelligible, the substance of her responses appeared at times to make no sense in the context of what the Accused was saying to her. This could be seen even from the Accused’s own transcription. In the Accused’s transcription, for example, while talking (at 8.39pm) about why she did not wish to go to the Accused’s company, the Complainant stated that she did not wish “to be sorry” to her boss – and then, inexplicably, added that this was “because of corporate directorship and MOH”. That the remarks about “corporate directorship” and “MOH” were irrelevant and/or meaningless in the context of their conversation could be seen from the Accused’s own responses (“Huh?...emm…hmm”). ⁴⁴⁹

178 At trial, the Complainant was unable to recall most of the conversation during the car journey home, but when the audio-recording was played in court, she observed that towards the later part of the recording, she sounded “[t]ired, not conscious, drift in, drift out”. ⁴⁵⁰ The lack of intelligible responses from her during the later part of the car journey, which I alluded to above, would appear to corroborate her observation. That the Complainant must have been “tired” and even “drifting in and out” at this time was also borne out by the Accused’s description in his VRI statement of her “lying on [his] shoulder” and “resting”, ⁴⁵¹ as well as his various remarks to her on the audio recording (as recorded in his transcription): ⁴⁵²

179 I note that in his first report, Dr Rajesh opined that there was “no evidence of slurred speech” by the Complainant on the in-car audio recording and that she “was able to maintain a conversation and respond adequately to the [Accused]”. ⁴⁵³ With respect, these observations were contrary to what could in fact be heard on the audio-recording and what could be seen from the Accused’s own transcription of the audio-recording. As seen from the earlier summary of his evidence (at [124]), Dr Rajesh acknowledged that he had actually encountered “limitations” in making out what was being said on the audio-recording, firstly because he did not understand Mandarin (the language used for the most part in the audio-recording); and secondly, because he had to rely on what the Accused told him about what was being said. ⁴⁵⁴ After hearing the audio-recording again in court, Dr Rajesh asserted that he could make out a “few English sentences” by the Complainant. ⁴⁵⁵ He conceded that the Complainant’s voice appeared to become “softer at some point” but stated that he did not think she was slurring. Eventually, however, he conceded that since he did not know how the Complainant normally sounded, it would be difficult for him to assess whether her speech in the audio-recording was impaired, as compared to her “baseline state”. ⁴⁵⁶ Importantly, after the Prosecution played for him portions of the audio-recording between 8.43pm and 9.08pm, Dr Rajesh accepted that there were some points during the car journey where the Complainant appeared either not to be responding to the Accused, or to be responding with sounds instead of any meaningful words. ⁴⁵⁷ He agreed that in opining in his report that the Complainant “was able to maintain a conversation and respond adequately”, he had not taken into account those portions of the audio-recording. He opined that based on what could be heard on those portions of the audio-recording played in court by the Prosecution, the Complainant’s lack of responsiveness appeared to constitute signs of the sort of “[d]ecreased sensory response” usually seen at the “excitement” stage (which would usually be seen at BACs between 90mg/100ml and 250mg/100ml, per Dubowski’s table at Annex 4). ⁴⁵⁸

180 Further, after being referred to certain portions of the Accused’s transcription (see eg, the table at [178] above), Dr Rajesh conceded that there was “evidence of drowsiness [on the Complainant’s part] in the car” – although he sought to suggest that she might not have been “significantly” drowsy “from the time she left the car until she entered the lift”. I will deal with the evidence of the Complainant’s behaviour from the point she left the car to the point when she entered the lift at her block. For now, what is noteworthy is that Dr Rajesh accepted that signs of sleepiness would correspond to a BAC “within the band of 200 to 300[mg/100ml]” (see eg, the table from Ethanol Forensic Toxicology at Annex 3 and Dubowski’s table at Annex 4) – although at this juncture in his cross-examination, he stated that he did not recall seeing evidence of other expected behaviour for this BAC range. ⁴⁵⁹ As will be seen at [181]–[187] below, there was indeed evidence of other symptoms and behaviour exhibited by the Complainant which corresponded to a BAC in the region of at least 200mg/100ml (if not higher).

181 On the in-car audio recording, the Complainant could clearly be heard stating at around 8.40pm that she wanted to vomit and asking for a plastic bag. ⁴⁶⁰ The Accused did not dispute that he then passed the Complainant a tissue box for her to vomit into, which led to her telling him that she did not want “tissue paper”. The Accused’s own transcription showed him telling the Complainant at this juncture to “hold on first” and “wait a while”. ⁴⁶¹ It was the Complainant’s evidence that she vomited into the tissue box; ⁴⁶² and although the Defence put it to the Complainant that she did not vomit during the car journey, ⁴⁶³ the Accused confirmed in his VRI statement that after he passed the Complainant the tissue box, she did in fact vomit into the tissue box. ⁴⁶⁴

182 As to further episodes of vomiting upon their arrival at the HDB carpark, the Complainant could only recall disposing of the tissue box on the ground after she alighted from the Accused’s car. In his evidence-in-chief, the Accused described the Complainant squatting on the pavement next to his car, holding the tissue box in her hand, and “making the kind of action that felt like she was going to vomit”. He claimed that he did not see any vomit on the ground at that point, but admitted that he “did not check the tissue box, the inside of the tissue box from beginning to end”. ⁴⁶⁵ This contrasted with his VRI statement, where he informed the police that after the Complainant alighted from his car, she squatted and vomited on the ground. ⁴⁶⁶ As to the Complainant’s evidence that she vomited again in the kitchen toilet at home, the Accused claimed that he saw her squatting by the toilet bowl with her fingers in her mouth, but did not know “whether there was vomit” in the toilet bowl (although he claimed that “there was no flush on the toilet bowl”). Again, however, this contrasted with his VRI statement, where he told the police several times about the Complainant vomiting in her kitchen toilet and even estimated that she took “five to ten minutes roughly” to do so. ⁴⁶⁷ It should be added that at trial, photographic evidence was adduced by the Prosecution of vomit stains found on the rim of the toilet bowl in the Complainant’s kitchen toilet and on her dress. ⁴⁶⁸ This photographic evidence was not challenged by the Defence.

183 All in, therefore, there was evidence – including evidence volunteered by the Accused to the police – of the Complainant having experienced nausea and then actually vomiting during the car journey home, retching and vomiting again upon alighting from the car, and then vomiting a third time in her kitchen toilet. Per Knight’s Forensic Pathology (Annex 1) as well as the table extracted by Prof Teo from the medical database UpToDate (Annex 2), vomiting is usually experienced at BAC levels between 200–300mg/100ml; whereas Dubowski’s table (Annex 4) refers to vomiting as one of the clinical signs which may appear at the stage of “excitement” (at BACs in the range of 90mg/100ml to 250mg/100ml) and/or at the stage of “stupor” (at BACs in the range of 250mg/100ml to 400mg/100ml).

184 That the Complainant’s BAC was likely in the region of at least 200mg/100ml (if not higher) could also be seen from the video footage of her staggering gait and apparent lack of coordination on more than one occasion as she made her way from the carpark to the lift. In particular, POLCAM footage showed her stumbling (at 9.23pm according to the POLCAM timestamp) as she was walking across a void deck area on her way to her lift lobby. ⁴⁶⁹ The stumbling occurred despite the Accused having his arms around her as they were walking – and despite the void deck area being flat and well-lit. Barely a minute later, the Complainant was shown appearing to stumble forward again, this time while waiting at her lift lobby – even though the lift doors were closed. ⁴⁷⁰ Both Dr Mak and Dr Rajesh agreed that these instances of stumbling showed a staggering gait. ⁴⁷¹

185 POLCAM footage from the lift lobby and the interior of the lift also showed the Complainant swaying back and forth and leaning against the Accused while they were waiting for the lift, and again when they were inside the lift. ⁴⁷² While Dr Rajesh initially asserted in examination-in-chief that the Complainant “did not appear to be unstable or unsteady on her feet inside the lift”, he revised his opinion after seeing – for the first time at trial – the in-lift video footage of the Complainant swaying and leaning on the Accused: in cross-examination, he agreed that this footage showed the Complainant “resting on [the Accused’s] shoulder” while he “was supporting her”. ⁴⁷³ Notably, the video evidence of the Complainant’s general unsteadiness was corroborated by the Accused’s testimony. In his evidence-in-chief, the Accused testified that he was “holding onto” the Complainant as they crossed the HDB void deck; and that despite her claiming not to be drunk and telling him he did not need to hold onto her, he “still tried to hold her and kept asking whether she was okay”. ⁴⁷⁴ In addition, the Accused testified that when he “let go” of the Complainant at the lift lobby, she “started swaying” and stood there “laughing foolishly” to herself (though he subsequently stated that she was smiling instead of laughing). ⁴⁷⁵

186 It should also be noted that although Dr Rajesh stated in his first report that the Complainant “did not manifest signs of incoordination as she was seen pressing the lift button for her unit inside the lift”, this was not quite accurate: in fact, the video footage from the interior of the lift clearly showed the Complainant pressing one of the lift buttons once, followed by the Accused pressing the lift buttons twice. ⁴⁷⁶ At trial, the Complainant’s evidence was that she appeared to have pressed the wrong lift button because it could be seen that the button she pressed was towards the bottom of the lift button panel, whereas the button for her floor (the eighth floor) would have been at the top of the panel. The Complainant’s evidence would appear to be corroborated by the fact that the Accused was seen pressing the lift button twice after her act of pressing the lift button. If she had indeed pressed the correct lift button for her floor, then there would have been no need for the Accused to press the lift buttons at all. In cross-examination, Dr Rajesh agreed that if the Complainant had actually pressed the wrong lift button for her floor, this would be evidence of sensory motor incoordination. ⁴⁷⁷

187 Per Knight’s Forensic Pathology (Annex 1), “staggering gait” constitutes behaviour usually associated with BACs between 150mg/100ml to 200mg/100 ml. As an alternative reference, Ethanol Forensic Toxicology (Annex 3) refers to “[i]ncreased impairment of a sensory motor activity” occurring at BACs between 100mg/100 ml to 200mg/100 ml, whereas “staggering” is said to occur at BACs between 200mg/100 ml to 300mg/100 ml. Dubowski’s table (Annex 4) – which provides for broader, and overlapping, BAC ranges – similarly notes that “sensory-motor incoordination” is one of the clinical signs associated with BACs between 90mg/100 ml to 250mg/100 ml, whereas “increased muscular incoordination” is a clinical sign associated with BACs between 180mg/100 ml to 300mg/100 ml.

