Fernandez Joseph Ferdinent v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 30 April 2007
• Neutral Citation: [2007] SGHC 60
• Docket Number: Magistrate's Appeal No 137 of 2006
• Date: 30 April 2007
• Year: 2007
• Published date: 02 May 2007
• Plaintiff Counsel: Ramesh Chandra (Tan Leroy & Chandra)
• Citation: [2007] SGHC 60
• Defendant Counsel: Han Ming Kuang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether trial judge's findings clearly wrong or wholly against weight of evidence,Words and Phrases,Principles,Offences,Section 84(3) Road Traffic Act (Cap 276, 2004 Rev Ed),When appellate court may review trial judge's findings of fact,Evidence,Whether driver failing to render assistance to accident victim,Functions of judge,Whether driver may be considered as having removed his vehicle from the accident scene,Whether driver failing to stop after an accident under s 84(1),Road Traffic,"Serious injury",Sections 47D, 84(8) Road Traffic Act (Cap 276, 2004 Rev Ed),Driver not stopping on own accord after causing accident,Section 84(1) Road Traffic Act (Cap 276, 2004 Rev Ed),Driver stopped by another road user and brought back to accident scene,Trial judge having benefit of hearing witnesses and observing demeanour

30 April 2007

Tay Yong Kwang J:

1 On 16 February 2007, I heard Magistrate’s Appeal No. 137 of 2006 which was an appeal by the appellant against the conviction and sentence pronounced by a district court. As a result of a road accident, the appellant was charged and convicted on four charges under the Road Traffic Act (Cap 276)(“RTA”). The first charge was for driving without reasonable consideration for other road users by swerving from the centre to the left lane, thereby causing a collision between the appellant’s car and a motorcycle travelling on the left lane, an offence punishable under s 65(b) of the RTA (“the driving without reasonable consideration charge”). The second charge was for failure to stop after an accident (an offence under s 84(1) and punishable under s 131(2) of the RTA)(“the failure to stop charge”). The third charge accused the appellant of failing to render reasonable assistance to the rider of the motorcycle who had suffered serious injuries (an offence under s 84(3) read with s 84(7) and punishable under s 84(8) of the RTA)(“the failure to render assistance charge”). The fourth charge alleged that the appellant removed his car without the authority of a police officer (an offence under s 84(4) read with s 84(7) and punishable under s 131(2) of the RTA)(“the removal of vehicle charge”). I dismissed the appeal against conviction and sentence save for the removal of vehicle charge. I set aside the conviction and sentence in respect of that charge as I was of the view that it was legally incompatible with the failure to stop charge in that a conviction could not be sustained concurrently on both these charges in the circumstances.

2 On 30 March 2007, the Public Prosecutor applied by way of Criminal Motion No. 3 of 2007 for an order that the following questions of law of public interest which have arisen in Magistrate’s Appeal No. 137 of 2006 be reserved for the decision of the Court of Appeal pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322):

1 Whether the offences under sections 84(1) and 84(4) of the RTA are mutually exclusive offences.

2 If the answer to (1) is in the negative, whether in a serious accident as described in section 84(4) of the RTA, the offences under sections 84(1) and 84(4) of the RTA are both made out if the driver does stop his vehicle after the accident, but at some distance away, because he had been forced to do so by the realisation that someone had witnessed the accident.

I granted the order sought and reserved the said questions of law accordingly. For easy reference, the entire s 84 RTA is set out below:

84 (1) If in any case owing to the presence of a motor vehicle on a road an accident occurs whereby damage or injury is caused to any person, vehicle, structure or animal, the driver of the motor vehicle shall stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the motor vehicle.

(2) If in the case of any such accident as aforesaid the driver of the motor vehicle for any reason does not give his name and address to any such person as aforesaid, he shall report the accident at a police station or to a police officer as soon as reasonably practicable and, in any case, within 24 hours of the occurrence thereof.

(3) If in any case owing to the presence of a motor vehicle on a road an accident occurs whereby any person is killed or any damage or injury is caused to any person, vehicle, structure or animal, the driver of the motor vehicle shall render such assistance as may be reasonably required by any police officer or in the absence of any police officer such assistance as it may reasonably be in the power of the driver to render.

