DRINK DRIVING LAW: A WRONG TURNING IN THE ROAD TRAFFIC ACT?

• Date: 01 December 1994
• Author: CHAN WING CHEONG
• Published date: 01 December 1994

I. INTRODUCTION

In two sentencing appeals heard by the learned Chief Justice Yong Pung How, a rule was pronounced obiter concerning the presumption of a driver’s ability to control a motor vehicle under the Road Traffic Act1 (“the Act”).

In Ong Beng Soon v PP2 he said:

When a person has been arrested under s67 of the Act, and the blood sample provided by him under s69 is certified by a medical officer to have a blood alcohol concentration in excess of 80mg in 100ml of blood, s70 creates an irrebuttable presumption that he is incapable of having proper control of the motor vehicle. The possibility that he may have an unusual constitution with a great capacity for alcohol is not relevant. Once the offender was over the limit, the court would not entertain the argument that he was not in fact incapable of having proper control of the car. (emphasis added)

This was repeated in Teo Kwee Chuan v PP3, where he said:

Counsel for the appellant submitted…that the presumption arising under s70…was an irrebuttable or conclusive presumption. So it was…once the presumption was introduced, and the blood alcohol concentration of a driver exceeded the prescribed limit, it was irrelevant to produce evidence of his capacity to consume alcohol or his actual proficiency in driving and control of the vehicle, because these would not rebut the presumption arising from the blood alcohol concentration .…(emphasis added)

It is regretted that the Chief Justice failed to explain how he arrived at this conclusion. While the use of a rebuttable presumption in Singapore law is all too well known,4 section 70 of the Act is not worded as clearly as it could have been:

[a]ny person who has been arrested under section 67…shall be presumed to be incapable of having proper control of a motor vehicle

if the specimen of blood…[has] a blood alcohol concentration in excess of 80 milligrammes of alcohol in 100 millilitres of blood.5

There is no express indication in the section itself whether the statutory presumption created is rebuttable or irrebuttable.

In this article, it will be argued that the Chief Justice’s interpretation of section 70 does not necessarily follow from principles of statutory construction or from the use of presumptions generally, and must be wrong when considered with the protections enshrined in our Constitution.

II. A DIVERSION

With respect, the Chief Justice could have been unduly influenced by the comparable Road Traffic legislation in the United Kingdom (UK). In one passage, he says:

The sentencing practice in the United Kingdom is especially relevant in view of the similarity in the statutory provisions relating to drunken driving. In the United Kingdom as in Singapore, the prescribed limit of blood alcohol concentration is 80mg in 100ml of blood.6

Similarity there may be, but exactitude there is not. In the UK there are 2 distinct drink driving7 offences:

1. driving or attempting to drive a motor vehicle while unfit to drive through drink or drugs, ie if the ability to drive properly is for the time being impaired;8 and

   (ii) driving or attempting to drive a motor vehicle after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limits. The prescribed limit in the case of blood is 80mg alcohol in 100ml of blood.9

These 2 offences are closely interrelated10 since a person arrested for being unfit to drive under section 4 will usually be required to provide a specimen for analysis.11 Conversely, if a person is arrested under section 5, he may also be charged under section 4 if there is evidence of impairment of his ability to drive due to drink or drugs.12 Nevertheless, it must be stressed that it is different from the Singapore legislation since there is a specific offence of being over a certain alcohol limit per se while driving or attempting to drive.

In Singapore, the drink driving provision reads:

[a]ny person who, when driving or attempting to drive a motor vehicle…is under the influence of drink or of a drug to such an extent as to be incapable of having proper control of such vehicle shall be guilty of an offence.…13

Hence, before the introduction of the presumption found in section 7014 of the Act, the prosecution had to prove that the accused was rendered by drink or drugs to be incapable of having proper control of his motor vehicle. However reprehensible the accused’s conduct may be in getting drunk and getting into his car, this is alone insufficient for a conviction under this section.15

As the learned Chief Justice said in Teo Kwee Chuan:

[t]he offence [ie, section 67 of the Act] for which the driver might then be convicted is not called ‘exceeding the statutory blood-alcohol limit’ - ultimately the offence for which he might be convicted is still an offence of driving while under the influence of drink.16

This stands in direct contrast to section 5 of the UK Road Traffic Act 1988 which does create an offence of exceeding the blood-alcohol limit. The question for inquiry is what change to the law has been made by the presumption provision in section 70 of the Act.

