Guay Seng Tiong Nickson v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 13 May 2016
• Neutral Citation: [2016] SGHC 94
• Citation: [2016] SGHC 94
• Docket Number: Magistrate’s Appeal No 9040 of 2015
• Published date: 09 June 2016
• Hearing Date: 18 February 2016
• Plaintiff Counsel: Abraham Vergis and Asiyah Arif (Providence Law Asia LLC)
• Date: 13 May 2016
• Defendant Counsel: Chee Min Ping and Shen Wanqin (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Principles,Sentencing,Criminal Procedure and Sentencing

Sundaresh Menon CJ: Introduction

This is an appeal against sentence brought by the accused, Nickson Guay Seng Tiong (“the appellant”). The appellant was involved in a tragic road accident that claimed the life of a two-month old infant (“the deceased”). The appellant failed to keep a proper lookout whilst making a right turn at a traffic-light controlled junction and encroached into the path of another car which was travelling in the opposite direction and had the right of way. The other car collided with the side of the appellant’s car. The deceased was in the rear passenger seat of the other car and passed away as a result of the injuries sustained during the accident. The Public Prosecutor (“the Prosecution”) preferred a charge against the appellant for causing death by a negligent act under s 304A(b) of the Penal Code (Cap 224, 2008 Rev Ed). The appellant pleaded guilty and was sentenced by the district judge (“the DJ”) to a term of four weeks’ imprisonment as well as a five-year disqualification order. On appeal, the appellant contends that the imprisonment sentence is manifestly excessive and submits that he should be sentenced to a fine instead. He does not contest the disqualification order.

The appellant’s principal contention is that the death of the deceased was caused at least in part by the “contributory negligence” of the deceased’s father, who was the driver of the other vehicle (“the father”). The father failed to ensure that the deceased was secured by an approved child restraint. The appellant contends that the deceased would not have passed on if he had been properly restrained; and that this was a factor he had no control over. He therefore submits that his sentence should be reduced to reflect the fact that he was not the sole cause of the death of the deceased. I preface my consideration of the arguments with a brief recitation of the facts.

The Facts

At about 7.54pm on 20 October 2014, the appellant, who was 21 years old at the time, made a right turn at the cross-junction of Ayer Rajah Avenue and North Buona Vista Road. Prior to making the turn, the appellant had been travelling along North Buona Vista Road in the direction of Holland Road. The appellant had obtained his driving licence not long before the accident and a probation plate was displayed on his car. Investigations revealed that the appellant had only driven this car for about five or six days before the accident.

Travelling on the same road, but in the opposite direction (towards South Buona Vista Road), was another car driven by the father. There were two passengers in the car. The first was the mother of the deceased (“the mother”). She was seated in the left rear seat and was cradling the deceased, the second passenger, in her arms. The deceased was being breastfed at the material time.

As the father approached the cross-junction, the light was in his favour, the road ahead was clear, and there were no vehicles in front of him. There were also no oncoming vehicles making a right turn into his path. He maintained a speed of about 50 – 60km per hour as he drove into the cross-junction.

As the appellant turned right, his car cut across the path of the father’s car as it was proceeding through the cross-junction. The father could not stop his car in time and collided into the side of the appellant’s car. Both cars surged forward and stopped at opposite ends of the cross-junction. At the time of the collision, the weather was fine, the road was dry, visibility was clear, and traffic was light.

After the collision, the mother engaged the assistance of a stranger, who conveyed the deceased and the mother to the National University Hospital (“NUH”). Doctors at the Children’s Emergency Unit at NUH (“CEU”) attended to the deceased. The deceased was noted to be conscious when he arrived at the hospital. Tests revealed that he had a blood clot on the left side of his brain and emergency surgery was organised to remove it. Tragically, however, the deceased suffered a cardiac arrest during the operation and succumbed to his injuries at 2.55am on 21 October 2014.

The autopsy report confirmed that the cause of death was the head injury and that this injury, as well as most of the other internal and external injuries, was consistent with those sustained in a road traffic accident.

The front bumper of the car driven by the father was crumpled and had been ripped off. The car driven by the appellant was more badly damaged. The front bumper was ripped off, the front windscreen smashed, and the left side of the body of the vehicle was crumpled and dented.