(4) When owing to the presence of a motor vehicle on a road an accident occurs in consequence of which any person is killed or seriously injured or serious damage is caused to any vehicle or structure, no person shall, except under the authority of a police officer, move or otherwise interfere with any vehicle involved in the accident or any part of such vehicle or do any other act so as to destroy or alter any evidence of the accident except that –

(a) a vehicle or any part thereof may be moved so far as may be necessary to extricate persons or animals involved, remove mails, prevent fire or prevent damage or obstruction to the public; and

(b) goods or passengers baggage may be removed from a vehicle under the supervision of a police officer.

(5) Subsection (4) shall not apply where it is urgently necessary to remove any seriously injured person to hospital and no suitable means of conveyance other than a vehicle involved in the accident is at hand.

(6) In this section, “animal” means any horse, cattle, ass, mule, sheep, pig, goat or dog.

(7) If any person fails to comply with any of the provisions of this section, he shall be guilty of an offence.

(8) Any person who is guilty of an offence under subsection (7) arising from his failure to comply with subsection (3) shall, if he had in driving or attempting to drive a motor vehicle at the time of the accident referred to in that subsection caused any serious injury or death to another person, be liable on conviction –

(a) to a fine not exceeding $3,000 or to imprisonment for a term not exceeding 12 months; and

(b) in the case of a second or subsequent conviction, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years.

(9) Where a person is convicted of an offence under subsection (7) arising from his failure to comply with subsection (3), the court convicting him shall –

(a) if satisfied that he had in driving or attempting to drive a motor vehicle at the time of the accident referred to in subsection (3) caused any serious injury or death to another person; and

(b) unless the court for special reasons thinks fit to order otherwise,

make an order disqualifying him from holding or obtaining a driving licence –

(i) for a period of not less than 12 months from the date of his conviction or, where is sentenced to imprisonment, from the date of his release from prison; or

(ii) for such longer period as the court thinks fit.

(10) Where at one trial the driver of a motor vehicle is convicted and sentenced to imprisonment for –

(a) an offence involving the use of the motor vehicle by him whereby any serious injury or death is caused to another person; and

(b) an offence under subsection (7) arising from his failure to comply with subsection (3).

the court before which he is convicted shall order that the sentences for those offences shall run consecutively.

(11) Any police officer may arrest without warrant any person who is reasonably suspected of having failed to comply with subsection (3).

The facts

3 On 21 May 2005, at about 11.05pm, the motorcyclist in question was riding his motorcycle along the innermost lane of the three-lane Pan Island Expressway (“PIE”) in the direction towards Tuas. The weather was clear and traffic flow was light. The appellant was driving his white BMW along the centre lane while the prosecution’s main witness, Lee Chee Kin (“Lee”), was driving his car, with his wife and child in the rear seats, along the extreme right lane. When both cars were negotiating the bend along the Bukit Batok flyover, Lee saw the white BMW suddenly swerve to its left, hitting the motorcycle from the rear, causing the motorcycle to “wheel up”. The motorcycle was then dragged for a few seconds. The impact flung the rider off the motorcycle while the motorcycle continued moving for a short distance before hitting the metal railing at the side of the road and falling over.

4 Lee filtered to the centre lane and when the appellant continued to drive on, he decided to chase the white BMW. When Lee caught up and was alongside the BMW, he sounded his horn several times and gestured to the appellant to stop. The appellant slowed down and Lee overtook him. Both cars then stopped along the road shoulder after the Jurong West Avenue 1 exit. Lee estimated that they were about two to three km away from the scene of the accident. Lee alighted and walked towards the appellant’s car. When Lee knocked on the window pane, the appellant wound it down a little. Lee asked the appellant if he knew that he had hit someone. The appellant claimed that he did not. Lee then asked him whether he was drunk. The appellant replied that he was not. Lee asked the appellant to alight and return with him to the scene of the accident. It took them ten to fifteen minutes to walk back. There, they saw the rider being attended to by several people.

5 Another driver, Vincent Lim, was driving along the slip road leading to the PIE when he saw the motorcycle, without its rider, passing in front of his car from right to left before crashing into the metal railing at the side of the road and falling over. Vincent Lim stopped his car and, seeing a body lying on the road to his right, alighted to render assistance. About five minutes after that, he saw Lee and the appellant walking towards him from further up the PIE.

6 The victim was on his way home after work on that fateful day. All that he could recall was that he was riding his motorcycle along the innermost lane of the PIE when a vehicle hit his motorcycle from the rear. He was flung off his motorcycle and fainted after that. He regained consciousness momentarily when he arrived at the hospital.

7 A traffic police officer who arrived at the scene of the accident testified that there were a few leaves with bloodstains at the front left headlamp of the appellant’s BMW, which was broken. There was also a dent at...