Public Prosecutor v Fernandez Joseph Ferdinent

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 17 July 2007
• Neutral Citation: [2007] SGCA 34
• Date: 17 July 2007
• Subject Matter: Road Traffic,Purposive approach,Section 60 Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Statutory Interpretation,Courts and Jurisdiction,Preconditions to reference of questions to Court of Appeal,Construction of statute,Sections 84(1), 84(4) Road Traffic Act (Cap 276, 2004 Rev Ed),Whether offences distinct or mutually exclusive,Offences,Criminal references,Section 84(4) Road Traffic Act (Cap 276, 2004 Rev Ed),Questions of law of public interest
• Docket Number: Criminal Reference No 1 of 2007
• Published date: 31 July 2007
• Defendant Counsel: Ramesh Chandra (Tan Leroy & Chandra)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Han Ming Kuang (Attorney-General's Chambers)

17 July 2007 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 The matter before us is a criminal reference that had been taken out by the Public Prosecutor (“the applicant”) pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”). The genesis for this application is the decision of the High Court judge (“the appellate judge”) in a Magistrate’s Appeal (namely, Magistrate’s Appeal No 137 of 2006), wherein he set aside the conviction of one Mr Joseph Ferdinent Fernandez (“the respondent”) under s 84(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the Act”) (“the s 84(4) charge”) for removing a car, which was involved in a traffic accident that resulted in a serious injury, from the scene of such accident without the authority of a police officer (see Fernandez Joseph Ferdinent v PP [2007] SGHC 60) (“the GD”).

2 Before proceeding to consider the two questions reserved for our decision in the present application pursuant to s 60 of the SCJA, it would be appropriate – indeed, necessary – to first set out briefly the specific background of this case.

The background

3 The facts are relatively straightforward. On 21 May 2005, at about 11.05pm, the respondent was driving his motor vehicle along the Pan Island Expressway in the direction of Jurong, close to the exit to Jurong West Avenue 1. According to Mr Lee Chee Kin (“the witness”), who had been driving on the same road at the time, the respondent’s car suddenly swerved to the left as it was negotiating a bend at the Bukit Batok Flyover, causing it to hit the rear of a motorcycle that had been travelling along that same stretch of road. Upon impact, the motorcyclist was flung off his vehicle. The respondent did not stop and, instead, continued with his journey. The witness gave chase in his vehicle and eventually caught up with the respondent about half a kilometre from the scene of the accident and eventually managed to get the respondent to stop his vehicle. The witness then got the respondent to come out of his car and to return to the scene of the accident, where they waited for the authorities to arrive. The motorcyclist was later found to have sustained multiple fractures that required him to be hospitalised for seven weeks.

4 As a result of the events recounted briefly in the preceding paragraph, the respondent was charged and convicted in the District Court on four charges under the Act. It would be useful to set out, at this preliminary juncture, the import of the charges preferred against the respondent at first instance. Apart from the charge that had already been referred to earlier (at [1] above), the Prosecution preferred three other charges against the respondent: first, for an offence under s 65(b) of the Act for driving without reasonable consideration for other road users; second, for an offence under s 84(1) of the Act (read with s 84(7) of the same) for his failure to stop after the accident; and, third, for an offence under s 84(3) of the Act (read with s 84(7) of the same) for failing to render assistance to the motorcyclist after the accident.

5 Put simply, the respondent’s defence before the District Court was that of a bare denial: He argued that he never made contact with the motorcycle and, for that reason, had not been aware of any accident and/or the need to stop. Given the wholly implausible nature of his defence, and its patent inconsistencies when contrasted with the witness’s rendition of events, the respondent was found guilty and was convicted of all four charges. In essence, the trial judge’s decision was based upon a two-fold factual finding: first, that a collision did, in fact, take place between the respondent’s vehicle and the motorcycle resulting in the injuries sustained by the motorcyclist and, second, that the respondent knew at the time that he had caused an accident, but notwithstanding such knowledge, had decided to make a run for it. Though he did eventually stop half a kilometre from the scene of the accident, in the trial judge’s view, this was only because the respondent realised that he would not be able to escape responsibility for his actions. On the back of such factual findings, the trial judge sentenced the respondent to a total of six weeks’ imprisonment, a $2,000 fine and 18 months’ disqualification from driving. Being dissatisfied with the decision of the District Court, the respondent appealed against both his conviction and sentence on the basis that the trial judge had erred in arriving at his findings of fact.