188 In addition to the evidence of multiple episodes of vomiting, staggering gait, sensory-motor incoordination and general unsteadiness, there was also evidence of fragmented alcoholic memory blackout on the Complainant’s part. Based on the Complainant’s evidence, the alcoholic memory blackout appeared to have started at some point during the dinner at the Restaurant: the Complainant recalled some snippets of her conversation with the Accused, as well as walking outside to the smoking area with the Accused at one point when he wanted to smoke ⁴⁷⁸ – but she could not recall much of the evening. In particular, she could not recall walking through Vivocity with the Accused to the carpark, nor could she recall most of their conversation in the car. As to the events which occurred upon her arrival at her block of flats, she was also unable to recall, inter alia, how she got from the Accused’s car to the Unit, how she got to the kitchen toilet, and how her clothes were subsequently removed. ⁴⁷⁹ In respect of the incident of sexual intercourse, the next thing she could remember after the Accused supported her back from the kitchen toilet to her bedroom was “feeling something pushing against [her] vagina with force” and opening her eyes to see the Accused on top of her. ⁴⁸⁰ She described herself as having “drifted” in and out of consciousness during the sexual intercourse. While she could recall trying to get him to stop by touching his head or forehead with her hand, she could not remember if she uttered any words. ⁴⁸¹ She could remember him pausing and getting off her, but she could not remember if he stopped “for good” as she “blacked out” again at this point; and the next thing she then remembered was opening her eyes and finding herself lying naked in bed. It would appear that her alcoholic memory blackout lasted for some length of time after the incident of sexual intercourse, as she was unable to recall much of her interactions with the various police officers who came to her flat after her “999” call and/or the information she gave Dr Han at the hospital.

189 While there was no objective evidence of the Complainant’s alcoholic memory blackout, Dr Rajesh explained that medically speaking: ⁴⁸²

190 The above evidence was consistent with Dr Mak’s testimony that an alcoholic blackout “can only be understood after a patient or a person provides a self-report of it occurring, which is usually obtained after the event [has] occurred”. ⁴⁸³

191 I noted that in his second report, Dr Rajesh opined that the Complainant’s alcoholic blackout was “not severe” because based on her conditioned statement, he concluded that she was “able to remember several aspects of the events which happened on the night of the alleged offence”. ⁴⁸⁴ With respect, however, the fact that the Complainant “was able to remember several aspects of the events” would simply establish that her alcoholic blackout was partial or fragmented – as opposed to being complete or en bloc: Dr Rajesh himself described recall as being “usually possible” in fragmentary blackouts. ⁴⁸⁵ I did not see (and Dr Rajesh did not explain) how the ability to remember some aspects of the incident on 15 September 2021 would demonstrate that the Complainant’s alcoholic blackout was “not severe”. In any event, both Dr Rajesh and Dr Mak were agreed that alcoholic memory blackouts would normally occur at relatively high BAC levels: Dr Mak cited scientific literature showing that “most blackouts had occurred at a BAC of around 0.2 (200mg/100ml) but could also occur at 0.14 (140mg/100ml)”, ⁴⁸⁶ while Dr Rajesh testified that “anything from 140 onwards, 140mg per hundred ml, the chance of having a blackout is there”. ⁴⁸⁷ I agreed with the Prosecution, therefore, that the Complainant’s alcoholic memory blackout was relevant in showing that her BAC must have risen to at least 140mg/100ml in the course of the dinner (when the alcoholic blackout commenced) and that it would have continued to rise after she left the Restaurant. ⁴⁸⁸

192 Overall, the objective evidence of the Complainant’s clinical symptoms and behaviour throughout the dinner and up until her arrival at her HDB block (9.23pm) was consistent with her BAC having likely been in the region of at least 200mg/100ml at that point in time. The evidence of her likely BAC as at 9.23pm and her clinical symptoms until that point was thus consistent with and corroborative of her testimony as to her lack of capacity to consent to sexual intercourse shortly after 9.23pm. Specifically, I accepted that her mental capacity was significantly impaired by her alcohol intoxication, to the point where she was “drifting in and out” during the episode of sexual intercourse, and that she was not awake and not conscious just prior to and at the point of penile penetration by the Accused. Further, although the Complainant referred to herself as having “concussed” and/or “blacked out”, ⁴⁸⁹ I accepted that the use of these terms reflected the Complainant’s imperfect layman understanding of her state of incapacitation: in fact, she did also refer to herself as being “awake for that few moments” after feeling something pushing forcefully against her vagina. ⁴⁹⁰

193 In sum, based on the evidence, it appeared that the Complainant was already feeling drowsy during the car journey; and that far from abating on her arrival home, this drowsiness continued and was compounded by a sense of lethargy, which eventually progressed into sleep. I have already set out at [175]–[180] above the evidence of the Complainant’s drowsy state during the car journey. The Complainant’s evidence was that on arriving home, despite feeling “shocked” when she realised that the Accused had entered her flat, she simply “went to [her] bedroom to lie on [her] bed” because she “was feeling tired and intoxicated”. ⁴⁹¹ Tellingly, even the Accused acknowledged in his evidence-in-chief that when the Complainant went from the kitchen toilet back to her bedroom, she “told [him] that she was very tired, very tired … and she fell back onto the bed”. ⁴⁹² Based on the Complainant’s evidence, it would appear that she fell into a state of sleep at some point after lying down on her bed, and that she was roused from sleep only by the sensation of having her vagina penetrated by the Accused’s penis. It should be noted that her apparent progression from drowsiness to lethargy and then sleep was consistent with Dr Rajesh’s evidence that generally, prior to reaching the state of sleep, an individual would “feel sleepy or tired … they feel that their thinking becomes slow”; ⁴⁹³ and that “[f]or sleep [to occur], you would first need to drift into sleep”. ⁴⁹⁴

194 In this connection, Dr Rajesh initially objected to the Complainant’s description of herself “drifting in and out of consciousness” [emphasis added]. This was on the basis that “unconsciousness is a very extreme end of the spectrum”. ⁴⁹⁵ However, he agreed that based on the Complainant’s account of events, she could be said to have been “drifting in and out of sleep” at the material time. He also confirmed that individuals in a state of sleep would have no capacity to give consent to an act being done to them. ⁴⁹⁶

195 Significantly, too, despite having opined at paragraph 43 of his second report that it was “highly likely that the [Complainant’s] level of alcohol intoxication did not deprive her of the mental capacity to consent”, Dr Rajesh conceded in cross-examination that he could no longer maintain this opinion after having his attention drawn to various pieces of evidence. ⁴⁹⁷ In their closing submissions, the Defence did not deal with the about-turn in their expert’s evidence.

196 I did note, however, that Dr Rajesh sought to explain that at paragraph 43 of his second report, he had really been focusing on whether the Complainant was at the stage of “stupor” at the material time. I also noted that a fair amount of time was devoted by Dr Mak and Dr Rajesh at trial to discussing whether the impairment to the Complainant’s mental capacity at the material time could qualify as a “stuporous” state. It will be recalled that Dr Mak’s opinion was that it could, whereas Dr Rajesh’s opinion was that it could not. Having considered both experts’ evidence, I accepted Dr Mak’s opinion. My reasons were as follows.

197 First, I noted that Dr Rajesh did not actually disagree with Dr Mak’s definition of the stage of “stupor” as “a state of near-unconsciousness where an individual is poorly responsive and may only [be] roused briefly by strong stimuli (such as loud noises or pain), with a tendency for the individual to drift back into near-unconsciousness”. ⁴⁹⁸ Dr Rajesh opined that stupor was a “severe” stage which would equate to “almost reaching an unconscious state … more than just being sleepy”, ⁴⁹⁹ and that an individual in a stuporous state would be unable to do things such as getting up physically and making phone calls. ⁵⁰⁰ In his second report, he also stated that stupor due to alcohol intoxication “can be considered as a medical emergency as respiratory depression can occur, and the person would need immediate medical attention” [emphasis added]. ⁵⁰¹ However, Dr Rajesh also conceded that there could be differing degrees of severity of stupor: ⁵⁰²

198 In cross-examination, Dr Rajesh acknowledged that the risk of respiratory depression and potentially the need for immediate medical attention would seem to correspond more closely to the state of coma. ⁵⁰³ I understood this to mean that obviously, it followed that not everyone in a state of stupor would proceed to experience “respiratory depression” and be classified as “a medical emergency”. Dr Rajesh also agreed that there could be a range of impairments in consciousness at different degrees of severity of stupor. ⁵⁰⁴ In the circumstances, there was no reason why the Complainant’s state of drifting in and out of sleep during the episode of sexual intercourse could not be characterised as a state of stupor – albeit a less severe state than one of “deep sleep”.

199 Second, Dr Rajesh also acknowledged that it was possible for an individual to experience an even greater degree of impairment than the expected behaviours corresponding to their BAC range. ⁵⁰⁵ As he put it, there could be “many variables” in play, ranging from dehydration and liver condition to individual physiology. Inter alia, as Dr Mak pointed out (citing Knight’s Forensic Pathology), women were usually more affected at lower levels of BAC.

200 Third, Dr Rajesh agreed – after being referred to Dr Han’s medical report – that the Complainant appeared to be “more sensitive to the effects of alcohol”. In particular, he noted that Dr Han had observed the Complainant swaying from side to side, retching, and vomiting during the medical examination at 4am on 16 September 2021 (more than seven hours after leaving the Restaurant). ⁵⁰⁶

201 Fourth, Dr Rajesh opined in his report that the Complainant could not have been in a stuporous state between 9.23pm and 9.49pm because “she was able to tell [the Accused] that she wanted to vomit” and she went to the toilet to vomit, she was “able to remember certain events around the material time”, and she was “also able to make an emergency call to the police at 9.49pm”. ⁵⁰⁷ However, it was the Complainant’s evidence that she could not remember how she got to the toilet and whether the Accused supported her to go to the toilet. ⁵⁰⁸ Additionally, as I noted earlier, while it was the Accused’s position that the Complainant walked unassisted to the toilet and back to her bedroom, it was telling that in his account in examination-in-chief, he referred to the Complainant having fallen back on her bed after saying she was “very tired”. As to the Complainant’s ability to recall some of the events that night, as I also noted earlier, this appeared to me simply to indicate that her alcoholic memory blackout was fragmented or partial, as opposed to being en bloc: no explanation was given by Dr Rajesh as to why the fragmented nature of her alcoholic blackout should be equated with a lesser degree of impairment to her mental capacity. Finally, as to the “999” call made by the Complainant, it was not disputed that she actually called a friend’s number by mistake before managing to call “999”; and as Dr Mak observed, the audio-recording of her “999” call showed that the emergency operator had difficulty eliciting the relatively simple information about her address. The Complainant also failed to provide any information to the emergency operator as to why she was calling “999”.

