Lim Kay Han Irene v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 17 March 2010
• Neutral Citation: [2010] SGHC 87
• Plaintiff Counsel: Sant Singh and Chen Chee Yen (Tan Rajah & Cheah)
• Docket Number: Magistrate’s Appeal No 331 of 2009
• Date: 17 March 2010
• Hearing Date: 20 January 2010
• Subject Matter: Criminal procedure and sentencing
• Published date: 07 April 2010
• Citation: [2010] SGHC 87
• Defendant Counsel: Lee Lit Cheng (The Attorney-General's Chambers)
• Court: High Court (Singapore)
• Year: 2010

Chao Hick Tin JA: Introduction

This was an appeal against the decision of the district judge (“the DJ”) in Public Prosecutor v Lim Kay Han Irene [2009] SGDC 383 (the “GD”). In the district court, the appellant was convicted of one charge of drink driving and sentenced to a term of imprisonment of two weeks and a disqualification from driving for a period of four years. Unhappy with the custodial sentence, the appellant appealed. While imprisonment terms are not an uncommon punishment for drink driving offences, this particular appeal involved exceptional circumstances which warranted the allowing of the appeal. I set aside the imprisonment term and substituted in its place a fine of $5,000. I shall now set out the reasons for my decision.

The factual background

The appellant, a female of 59 years of age, was a member of the medical profession. In the early hours of 27 April 2009, at about 1:32 am, she was observed by an officer manning the Expressway Monitoring Advisory System (“EMAS”) to be sitting on the driver seat of motor vehicle EV 4046S (the “car”) which was stationary along the Pan Island Expressway (“PIE”). Another EMAS officer, Mahapandi Bin Embi (“Mr Embi”) was dispatched to the scene, located along lane three of the PIE in the direction of Tuas near the exit of Clementi Avenue 6, to make enquiries. He arrived at 1:38 am and observed that the car was stationary with its engine running and the headlights on. However, its hazard lights were not turned on. Mr Embi approached the car and spoke to the appellant. In the course of their conversation, Mr Embi noticed that the appellant had alcoholic breath and informed the Traffic Police Ops Control Centre.

Shortly a traffic police officer, Cpl Noor Hibayah arrived at the scene and he observed that the appellant’s breath smelled of alcohol. He conducted a breath analyzer test on the appellant which she failed. The appellant was subsequently placed under arrest for driving while under the influence of alcohol and escorted to the Traffic Police Department for a Breath Evidential Analyzer (“BEA”) Test to be conducted. This was done at about 3:47 am. The BEA Test result revealed that, for every 100 millilitres (“ml”) of the appellant’s breath, there contained 129 microgrammes (“mg”) of alcohol. Accordingly, a charge of drink driving, pursuant to section 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”), was brought against the appellant. She did not contest the charge and pleaded guilty.

In mitigation before the DJ and in submissions before me, counsel for the appellant, Mr Sant Singh SC (“Mr Singh”), provided further context to the incident. Mr Singh explained that the appellant was a senior consultant with the KK Women’s and Children’s Hospital and possessed over 25 years’ experience in the practice of radiology. On 26 April 2009, the day before the incident, the appellant and her husband took a friend and colleague of theirs, one Dr Marielle V Fortier (“Dr Fortier”), who had just arrived in Singapore and was temporarily residing in the appellant’s home, to lunch during the course of which the appellant consumed some wine. After lunch, at around 3 pm, the appellant upon returning to her home, was notified that her aunt, Ms Lee Joo Har (“Aunt”), had suffered an extensive nasal haemorrhage. The appellant shared a very close relationship with her Aunt, a point which will be further elaborated on later (see [31] below). Immediately thereafter, the appellant arranged for her Aunt to be sent to the National University Hospital (“NUH”). This sequence of events was confirmed by Dr Fortier in a letter dated 29 May 2009. A discharge summary from NUH further confirmed that the Aunt was admitted into NUH on 26 April 2009.