III. STATUTORY INTERPRETATION

A. Generally

There are few irrebuttable presumptions of law today.17 Rules that have the effect of irrebuttable presumptions are clearly stated, eg section 115 of the Evidence Act18 which states “it shall be an irrebuttable presumption of law that a boy under the age of 13 years is incapable of committing rape” or section 82 of the Penal Code19 that “nothing is an offence which is done by a child under 7 years of age”.

It is submitted that the policy of the legislature must be clear and the words unequivocal if it is sought to impose an irrebuttable presumption in section 70 of the Act. This is especially so if the irrebuttable presumption is in the field of criminal law and works to the disadvantage of the accused.20

It is contended that the words in section 70 of the Act “shall be presumed” are facially ambiguous. They can be construed as rebuttable or irrebuttable. The court’s task then is to ascertain and give effect to the purpose underlying the provision.21

B. Legislative History22

The drink driving provision was first introduced into Singapore by section 27 of the Road Traffic Ordinance in 196123 to bring local laws “into line with Federation and United Kingdom legislation”.24 The wording of the offence itself has not been changed to date,25 although the punishment to

be imposed has been increased twice.26 In contrast, the legislation on which our provision was based, section 15(1) of the UK Road Traffic Act 1930, was amended in 1962 by declaring that a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired, instead of the old test of being incapable of having proper control.27 In 1967,28 a new offence of driving or attempting to drive while being in excess of the prescribed limits of alcohol was created.

From our legislative debates, it is clear that drink driving is considered to be a serious source of public danger to persons and property which must be minimised.29 The presumption introduced in 1976 was to serve as “a guide to Police officers and medical practitioners as well as evidence upon which the court can convict any person who is arrested under section [67]…of the Act”.30 The blood alcohol level was amended in 1985 to “deter motorists from driving if they consume alcohol excessively” since”…the driving skills of most individuals will certainly be adversely affected and deteriorate rapidly, even in the case of a hardened drinker or an experienced driver” even at blood alcohol levels of 50 to l00mg per 100ml.31 No further statement was made as to the use of the statutory presumption by the courts.

One may gather from the legislative debates that it was sought to move the offence of drink driving from an opinion or non-factual based enquiry32 to one which can be determined scientifically, ie setting of a general tolerance level and holding anything in excess of that as evidence of incapability. It is submitted that the legislative intent in enacting this presumption provision is to facilitate proof of incapability of having proper control over a motor vehicle. It formalises the common sense inference to be made that one’s ability to drive suffers with a corresponding increase in the level of blood

alcohol content, and therefore increases the risk of being involved in accidents.33 But this is still a long way from saying that it is conclusive of ability to control a vehicle.34

C. Other Interpretative Criteria

1. Other Acts of Parliament

The use of presumptions in Singapore law occurs over 200 times in various forms: “in the absence of proof to the contrary”; “unless the contrary is proved”; “prima facie evidence”.

If the intention is to make such a presumption irrebuttable, the words making it so are explicit:

1. (i) “conclusive evidence”eg in section 18(1) of the Banishment Act;35 or

2. (ii) “conclusively presumed”eg in section 21(2) of the Bills of Exchange Act,36 sections 6(1), 12(2) of the Charities Act,37 sections 90(2), 165(5) of the Companies Act38, and section 74(5) of the Copyright Act;39 or

3. (iii) “irrebuttable presumption”eg in section 2(3) of the Common Gaming Houses Act,40 and section 115 of the Evidence Act.41

Within the Evidence Act42 itself, section 4(2) clarifies that where the words “shall presume”occur, the court “shall regard such fact as proved unless and until it is disproved”. Surely the same interpretation is to be preferred where the same words occur in other statutes!

Hence, where only the words “shall be presumed” occurs, the starting point should be that the presumption created is rebuttable. It is a simple matter for the drafters of legislation to include the qualifying word “irrebuttable”, “conclusive” or “absolute” if that is the intention of Parliament. Failure to do so...