202 With respect, therefore, insofar as Dr Rajesh cited the above matters as the basis for his opinion that the Complainant was at a far lesser state of mental impairment than stupor, he appeared to me to have relied on incomplete information.

203 Further, Dr Rajesh’s opinion that the Complainant could not have recovered so quickly from a stuporous state as to be able to make a “999” call at 9.49pm and to “get up, walk around, make phone calls, do like goal-directed actions” was based on his description of stupor as an extreme stage “almost near unconsciousness”. ⁵⁰⁹ However, as seen earlier, he accepted in cross-examination that there could be varying degrees of severity of stupor. Moreover, as the Prosecution pointed out, there was objective evidence showing that even as at 9.49pm and for some time thereafter, the Complainant continued to exhibit signs of considerable impairment. Apart from the audio-recording of her “999” call, there was evidence of her being in an emotionally labile state when the first responder officers arrived, as demonstrated by her continuous wailing and sobbing. There was evidence of a high degree of disinhibition and/or loss of judgment, as demonstrated by her remaining naked even after the officers arrived. There was evidence of her vomiting and appearing somewhat unsteady on her feet in Sgt Vernis’ presence. Some six hours later, there was evidence of her still appearing dazed, swaying from side to side, retching, and vomiting during Dr Han’s medical examination. In other words, this was not a case where the Complainant went from being severely impaired to making a full recovery from her state of impairment within minutes.

204 I make two other points for completeness. Insofar as Dr Rajesh relied on the Complainant’s act of telling the Accused to “stop” during the incident, I did not find that this evidence established her capacity to consent to having sex with the Accused: Dr Rajesh conceded in cross-examination that this occurred after the Complainant realised that she had been penetrated, and that one could not therefore conclude from this evidence that she had capacity to consent at the point of being penetrated. ⁵¹⁰ It should also be pointed out that the Complainant could only recall touching or pushing the Accused’s head or forehead; that she could not actually recall speaking to him to say “No”; and that she “fell unconscious again” in “the next moment”. ⁵¹¹

205 As for the Complainant’s act of sending the text message, “You are too much”, to the Accused at 9.55pm, Dr Mak testified that the text suggested some anger on the Complainant’s part and a degree of understanding that she had been “wronged”, but emphasised that he was unable to make much more of the message, given that it was a short text containing just four words. He also opined that the physical act of sending a text message would be a fairly simple and routine action. ⁵¹² Dr Rajesh too accepted that the text was “very short” and that he did not know how long the Complainant would have taken to type it. ⁵¹³ In the circumstances, I agreed with the Prosecution that no reliable conclusions about her mental capacity could be drawn from this act.

206 For the reasons set out above, I was satisfied that the impairment to the Complainant’s mental capacity at the time of sexual intercourse was sufficiently serious to be characterised as a state of stupor. She clearly had no capacity to consent to having sex with the Accused.

207 In any event, per Dr Rajesh’s unequivocal testimony, there was no literature or clinical evidence linking the lack of mental capacity to a specific BAC. An individual did not have to be in a stuporous state before losing the capacity to consent to sexual intercourse: he or she could be sufficiently impaired so as to lose the capacity to consent even before reaching the stage of stupor. ⁵¹⁴ In the present case, I was satisfied that even if the Complainant’s state of impairment could not strictly be said to amount to stupor, she was nevertheless seriously impaired to the point where she had no capacity to consent to having sex. In coming to this conclusion, I took into account the Complainant’s evidence, the evidence as to her likely BAC at the material time, and the objective evidence of her clinical symptoms and behaviour (see [142]–[194] above).

208 In this connection, I noted that in their closing submissions, the Defence attempted to dismiss the relevance of the Complainant’s vomiting and staggering gait by claiming that there was a difference between what they termed “physical clinical signs” and “cognitive domains of attention, memory and executive functioning”. ⁵¹⁵ This attempt was regrettably unmeritorious. The Defence failed to point to any expert evidence which supported their suggestion that such a distinction should be drawn when assessing the extent of an individual’s mental impairment under intoxication. Even their own expert Dr Rajesh drew no such distinction either in his reports or in his testimony. On the contrary, in considering the effects of alcohol on the Complainant, Dr Rajesh found it relevant to consider evidence of the Complainant’s ability to walk unassisted as well as the (alleged) absence of “staggering or unstable gait”. ⁵¹⁶ In cross-examination, Dr Rajesh also accepted that evidence of (inter alia) vomiting and staggering gait would be relevant to assessing the extent of the Complainant’s impairment and thus the likelihood of her having capacity to consent. ⁵¹⁷

209 The Defence further contended in their closing submissions that the Complainant behaviour at earlier stages of the evening of 15 September 2021 showed that she must have been capable of giving consent at those points in times. For example, it was argued that at the point of leaving the Restaurant at 8.35pm, the Complainant must have still “retained her capacity to consent” because she had “fed the Accused” during dinner, could walk “independently”, recalled parts of her conversation with the Accused, and was able to communicate to him her acceptance of his offer to send her home. However, these arguments were really neither here nor there. The relevant issue in this case was whether the Complainant had capacity to consent with sexual intercourse with the Accused at the time that such intercourse took place – and not whether the Complainant might have had capacity to consent at earlier points in the evening.

210 Further and in any event, even assuming for the sake of argument that the Complainant had capacity to consent to sexual intercourse with the Accused, the evidence clearly showed that no such consent was in fact given.

211 First, I found the Complainant’s evidence about the lack of consent to be cogent and internally consistent. From the point when the first responder police officers arrived at her flat up to and throughout the trial, the Complainant consistently maintained that she was raped by the Accused. She maintained throughout the proceedings that she never consented to sexual intercourse because she was not even conscious at the point of sexual penetration. She also asserted that she would never have consented to sex with the Accused in any case, and was able to provide credible reasons as to why this was so: firstly, because he was simply not her type (“younger than me … shorter than me … doesn’t even have much hair”); and secondly, because as a matter of principle, she would not engage in a relationship with “another person in [her] industry”. ⁵¹⁸

212 Having observed the Complainant in the course of her testimony, I found her to be a forthright witness. Where she was unable to recall details, she said so candidly without trying to come up with answers which might be more favourable to her narrative. For example, when asked in examination-in-chief what “went through [her] mind” when she realised that she was being penetrated by the Accused, the Complainant had stated that she was shocked and that she “did ask [the Accused] … to stop”. ⁵¹⁹ In cross-examination, when she was asked how she told the Accused “to stop”, she stated that she remembered using her hand to try to push the Accused’s head or forehead away, and clarified that she could not actually remember if she also said anything to him. ⁵²⁰ As another example, it will be remembered that the Complainant’s evidence was that since returning to Singapore in December 2019, she had drunk alcohol on fewer than five occasions and would feel tired after around two glasses of alcohol. ⁵²¹ In cross-examination, it was put to the Complainant that she “did not have to drink that third glass” of wine at the dinner on 15 September 2021 and that she “could have stopped” at her “limit” of two glasses. Again, she was candid in agreeing that she could indeed have stopped at two glasses of wine. ⁵²² She agreed as well that despite the Accused having promised to call a “valet” to drive his car and to “send [her] home safe”, she did not need to follow the Accused and could have “taken a taxi or a Grab home”. ⁵²³ In short, there was no attempt by the Complainant to dissemble or to embellish her account of events, even in instances where her unvarnished account put her in a potentially unfavourable light.

213 Not only was the Complainant’s testimony about the lack of consent internally consistent and coherent, it was consistent with, and corroborated by, other evidence adduced in the course of the trial – which I set out below.

214 First, there was evidence of the Complainant having been seriously indisposed prior to the incident of sexual intercourse. Inter alia, as recounted earlier, the Accused himself had informed the police in his VRI that she vomited into a tissue-box during the car journey; that she vomited again while squatting on the ground next to the car in the carpark; and that she vomited a third time in her kitchen toilet after arriving back in the Unit.

215 I note that at trial the Accused changed his position and refused to acknowledge that the Complainant had vomited at all in the course of his evening with her. I deal with this change in position when addressing the Accused’s version of events below (at [246]–[250]). For now, however, I highlight that even on the version of events presented by the Accused at trial, the Complainant had told him that she wanted to vomit during the car journey (which statement was audible on the in-car audio recording), and that he had not only passed her a tissue box to vomit into but had also told her to “tolerate first” – by which he meant, “hold in the vomit”. ⁵²⁴ He also admitted that on alighting from the car, she had squatted next to the car and made “the kind of action that felt like she was going to vomit”. ⁵²⁵ He admitted that he was “holding onto her” as they walked through the void deck (despite her allegedly stating that she was not drunk), that he “kept asking whether she was okay”, and that when he let go of her, she “started swaying”. As also recounted earlier, CCTV footage did in fact show the Complainant stumbling as she walked, swaying from side to side while waiting for the lift, and leaning against the Accused after entering the lift. The Accused also accepted that the Complainant did go to the kitchen toilet in her flat and that he saw her squatting by the toilet bowl with her fingers in her mouth, after which she went to her bedroom, sat on the bed, and said that she was “very tired”. ⁵²⁶ The Defence did not challenge photographic evidence adduced at trial of vomit stains found on the rim of the kitchen toilet bowl and the Complainant’s dress.

216 In short, the evidence clearly pointed to the Complainant having been physically unwell and “very tired” prior to the incident of sexual intercourse. This made it highly unlikely that she would have made amorous advances to the Accused when he tried to leave, or that she would have willingly engaged in sexual intercourse with him.

217 Second, there was evidence from the first responder police officers – Sgt Vernis and SI Lucius – that when they arrived at the Unit at 10.05 pm on 15 September 2021 (ie, less than an hour after the sexual intercourse with the Accused), the Complainant informed them that she had been raped. ⁵²⁷ When Sgt Vernis entered the Unit and spoke to the Complainant, she learnt from the latter the identity of the alleged rapist (ie, the Accused). Sgt Raudha, who arrived at the Unit at 10.26 pm, was also informed by the Complainant that she had been raped by the Accused after he sent her home from the Restaurant. ⁵²⁸

218 Our courts have held in several cases that applying a liberal approach to corroboration, evidence of subsequent complaints made by a complainant may be treated as corroboration of the complainant’s account, “provided that ‘the statement [implicating] the [accused] was made at the first reasonable opportunity after the commission of the offence’” (per the Court of Appeal in Haliffie bin Mamat v Public Prosecutor [2016] 5 SLR 636 (“Haliffie”) at [30], citing Public Prosecutor v Mardai [1950] MLJ 33 and AOF v Public Prosecutor [2012] 3 SLR 34). The above complaints of rape by the Complainant were plainly made at the first reasonable opportunity after the incident of sexual intercourse. The evidence from the police officers therefore corroborated the Complainant’s account of having been raped by the Accused.