After seeing to the administrative arrangements at the hospital, the appellant returned home at around 9 pm for dinner during which she again drank some wine. Mr Singh emphasised that the appellant was, at this time, very disturbed by her Aunt’s hospitalisation. The appellant went to bed at around 10:30 pm. However, before turning in, the appellant consumed a glass of whisky as a nightcap. At 1:20 am, on 27 April 2009, the appellant was awoken up by a telephone call from NUH. She was informed that her Aunt’s condition had taken a turn for the worse and her Aunt had been transferred to the Intensive Care Unit of NUH. Fearing that the worst might happen to the Aunt, the appellant immediately got into her car and drove to NUH, hoping to get there as quickly as possible. From her home at Ascot Rise, the appellant first drove along Dunearn Road before making a u-turn into Bukit Timah Road and heading north towards Clementi Road. The appellant had intended to turn left into Clementi Road but missed the turn and instead found herself turning into the PIE. Realising her mistake, the appellant intended to exit the PIE via the Toh Guan Exit. However, her car unexpectedly stalled, causing it to be stationary along the PIE. Thereafter, the events were as described in [2] and [3] above.

The DJ’s decision

The DJ observed (at [10] of the GD) that, while generally a fine would be the norm for a first offender like the appellant, in circumstances where there were aggravating factors, a custodial sentence may be appropriate. She wrote: 10. As a starting point, as stated in Sentencing Practice in the Subordinate Courts, Second Edition at page 938-939: “Generally a fine is the norm for a first offender [for drink driving] unless there are aggravating circumstances. The aggravating circumstances are usually high levels of impairment of driving or intoxication as well as involvement in an accident resulting in personal injuries.” She then continued by noting the various aggravating factors present in the case, which justified the imposition of a custodial sentence. In her mind, there appeared to be four main considerations.

First, the DJ observed that the appellant’s level of alcohol was 3.68 times over the prescribed limit of 35 mg/ 100 ml of breath. This, in her view, was “sufficiently high to create a real risk of the Accused causing injury to people or damage to property on the road” (see [12] of the GD). To her, it was entirely fortuitous that there were no injuries, loss of lives and/or extensive property damage as a consequence of her drink driving. Furthermore, the DJ found that “[t]he usual tariff for an offence of drink driving where the level of alcohol is more than three times the prescribed limit is a custodial sentence” (sse [6] of the GD). Evidently, she felt that precedents tended to suggest that an imprisonment term should be imposed where the alcoholic level in the offender’s breath exceeded three times the prescribed limit. This appeared, from my reading of her written grounds, to be the single most influential factor in the DJ’s decision.

Secondly, the DJ considered that the appellant made a deliberate and conscious choice to drive while in an inebriated state. According to her, the appellant should have been mindful enough to seek alternative transportation that were available 24 hours such as limousine or taxi services. The fact that the appellant was anxious about her Aunt’s medical condition was, to the DJ, no justification for the appellant to drive while under the influence of alcohol.

Next, the DJ took cognisance of the appellant’s poor medical condition. She noted that in the appellant’s mitigation plea, it was argued that the appellant suffered from what was described as familial involuntary tremors. This is an uncontrollable condition which would affect her fine finger activities and her ability to drive properly. Given this condition, the DJ was of the view that the appellant should not have taken to the wheels on 27 April 2009.

The last factor the DJ took into account was public policy. She cited Yong Pung How CJ who stated in Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 (at [28]) that: 28 [r]oads in Singapore have to be made as safe as possible for law-abiding road users and pedestrians. In cases of drink-driving, the courts are always mindful that a motor car in the hands of an inebriated person is a potentially devastating weapon. The DJ felt that the policy of protecting members of the public from intoxicated drivers necessitated a strict approach. In her view, like-minded individuals should be deterred from committing the same offence.

In the circumstances, the DJ felt that an appropriate sentence would be 2 weeks’ imprisonment and a period of four years’ disqualification from holding or obtaining a driving licence for all classes of vehicles, reckoned from the date of her release from prison.

The appellant’s case

Mr Singh contended before me that the Judge’s sentence was manifestly excessive and, for that reason, the custodial sentence should be set aside. In essence, there were three pillars to Mr Singh’s submissions. First, Mr Singh contended that the Judge, in finding that the appellant made a conscious and deliberate decision to flout road safety laws, failed to appreciate the factual matrix of the case. In particular, the Judge failed to fully understand the close and intimate relationship shared between the appellant and her Aunt as well as the appellant’s mental state of mind in the evening of 26 April 2009 and the morning of 27 April 2009. Next, it was argued that the Judge failed to give due weight to various mitigating factors including the fact that the appellant was a first time offender, was deeply remorseful for her actions, has contributed significantly to the progress of Singapore society, and suffered from poor health. Insofar as the deterrent principle was concerned, it was submitted that such a principle has no application in the present circumstances. Finally, contrary to what the DJ had found, Mr Singh argued that previous cases did not establish a pattern of imposing a term of incarceration whenever the level of alcohol...