Jali bin Mohd Yunos v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 09 October 2014
• Neutral Citation: [2014] SGCA 50
• Plaintiff Counsel: Eugene Thuraisingam (Eugene Thuraisingam)
• Docket Number: Criminal Reference No 4 of 2013
• Date: 09 October 2014
• Hearing Date: 27 May 2014
• Subject Matter: Criminal Law,Road Traffic Offences
• Published date: 10 October 2014
• Citation: [2014] SGCA 50
• Defendant Counsel: Tai Wei Shyong, Ng Yiwen and Crystal Tan (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Year: 2014

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

This criminal reference relates to the determination of the following question (“the Question”):

Does a finding of rashness in road traffic offences require consciousness as to risk?

The Facts

The applicant (“the Applicant”) pleaded guilty to the following charge under s 66(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the Act”):

You, Jali bin Mohd Yunos, …

are charged that you, on the 11th day of November 2010 at about 12.40 pm, along Still Road towards Eunos Link at the signalized cross junction of Joo Chiat Place, Singapore, being the driver of a motor car SJG 9381 K, did cause the death of a one Lai Liok Khim, female 75 years old, by driving the said motor car in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which was actually at the time, or which might reasonably be expected to be on the road, to wit, by failing to conform to the traffic red light signal in your direction and entering into the junction, thus resulting in a collision with a motor car SFP 1730 P that was entering into the cross junction from your left, from Joo Chiat Place on a green light, thus resulting in a collision with the said motor car and thereafter caused your motor car to veer into the pedestrian crossing along Still Road after the junction, colliding onto the said Lai Liok Khim who was then crossing the road along the pedestrian crossing, thereby causing the death of the said Lai Liok Khim and you have thereby committed an offence punishable under Section 66(1) of the Road Traffic Act, Chapter 276.

The Applicant admitted to the Statement of Facts without qualification, the salient parts of which are as follows. On 11 November 2010, at about 12.40pm, the Applicant was driving his motorcar along Still Road in the direction of Eunos Link. At the same time, another motorcar, driven by one Abdul Majid Bin Omar Harharah (“Majid”), was travelling along Joo Chiat Place towards Telok Kurau Road.

As Majid approached the junction between Still Road and Joo Chiat Place, the traffic light turned from red to green in his favour. When Majid proceeded to enter the junction, the vehicle driven by the Applicant suddenly appeared in his path. There was a collision between the two vehicles which caused the Applicant’s vehicle to spin out of control and hit the victim (“the Victim”). The Victim was injured and she succumbed to her injuries on the same day.

The Applicant did not dispute the fact that the traffic light was indeed red against him when he entered the junction. When entering the junction between Still Road and Joo Chiat Place, the Applicant did not check to see whether the traffic light was green in his favour. Instead, he followed the vehicle in front of him.

The Proceedings Below

At first instance, a district judge (“the DJ”) sentenced the Applicant to four months’ imprisonment and disqualified the Applicant from obtaining or holding a licence for all classes of vehicles for a period of seven years. The grounds for the DJ’s decision are reported as Public Prosecutor v Jali bin Mohd Yunos [2012] SGDC 302 (“the GD”).

In sentencing, the DJ noted that in cases of dangerous driving, general deterrence remained the principal sentencing consideration (see the GD at [12]). The seriousness of such offences was reflected in the fact that imprisonment was mandatory and that the length of imprisonment could extend to five years.

On the evidence, the DJ noted that the Applicant did not even bother to check whether the traffic lights were in his favour. Instead, he blindly followed the vehicle in front of him. In the DJ’s view, this amounted to “a blatant and flagrant disregard of basic safety requirements” (see the GD at [13]).

In the same vein, the DJ disagreed with the Applicant’s contention that his actions reflected a momentary lapse of judgment on his part and that he was merely negligent (see the GD at [9] and [14]). She found that it was “a fundamental safety requirement that a prudent driver ought to check the state of the traffic lights before proceeding to enter a signalised and major traffic junction” (see the GD at [13]). Given that it was in the afternoon, visibility was clear, and the traffic flow was light, there was no reason for the Applicant not to do so.