219 In addition, there was evidence from these police officers – as well as the Complainant’s boss – of her having been in a state of severe distress shortly after the sexual intercourse with the Accused. SI Lucius, who did not enter the Unit, described the Complainant as having been “in distress” and “crying” when he spoke to her from outside her front door. ⁵²⁹ Sgt Vernis, who subsequently entered the Unit, found the Complainant naked and crying “non-stop”. ⁵³⁰ SI Lucius and Sgt Vernis’ testimony as to the state of distress in which they found the Complainant was corroborated by the footage from Sgt Vernis’ BWC, which showed the Complainant wailing and sobbing while in a naked and dishevelled state. Sgt Raudha – who arrived some minutes after Sgt Vernis – testified that she found the Complainant “breathless” and crying “very uncontrollably”. ⁵³¹

220 Apart from the evidence of these police officers, there was also the account given by the Complainant’s boss, [C], as to the multiple phone calls he received from her on the night in question. As noted in my earlier summary of [C]’s evidence (at [43] above), [C] testified that in the first phone call he received from the Complainant at 9.56pm, she was “crying non-stop”, and he heard her uttering the Mandarin words “侵犯” – which he subsequently understood to refer to an attack or a violation of some sort. In the subsequent three phone calls he received from her, she continued to cry non-stop and stated at one point that she “felt like asking the police to give her a knife so that she could kill herself”. Her behaviour was sufficiently worrying that [C] became “afraid” that she might do “something bad to herself”: [C] offered to go over to see her and did in fact make his way to her flat, although he was unable to see her in person due to the presence of the police. ⁵³²

221 It was not suggested by the Defence, either to the above witnesses or to the Complainant herself, that her distraught demeanour and behaviour were anything other than genuine. There is ample caselaw establishing that third parties’ observations of distress on the part of a complainant constitute corroboration of the complainant’s testimony. In Haliffie, for example, the Court of Appeal took into account the evidence of several witnesses who encountered the complainant shortly after the alleged rape and testified to having observed her demonstrating great emotional distress. The Court of Appeal found that these witnesses’ evidence as to the complainant’s distress “unquestionably corroborate[d]” her account of having been raped by the appellant Haliffie (at [66]). In a similar vein, in the present case, the police officers’ and [C]’s evidence as to the Complainant’s state of considerable distress shortly after the episode of sexual intercourse, as well as the BWC footage, corroborated the Complainant’s testimony about having been the victim of rape.

222 Third, as also recounted earlier, the medical examination conducted of the Complainant at 4am on 16 September 2021 revealed a fresh laceration on her posterior fourchette. Dr Han explained that this referred to the lower end of the opening of the vagina (external genitalia); and that the wound appeared to have been inflicted “over the past 24 hours”, as the edges of the wound “looked raw” and healing had not started to take place yet.

223 Critically, it was Dr Han’s unshaken – and unrefuted – testimony that such an injury was “actually the most common … occurrence of genitalia injury following sexual assault”, and that it was “uncommon” to see an injury like this in the context of consensual sex between two people who were sexually active. ⁵³³ Dr Han testified that this was because in cases of sexual assault where the assailant was on top of the victim, the victim would usually try to resist by closing her legs to prevent penile penetration, and forceful intervention by the rapist could then lead to a tear at the posterior fourchette. ⁵³⁴ In their closing submissions, the Defence sought to rely on an answer given by Dr Han in cross-examination to the effect that “if a victim is completely drunk … and she has no resistance … then the posterior fourchette tear may not occur”.

224 With respect, the Defence’s submission ⁵³⁵ ignored the rest of Dr Han’s evidence. Following the answer cited by the Defence in their closing submissions, Dr Han went on to clarify that a posterior fourchette laceration “can occur” in the absence of resistance from an alleged victim, though it was “less likely”. In response to a further question from counsel, Dr Han testified that in the absence of resistance, a posterior fourchette laceration could still occur if there was forceful penetration combined with lack of lubrication. ⁵³⁶ Indeed, Dr Han emphasised that a posterior fourchette laceration could be “caused by trauma in general”, such that “any force with or without any lubrication [could] cause a tear in the posterior fourchette”. ⁵³⁷ Conversely, as Dr Han also explained, such an injury was uncommon in the context of consensual sex, firstly, because a person willingly receiving sexual penetration would usually cooperate with her sexual partner by putting herself in a position that was more “comfortable [for] receiving penetration”; and secondly, because the person willingly receiving sexual penetration would also be “sexually aroused” such that “the vagina tends to be naturally lubricated, and that would facilitate entry of the other genital organ, for example, the male penis, into the vagina”. ⁵³⁸ Moreover, as between two consenting sexual partners, pain would usually be a factor limiting the possibility of such an injury being inflicted, since a woman who experienced pain during the sexual intercourse would usually tell her partner “to stop or to change position”. ⁵³⁹

225 In sum, therefore, Dr Han’s evidence about the nature of such an injury and the circumstances in which it could occur corroborated the Complainant’s account of a rape in which she felt “something pushing against [her] vagina with force” and opened her eyes to find that the Accused had inserted his penis inside her. ⁵⁴⁰ Conversely, Dr Han’s evidence militated against the Accused’s account of a “very slow” and “very gentle” episode of consensual intercourse during which the Complainant exhibited signs of sexual arousal.

226 Finally, I should make it clear that I found no merit in the Defence’s attempt to point out various alleged inconsistencies in the Complainant’s testimony. First, in terms of the appropriate approach to assessing a witness’ memories of an event, the Court of Appeal in Public Prosecutor v GCK [2020] 1 SLR 486 (“GCK”) highlighted (at [112]) scientific literature which indicated that stress “can actually impair the encoding and storage of autobiographical experiences and reduce the ability to retrieve specific episodic information during subsequent recall attempts”. Scientific literature similarly showed “that an individual’s capacity for observation and memory recall may not always lie on a continuum even when the account in question concerns events occurring within the same episode”: a trauma survivor – such as a rape victim – might remember “some aspects of the experience in exquisitely painful detail” while being unable to remember other aspects at all “or only in jumbled and confused fragments” (at [113]).

227  Second, I agreed with the Prosecution that some of the answers given by the Complainant were either misquoted or taken out of context. ⁵⁴¹ For example, the Defence submitted that despite the Complainant’s claim about having been shocked to realise the Accused was inside her flat, she clearly “wanted the accused to stay with her” because she had testified that she believed she would “still need support”. As the Prosecution noted, however, the Complainant’s statement about still needing support was made in the context of responding to counsel’s suggestion that she was clearly capable of telling the Accused “to get out of [her] house” since she had “enough energy to walk to the toilet”: the Complainant’s evidence was that she did not “even have the energy” to “ask anything or say anything”; that she was simply thinking of vomiting; and that she could not remember whether she was stable enough to walk to the toilet or whether the Accused supported her. Plainly, the Complainant’s testimony in this entire portion of her cross-examination could not be interpreted to mean that she “wanted the accused to stay with her”. ⁵⁴²

228 As for the Complainant’s remark to Dr Han that she had thought the Accused “would take care of her”, it was clear from the sequence narrated in Dr Han’s report that this remark related to the point in time when the Accused sent the Complainant home – not the subsequent point when she realised he had entered her flat. ⁵⁴³ At trial, Dr Han too stated in cross-examination that the Complainant’s remark about thinking the Accused “would take care of her” was made in response to his asking her why she had gone home with the Accused. ⁵⁴⁴

229 Third, I also agreed with the Prosecution that the alleged inconsistencies cited by the Defence largely related to peripheral details – eg, who closed the door to the Unit after the Complainant and the Accused entered it; whether the Complainant went to the kitchen toilet immediately upon entering the Unit or only after having first gone to her bedroom to lie down; and whether she could have called the police at “about 9.52pm” when the call logs showed the “999” call being made at 9.49pm. Even if there were some inconsistencies in the Complainant’s recollection of these details, they were not material: they certainly did not have the effect of damaging the credibility of her testimony about the rape.

230 In respect of the Complainant’s evidence in her conditioned statement about the Accused “want[ing] [her] to give him a blowjob”, the Complainant did admit at trial that she could not be “very sure” if the Accused had asked her for a blow job. However, I did not find this admission to be fatal to the credibility of her evidence about the rape. Rather, it appeared to me that she was being candid in admitting that although she believed the Accused might have made a “hand sign … pointing over his private area”, she could not be sure of it. She also admitted quite guilelessly that because she was “under the alcohol influence” at the material time, she could not be sure about her statement that the Accused had asked for a blowjob, and she did not want to falsely accuse him. ⁵⁴⁵

231 Fourth, while it was true that Dr Han’s medical report recorded the Complainant having been unable to remember the exact nature of assault, and whether vaginal, anal or oral penetration had occurred, I did not find this in any way suspicious or suggestive of subsequent fabrication on the Complainant’s part. For one, Dr Han’s evidence was that the Complainant was still “intoxicated”, “in tears”, and “distressed” during the interview – to the extent that she “wanted to even give up the examination altogether” at one point during the medical examination. ⁵⁴⁶ He also noted the physical signs of her continuing intoxication, which included retching, vomiting, and unsteady gait. In these circumstances, it was not surprising that the Complainant might not have been capable of giving cogent answers to Dr Han’s questions about “the exact nature of assault”.

232 In respect of the few remaining points brought up by the Defence, they were again peripheral in nature: the Prosecution was able to deal comprehensively with these points in their reply submissions; ⁵⁴⁷ and I need only say that I found the Prosecution’s responses to be amply supported by the evidence. In sum, I was satisfied that the material aspects of the Complainant’s account of events were both internally and externally consistent.

233 Neither the Prosecution nor the Defence made any submissions on the application of the “unusually convincing” standard to the evaluation of the Complainant’s evidence as to her lack of capacity to consent and the factual lack of consent. Nevertheless, it should be clear from my reasoning in these written grounds that there was a considerable amount of evidence corroborative of the Complainant’s evidence on these matters (see [147]–[193] and [210]–[222] above). As such, the “unusually convincing” standard should not apply to her evidence, as that standard is typically invoked where the uncorroborated evidence of a witness forms the sole basis for conviction (GII v Public Prosecutor [2025] 3 SLR 578 (“GII”) at [25], citing GCK at [87]). In any event, even if the “unusually convincing” standard were to apply, I found it to be satisfied in the Complainant’s case. As I have explained, she impressed me as a forthright witness; and her testimony was cogent, compelling, and both internally and externally consistent.

