Khua Kian Keong and Another v Public Prosecutor

JurisdictionSingapore
Judgment Date15 October 2003
Date15 October 2003
Docket NumberMagistrate's Appeals Nos 20 and
CourtHigh Court (Singapore)
Khua Kian Keong and another
Plaintiff
and
Public Prosecutor
Defendant

[2003] SGHC 238

Yong Pung How CJ

Magistrate's Appeals Nos 20 and 21 of 2003

High Court

Criminal Procedure and Sentencing–Appeal–Approach to be adopted by appellate court–Whether to interfere with inferences drawn by trial judge–Evidence–Proof of evidence–Burden and standard of proof–Reliance on one prosecution witness–Whether Prosecution's case proven beyond a reasonable doubt–Evidence–Weight of evidence–Whether undue weight given to sole prosecution witness–Whether due weight given to accused's witnesses–Evidence–Witnesses–Prosecution's failure to offer or call witnesses–Whether adverse inference to be drawn against Prosecution–Evidence Act (Cap 97, 1997 Rev Ed) s 116 illustration (g)–Road Traffic–Offences–Drink driving–Whether under influence of drink to extent of being unfit to drive–Whether driving after consumption of alcohol exceeding prescribed limit–Road Traffic Act (Cap 276, 1997 Rev Ed) ss 67 (1) (a) and 67 (1) (b)

The first appellant (“Khua”) was charged with being unfit to drive due to the influence of alcohol. The second appellant (“Pang”) was charged with driving when he had consumed alcohol beyond the prescribed limit. The district judge below convicted them based on the evidence of Senior Staff Sergeant Sairi bin Aman (“Sairi”). Sairi was stationed at a road block and testified to seeing the appellants' car being driven in a zigzag manner. After he had obtained the particulars of the driver (Khua), Sairi saw Khua change seats with the front seat passenger (Pang). Pang then drove the car for two to three metres. The appellants denied switching seats and claimed that Khua drove normally. Two other passengers in their car confirmed the appellants' account.

Both appellants appealed against their convictions, arguing that the trial judge placed undue weight on Sairi's testimony and rejected their evidence without apparent reason. It was also contended that an adverse inference should be drawn against the Prosecution for its failure to offer to the Defence other witnesses who were present at the scene.

Held, allowing the appeals against conviction:

(1) The appellate court would be slow to overturn findings of fact of the trial judge, especially when an assessment of credibility and veracity of witnesses was made. However, if the trial judge's assessment of a witness' credibility was based on inferences drawn from the context of his evidence, the appellate court was always free to form an independent opinion about the proper inference to be drawn from a finding of fact: at [13] and [14].

(2) The trial judge's inferences could not be agreed with, as there were inherent improbabilities in the Prosecution's case and discrepancies in Sairi's testimony: at [17] to [25].

(3) The mere fact that the appellants' witnesses were connected to the appellants, could not be the sole basis for rejecting their testimonies. Additional grounds, like the presence of inconsistencies, were not present: at [29] to [31].

(4) An adverse inference could not be drawn against the Prosecution. The other police officers were not material witnesses, as their evidence was not ascertainable and was a matter of speculation: at [36] and [37].

Amir Hamzah bin Berang Kuty v PP [2003] 1 SLR (R) 617; [2003] 1 SLR 617 (folld)

Ang Jwee Herng v PP [2001] 1 SLR (R) 720; [2001] 2 SLR 474 (folld)

Ang Kah Kee v PP [2002] 1 SLR (R) 555; [2002] 2 SLR 104 (folld)

Awtar Singh s/o Margar Singh v PP [2000] 2 SLR (R) 435; [2000] 3 SLR 439 (folld)

Bala Murugan a/l Krishnan v PP [2002] 2 SLR (R) 420; [2002] 4 SLR 289 (folld)

Chia Sze Chang v PP [2002] 2 SLR (R) 1153; [2002] 4 SLR 523 (folld)

Chua Keem Long v PP [1996] 1 SLR (R) 239; [1996] 1 SLR 510 (folld)

Khoo Kwoon Hain v PP [1995] 2 SLR (R) 591; [1995] 2 SLR 767 (distd)

Lau Song Seng v PP [1997] 3 SLR (R) 772; [1998] 1 SLR 663 (distd)

Lim Young Sien v PP [1994] 1 SLR (R) 920; [1994] 2 SLR 257 (folld)

Low Lin Lin v PP [2002] 2 SLR (R) 881; [2002] 4 SLR 14 (folld)

PP v Hendricks Glen Conleth [2003] 1 SLR (R) 426; [2003] 1 SLR 426 (folld)

Roy S Selvarajah v PP [1998] 3 SLR (R) 119; [1998] 3 SLR 517 (folld)

Sahadevan s/o Gundan v PP [2003] 1 SLR (R) 145; [2003] 1 SLR 145 (folld)

Satli bin Masot v PP [1999] 1 SLR (R) 931; [1999] 2 SLR 637 (folld)

