PUBLIC PROSECUTOR v Jeffrey Pe

Facts

Jeffrey Pe claimed trial in Criminal Case No 52 of 2022 to two charges of sexual assault by penetration under s 376(1)(b) of the Penal Code, for causing the complainant to penetrate his mouth on two occasions, and one charge under s 376(2)(a) for penetrating the complainant's anus with his finger. The complainant, a 20-year-old man identified as S, had met the accused at a pub weeks earlier. On 8 August 2017 they drank at several bars and, early on 9 August 2017, went to the accused's apartment, where the accused made him a drink of whiskey and Coke. It was undisputed that the accused fellated the complainant, who then left and called a friend and then the police to report a sexual assault.

The complainant testified that he fell asleep after saying he wanted to sleep, woke to find the accused fellating him, and drifted in and out of consciousness, feeling paralysed, while further acts occurred. The accused said the complainant had shown interest in him, had said he was exploring his sexuality, and was awake and consenting. He denied digital penetration and claimed that parts of his police statement were inaccurate and made out of fear of the officers.

Issues

1. Whether the disputed parts of the accused's statement of 10 August 2017 were made voluntarily
2. Whether the accused penetrated the complainant's anus with his fingers
3. Whether the complainant had the capacity to consent, and whether he in fact consented, to the sexual acts
4. Whether the defence of mistake as to consent under s 79 of the Penal Code was available

Holding

The High Court convicted the accused on all three charges and sentenced him to five years' imprisonment and four strokes of the cane on each. The sentences on the two oral penetration charges were ordered to run concurrently and the sentence on the digital penetration charge consecutively, giving a global sentence of ten years' imprisonment and 12 strokes of the cane.

Reasoning

The court found no threats were made. It accepted that ASP Raj was not involved and had not seen the accused that day, that Mr Tho gave him a pen to amend his statement and did not coach him, and that any fear was self-perceived without reasonable basis. It rejected his claim that "anus" in his statement meant his buttock cheeks.

The medical and DNA evidence was neutral on digital penetration, as was the statement, which said he could not recall. The complainant's account was unusually convincing: candid, internally consistent and matching what he told the hospital doctors within hours. The accused's claim of merely brushing the buttocks conflicted with his statement.

On capacity, the court accepted the Prosecution expert's estimate that the complainant's blood alcohol level was between 171.25mg/100ml and 215mg/100ml at 4.15am, which the defence expert accepted. Brief CCTV clips of him walking unaided and his ability to give his location to the police did not show a lower level. The court found the complainant was asleep when the first act began and, on waking, lacked capacity to consent. Alternatively, he did not in fact consent: his immediate distressed calls to his friend and the police corroborated him, and the accused's own statement said the complainant had said he wanted to sleep and that nothing was said during the acts. Friendly messages, hugs and agreeing to sleep over did not amount to consent. Mistake failed for want of due care and attention.

On sentence, applying the Pram Nair framework, the victim's intoxicated vulnerability and psychiatric harm placed the case in Band 1 with a starting point of eight years and four strokes per charge. Breach of trust and victim-blaming were rejected as aggravating factors, but the accused's own intoxication and his baseless allegations against the police warranted an uplift to nine years. Applying the totality principle, each sentence was reduced to five years.

From the judgment