234 Having arrived at the above findings in respect of the Complainant’s testimony about the rape, I also found that the Accused’s defence did not cast any reasonable doubt on the Prosecution’s case. I explain.

235 First, the Accused’s testimony about the incident struck me as being internally inconsistent and highly implausible.

236 To begin with, in respect of the Complainant’s state of intoxication and the corresponding impairment to her mental capacity, the Accused accepted that on the in-car audio-recording, he could be heard telling the Complainant, “I am here” and “Don’t worry”. ⁵⁴⁸ However, he denied that he said these things to the Complainant because she was drunk and he wanted to convey that he would take care of her in her drunk state. According to the Accused, he said these things as he was feeling “very comfortable” with the Complainant, who had “kissed” him and put her head on his shoulder; and there was “[n]o special meaning” to his telling her not to worry. ⁵⁴⁹

237 In my view, it was clear from the above answers that the Accused was reluctant to admit the drunk state the Complainant was in during the car journey – which drunk state had obviously necessitated his telling her, “I am here” and “Don’t worry”. ⁵⁵⁰ His explanation as to why he had made these remarks was glib, unconvincing, and entirely inconsistent with other parts of his testimony. Inter alia, he admitted at trial that during the car journey, the Complainant had told him at least twice that she wanted to vomit, that she had asked for a plastic bag, that he had passed her a tissue box for her to vomit into, and that he had told her to “tolerate” (by which he meant “to basically hold in the vomit”). ⁵⁵¹ Further, the Prosecution highlighted in cross-examination that on the in-car audio recording, he could be heard remarking aloud at one point, “Send a ‘chiongster’ home. ‘Chiongster’, she is drunk.” On being confronted with this portion of the audio-recording, the Accused admitted that by “chiongster”, he had been referring to the Complainant. ⁵⁵² He also admitted that by making this remark about sending a drunk “chiongster” home, he was saying that the Complainant was drunk. When asked how he knew she was drunk, however, he did not answer the question and instead mentioned other irrelevant matters such as the Complainant (allegedly) “lying against [his] shoulder” and his winding down the car window to light a cigarette. ⁵⁵³ When reminded to answer the Prosecution’s question as to how he knew the Complainant was drunk, he gave a series of evasive responses which – again – failed to provide a direct answer to the question: ⁵⁵⁴

238 On being referred to a subsequent point in the in-car audio recording when he could again be heard telling the Complainant “I’m here, don’t worry”, the Accused continued to insist that there was “[n]o special meaning” to this remark: according to him, this remark was made at a point when he and the Complainant were “French-kissing”, and “[i]t’s like sayang”. ⁵⁵⁵ He was unable to explain, though, why he had told her “don’t worry”: when asked what it was he was telling her not to worry about, he could only say – somewhat incoherently – that he was telling her “[t]hat [he was] by her side”. However, as the Prosecution pointed out, there was no sense in his telling her that he was “by her side” when at this point in time they were – on his evidence – already “French-kissing”. ⁵⁵⁶

239 From the Accused’s testimony, therefore, I formed the distinct impression that although he realised he could not dispute that the Complainant was in an intoxicated state during the car journey, he sought to downplay the extent of her intoxication and, correspondingly, the extent of resulting impairment to her mental capacity. As another example, I noted that in cross-examination, the Accused conceded that after alighting from the car, he supported the Complainant by holding on to her as they were “cutting across the void deck at her block” (as shown in the POLCAM footage at exhibit P30) – but he sought to emphasise that “all the while, [the Complainant] was the one leading the way”. ⁵⁵⁷ When asked to confirm that the Complainant was in fact more drunk than him at the point of arrival at her HDB block, his answer was again a glib exercise in deflection: ⁵⁵⁸

240 The Accused was then asked whether he had already formed the intention to send the Complainant up to her flat when he parked his car at the HDB carpark. He denied having had such an intention when he parked his car. When asked to explain what he had been planning to do after parking his car, he claimed that he had simply “wanted to take care of [the Complainant]”. In giving this explanation, he revealed that he had been “afraid that [the Complainant] would trip and fall … afraid that she was unstable”. In virtually the next breath, however, when asked whether the Complainant was able to “walk stably and steadily”, he claimed that he could not remember. I set out below the series of answers the Accused gave in response to the Prosecution’s attempt at clarifying his position, as this was illustrative of the evasive and inconsistent quality of his evidence: ⁵⁵⁹

241 Tellingly, the Accused’s account of the Complainant’s degree of intoxication and corresponding impairment was evasive and self-contradictory even in examination-in-chief. For example, when he first described in examination-in-chief the Complainant’s physical state while waiting at the lift lobby, his account was as follows: ⁵⁶⁰

242 When asked to clarify at which point in the POLCAM footage the Complainant could be seen swaying, laughing to herself and saying “You made me drunk”, the Accused was able to identify the specific point in the footage he was referring to, even adding that at the point the Complainant could be seen making a “hand gesture” (apparently a reference to the Complainant waving her right hand around), she “was just laughing foolishly and saying, ‘You, you made me drunk.’” ⁵⁶¹ In the very next breath, however, when asked to confirm his answer, the Accused – in a sudden about-face – claimed that there had been “[n]o laughter”. When reminded that he was the one who had mentioned the Complainant laughing, he claimed that he “[did] not know the definition of ‘laughter’”. When asked specifically whether the Complainant had in fact laughed, his answer was “Not ‘ha ha ha’”. When asked if she had laughed in some other way, he first answered “A very friendly feeling” – and then followed this non-sequitur with the assertion that the Complainant had “smiled” instead of laughing. ⁵⁶²

243 In short, the Accused’s testimony was riddled with internal inconsistencies. Further, even if I were to ignore these inconsistencies, his own account of the Complainant’s condition prior to and upon her arrival home made it highly implausible – indeed, improbable – that she would have been desirous of sexual intercourse. For one, even assuming the Complainant did not actually vomit in the car and on the way back to her flat, the Accused’s own evidence was that she had told him more than once during the car journey that she wanted to vomit; and he had obviously believed her, because he gave her a tissue box to vomit into and told her to “tolerate” by holding in her vomit. His evidence was also that upon alighting from the car, she squatted next to the car and made “the action like she wanted to vomit”. ⁵⁶³ On his evidence, the Complainant’s nausea did not abate upon her return to the flat: according to him, she went to the kitchen toilet without even locking her front door, and he saw her “squatting by the toilet bowl” with her fingers “in her mouth”. In addition to her nausea, she was obviously in an exhausted state: the Accused himself recounted her telling him she was “very tired, very tired” before she fell back onto her bed. ⁵⁶⁴ The Accused’s own account of the Complainant’s nauseous and exhausted state was thus completely inconsistent with his story about her having initiated a sexual encounter by holding on to him as he tried to leave.

244 Not only was the Accused’s testimony riddled with internal inconsistencies, it was materially inconsistent with his VRI statement, the CFD, and the various aspects of his case which his counsel put to the Complainant in cross-examination on the other hand. In this connection, an application was made by the Prosecution to impeach the Accused’s credit under s 157 of the EA. Having considered the evidence and parties’ submissions, I found that the Accused’s credit was successfully impeached.

245 The full list of inconsistencies on which the Accused was cross-examined by the Prosecution is set out in Annex B to the Prosecution’s closing submissions. For the purposes of these written grounds, I focus on the following four issues: whether the Complainant vomited in the lead-up to the episode of sexual intercourse; whether the Complainant was able to walk steadily after alighting from the car; whether she said “no” during sexual intercourse; and what happened between the Complainant and the Accused after the sexual intercourse.

246 On the issue of the Complainant’s vomiting, the Accused’s evidence in his VRI statement of 16 September 2021 was that she had vomited into the tissue-box during the car journey; that she vomited again on the ground in the carpark after alighting from the car and squatting next to it; and that she vomited a third time in her kitchen toilet. In describing in his VRI statement each of these three bouts of vomiting, the Accused’s evidence was unambiguous. Thus, for example, in respect of the second bout of vomiting, he stated that “once [the Complainant] reached, she straightaway opened the door and puked at the side”. ⁵⁶⁵ Asked by the IO if this was the second time the Complainant vomited, the Accused’s answer was:

247 Not only was the Accused’s account of the Complainant’s vomiting unambiguous in his VRI statement, he was able to give various details. For example, in respect of the third bout of vomiting in her kitchen toilet, he was able to recall that the Complainant had gone “straightaway” to the toilet after opening the door to her flat; that he had followed her into the toilet and patted her; that she had vomited for “5 to 10 minutes roughly”; and that after vomiting, she had walked to another room where there was a queen-sized bed and “[j]ust lie down” on the bed. ⁵⁶⁶

248 Having given a vivid account in his VRI statement of the Complainant’s three bouts of vomiting, the Accused appeared to back away from this account in his CFD: the CFD referred vaguely to the Complainant “try[ing] to vomit” upon alighting from the car and after entering her Unit – but failed to state whether her alleged attempts to vomit were successful. ⁵⁶⁷ The departure from the position taken in his VRI statement became even more marked during the trial. In cross-examining the Complainant, defence counsel put it to her that she did not vomit during the car journey; that she tried unsuccessfully to vomit after alighting from the car; and that she did not vomit at all in her kitchen toilet. ⁵⁶⁸ The Accused himself testified that the Complainant did not vomit during the car journey; that although she was squatting next to his car in the carpark and retching, he did not see any vomit on the ground; and that he did not know whether she actually vomited into the kitchen toilet bowl but it was “just a brief moment” and “there was no flush on the toilet bowl”. ⁵⁶⁹

249 The issue of whether the Complainant had vomited in the lead-up to sexual intercourse was plainly an important one, since it related to the extent of her intoxication and the corresponding impairment to her capacity to consent to sex. In attempting to explain the inconsistencies between his unambiguous account in the VRI statement on the one hand and his CFD and testimony on the other hand, the Accused gave a number of incoherent answers. He claimed that when he told the police about the Complainant vomiting in his car, he was actually concerned with pointing out “the tissue box” to the police because it was “part of evidence”; that he did not know “where the tissue box was after she alighted from the car”; and that he would “rather say that she vomited, rather than the police being able to locate the evidence and [he] say she didn’t vomit … then it will become [him] lying to the police”. ⁵⁷⁰ As for having told the police about the Complainant vomiting after she alighted from the car, he claimed that the way he had described this episode in his VRI statement was not “ideal”: he had seen the Complainant squatting by the car, but because he had “to be very certain” in court, he “did not verify whether she had vomited or how much she vomited” and therefore could not say that he “had seen she vomited or seen how much she vomited”. ⁵⁷¹ Finally, as for having told the police about the Complainant vomiting in the kitchen toilet, he claimed that in fact, he “did not flush the toilet bowl and … did not check”. ⁵⁷²

