Lim Hsien Hwei v PP

• Jurisdiction: Singapore
• Judgment Date: 27 May 2014
• Date: 27 May 2014
• Docket Number: Magistrate's Appeal No 175 of 2013
• Court: High Court (Singapore)

Lim Hsien Hwei

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 63

Chao Hick Tin JA

Magistrate's Appeal No 175 of 2013

High Court

Criminal Procedure and Sentencing—Sentencing—Forms of punishment—Appeal against disqualification order imposed for offence of driving while under influence of drink under s 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed) —Offence taken into consideration for purposes of sentencing—Whether certain punishment provided for under offence convicted on could be enhanced based on offence taken into consideration although offence taken into consideration did not provide for that form of punishment—Section 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed)

The appellant was driving her car along Keppel Road when she was stopped by police officers for a spot check. She was subsequently administered a blood test to ascertain the level of alcohol in her body. This revealed that the level of alcohol in her blood was 150 mg of ethanol in every 100 ml of blood, 1.875 times above the prescribed limit under s 72 of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the Act’).

The appellant pleaded guilty to one charge of driving while under the influence of drink under s 67 (1) (b) of the Act (‘the Drink-driving Offence’). The appellant was also charged with an offence under s 120 (4) of the Act (‘the Directional Offence’), which criminalised the failure to comply with traffic directions and traffic signs. The Directional Offence was not proceeded with by the Prosecution, but the court was asked to take it into consideration for the purposes of sentencing for the Drink-Driving Offence. The particulars of the Directional Offence charge stated that the appellant ‘fail [ed] to obey [the] traffic indicating sign and dr [o] ve against the flow of traffic’ The district judge (‘the DJ’) sentenced the appellant to a fine of $3,000 and a disqualification from holding or obtaining a driving licence for all classes of vehicles (‘disqualification period’) of three years from the date of conviction. In so doing, the DJ found that the Directional Offence taken into consideration for the purposes of sentencing was not a minor infringement but was instead pregnant with danger because the appellant had driven her motor vehicle against the flow of traffic. The appellant sought to have the disqualification period reduced from three years to two years.

Held, allowing the appeal:

(1) The DJ erred in appreciating the proper factual basis for the sentence imposed. The DJ in all probability thought that the appellant had driven against oncoming traffic while on the wrong side of the road. However, the appellant had not in fact driven against the flow of traffic in that sense, but had merely made a left turn from a lane which permitted only a right turn. Although this was still a traffic offence, it was a relatively less dangerous act as compared to driving against oncoming traffic: at [15] to [17] .

(2) As a matter of principle, when an outstanding offence was taken into consideration for the purposes of enhancing the sentence for another offence which the accused person had been convicted of, the enhancement could only be in respect of the forms of punishment which were prescribed for the offence that was taken into consideration. This principle would also apply in a case where the applicable aggravating factors were themselves capable of constituting an offence under the law: at [26] and [27] .

(3) The disqualification period of three years imposed by the DJ was manifestly excessive based on the sentencing benchmark, given that making a turn on the wrong lane was less dangerous than driving against oncoming traffic while on the wrong side of the road: at [29] and [30] .

[Observation: While the meaning of driving against the flow of traffic could conceivably be broad enough to encompass the act of making a turn on the wrong lane of a road, it might not be the most appropriate description. A charge ought to reflect the actual alleged transgression of the offender in so far as it was possible to do so. Making a turn on the wrong lane of a road ought to more appropriately be described as disobeying a traffic sign: at [18] .]

Edwin s/o Suse Nathen v PP [2013] 4 SLR 1139 (folld)

PP v Cheong Hock Lai [2004] 3 SLR (R) 203; [2004] 3 SLR 203 (refd)

PP v Lim Hsien Hwei [2013] SGDC 238 (refd)

PP v Mok Ping Wuen Maurice [1998] 3 SLR (R) 439; [1999] 1 SLR 138 (refd)

PP v Ong Yeng Fong [2012] SGDC 339 (refd)

Road Traffic Act (Cap 276, 2004 Rev Ed) ss 42 (1) , 67 (1) (b) , 72, 120, 120 (4)

Au-Yong Kok Keong Kenneth and Lim Yue Chuan (Ramdas & Wong) for theappellant

Sharmila Sripathy-Shanaz (Attorney-General's Chambers) for the respondent.

Chao Hick Tin JA

Introduction

1 This was an appeal against the sentence imposed by the district judge (‘the DJ’) in PP v Lim Hsien Hwei [2013] SGDC 238 (‘the GD’) in respect of a charge under s 67 (1) (b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the Act’) of driving while under the influence of drink. The DJ sentenced the appellant to a fine of $3,000, in default 15 days' imprisonment, and a period of disqualification from holding or obtaining a driving licence for all classes of vehicles (‘disqualification period’) of three years from the date of conviction (viz, 31 July 2013). In the appeal, the appellant sought to have the disqualification period reduced from three years to two years. I allowed the appeal and now give my reasons.

Background facts

2 At about 5.01 am on 6 May 2012, the appellant was driving her car along Keppel Road when she was stopped by police officers patrolling the area. The police officer who approached the appellant noticed that she smelled strongly of alcohol and had bloodshot eyes and a flushed face. He administered a breathalyser test on her. However, the appellant was unable to complete the test due to shortness of breath. She was thereupon arrested and brought to Changi General Hospital, where a blood test was conducted to ascertain the level of alcohol in her body.

3 A Health Sciences Authority report dated 14 May 2012 issued by one Dr Low Xuankai Alex revealed that the level of alcohol in the appellant's blood sample was 150 mg of ethanol in every 100 ml of blood. This is 1.875 times the prescribed limit of 80 mg of alcohol in every 100 ml of blood under s 72 of the Act.

4 As a result, the appellant was charged with an offence under s 67 (1) (b) of the Act (‘the Drink-driving Offence’), which criminalises driving while under the influence of drink, and is punishable by:

(a) in the case of a first-time offender, a fine of not less than $1,000 and not more than $5,000, or imprisonment for a term not exceeding six months; and

(b) unless the court thinks fit to order otherwise for special reasons, a mandatory disqualification period of not less than 12 months from the date of conviction or, in cases where the offender is sentenced to imprisonment, from the date of the offender's release from prison.

The...