Ong Mingwee v Public Prosecutor: Rape Conviction Appeal - Consent and Mistake of Fact

Ong Mingwee appealed to the High Court of Singapore against his conviction and sentence for rape. The District Judge had found him guilty of committing rape on Ms. B. Ong Mingwee argued that the complainant had consented to sexual intercourse or, alternatively, that he had a reasonable belief that she had consented. Quentin Loh J allowed the appeal, acquitting Ong Mingwee of the charge, finding that the prosecution had not proven beyond a reasonable doubt that the complainant did not consent and that Ong Mingwee could successfully raise a mistake of fact defense.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal Allowed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Ong Mingwee appeals his rape conviction, arguing the complainant consented or he reasonably believed she did. The High Court allowed the appeal.

1.7 Decision Date

29 November 2012

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Respondent	Government Agency	Appeal Dismissed	Lost	Leong Wing Tuck of Attorney-General’s Chambers Sanjna Rai of Attorney-General’s Chambers
Ong Mingwee (alias Wang Mingwei)	Appellant	Individual	Appeal Allowed	Won	Sunil Sudheesan of RHTLaw Taylor Wessing LLP Subhas Anandan of RHTLaw Taylor Wessing LLP

3. Judges

Judge Name	Title	Delivered Judgment
Quentin Loh	Judge	Yes

4. Counsels

Counsel Name	Organization
Leong Wing Tuck	Attorney-General’s Chambers
Sanjna Rai	Attorney-General’s Chambers
Sunil Sudheesan	RHTLaw Taylor Wessing LLP
Subhas Anandan	RHTLaw Taylor Wessing LLP

4. Facts

The appellant and complainant met at a club and danced together.
The complainant left the club in a taxi with the appellant.
The complainant and appellant went back to the appellant's house.
The complainant and appellant had sexual intercourse at the appellant's house.
The complainant's mother made a police report stating that her daughter informed her that a guy refused to let her go unless she had sex with him.
The complainant stated that she was raped as she did not consent to the same.
The appellant stated that the complainant consented to sexual intercourse.

5. Formal Citations

Ong Mingwee (alias Wang Mingwei) v Public Prosecutor, Magistrates Appeal No 77 of 2011/01, [2012] SGHC 244
, , [2011] SGDC 308

6. Timeline

Date	Event
2009-02-12	Rape allegedly committed
2010-12-27	Charge preferred against the appellant
2011-01-01	Magistrates Appeal No 77 of 2011/01
2012-04-13	Further submissions filed
2012-11-30	Judgment reserved
2012-11-30	Decision Date

7. Legal Issues

Consent
- Outcome: The court found that the prosecution had not proven beyond a reasonable doubt that the complainant did not consent to sexual intercourse.
- Category: Substantive
- Sub-Issues:
  - Intoxication
  - Fear of injury
  - Mistake of fact
Mistake of Fact
- Outcome: The court found that the appellant's belief that the complainant had consented to sexual intercourse was a good faith mistake of fact.
- Category: Substantive
Standard of Proof
- Outcome: The court reiterated that the prosecution must prove its case beyond a reasonable doubt.
- Category: Procedural