250 The upshot of the Accused’s explanations appeared to be that he could not actually be sure whether the Complainant had vomited, and that he testified truthfully at trial to not knowing whether she had vomited because he realised that he had to be “very certain in court”. In my view, the Accused’s explanations were plainly disingenuous and wholly unconvincing. The Accused’s VRI statement was recorded at 5.49pm on 16 September 2021, ie, just the day after the events of the night of 15 September 2021. At trial, he acknowledged that at the time he gave his VRI statement, he understood that it was very important to tell the police the truth. He accepted too that given the serious accusation of rape against him, he would have wanted to make sure that what he told the police was accurate. ⁵⁷³ As I noted above, the account in his VRI statement of the Complainant’s three bouts of vomiting was clear and vivid. In recounting the three bouts of vomiting, he never once informed the IO that he could not be sure whether the Complainant had really vomited. In this connection, it was plain from the VRI statement that the Accused had no difficulty making clear to the IO his uncertainty or his inability to recall certain matters: for example, when he was asked who closed the door to the Complainant’s flat, his answer was that he did not really remember but that he thought it was him. ⁵⁷⁴ I did not believe, therefore, that he would have given such a lucid description in his VRI statement of the Complainant’s three bouts of vomiting if in fact he was uncertain about whether she had even vomited. Instead, the inconsistent versions he subsequently presented in his CFD and in his testimony appeared to be an attempt to disavow an account which could be said to corroborate the Complainant’s evidence about her state of intoxication and impairment prior to sexual intercourse.

251 The Complainant’s ability to walk steadily after alighting from the car was another important issue which related to the extent of her intoxication and the corresponding impairment to her capacity to consent to having sex with the Accused. In his VRI statement, the Accused’s evidence was that he had originally “wanted to just drop [the Complainant] off”, but he subsequently offered to send her up to her flat because he saw her “walking diagonally” and even “sitting down”. I reproduce below the relevant extract from the Accused’s VRI statement: ⁵⁷⁵

252 In addition to the above evidence, the footage of the VRI interview showed that in recounting the manner in which Complainant was walking, the Accused gestured with his hand to demonstrate the apparent unsteadiness of the Complainant’s gait.

253 The Accused’s testimony at trial about the Complainant’s ability to walk steadily was quite different from the account given in his VRI statement. As seen at [240] above, when he was asked a direct question as to whether the Complainant was “able to walk stably and steadily” from his car to the lift lobby, the Accused first claimed that he did not remember – although he admitted to remembering that he had supported her (as shown in the POLCAM footage of the void deck). When asked to confirm if he knew she was unable to “walk stably by herself”, the Accused prevaricated and deflected by talking about the Vivocity CCTV footage instead. He also claimed that the Complainant had in fact “walked faster than [him]” and gone “ahead” of him at one point, such that he had needed to catch up with her. When he was asked how steadily she had been walking when she was ahead of him, he said that he did not know “how to evaluate how steady she was”. When asked point blank whether the Complainant was able to “walk in a straight line”, he said that he was unable to assess this. He also stated that while he did see the Complainant “squatting” next to his car with “her butt touch[ing] the ground”, he had “no recollection” of her sitting down at any point between the parked car and the lift lobby. ⁵⁷⁶

254 Asked to explain the inconsistencies between his narrative in the VRI statement and his testimony, the Accused again gave a number of largely incoherent responses: ⁵⁷⁷

255 The Accused’s various explanations were frankly unbelievable. Contrary to his assertion that he was “mixed up” about the “flow of events” during the VRI interview, the sequence of his answers to the IO showed that his remark about the Complainant walking “diagonally” was plainly in reference to the point in time when they first arrived at the HDB carpark: he brought up the manner in which the Complainant was walking in order to explain to the IO why he had decided to accompany her up to her flat instead of simply dropping her off and leaving as he had originally intended. The hand gesture he made while describing the manner in which the Complainant was walking also made it clear that he was referring to her being unsteady or unstable on her feet – as opposed to referring to her walking “around a grass patch”. In any event, nothing at all was said in his VRI statement about the Complainant traversing a grass patch. As for his assertion that he was unable to assess whether the Complainant could walk in a straight line, this too rang false in the face of his own admissions in cross-examination: he admitted that despite her insistence that she “was not drunk”, he was “afraid that she would trip and fall”. In order for him to have formed concerns about her tripping and falling, he must surely have been able to observe her and to make some assessment of her ambulatory steadiness.

256 Again, therefore, it appeared that the differences between the Accused’s VRI statement and his testimony were the result of his disingenuous attempt at trial to downplay the extent of the Complainant’s intoxication and the corresponding impairment to her mental capacity.

257 Another important issue on which the Accused gave inconsistent accounts in his VRI statement and at trial was the issue of factual consent; specifically, whether the Complainant said “no” or otherwise expressed her objection to sexual intercourse. In the VRI, the Accused was asked whether there was any point in time throughout “the whole process” of sexual intercourse when the Complainant “said no or … struggled or … said that she [did not] want to have sex with [him]”. ⁵⁷⁸ His answer was: ⁵⁷⁹

258 In cross-examination, however, when asked if the Complainant said “no” at any point during sex, he stated emphatically that she did not: ⁵⁸⁰

259 Asked to explain the inconsistencies between his VRI statement and his testimony, the Accused claimed that the problem was that he could not express himself “fully”. As far as I could understand from the Accused’s explanation, what he had intended to convey to the police during the VRI was that there was no need for him to ask if she wanted to have sex and no issue as to her saying “no”, because she was already “moaning in excitement throughout the process” and thus evidently “satisfied” with the sex they were having. ⁵⁸¹

260 I found the Accused’s explanation entirely unbelievable. Despite his claims about having had difficulties expressing himself “fully” during the VRI, he was able to tell the police about the Complainant “moaning” during sexual intercourse. Indeed, he mentioned her “moaning” immediately after stating that he could not remember whether she said “no” during sex – and elaborated that she started moaning “when [he] start[ed] inserting”. ⁵⁸² There was no reason why he could not have told the police the same thing he so emphatically told the court at trial; ie, that given her excitement and satisfaction, there was no issue as to her saying “no” to sex – especially since he had been asked a specific question by the IO about whether she “said no” or otherwise expressed her objection to having sex. In my view, the change in his position at trial was intended – again disingenuously – to present a narrative more favourable to his case.

261 As to the aftermath of the episode of sexual intercourse, the Accused’s testimony was also materially inconsistent with his CFD as well as his VRI statement. In the VRI, when asked to describe what had happened after the sexual intercourse, the Accused’s answer was: ⁵⁸³

262 In the CFD, the Accused’s version of events featured a number of notable differences from the version given during the VRI. The CFD described the Complainant going to the toilet to “clean up” after sex. She then returned to the room and “looked at the accused quizzically as to why he appeared to be dressed up after sex and queried him with words to the effect ‘why are you doing this to me’”. Per the CFD, after the Accused told the Complainant “that what happened was between two adults and he wanted to leave as he was a married man”, she said “words to the effect of ‘if you leave I will call the police’” – whereupon he told her that she could do whatever she wanted and left. ⁵⁸⁴

263 Clearly, therefore, the Complainant was portrayed in the CFD as having had all her wits about her in the aftermath of the sexual intercourse: far from having been “very high” and “stun”, she was able to walk to the bathroom to clean herself. Further, whereas the VRI statement did not mention the Complainant saying anything other than that she would call the police if the Accused left, the CFD described her questioning the Accused as to why he was “doing this to [her]” when she saw him getting ready to leave. The CFD also featured the Accused attempting to explain to the Complainant that the sexual intercourse had simply been an episode “between two adults” and emphasising to her the importance he placed on his marriage – whereas in the VRI statement, he claimed that he had simply told her they would “talk tomorrow”.

264 At trial, the Accused’s version of the events following intercourse underwent further changes. In his evidence-in-chief, he claimed that the Complainant had left the room after sex; and that upon returning to the room, the “first thing she asked [him] at the doorway was, ‘Why did you do this to me?’”. ⁵⁸⁵ According to the Accused: ⁵⁸⁶

265 In cross-examination, the Accused added that when the Complainant told him she would call the police if he left, he got the feeling that she “was threatening [him]”. Her tone was “relatively more angry”; and when they made eye contact, he could “see from her expression that she was furious”. ⁵⁸⁷ This, obviously, was a complete departure from his VRI statement, where he stated that she had been “very high” after sex and that he had thought she was “kidding with [him]” when she mentioned calling the police.

266 Asked to explain these material inconsistencies in his evidence, the Accused claimed that the version provided in his VRI statement was “actually a summary”. ⁵⁸⁸ According to him, he did not tell the police about details such as the Complainant saying “why did you do this to me” because what he wanted to do in the VRI was “to express ultimately … that this was something wrong that [they] had done”. Moreover, he was “thinking that [the IO] [would] ask him questions and [he] would respond to it”. ⁵⁸⁹ In similar vein, his CFD too was just a “summary” and did not contain details because he had merely told his lawyer “roughly what happened”. ⁵⁹⁰ It was only when he came to court that he “realised that [he] had to go into each and every detail”. ⁵⁹¹

267 In my view, the Accused’s explanation was wholly inadequate. As I noted earlier (at [250] above), he conceded at trial that by the time of the VRI, he was aware that the Complainant had accused him of rape; that the VRI was his opportunity to provide the police with “the full story about what happened”; and that it was important to tell the police the truth. ⁵⁹² Moreover, the transcript of the VRI statement showed the IO expressly informing the Accused that they would “need to go into the details” of the incident. ⁵⁹³ In the circumstances, it was unbelievable that he would have been so cavalier about the VRI statement-recording process that he thought it necessary only to give “short summaries”. His excuse about having believed that the IO would elicit details from him by asking him questions was simply that – an excuse, and a flimsy one at that. Given that the IO was interviewing him for the first time, it would have been apparent that the onus lay on him to volunteer information about his encounter with the Complainant. In any event, the VRI transcript showed that after the Accused spoke about the Complainant saying she would “call the police” if he left, the IO did in fact ask him if there was “any other conversation”; and his reply was that there was none: ⁵⁹⁴

268 As for the CFD, it was also apparent that the Accused had provided much more information than a mere “summary”: in recounting the events which followed the sexual intercourse, the Accused gave a number of details, even mentioning how the Complainant had gone to the toilet “naked to clean up” before returning to the bedroom with a towel around her and looking at him “quizzically”. ⁵⁹⁵ His explanation about having given his lawyers no more than a “rough” summary was thus plainly untrue. More importantly, this explanation missed the point that the Prosecution was making in their impeachment application: the Prosecution was not saying that the Accused’s CFD lacked details per se; rather, their position was that the CFD was inconsistent with both his VRI statement and his testimony in several material aspects.