Sivakumar s/o Rajoo v PP [2002] 1 SLR (R) 265; [2002] 2 SLR 73 (refd)

Soh Yang Tick v PP [1998] 1 SLR (R) 209; [1998] 2 SLR 42 (folld)

Wong Leong Chin v PP [2000] 3 SLR (R) 560; [2001] 1 SLR 146 (folld)

Yoganathan R v PP [1999] 3 SLR (R) 346; [1999] 4 SLR 264 (folld)

Evidence Act (Cap 97, 1997 Rev Ed) s 116 illus (g) (consd)

Road Traffic Act (Cap 276, 1997 Rev Ed) ss 67 (1) (a), 67 (1) (b) (consd);s 71C

N Sreenivasan (Straits Law Practice LLC) for the first appellant

Thangavelu (Rajah Velu & Co) for the second appellant

Eddy Tham (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 The two appellants were convicted under s 67 (1) (a) and 67 (1) (b) of the Road Traffic Act (Cap 276) (“RTA”) respectively. The district judge sentenced the first appellant, Khua Kian Keong (“Khua”) to two weeks' imprisonment and a fine of $4,000. Additionally, Khua was disqualified from holding or obtaining all classes of driving licences for 48 months after his release from imprisonment. The second appellant, Pang Ee-Zian (“Pang”) was sentenced to pay a fine of $3,000, and was disqualified from driving for 24 months. The police had conducted the prosecution in the trial below. Both appellants appealed against their conviction and sentence. I allowed their appeals against conviction and now give my reasons.

Background

2 Khua claimed trial to the following charge:

You, Khua Kian Keong, Male, 33 years old, NRIC No: S6830009F, are charged that you, on or about the 8th day of August 2001 at about 3.00 am, along Mountbatten Road towards ECP, Singapore, when driving motor car SCN 8780 U on the road was unfit to drive in that you were under the influence of drink to such an extent as to be incapable of having proper control of your vehicle, to wit, by driving in an unsteady manner, and weaving in and out and nearly grazed the left road kerb, and you have thereby committed an offence punishable under Section 67 (1) (a) of the Road Traffic Act, Chapter 276.

And further that you, before the commission of the offence, that is to say on the 9th day of May 1996, at Court 21 of the Subordinate Courts, Havelock Square, Singapore, had been convicted of an offence under Section 67 (1) (b) of the Road Traffic Act, Chapter 276 in TAC 120/96, which conviction had not been set aside.

Under s 67 (1) of the RTA, mandatory imprisonment is prescribed upon a second conviction.

3 Pang faced the following charge:

You, Pang Ee-Zian, Male, 33 years old, NRIC No: S6800819J, are charged that you, on or about the 8th day of August 2001, at about 3.02 am, along Mountbatten Road towards ECP, Singapore, when driving motor car SCN 8780 U did have so much alcohol in your body that the proportion of it in your breath exceeded the prescribed limit and you have thereby committed an offence punishable under Section 67 (1) (b) of the Road Traffic Act, Chapter 276.

The Prosecution's case

4 According to the testimony of Senior Staff Sergeant Sairi bin Aman (“Sairi”), he was manning a road block along Mountbatten Road, which was situated about 200m after a bend. At about 3.00am, he saw the appellants' car make a sudden turn into a bus bay after navigating the bend. It then stopped and its headlights were switched off. Sairi alerted Sergeant Arman bin Mohd Ali (“Arman”), who was stationed at the bus bay, to the presence of the car. Before Arman could approach it, the car moved off towards the road block. Sairi observed that it was being driven in a zigzag manner between two lanes, and that it nearly grazed the left kerb at one stage. After signalling to the car to stop, he asked the driver, Khua, for his particulars before instructing him to pull the car over to the side of the road.

5 The car moved for about three car-lengths to the side, while Sairi walked behind it. When the car stopped, Khua and Pang stepped out to change seats. The car was then driven for another two to three metres. Sairi ran to the car, shouting at them to stop. Khua was by then seated at the front passenger seat and he denied being the driver of the car. Sairi noticed that Khua smelt of alcohol and was unsteady in his gait. He subjected Khua to a breath analyser test and the result was 32 micrograms per 100 millilitre of breath. The legal limit is 35 micrograms according to s 71C of the RTA. Subsequently, Pang was interviewed by Sairi and he failed the breath test (result of 52 micrograms). Both were then arrested. Sairi tendered his log book in which he recorded this event after the arrest.

6 The Prosecution's case hinged solely on Sairi's account, as the other prosecution witness, Arman, could not assist the court on any pertinent facts. He testified that he did not observe the car after it moved off and he then left the scene.

The Defence

7 The appellants claimed that Khua had arranged to meet Pang and a friend, Chang Yoke Wooi (“Chang”), at a pub. Khua intended to hand over his car to Pang for the purpose of Chang's wedding that day. Although Pang was supposed to drive, he and Chang drank brandy while waiting for Khua. They thus decided to call Chang's brother...

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