The DJ also noted that the Applicant had admitted to failing to conform to the red light against him when he entered the junction. Given the Applicant’s admission, she found it surprising that the Applicant now took the position that he was merely negligent (see the GD at [14]).

Finally, the DJ addressed the defence’s submission that she was bound by the Singapore High Court decision of Lim Hong Eng v PP [2009] 3 SLR(R) 682 (“Lim Hong Eng”) to impose a sentence of one day’s imprisonment (see the GD at [16]–[17]). The DJ distinguished Lim Hong Eng on the basis that the accused in that case had thought that the lights were green in her favour. The DJ noted that the Applicant had conceded that this was not the situation in the present case. Moreover, the Applicant did not know of the state of the lights before he had entered the junction as he did not check. The DJ hence found that the facts of the case before her were more consistent with those in Sankar Jayakumar v PP [2010] SGHC 190 (“Sankar”) where a sentence of four months’ imprisonment was imposed instead.

The Applicant’s appeal against sentence in Magistrate’s Appeal No 169 of 2012 was dismissed by a High Court judge (“the Judge”) without written grounds being delivered. However, from his notes of evidence, it appears that the Judge shared the DJ’s view that Lim Hong Eng was distinguishable from Sankar on the ground that, in Lim Hong Eng, the offender had thought that the light was green in her favour. The Judge also noted that the Applicant had entered the signalised junction without checking the lights. In these circumstances, he did not accept the Applicant’s argument that he was only negligent as opposed to being rash.

The Applicant then applied to this court, vide Criminal Motion No 105 of 2012, for leave to refer questions of public interest to this court under s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). Having re-framed the question originally posed, we granted leave to refer the Question for this Court’s determination.

Our decision

To recapitulate, the Question before this court is as follows:

Does a finding of rashness in road traffic offences require consciousness as to risk? [emphasis added in italics, bold italics and underlined bold italics]

The issue before this court arises in the context of sentencing with regard to road traffic offences – a point on which both parties are ad idem. That having been said, we note that relevant offences under the Act relate to the concept of recklessness (instead of rashness) (see, for example, s 66 of the Act (“s 66”), under which the Applicant was charged). Whilst the issue of sentence is conceptually separate and distinct from that of liability, there is still, in our view, at least some relationship between the two. We also note that the Applicant was charged under what we would term the “dangerous driving” limb of s 66(1) of the Act (in contrast with what we would term the “reckless driving” limb of the same). In this regard, s 66 reads as follows:

Causing death by reckless or dangerous driving 66.—(1) Any person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years.

(2) [Deleted by Act 15/2010 wef 02/01/2011]

(3) If upon the trial of a person for an offence under this section the court is not satisfied that his driving was the cause of the death, but is satisfied that he is guilty of driving as specified in subsection (1), it shall be lawful for the court to convict him of an offence under section 64.

[emphasis added in italics, bold italics and underlined bold italics]

Interestingly, s 66(2) of the Act, which (as indicated in the preceding paragraph) was deleted by the Criminal Procedure Code 2010 (Act 15 of 2010), read as follows:

(2) Section 280 of the Criminal Procedure Code (Cap. 68) shall apply to any offence under this section as it applies to the offence of causing death by a rash or negligent act. [emphasis added in italics and bold italics]

The above (deleted) provision is of some significance in the context of the present proceedings as there is a reference to the concept of “rashness” (presumably pursuant to relevant provisions under the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”)) by analogy. This might buttress the argument to the effect that there might at least be some connection (if not coincidence) between the concept of “recklessness” under the Act on the one hand and that of “rashness” (under the Penal Code) on the other. For the purposes of the present proceedings, we will assume that both are coincident. However, if that be the case, then the (further) question arises as to whether or not – at the level of liability (here, with respect to s 66) – the “reckless driving” limb and the “dangerous driving” limb are to be treated as legal equivalents. This is particularly significant as the Applicant was in fact charged under the “dangerous driving” limb of s 66, although it is entirely possible that the same facts might enable the Prosecution to prosecute the accused concerned under either or both...