269 To sum up: having considered the manner in which the Accused’s narrative morphed between the time of his VRI and the trial, I concluded that the various additional details in his CFD and his testimony were nothing more than afterthoughts – included for the purpose of embellishing his account of events. In particular, it was plain that by including details such as the Complainant allegedly appearing “furious” and saying, “why did you do this to me”, the Accused was trying to suggest a certain vengefulness on her part.

270 In addition to the above four issues, there were a number of other issues on which the Prosecution’s application to impeach the Accused’s credit was premised (eg, how many times the Complainant allegedly kissed the Accused during the car journey; how the Complainant’s dress and underwear were removed; etc). These are set out in the table at Annex B to the Prosecution’s written submissions. Given my findings on the above four issues, I was satisfied that there was ample evidence on which to find the Accused’s credit impeached. For completeness, I add that having considered Annex B as well as the relevant evidence and the parties’ submissions, I accepted the Prosecution’s submission that the remaining eight issues featured material inconsistencies between the Accused’s testimony and his previous statements in the VRI and the CFD; and that the Accused was similarly unable to offer any credible explanation for these inconsistencies.

271 I should also make it clear that having found the Accused’s credit successfully impeached by the Prosecution, I recognised that “an impeachment of a witness’s credit does not automatically lead to a total rejection of his evidence”: “regardless of whether his credit is impeached, the duty of the court remains, that is, to evaluate the evidence in its entirety to determine which aspect to believe” (Loganatha Venkatesan v Public Prosecutor [2000] 2 SLR(R) 904 at [56]). In this connection, I have explained earlier my findings on the lack of internal consistency in the Accused’s testimony. I next explain, at [272]–[283] below, why I concluded that the Accused’s version of events was also inconsistent with and/or unsupported by the objective evidence available.

272 In the version of events which he presented at trial, the Accused sought to suggest that the Complainant was already displaying some sort of romantic interest in him even prior to the dinner on 15 September 2021. The Complainant agreed in cross-examination that prior to the dinner, she had messaged the Accused to send him two songs she happened to be listening to, including one that appeared to be a “romantic ballad”. She also agreed that on 15 September 2021 she had sent him a birthday gift in the form of a toy figurine. Further, she accepted that from what could be seen on the CCTV footage from the Restaurant, her interaction with the Accused throughout the dinner appeared to be “playful” or even “flirty”. ⁵⁹⁶ In his evidence-in-chief, the Accused claimed that he and the Complainant “felt like [they] were in love” during the dinner; and that this “passionate” feeling of being “in love” continued as they left the Restaurant and walked through Vivocity to the carpark. ⁵⁹⁷ According to the Accused, far from having displayed any signs of incapacitation during the car journey, the Complainant was the one who initiated physical intimacy in the car by kissing his left cheek, placing her hand on his arm, and laying her head on his shoulder. This led to their French-kissing twice during the car journey; and she also spoke to him in a “coquettish” voice and called him “baby”. Per the Accused’s version of events, the Complainant’s proactive role continued even after they entered her flat: she was the one who “grabbed” his forearm as he was trying to leave, which led to their kissing “with the tongue involved”, fondling each other, and eventually engaging in penile-vaginal intercourse. ⁵⁹⁸

273 I found the Accused’s version of events to be inconsistent with and/or unsupported by the objective evidence available in this case. I explain.

274 First, I did not think much could be made of the Complainant’s behaviour in messaging the Accused a “romantic” song and sending him a toy figurine on his birthday. The text messages exchanged between them on 15 September 2021, in which these songs and the toy figurine were brought up, showed that the Complainant was friendly towards the Accused and treated him with a certain degree of informality. Beyond this, it was not possible to discern from the Complainant’s acts of messaging the songs and sending the toy figurine some sort of romantic or sexual interest on her part in the Accused.

275 Second, insofar as the Complainant might have been behaving in a “playful” or even “flirty” manner at the Restaurant, the Complainant herself explained in cross-examination that her “playful” manner at dinner was attributable to the influence of alcohol. ⁵⁹⁹ More importantly, in any event, the Complainant’s “playful” manner at dinner per se provided no support for the Accused’s narrative of consensual sexual intercourse at a subsequent point in the evening.

276 In this connection, I found guidance in the judgment of the Court of Appeal in Pram Nair. In Pram Nair, the appellant had raped the victim (“[V]”) on the beach after they both left the Wavehouse, a club at Siloso Beach. The appellant claimed that the sexual intercourse on the beach was consensual and sought to rely, inter alia, on evidence that [V] was “friendly towards and possibly flirting with him” at the club. Evidence was led from witnesses that [V] had asked someone else to take photos of her together with the appellant; that she had allowed him to pour alcohol directly into her mouth; and that a waiter had spotted the two of them “behaving like a couple” when they were about to leave the club (at [65]). In rejecting this evidence as evidence of [V]’s consent to sexual contact with the appellant, the Court of Appeal highlighted that [V]’s sociable and friendly behaviour towards the appellant could not mean that she consented to sexual activity with him. The Court also held that its conclusion would not change even if it assumed in the appellant’s favour that [V] had gone beyond being friendly and flirted with him (at [67]). In the present case, the Complainant’s “playful” or even “flirty” behaviour towards the Accused at dinner could not mean that she consented to sexual activity with him.

277 Third, I similarly did not find the Complainant’s behaviour while walking through Vivocity to the Accused’s car to be in any way probative of her willingness to engage in sexual intercourse with him. Contrary to the Accused’s assertion, the CCTV footage actually showed that for the most part, the Complainant was trying to shrug off or pull away from his attempts at physical contact. In any event, even assuming she did at some point permit him to hold her hand and/or put his arm around her, such actions could not by any stretch of the imagination constitute consent to any sexual activity.

278 Fourth, having listened to the in-car audio recording multiple times, I found it impossible to discern any sounds indicative of “French-kissing” between the Accused and the Complainant. Nor was there anything on the audio recording to suggest that the Complainant was engaging in intimate acts such as kissing the Accused’s cheek, laying her head on his shoulder, speaking in a “coquettish” voice and calling him “baby”. On the contrary, as I noted earlier (at [175]–[180]), the Complainant could be heard slurring and mumbling in the course of the car journey, and stating more than once that she wanted to vomit. Additionally, and rather tellingly, both the audio-recording and the Accused’s own transcript of the recording showed him asking the Complainant numerous times whether she was “ok”, assuring her “I am here”, and telling her not to worry. There should have been no need at all for the Accused to ask the Complainant repeatedly if she was “ok” and to assure her “I am here” if in fact she was awake, lucid and engaged in acts of physical intimacy with him at the material time. Indeed, as the Prosecution pointed out, the Accused’s own transcript showed that at various points during the car journey, he himself had referred to the Complainant sleeping or resting. ⁶⁰⁰

279 In this connection, I noted that the Defence’s closing submissions described the admission of the Accused’s transcript as an instance of his “acting against his self-interest” in “waiving privilege” and “exposing” his personal notes in the transcript to “scrutiny”. ⁶⁰¹ With respect, this was a self-serving misrepresentation of how the transcript came to be admitted into evidence. For one, it was the Accused who repeatedly brought up his transcript when under cross-examination. It was the Accused who expressed the wish to refer to his transcript, on the basis that he had prepared it after listening carefully to the audio-recording with his gaming headset and that it was more accurate than the transcript prepared by the police. ⁶⁰² It was in order to ensure fairness to the Accused, therefore, that I allowed his application to admit the transcript into evidence, despite the application being made at a belated stage during his re-examination. Further, the “personal notes” in his transcript were plainly made for the purpose of bolstering his narrative, as they featured descriptions of the Complainant doing things such as “French-kissing” and “making cute voice” which could not be discerned from the audio-recording. In short, given the circumstances in which the Accused’s transcript came to be admitted as well as the contents thereof, it was disingenuous of the Accused to portray the admission of this document as an act “against self-interest”. As the Prosecution pointed out, the fact that even this document turned out to be “potentially … inculpatory in nature” simply underscored the flaws in the Accused’s case. ⁶⁰³

280 Fifth, the Accused’s story about the Complainant having initiated their sexual encounter by grabbing his forearm and then engaging in “French-kissing” and mutual fondling was at odds with the objective evidence of her condition in the moments leading up to sexual intercourse. As noted earlier, the POLCAM footage showed the Complainant stumbling as she walked from the car to her lift lobby. CCTV footage also showed her swaying from side to side and leaning against the Accused at the lift lobby and inside the lift. There was evidence of vomit stains on the rim of the kitchen toilet bowl and on her dress, which indicated that she must have vomited shortly prior to sexual intercourse. In my view, the objective evidence of the intoxicated, nauseous and unsteady state the Complainant was in made it highly unlikely that she would have initiated or encouraged sexual contact with the Accused.

281 Finally, I should add that I did not find the evidence from the Accused’s wife, DW3, to be of any assistance to his case. In gist, DW3 was called for the purpose of corroborating the Accused’s assertions about his sexual habits when drunk: her evidence was that when drunk, he would “usually be quite lethargic and want to sleep”; and if they were to have sex, she “would be the one taking the initiative”. Presumably, the point of this evidence was to suggest that the Complainant must have been an active participant in the sexual encounter with the Accused on 15 September 2021.

282 I did not find DW3’s evidence to be persuasive. As the Prosecution noted in its reply submissions, prior to DW3 giving the above evidence, defence counsel had already informed her about the Accused’s testimony – ie, that “when he has sex when he’s drunk, he needs partner to participate”. ⁶⁰⁴ Consciously or subconsciously, in other words, DW3 would have had the Accused’s version of events in mind when responding to counsel’s question about the Accused’s sexual habits. More importantly, in any event, she was not at the Complainant’s flat on the night of 15 September 2021 and could not attest to the events in the bedroom.

283 In sum, therefore, the Accused’s version of events at trial was inconsistent both internally and vis-à-vis his previous statements; and it was also unsupported by and/or at odds with the objective evidence available. I found his narrative of a consensual sexual encounter to be contrived and unbelievable; and I rejected his defence accordingly.

