ONTARIO COURT OF JUSTICE DATE: 2024·03·19 NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
TSUNG ONG AKA NIGEL GENE ONG
JUDGMENT
Evidence heard: February 15, 28, March 19, 2024.
Ms. Alice Pan, Mr. Moheb Tewfik.......................................................... counsel for the Crown Ms Emily Lam.................................................................................... counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Ong was charged with two counts of sexual assault contrary to s 271 of the Criminal Code. At the conclusion of the evidence, the Crown conceded that they had not met their burden with respect to the first count. That charge was dismissed.
[2] The remaining count arises out of an incident at the accused’s birthday party. The complainant alleges Mr. Ong sexually assaulted her after she handed an item to a departing guest. The central issue is the assessment of witness credibility in the context of the Crown’s burden to prove the charge beyond a reasonable doubt.
The Allegation
[3] The complainant and her husband attended a party at Mr. Ong’s house in celebration of his birthday. There were more than two dozen guests including children. At some point one of the guests was leaving and that person asked the complainant to get something they’d forgot upstairs on the main floor. The complainant didn’t remember what the item was or who she passed it to. She recalled stepping over the accused who was sitting on the stairs. She passed the item to the departing guest and then she said Mr. Ong stood up and pressed his face into her crotch area. He rubbed his face across her crotch several times and said, “Are we doing this now?”.
[4] Mr. Ong testified that he generally does not see guests out during a party. Goodbyes are said informally as guests leave. He testified that the sexual assault described by the complainant did not happen. He wasn’t sitting on the stairs while guests left and there was no time when the complainant stepped over him in the manner she described.
[5] The defence called six witnesses who attended the party that evening. Four further affidavits were tendered on consent from four more guests (Exhibit 9 A-D). None of the ten were handed something by the complainant or anyone else when they left the party. Only one said that Mr. Ong was in the doorway area when his family left, but that person didn’t see the complainant or the event she described.
Analysis
[6] Mr. Ong was a forthright witness who was generally responsive to questions from both lawyers. His answers in chief and in cross-examination showed that much of his memory of that evening relies on his general practice at parties and not recollection of details from two years ago. With respect to the alleged sexual assault, he had a specific memory that it did not occur.
[7] The evidence of the defence witnesses at the party is consistent with Mr. Ong’s testimony. I agree with the Crown that their evidence does not rule out the possibility that the incident described by the complainant occurred. Not everyone who attended the party testified. However, the ten witnesses and affiants were not all alone when they left, so their evidence narrows considerably the number of persons remaining who could have been present during the alleged sexual assault. The evidence provides some support for Mr. Ong’s testimony that he didn’t generally see his guests to the door although it also shows one exception where the complainant was not present.
[8] Testimony for the complainant was emotionally difficult. That’s understandable given the events she described and does not reasonably detract from her credibility. She appeared throughout to be a credible witness doing her best to describe a difficult situation.
[9] She was questioned in much greater detail than any other witness. The defence referred to several examples where she didn’t know or couldn’t recall specific points. Some details like the name of Mr. Ong’s massage clinic or the intersection where it was located don’t matter and don’t reasonably reflect on the reliability of her evidence.
[10] The defence showed that some details in the complainant’s evidence were not provided in her initial statement to the Toronto Police. Most were incidental to the allegations. While the witness was mistaken about the fact that they weren’t initially disclosed, the complainant’s evidence on the central points including the remaining allegation of sexual assault remained consistent. The fact that a witness did not include or remember particular details in a prior narrative does not automatically cast doubt on the reliability of the rest of their evidence. It’s more of a concern if the details are part of the alleged offence itself but it depends upon the context of the statement. It’s different again if the witness was specifically asked and said they had no memory on the point at the time.
[11] The details that matter here relate to the reliability of the evidence regarding the alleged sexual assault. The photograph marked as Exhibit 7B and measurements of the stairwell and of Mr. Ong’s width shoulder-to-shoulder show there was room (20 inches) to pass around Mr. Ong if he had been sitting on the step as described. The complainant testified that she didn’t think to pass around him or ask him to move as he was a friend. She didn’t have the person come towards her to get the item. She stepped over the seated Mr. Ong with one leg, with her crotch area over or right by his head.
[12] The action described by the complainant – reaching and stepping a leg over a person sitting lower on those stairs – would have been seen by the person she was handing the item to. The position the complainant described is precarious, one that would not and could not have been held past the exchange. There would be no reason for her to remain outstretched like that to wait until the other person left.
[13] Did the sexual assault occur right after the exchange when the departing guest was still present, but perhaps with their back already turned to leave? No, the complainant testified that the person left before Mr. Ong did that. She remembered the closed door. She didn’t explain how or why she remained in that position to that point. There’s no evidence explaining why Mr. Ong would be seated on the steps if a guest was leaving. If Mr. Ong was seated on the bottom step, as the complainant described in her initial statement to the Toronto Police, the action she described of stepping over him would have been even more difficult.
[14] The complainant explained that she was in shock and admitted in examination-in-chief that she doesn’t now remember a lot of the details surrounding that moment. For the same reason she didn’t recall much of what happened afterwards. Some details she did remember about the period after the event, such as being berated by Mr. Ong over social media, were not consistent with the messages in evidence in court.
[15] The complainant’s difficulty remembering the important details of the incident is understandable given the experience she described which was shocking and brief. However, the lack of surrounding detail and the questions raised by the details that are in evidence I find reasonably gives rise to a concern about the reliability of the central evidence.
Conclusion
[16] Having considered all of the evidence, I find I am not able to accept the testimony of Mr. Ong as true to the exclusion of other evidence. However, that same comprehensive assessment shows that a reasonable doubt remains. Count 2 is dismissed.
19 March, 2024.
Justice Joseph F. Kenkel