6 On appeal, the appellate judge found himself to be in full agreement with the trial judge’s findings of fact and, consequently, refused to disturb any of the factual conclusions arrived at by the trial judge. Given that the respondent’s entire appeal had been predicated upon the allegation of erroneous findings of fact made by the trial judge (save for a single allusion that the sentence imposed by the trial judge had been manifestly excessive, a proposition that had not been seriously advanced in the appeal), this would have meant that the appeal would have been dismissed in toto. Nonetheless, despite the fact that neither party had canvassed the matter before him, as referred to earlier, the appellate judge proceeded to set aside the conviction under s 84(4) of the Act. Notwithstanding its considerable length, given its central importance to the matters that were before us, it would be useful to reproduce, in its entirety, the appellate judge’s reasoning as to why the conviction on the s 84(4) charge could not stand. This was dealt with at [25] of the GD, where the appellate judge reasoned as follows:

The actual words used in s 84(4) are “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”. Implicit in the offence is the fact that the vehicle involved is stationary at the location of the accident. This is buttressed by the two exceptions in s 84(4) and by the exception provided in s 84(5), which states that s 84(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” (emphasis added). Put simply, in order to remove an object from point A, it must be at point A. The BMW in question was never stationary at the scene of accident, hence the failure to stop charge. It was there only in the sense that it was passing through without so much as a momentary halt. If the [respondent] did stop voluntarily for a few seconds but then decided to move on, he would have been guilty of an offence under s 84(3) and (4) but not s 84(1). Since he did not stop at all until he was forced to some distance away, it seems to me highly artificial to accuse him of having “removed” his vehicle concurrently with his failure to stop. For this reason, I was of the view that the removal of vehicle charge was legally incompatible with the failure to stop charge and so set aside the conviction relating to the former. [emphasis in original]

7 As a result of the appellate judge’s decision to set aside the respondent’s conviction under s 84(4) of the Act, on 30 March 2007, the applicant filed, pursuant to s 60 of the SCJA, an application requesting that the appellate judge reserve for the decision of this court the following two questions of law of public interest:

1 Whether the offences under sections 84(1) and 84(4) of the [Act] 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 [Act], the offences under sections 84(1) and 84(4) of the [Act] 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.

8 The appellate judge granted the application. For ease of reference, we shall refer in this judgment to the questions that have been posed to us, and as reproduced in the preceding paragraph, as “the first question” and “the second question” respectively.

Two preliminary matters

9 Before proceeding to consider the arguments that were canvassed before us, however, two preliminary matters ought to be briefly mentioned. First, at the commencement of the hearing, counsel for the respondent, Mr Ram Chandra Ramesh, stated that the respondent had no intention of proffering any arguments and was leaving the determination of the questions concerned (and, obviously, their attendant impact on him) squarely to the court. In the result, only the applicant’s arguments were available before us.

10 Secondly, at the commencement of the hearing, Mr Ram also informed us that the respondent was not able to be personally present in court as he was working in India. Mr Ram thus sought oral leave to dispense with the respondent’s attendance for the purposes of the hearing before us. As no objections were raised by the applicant, we granted leave to dispense with his attendance on this particular occasion.

11 We turn now to consider, in turn, each of the two questions that have been reserved for our decision.

The first question

12 In order to place the ensuing analysis in its appropriate context, it would be appropriate for us to set out, for easy reference, the salient parts of s 84 of the Act. They read as follows:

(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...