Fam Shey Yee v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 28 June 2012
• Neutral Citation: [2012] SGHC 134
• Plaintiff Counsel: Udeh Kumar s/o Sethuraju (S K Kumar Law Practice LLP)
• Docket Number: Magistrate’s Appeal No 33 of 2012, Criminal Motion No 30 of 2012 and Criminal Revision No 5 of 2012
• Date: 28 June 2012
• Hearing Date: 19 April 2012,10 May 2012
• Subject Matter: Criminal Procedure and Sentencing
• Published date: 02 July 2012
• Citation: [2012] SGHC 134
• Defendant Counsel: Charlene Tay Chia (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Year: 2012

Chan Sek Keong CJ: Introduction

Fam Shey Yee (“the appellant”), who was unrepresented in the proceedings below, pleaded guilty to two charges in the District Court. The first charge was for driving along Crawford Street on 10 July 2011 at around 11.50pm while under disqualification (“the first charge”), an offence under s 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”). The second charge was for the connected offence of driving without the necessary third-party insurance coverage (“the second charge”), an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed).

The appellant was sentenced to six weeks’ imprisonment and three years’ disqualification from holding or obtaining a driving licence for all classes of vehicles on the first charge. On the second charge, the district judge fined him $500 and imposed 12 months’ disqualification from holding or obtaining a driving licence for all classes of vehicles. The appellant has appealed to this court against the sentence for only the first charge.

Criminal Motion No 30 of 2012 and Criminal Revision No 5 of 2012

As at 10 July 2011, the appellant was already subject to a previous disqualification order because he had, in District Arrest Case No 39929 of 2010 (“DAC 39929/2010”), pleaded guilty on 2 September 2010 to a charge under s 70(4)(a) of the RTA for failing, without reasonable excuse, to provide a breath specimen when required to do so. On that occasion, the District Court had fined the appellant $2,000 and had also disqualified him from holding or obtaining a driving licence for all classes of vehicles for 18 months.

Before me, counsel for the appellant mounted a collateral attack on the appellant’s conviction in DAC 39929/2010. Counsel contended that the appellant had been wrongly convicted as he had a reasonable excuse for failing to provide a breath specimen, and accordingly, the disqualification of 18 months imposed on the appellant was unlawful. The appellant filed Criminal Motion No 30 of 2012 on 17 April 2012 for leave to adduce further evidence about the circumstances in which he had failed to provide a breath specimen. When informed that the application was irregular and improper and that he should have applied by way of a criminal revision, the appellant filed Criminal Revision No 5 of 2012 on 3 May 2012. His criminal motion thereupon either lapsed or was deemed to have been withdrawn.

My decision

Before this court, counsel for the appellant submitted that the conviction of the appellant in DAC 39929/2010 was unsafe because the appellant had been suffering from an asthmatic attack brought upon by his nervousness at the time his breath specimen was required. In support of this contention, counsel relied on two medical reports from Dr Tan Kok Leong of The Revival Medical Centre. The first, dated 17 April 2012, stated that the appellant had suffered from hypertension, chest tightness and mild diabetes mellitus since 2005. The second, dated 23 April 2012, stated that the appellant suffered from an asthmatic condition, and that breathing difficulties could have prevented him from providing a breath specimen. The appellant’s counsel contended that these medical reports showed that the appellant had “reasonable excuse” for his failure to provide a breath specimen. It was accordingly argued that the offence under s 70(4)(a) of the RTA for which the appellant was convicted in DAC 39929/2010 had not been made out.

In my view, there is no basis whatever for a criminal revision of the appellant’s conviction in DAC 39929/2010 for the following reasons. First, he pleaded guilty to the charge in that case. Second, he did not at that time raise the medical conditions which he now raises. It is established law that the court will not exercise its revisionary power except where the conviction is illegal or where there is serious injustice (see Mohamed Hiraz Hassim v Public Prosecutor [2005] 1 SLR(R) 622 at...