284 Finally, the Accused argued that he was entitled to rely in the alternative on the defence of mistake under s 79 of the Penal Code. This required him to show – on a balance of probabilities – that “by reason of a mistake of fact”, he “in good faith” believed himself to be justified by law in doing what he did to the Complainant – in other words, in good faith, believing that the Complainant consented to the sexual acts forming the basis of the rape charge against him (Pram Nair at [110]–[111]).

285 The threshold for establishing “good faith” is high: the offender must show that he believed that the victim had consented to the sexual acts, having exercised “due care and attention” (Asep Ardiansyah v Public Prosecutor [2020] SGCA 74 at [45], cited by the Court of Appeal in CFE v Public Prosecutor [2026] SGCA 35 (“CFE”) at [77]). Pertinently, the Court of Appeal in CFE endorsed (at [77]) the view expressed by the Canadian Supreme Court in R v Barton [2019] 2 SCR 579 (at [95]–[100]) that for the defence of mistaken belief to apply, the accused “must (a) honestly believe that the complainant had affirmatively communicated to the accused her consent through words or conduct – a mere belief that the complainant inwardly desired the relevant act is plainly insufficient; and (b) take steps to ascertain consent that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time”.

286 In light of my earlier findings of fact, the Accused clearly had no basis for relying on the defence of mistake. I have explained why I rejected the Accused’s claims about the Complainant having first initiated physical intimacy in the car and then initiated a sexual encounter by holding on to him when he tried to leave her flat. Further, on the Accused’s admissions, he knew that the Complainant had consumed a large amount of alcohol that evening because they had shared two bottles of wine over dinner. He also knew that during the car journey back to her flat, she had stated twice that she wanted to vomit and had asked for a plastic bag to vomit into. He could be heard on the in-car audio recording referring to her as a drunk “chiongster”, telling her to “rest” and “don’t worry”, and asking her repeatedly if she was “ok”. He admitted that on alighting from his car, the Complainant had squatted next to the car and tried to vomit. He also admitted that as they walked to her lift lobby, he had tried to support her because he was afraid of her tripping and falling. At the lift lobby, she had “started swaying” when he let go of her and had said to him, “See, you made me drunk”. On entering her flat, she had gone to the kitchen toilet without even shutting her front door first; and he saw her trying to vomit again in the kitchen toilet. Thereafter, she went to sit on her bed, told him that she was “very tired”, and “fell back” onto the bed.

287 In short, on the Accused’s own admissions, he was aware that the Complainant was in an intoxicated, nauseous and physically weakened state by the time they arrived back at her flat. In these circumstances, the exercise of due care and attention would have required obtaining her express and specific assent to sexual intercourse before initiating such intercourse – and yet, it was not disputed that the Accused never asked the Complainant whether she wanted to have sex with him. There was thus no basis at all for the Accused to form the good faith belief that he was justified in proceeding to engage in sexual intercourse with her.

288 For the reasons explained in the preceding paragraphs, I accepted the version of events presented by the Prosecution at trial: namely, that the Complainant had no capacity to consent to sexual intercourse with the Accused; and that even assuming such capacity existed, she did not in fact consent to having sex with the Accused. The Accused’s defence did not raise a reasonable doubt; and he was also unable to make out any basis for invoking the defence of mistake under s 79 of the Penal Code. In all, I was satisfied at the conclusion of the trial that the charge of rape was proven against the Accused; and I convicted him of this charge.

289 Under s 375(2) of the Penal Code, the punishment prescribed for this rape offence is imprisonment for a term of up to 20 years and/or a fine and/or caning.

290 It was not disputed that the applicable sentencing framework was the two-step framework established by the Court of Appeal in Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”). The first step of the framework requires the court to decide which of the three sentencing bands the case falls under. The three bands represent “different sections along a single continuum of seriousness”; and the framework prescribes the appropriate sentencing range in respect of each band (at [47]). The court decides on the appropriate sentencing band after considering the factors which relate to the mode and manner by which the offence was committed as well as the harm caused to the victim (“offence-specific factors”). Once the appropriate sentencing band has been determined, the court will further determine where precisely within the corresponding sentencing range the offence should fall, so as to derive an indicative starting point (at [73]):

291 In Terence Ng, the Court of Appeal made it clear that the above sentencing ranges applied to cases of convictions entered following trial; further, that in exceptional cases, the court might decide on an indicative starting point falling outside the prescribed sentencing range (at [39(b)] and [40]).

292 At the second step of the sentencing framework, the court then considers the aggravating and mitigating factors which are personal to the offender (“offender-specific factors”) so as to calibrate the sentence (at [73(c)]).

293 In applying the Terence Ng sentencing framework in the present case, I bore in mind the observation of the Court of Appeal in Pram Nair that “as a matter of case law, our courts have always said that rape is generally regarded as ‘the most grave of all the sexual offences’” (at [151], citing Chia Kim Heng Frederick v Public Prosecutor [1992] 1 SLR(R) 63 at [9]). In cases of serious sexual offences such as rape, deterrence and retribution would generally constitute the principal sentencing considerations. This was not seriously disputed by the Defence in this case.

294 At the first step of the Terence Ng framework, I agreed with the Prosecution that there were three offence-specific aggravating factors in this case.

295 First, the Defence accepted that this was a case where the Complainant was vulnerable by virtue of her intoxication. ⁶⁰⁵ As the Court of Appeal noted in Pram Nair (at [126]), the offender who targets an intoxicated victim exploits the victim’s physical weakness and/or lapses in consciousness. In CFE, the Court of Appeal highlighted (at [182]) that “a victim’s intoxication constitutes an aggravating factor only where it results in the victim losing control, whether partially or fully, over her ability to respond to or resist the sexual assault”. This was precisely what happened in the present case, where the Complainant’s intoxicated state led to her suffering, inter alia, lapses in consciousness during which she was incapable of putting up resistance to the Accused.

296 Second, I accepted the Prosecution’s submission that the commission of the rape in the Complainant’s home – and on her bed – represented a severe violation of what should have been a secure sanctuary. That this violation of a victim’s personal sense of safety and security constitutes an aggravating factor in serious sexual offences is a well-established proposition: see eg, Public Prosecutor v NF [2006] 4 SLR(R) 849 (at [55], citing the judgment of Lord Woolf in R v William Christopher Millberry [2003] 2 Cr App R (S) 31 at [32]).

297 Third, I also accepted the Prosecution’s submission that the Accused’s failure to wear a condom during the commission of the rape constituted a separate aggravating factor, as this exposed the Complainant to the risk of pregnancy and sexually transmitted diseases (see eg, the judgment of the Court of Appeal in Public Prosecutor v CPS [2024] 2 SLR 749 at [39]). Further, as the Prosecution pointed out, the evidence from the HSA examiner and from Dr Han indicated that the Accused did in fact ejaculate inside the Complainant – which would mean, at the very least, a heightened risk of pregnancy. Semen was found by the HSA examiner on, inter alia, the high and low vaginal swabs; and Dr Han’s evidence was that generally, if the perpetrator had ejaculated externally, he “would not expect semen to be found in the high and low vaginal area”. As seen from my earlier summary of his evidence, Dr Han also explained that even if the victim had wiped semen from her stomach and proceeded to wipe her external genital area, he would still not expect the high vaginal swab to be contaminated in this process, because the high vaginal swab would usually be taken using a speculum that would extend about six to seven centimetres into the vagina; and one would not expect the victim to wipe all the way inside the vagina due to the considerable discomfort involved. ⁶⁰⁶

298 Having regard to the above offence-specific aggravating factors, I was of the view that the present case should be placed at the middle of Band 2 of the Terence Ng sentencing framework. In this connection, I noted that the Prosecution also urged me to take into consideration, at the first step of the framework, the “significant psychological harm” suffered by the Complainant. The Prosecution pointed to the Complainant’s testimony about the emotional distress she experienced in the immediate aftermath of the rape and long afterwards, which led to her having to contact, inter alia, the current and the previous IOs of this case to seek emotional support. There was evidence of her having expressed thoughts about killing herself in the aftermath of the rape; and she was referred by the police to the victim care cadre. She also faced difficulties in coping with her job because having to attend events where alcohol was served brought back traumatic memories of the rape.

299 Having made the above submissions, the Prosecution very fairly acknowledged that the degree of harm in this case “may not have arisen to the level of ‘severe harm’ as described in Terence Ng at [44(h)], such as to constitute a distinct offence-specific aggravating factor”. ⁶⁰⁷ This being the case, and without downplaying at all the undoubted anguish suffered by the Complainant, I did not think the present case should be placed any higher than the middle of Band 2. In my view, the appropriate indicative starting sentence in this case would be imprisonment for a term of 14 years and six months, as well as 12 strokes of the cane.

300 I add that insofar as the Defence sought to rely on Public Prosecutor v Ridhaudin Ridhwan bin Bakri [2020] 4 SLR 790 (“Ridhwan”) in support of their submission that the present case fell “in the middle range of band 1”, I did not find the decision in that case to be of any assistance to the Defence. In Ridhwan, the first accused Ridhwan and the second accused Faris were convicted after trial of, inter alia, rape of an 18-year-old female victim. The High Court found that the harm sustained by the victim in that case did not “[rise] to the level of an offence-specific aggravating factor” and concluded that there was only a “single offence-specific aggravating factor”; namely, the fact that the two offenders had taken advantage of the victim’s intoxication and resulting vulnerability (at [24] and [28]). On this basis, the Court held that the rape offences committed by Ridhwan and Faris fell within Band 1 of the Terence Ng framework. In contrast, in the present case, I found three distinct offence-specific aggravating factors to be present, which warranted this case being placed at the middle of Band 2.

301 As for the second step of the Terence Ng framework, it was not disputed that there were no offender-specific aggravating or mitigating factors in this case which warranted an adjustment to the indicative sentence. While it was true that the Accused in this case was untraced, as the Prosecution pointed out, our courts have held in numerous cases that little weight should be given to an offender’s previous good conduct where serious offences are concerned. In Public Prosecutor v UI [2008] 4 SLR(R) 500, for example, the Court of Appeal held that this was a “well established” principle (at [69]).

302 Taking a last look at all the facts and circumstances of this case, I was also satisfied that a sentence of 14 years and six months’ imprisonment and 12 strokes of the cane was not disproportionate to the overall criminality of the Accused’s conduct (Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [98(c)]).

303 For the reasons set out above at [289]–[302], I sentenced the Accused to a term of imprisonment of 14 years and six months and caning of 12 strokes.

304 The Accused has not yet started serving his sentence, as he was granted a stay of execution on his sentence and is on bail pending the determination of his appeal.