Ajmer Singh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong JC
• Judgment Date: 07 November 1986
• Neutral Citation: [1986] SGHC 39
• Date: 07 November 1986
• Subject Matter: s 70(3) Road Traffic Act (Cap92, 1970 Ed),Identification of blood,Evidence,Road Traffic,Drink driving,Admissibility of evidence,Facts in issue,Admissibility of blood specimen,Riding under influence of drink,Report did not certify that blood was taken with consent of appellant,Failure to comply with requirements relevant legislation,Report on blood specimen,Offences,ss 69(1), 70 & 71 Road Traffic Act (Cap 92, 1970 Ed),s 368 Criminal Procedure Code
• Docket Number: Magistrate's Appeal No 429 of 1985
• Published date: 19 September 2003
• Defendant Counsel: Ismail Hamid (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Kalpanath Singh (Kalpanath & Co)

The appellant was charged with riding a scooter along a road whilst under the influence of drink to such an extent as to be incapable of having proper control of such vehicle, an offence under s 69(1) of the Road Traffic Act (Reprint) (the RTA). He claimed trial and was convicted on 31 October 1985 and sentenced to a fine of $800 and disqualified from holding or obtaining a Class 2 driving licence for a period of two years.

The facts adduced by the prosecution were as follows: on 7 December 1983, at about 8.20pm, the appellant was riding motor scooter AZ7747 J along Telok Blangah Way at about 50 kmph when, according to him, he suddenly felt giddy. He applied the brakes but the scooter went out of control and he fell off. He remembered being carried to the side of the road. The police arrived at the scene at about 8.28pm and established that the scooter had skidded and that the appellant had a head injury. The appellant was not arrested but was taken to the Singapore General Hospital where he was examined about two hours later by Dr Koh Cheng Huat (PW1) who also, at about 10.45pm took a specimen of the appellant`s blood for alcohol analysis. The specimen was analysed by Dr Danny Lo Siaw Teck, the Senior Scientific Officer.

At the trial the report of PW1 dated 26 January 1984, (P5) and the report of Dr Danny Lo (P6) were admitted in evidence. P5 states as follows:

On admission, he was conscious, vital signs stable. Periorbital haematoma of both eyes with two cm lacerations over the right eyelid. There was no neurological deficit. He was found also to be hypertensive.

Skull xray - no abnormalities detected.

ECG - no abnormalities detected.

Chest xray - no abnormalities detected.

Blood alcohol level = 152 mg ethanol per 100 ml of blood.

P6 states as follows:

I, Dr Danny Lo Siaw Teck Senior Scientific Officer, Singapore do hereby certify that at 9.40am on the eighth day of December 1983 there was handed to me by S Ganesan, one sample blood seal General Hospital Singapore and marked Ajmer Singh, Ad No 2038228G.

On analysis, I found the blood sample to contain 152 mg ethanol per 100 ml blood.

PW1 gave evidence and said that when he examined the appellant, the appellant had strong alcohol in his breath and that at 8am the next morning (ie about 12 hours after the accident), he had observed the appellant`s gait was unsteady. PW1 when cross-examined, admitted that he did not know the diffusion rate but he agreed that on the basis of the statement at p 308 of JK Mason`s Forensic Medicine for Lawyers (that the diffusion rate of ethanol is 15 mg per 100 ml of blood per hour) the alcohol content in the appellant`s blood could have been zero at the time he observed the appellant`s gait. PW1 nevertheless asserted that he was positive that the appellant`s unsteady gait was due to the after effect of alcohol and not hypertension or the injury to the appellant`s head. PW1 was not asked or cross-examined as to whether the appellant`s blood was taken with consent.

On the basis of his evidence, the magistrate called for the defence. The appellant`s story was that whilst in his nephew`s house, he and his nephew had drunk four bottles of beer, that he suffered from hypertension, that he fell from his scooter not because of drink but because a motor car overtook him and stopped in front of him; he had to apply his scooter brakes suddenly and fell off his scooter. He also said that when the car overtook him, he had a slight giddiness and that when he applied the brakes he felt giddy. He thought that his giddiness was due to his blood pressure. He also admitted that whenever he consumed alcohol, he felt a slight intoxication. Under cross-examination, he said that he is not a good drinker and would get intoxicated by small amounts of drinks.

At the end of the case for the defence, the magistrate convicted the appellant. He held that the appellant`s fall was due to his high state of intoxication which made him unable to control his scooter. The magistrate also held as a matter of law that s 70 of the RTA did not prohibit the admissibility of the alcohol content of the appellant`s blood as evidence as it was taken without compulsion, that the presumption under s 71 of the RTA applied, but that even if it did not, the evidence of PW1 was sufficient to prove the prosecution`s case.

The appellant now appeals against his conviction and sentence. In the light of the appellant`s own evidence, his counsel has no hope of persuading this court that the appellant has been wrongly convicted. However, the appellant`s case is that at the end of the prosecution case, he had no case to answer as there was no evidence which was legally admissible to prove the alcohol content of his blood. Counsel contended that the appellant`s blood was taken:

(a) when he was not arrested under s 68 when he was taken to or under arrest whilst in hospital;

(b) without his having been required to do so by a police officer under s 70(1);

(c) without his consent as required under s 70(3); and

(d) without a warning as required under s 70(4), and as a consequence, the specimen was inadmissible in evidence.

Counsel referred to the English case of R v Bove [1970] RTR 261; (1970) 54 Cr App R 316 where the accused who had been unlawfully arrested under s 2 of the Road Safety Act 1967 was acquitted on a charge of failing to provide a specimen of his blood without reasonable excuse under s 3(3) on the ground that the requirements of s 3(1) (one of which was he could not be under an obligation to provide the specimen unless he was lawfully arrested) have not been complied with. On p 263 of the report, Lord Parker CJ said:

There is no doubt that in every decision of this Court, beginning with Scott v Baker (1968) 52 Cr App R 566; [1969] 1 QB 659 and ending with Pinner v Everett(supra) in the House of Lords, it has always been assumed to be the law that a man could not be convicted of an offence under s 1 unless a specimen of blood or urine had been obtained pursuant to s 3. When one turns to s 3, one finds before a specimen for a test can be required that there must have been an arrest under s 2 of the Act or under s 4 of the principal Act, and that there must have been an opportunity for a breath test at the police station. It has always been assumed in case after case that an invalid arrest will make the certificate inadmissible, and accordingly , that will be a defence to a charge under s 1 of the Act.

Counsel submitted that the type of illegality involved in R v Bove , being in the nature of direct contravention of a statute, is different from the type of illegally obtained evidence (ie by trickery or other improper means) that was held to be admissible under the ruling in R v Kuruma [1955] AC 197. He also referred to R v Payne [1963] 1 WLR 637 to show that the courts in England have excluded evidence of unfitness to drive which was obtained unfairly from the accused.

It is not necessary for me to consider the English cases in any detail...