SINGAPORE – A former Grab driver has finally been cleared of sexual assault allegations after the prosecution dropped its appeal against a High Court decision to acquit him, more than five years after he was accused of trying to rape a drunken passenger.

In response to queries from The Straits Times, a spokesperson for the Attorney-General’s Chambers said the prosecution “had carefully considered the facts and circumstances of the matter and the public interest” in deciding to discontinue the appeal.

The spokesperson added that the notice of discontinuance was filed on June 16, 2023. This was about a month after the judge issued full written grounds for his decision.

Justice Pang Khang Chau had set out detailed grounds for his decision in an 84-page judgment on May 12, 2023, about a year after the prosecution filed an appeal against the acquittal.

Mr Tan Yew Sin was 43 years old when he drove a 19-year-old passenger home in the early hours of May 19, 2018. The woman had been drinking at a bar with friends.

After they arrived at her condominium, he engaged in sexual acts with her in his car.

Later that day, Mr Tan was arrested. He was charged with one count each of sexual assault by penetration, attempted rape and outrage of modesty, all of which he fought in a trial.

He admitted committing the physical acts, but said that they were consensual.

Considerable public discussion was generated over the trial, with online commenters questioning why the woman would consent to having sex with him.

The prosecution’s case was that the woman did not consent to the acts and that, in any event, she did not have capacity to consent as she was significantly intoxicated.

The defence contended that the prosecution had failed to prove lack of consent or lack of capacity to consent beyond a reasonable doubt.

The defence further argued that even if the woman did not give valid consent, Mr Tan had mistakenly believed that she did because of her actions and non-verbal cues.

The trial, which began on Sept 29, 2020, ended with Justice Pang clearing Mr Tan of all three charges on April 27, 2022.

The judge said there were several points across the night when the woman demonstrated situational awareness and the capacity to make decisions, despite her intoxication.

In view of this, he found that there was sufficient reasonable doubt over the prosecution’s assertion that she was incapable of consenting to the acts.

As for whether the woman in fact gave consent, the judge accepted Mr Tan’s version of events and rejected the prosecution’s argument that lack of consent could be inferred from the lack of verbalised consent.

The judge said the lack of verbal consent was not conclusive because the law does not require consent to be verbal.

He said the prosecution failed to prove that the acts were committed without the woman’s consent.

Justice Pang also went on to conclude that the external manifestations of the woman’s demeanour and behaviour led Mr Tan to believe in good faith that she had given valid consent.

Issues with evidence

A key feature of the case was that when the sexual acts took place, the woman was experiencing an alcohol-induced blackout, a type of memory loss where alcohol interferes with the brain’s ability to form memories.

A person in such a state can talk and do other tasks, but would not remember what they did.

The woman could not recall most of what she did, said or heard during this period, and could not explain to the court why she acted the way she did at the time. 

Much of her evidence during the trial was to try her best to explain and reconstruct what had occurred based on the audio recordings that were played in court. The audio recordings were from Mr Tan’s in-car camera. 

However, there was a 14-minute gap in the recording, as the camera was designed to pause recording at certain points, such as when the car was idling.

The recorded speech and sounds were not always clearly audible, while the outward-facing camera did not capture images of what transpired in the car.

Under the law, if an alleged victim gives consent without understanding the nature and consequences of what she was consenting to, such consent is not considered valid.

Thus, one way to prove lack of consent was to establish that the alleged victim was incapable of giving consent due to mental incapacity, intoxication or the influence of drugs.

Justice Pang noted that the legal burden was on the prosecution to prove beyond a reasonable doubt that there was no valid consent.

The judge also cited legal principles that the fact that a person has drunk a substantial amount of alcohol, appears disinhibited, or behaves differently than usual does not indicate lack of capacity to consent. 

Consent to sexual activity, even when made while intoxicated, is still consent as long as there is a voluntary and conscious acceptance of what is being done.

In determining whether the woman had the capacity to consent and whether Mr Tan genuinely believed that she did, the judge evaluated her behaviour throughout the night, with the help of expert witnesses from both sides.

Piecing the evidence together

The court heard that on the night of the incident, the woman left the bar after drinking about 2.8 litres of beer, and walked unsteadily to Mr Tan’s car, which her friend had booked for her.

Mr Tan initially declined to ferry the woman after the friend told him that she was “a little drunk”. He relented after the friend assured him that “she’s okay”.

When her friend asked her to text him after she reached home, she replied “yah yah yah”.

She confirmed her address upon boarding the car, and when Mr Tan told her to let him know if she was going to vomit, she replied, “it’s okay, it’s okay”.

After arriving at her condominium, she was heard rummaging through her things. Mr Tan then told her he would park at the side of the condominium, to which she replied, “sorry”.

She then stumbled to the side gate but could not get in. Mr Tan approached her, and they walked back to his car.

After a while, the woman began sobbing in the back seat, thumping her chest and knocking her head against the window.

Mr Tan said he went to the back seat to calm her down. 

He then searched her bag for her phone or identity card so that he could get hold of someone to come and get her.

He said the woman began kissing him, and they started touching each other.

He said that after the woman straddled him, he carried out a sex act on her and tried to have sex with her.

The in-car camera captured him telling her, “I can’t put it in”, followed by sounds of movement. He was also heard saying “quiet” a couple of times as her moans grew louder.

He then got back into the driver’s seat and moved the car. During the drive, he told her: “I just take a round, okay?”

After stopping opposite the condominium, he returned to the back seat and fondled her, but stopped after a few minutes.

The in-car camera captured the woman uttering “no”, after which no more moans were heard.

Mr Tan drove around the neighbourhood after she told him to “just drive”.

They returned to the condominium and Mr Tan drove off after she entered the compound.

About five minutes later, she walked out of the condominium.

A passer-by later found her lying on the road a few hundred metres from the condominium and called the police.

Justice Pang said the woman was aware of her surroundings and able to make decisions despite her intoxication and impairment in her motor skills. 

She also responded appropriately in the exchanges with her friend and Mr Tan, said the judge.

Justice Pang disagreed with the prosecution that the utterance of “no” indicated that she had not given consent.

The judge said it showed she was able to convey the intention that she did not want to be touched any more.

Justice Pang said the utterance was more plausibly construed as a withdrawal of consent, and that Mr Tan had stopped upon sensing this. 

The Straits Times has contacted Mr Tan’s lawyer for comment.