Lim Eng Guan Derek v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 December 2003
• Neutral Citation: [2003] SGHC 303
• Docket Number: Magistrate's Appeal No 67 of 2003
• Date: 03 December 2003
• Year: 2003
• Published date: 29 December 2003
• Plaintiff Counsel: Irving Choh Thian Chee and Adrian Ng (Rajah and Tann)
• Citation: [2003] SGHC 303
• Defendant Counsel: Eddy Tham (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Sections 65 and 70(4) Road Traffic Act (Cap 276, 1997 Rev Ed),Offences,Road Traffic,Appellant claiming to have tried his best -- Whether reasonable excuse,Failure to provide breath specimen without reasonable excuse

1 This was an appeal against conviction and sentence. The appellant, Lim Eng Guan Derek (“Derek”), was convicted by District Judge Mark Tay after a full trial on two charges: one under s 70(4) of the Road Traffic Act (Cap 276, 1997 Rev Ed) (“RTA”) for failing to provide a specimen of his breath for analysis without reasonable excuse, and another under s 65 of the RTA for driving without due care and attention.

2 Derek was fined $3,000 and disqualified from holding or obtaining all classes of driving licences for a period of 24 months on the first charge. He was fined $600 on the second charge.

The prosecution’s version of facts

3 On 23 June 2001, at about 3.00am, James Tan Chong Jin (“James”) was riding on a motorcycle along Orchard Road. His pillion rider was his girlfriend, Loke Siew Fong (“Siew Fong”). They were on their way to Newton Circus hawker centre when they stopped at a traffic light at the junction of Orchard Road and Buyong Road.

4 While waiting for the traffic light to change, their motorcycle was hit from behind by a car driven by Derek. The impact caused James to jump off the motorcycle, and Siew Fong to fall onto the road. The motorcycle fell onto the road on its side.

5 Derek attempted to drive away from the scene of the accident, but was prevented from doing so when James stood in front of his car. James asked Derek if he wanted to settle the matter personally, as the motorcycle’s rear utility box was cracked as a result of the collision, and the motorcycle itself had sustained some scratches. Derek got out of the car and began to shout vulgarities at James.

6 James observed that Derek’s speech was slurred and his movements were unsteady. He decided to call the police. While James was calling the police, three of his friends who had been waiting for him at Newton Circus hawker centre arrived at the scene. Siew Fong had spoken to them on a handphone and had informed them that she and James had been in an accident. One of the friends stopped Derek from advancing towards James by physically restraining him.

7 Two police officers, Corporal Arthur Chua Chiow Leng (“CPL Chua”) and Staff Sergeant Muhamad Rafi Bin Abdul Bakar (“SSGT Muhamad”), arrived at the scene of the accident a short while later. CPL Chua observed that the motorcycle was lying on its side, and that there was minor damage on the rear portion near the utility box. When he asked Derek whether his car had bumped into the rear of the motorcycle, Derek refused to answer. Both police officers observed that Derek was moving unsteadily, and that his breath smelled of alcohol.

8 SSGT Muhamad informed Derek that he was going to administer a mobile breathalyser test. Derek was uncooperative and aggressive. He repeatedly asked “do you know who I am” to the police officers. He insisted on calling his lawyer before taking the test. He also mentioned the names of certain senior police officers, stating that he knew them, while the breathalyser test was being administered.

9 Derek took three attempts before he managed to give an adequate breath specimen. The mobile breathalyser gave a ‘red’ result, which meant that Derek had failed the test. He was arrested for suspected drunken driving and brought to Traffic Police Headquarters for a Breath Evidential Analysis (“BEA”) test.

10 By the time Derek was brought to Traffic Police Headquarters, he had soiled his pants. Staff Sergeant Suliah bte Kadiman (“SSGT Suliah”), a trained breathalyser operator, was tasked to carry out Derek’s BEA test. She realised that he stank of faeces, and allowed him to go to the toilet to wash up before administering the test.

11 SSGT Suliah explained the procedures for the BEA test to Derek, and the consequences of failing to provide a breath specimen without reasonable excuse. She ascertained that he had no health problems and was capable of providing the breath specimen. Derek took the test three times. Each time, he gave short quick blows into the BEA machine mouthpiece, instead of following SSGT Suliah’s instructions to take a deep breath and to give a sustained blow. After the third attempt, SSGT Suliah informed Derek that he had failed to provide a sufficient specimen and that he would be referred for bail to be offered. Derek became angry and said that he knew the Deputy Commissioner of Police, Goh Liang Kwang.

12 During the trial below, the workshop superintendent of CET Technology Pte Ltd, one Victor Khaw (“Victor”), gave evidence on the operation of the BEA machine and the handheld mobile breathalyser. CET Technology had maintained and repaired such equipment for the Singapore Police Force for at least five years. Victor’s evidence was that it is actually more difficult to provide a sufficient breath specimen for the mobile breathalyser, as opposed to the BEA machine. He opined that a person who managed to provide a breath specimen on the mobile breathalyser should have no problem doing so for the BEA machine. He also confirmed that the BEA machine operated by SSGT Suliah was serviceable, being operational and in good working condition.

The defence’s version of facts

13 Derek’s defence was that the accident never took place. He had stopped his car behind James’s motorcycle at the traffic junction, and had flashed his headlights because the motorcycle did not ride off when the light changed to ‘green’. This caused James and Siew Fong to get off from the motorcycle and to confront him in his car. James kicked the front of the car and banged his fist against the side window. Derek tried to pacify James by apologising for flashing his headlights at him, and explained that he did so only to indicate that the traffic light had changed.

14 James continued to be aggressive and shouted vulgarities at Derek. He tried to make Derek pay for fictitious damage done to the motorcycle, while Siew Fong threatened to accuse him of molest if he did not pay. Being a principled person, Derek refused to pay. When James’ three friends arrived at the scene, Derek was physically assaulted by one of them. He was grabbed by the throat and pinned against his car.

15 When the police officers arrived, Derek complained to them that he had been assaulted. However, the officers were only concerned with the alleged accident and the possibility that he was intoxicated. Derek admitted that he had been drinking prior to the incident. However, he had only had one glass of wine and was not intoxicated. He was agitated by the police officers’ lack of assistance and concern. His agitation, combined with fear for his personal safety, caused him to soil his pants.

16 Derek claimed that he had had a reasonable excuse for not providing a sufficient breath specimen during the BEA test. He was suffering from Acute Stress Disorder. This was caused by the trauma of the incident, as well as his discomfort from having soiled his pants. He had tried his best to perform the BEA test, but was simply unable to do so. Each time he tried to provide a breath specimen, he ran out of breath.

17 A consultant psychiatrist, one Dr Lionel Lim Chee Chiong (“Dr Lim”), testified that Derek was suffering from Acute Stress Disorder at the material time. Dr Lim examined Derek some 19 months after the accident. He opined that Derek’s Acute Stress...