Video footage revealed that the appellant made the turn and drove into the cross-junction without stopping. When the appellant entered the cross-junction, the traffic light was green and in favour of vehicles travelling in the same direction as the father (towards South Buona Vista Road). At the point of impact, the lights had turned amber but the arrow light signal had yet to come on in favour of vehicles turning right. The father therefore had the right of way throughout the entire episode. This much is not disputed.

The appellant was charged under s 304A(b) of the Penal Code for causing death by a negligent act not amounting to culpable homicide. The negligent act described in the charge was the “failing to keep a proper lookout whilst making a right turn”. He pleaded guilty to the charge and the only issue before the DJ was the sentence to be imposed.

The DJ’s decision

The Prosecution sought a term of imprisonment of at least four weeks and a five-year disqualification order. Counsel for the appellant argued that a custodial term was not warranted and a fine should instead be imposed. The appellant took no issue with the disqualification order. Before the DJ, both sides agreed that the leading authority was the decision of the specially constituted 3-judge bench of this court in Public Prosecutor v Hue An Li [2014] 4 SLR 661 (“Hue An Li”), but they differed on how the principles enunciated in that case were to be applied.

In his decision, which was reported as Public Prosecutor v Nickson Guay Seng Tiong [2015] SGDC 99 (“the GD”), the DJ first began by considering the following aggravating factors raised by the Prosecution: The place of the collision and how the collision occurred: The DJ noted that drivers traversing a cross-junction had to be especially vigilant because it was to be expected that there would be oncoming vehicles. However, the appellant had failed to exercise due care. The fact that the road surface was dry, visibility was clear and traffic flow was light coupled with the fact that the father was not driving in an improper manner suggested that the collision was mainly, if not solely, due to the default of the appellant (at [37]–[38]). The manner in which the appellant drove through the cross-junction: The appellant did not take the “most basic” precaution of stopping at the cross-junction to wait for the arrow light signal. Instead, he drove into the junction and made a turn without stopping. His act could be likened to that of a driver who speeds across a junction, since the appellant was not supposed to have been traversing the junction either at the speed or in the manner that he did (at [39]–[41]). The fact that the appellant was a new driver who was driving a new car: The appellant should have taken greater care because he was a new driver who was driving an unfamiliar vehicle. Proper care was called for especially because driving is an inherently dangerous activity (at [43]–[47]). The extensive harm caused: The DJ considered the severe head and brain injuries suffered by the deceased and the “very extensive damage” caused to the two vehicles as aggravating factors (at [48]–[52]).

The DJ then considered the following mitigating factors advanced by the defence: The appellant was an inexperienced driver and was handling an unfamiliar vehicle: The DJ did not consider this to be a mitigating consideration. If anything, this called for more care on the part of the appellant (at [54]–[55]). The appellant’s plea of guilt and genuine remorse: The DJ gave the appellant the benefit of the doubt that he had displayed genuine remorse in apologising to the parents of the deceased, and in expressing sorrow and regret. His plea of guilt also spared the parents the agony of testifying in court and having to relive the trauma. Some consideration should be accorded to this (at [56]–[58]). The appellant’s personal circumstances and his clean record: Counsel for the appellant pointed out that he was an entrepreneur and a university undergraduate who held a scholarship. All this heralded a bright future for the appellant, which would be in jeopardy if he was to receive a custodial sentence. The DJ did not find these factors to be mitigating. Nevertheless, the DJ took the fact that the appellant was a first offender into account (at [59]–[62]).

Taking into account all the circumstances, the DJ sentenced the appellant to four weeks’ imprisonment and a five-year disqualification order (at [63]–[65]).

The arguments on appeal Appellant’s arguments

On appeal, counsel for the appellant, Mr Abraham Vergis (“Mr Vergis”), argues that the imprisonment sentence is manifestly excessive and that a fine should be imposed instead. The appellant was not represented by Mr Vergis in the court below. Before me, Mr Vergis raised some new arguments that were not put before the DJ.

In particular, Mr Vergis submits that the DJ failed to take account of the fact that the deceased was not properly secured by an approved child restraint as required under r 11 of Road Traffic (Motor Vehicles, Wearing of Seat Belts) Rules (Cap 276) (“Rule 11”). Rule 11 reads as follows:

11.—(1) Where a seat belt is available for the use of a child below 8 years of age who is the rear seat passenger of a motor vehicle to which these Rules...