8. Remedies Sought

Appeal against conviction
Acquittal

9. Cause of Actions

Rape

10. Practice Areas

Criminal Litigation
Appeals

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Chia Kim Heng Frederick v PP	Court of Criminal Appeal	Yes	[1992] 1 SLR 361	Singapore	Cited for the proposition that the starting point in contested rape cases should be ten years’ imprisonment and not less than six strokes of the cane.
PP v NF	N/A	Yes	[2006] 4 SLR 849	Singapore	Reviewed the sentencing practice for rape convictions and reiterated that the ten years’ imprisonment and six strokes of the cane benchmark applied when there were no aggravating or mitigating circumstances.
Tan Wei Yi v Public Prosecutor	N/A	Yes	[2005] 3 SLR(R) 471	Singapore	Addressed the reasonable doubt standard and reliance on the victim’s testimony, stating that the Prosecution must prove every relevant ingredient of the charge beyond a reasonable doubt.
Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik	Court of Appeal	Yes	[2008] 1 SLR(R) 601	Singapore	Elaborated on the role of a trial judge when examining the evidence of witnesses, particularly in sexual offense cases, emphasizing the need for 'unusually convincing' evidence.
Khoo Kwoon Hain v PP	Singapore High Court	Yes	[1995] 2 SLR(R) 591	Singapore	Laid down the rule as to corroboration in sexual offences, stating that it was unsafe to convict unless the evidence of the complainant was 'unusually convincing'.
Teo Keng Pong v PP	N/A	Yes	[1996] 2 SLR(R) 890	Singapore	Clarified that 'unusually convincing' meant that the witness’s testimony must be 'so convincing that the Prosecution’s case was proven beyond reasonable doubt, solely on the basis of the evidence'.
Lee Kwang Peng v PP	N/A	Yes	[1997] 2 SLR(R) 569	Singapore	Supported the meaning of 'unusually convincing' as testimony so convincing that the Prosecution’s case was proven beyond reasonable doubt, solely on the basis of the evidence.
AOF v Public Prosecutor	Court of Appeal	Yes	[2012] 3 SLR 34	Singapore	Affirmed that the law on 'unusually convincing evidence' does not change the ultimate rule that the Prosecution must prove its case beyond a reasonable doubt and distills the elements of what would be considered 'unusually compelling' evidence.
PP v Wang Ziyi Able	N/A	Yes	[2008] 2 SLR(R) 61	Singapore	An appellate judge is as competent as any trial judge to draw necessary inferences of fact not supported by the primary or objective evidence on record from the circumstances of the case.
Jagatheesan s/o Krishnasamy v Public Prosecutor	N/A	Yes	[2006] 4 SLR(R) 45	Singapore	Judicial restraint had to be exercised by an appellate court when overturning or modifying findings of fact by a trial court. This was all the more so in relation to a trial court's assessment of a witness's credibility.
PP v Choo Thiam Hock	N/A	Yes	[1994] 2 SLR(R) 702	Singapore	An appellate court has access to the same material and is accordingly in an equal position to assess the veracity of the witness’s evidence.
Tang Kin Seng v Public Prosecutor	N/A	Yes	[1996] 3 SLR(R) 444	Singapore	The burden on the Prosecution is not to overcome every imaginable doubt in the case, unless these doubts are real or reasonable.
Kwan Peng Hong v Public Prosecutor	N/A	Yes	[2000] 2 SLR(R) 824	Singapore	The burden on the Prosecution is not to overcome every imaginable doubt in the case, unless these doubts are real or reasonable.
Public Prosecutor v Teo Eng Chan and others	N/A	Yes	[1987] SLR(R) 567	Singapore	In situations where the accused sought to argue that he believed that the victim was consenting, it was best for the court to approach the matter through the mistake of fact defence under s 79 of the PC rather than through a mens rea analysis.
Director of Public Prosecutions v Morgan	N/A	Yes	[1976] AC 182	England	If an accused in fact believed that the woman had consented, he could not be found guilty of rape, whether or not that belief was based on reasonable grounds. This case was not applied in Singapore.
PP v Zainal Abidin bin Ismail	N/A	Yes	[1987] 2 MLJ 741	Brunei Darussalam	The Chief Justice applied the Morgan principle in this case of rape against the accused. This case was not applied in Singapore.
R v Brydon	British Columbia Court of Appeal	Yes	(1995) 2 BCLR (3d) 243	Canada	Reasonable doubt as a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Penal Code (Cap 224, 2008 Rev Ed) s 375(2)	Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 90	Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 79	Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 26	Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 44	Singapore
Penal Code (Cap 224, 2008 Rev Ed) s 52	Singapore
Evidence Act s 107	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Consent
Mistake of fact
Reasonable doubt
Intoxication
Corroboration
Unusually convincing evidence

15.2 Keywords

Rape
Consent
Mistake of Fact
Criminal Law
Singapore
Appeal
Intoxication

17. Areas of Law

Area Name	Relevance Score
Sexual Offences	95
Criminal Law	90
Evidence	70
Criminal Procedure	60
Criminal Revision	50

16. Subjects

Criminal Law
Evidence
Consent
Mistake of Fact