Madiaalakan s/o Muthusamy v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 31 October 2001
• Neutral Citation: [2001] SGHC 327
• Docket Number: Magistrate's Appeal No 53 of 2001
• Date: 31 October 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: S Kumar (SK Kumar & Associates)
• Citation: [2001] SGHC 327
• Defendant Counsel: Anandan Bala and Chng Hwee Chin (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Offences,Enhanced penalties,Criminal Procedure and Sentencing,Accused suffering from Chronic Obstructive Lung Disease,ss 67 & 70(4)(a) Road Traffic Act (Cap 276, 1997 Ed),Road Traffic,Words and Phrases,Reasonable excuse,Sentencing,Elements,' reasonable excuse',Whether to treat conviction under s 70(4)(a) Road Traffic Act (Cap 276, 1997 Ed) as substantive conviction under s 67,Failure to provide breath sample,Accused having prior conviction under s 67,s 70(4)(a) Road Traffic Act (Cap 276, 1997 Ed),Failure to provide sufficient breath sample,Drink driving

: For ease of reference, Madiaalakan s/o Muthusamy will be referred to as the appellant, and the Public Prosecutor as the respondent. This was an appeal from the decision of District Judge Christopher Goh (`the judge`), in which he convicted the appellant of an offence under s 70(4)(a) of the Road Traffic Act (Cap 276, 1997 Ed) and of an offence under s 120(1)(b) of the same Act, and acquitted him of a charge under s 67(1)(a) of the same Act. In respect of the s 70(4)(a) offence, the appellant was fined $2,500 and disqualified from holding and obtaining a driving licence for all classes of vehicles for two years. In respect of the s 120(1)(b) offence, the appellant was fined $500. The appellant appealed against his conviction for the s 70(4)(a) offence. The respondent cross-appealed against the sentence imposed for the same offence. I dismissed the appeal and allowed the cross-appeal, and now give my reasons.

The charge

Only the second charge was relevant to the present appeal, and references to other charges will be omitted. The second charge read as follows:

That you, Madiaalakan s/o Muthusamy, male 39 years, NRIC No S2514101A are charged with that you, on the 12th day of February 2000 at about 12.52am, at Clementi Police Division, Singapore, being a person who was arrested under s.69(5) of the Road Traffic Act, Cap 276, did without reasonable excuse, fail to provide a specimen of breath for analysis by means of a Breath Evidential Analyser (BEA) device No : A0131 when required to do so by Police Sergeant 7671, Muhammad Jailani bin Sin, and at the time of your arrest under s.69(5), you were riding motor cycle No. FM5770M and you have thereby committed an offence punishable under s.70(4)(a) of the Road Traffic Act Cap 276 read with s.67(1) of the same Act.

The prosecution`s evidence

Just before midnight on 11 February 2000, the appellant, riding a motorcycle, did not obey a red light signal at the junction of Clementi Avenue 6 and Jalan Lempang. Sergeant Lim Chong Wee (PW1) and Corporal Abdul Razak (PW2) gave chase in a police car. The appellant stopped after he was flagged down by the police officers. The police officers conducted a breathalyser test on the appellant. He was told to blow three times into a breathalyser device, but failed to provide a sufficient breath specimen each time. He was then placed under arrest and brought to a police station.

At the police station, Sergeant Mohd Jailani bin Sin (`PW3`) administered a Breath Evidentiary Analyser (`BEA`) test. PW3 explained the test procedure and informed the appellant that he had three minutes to provide a sufficient breath specimen. PW3 also asked the appellant if he had any illness. The appellant responded in the negative. The appellant attempted to blow into the machine five times, but failed to provide a sufficient breath specimen each time.

The defence`s evidence

The appellant admitted to drinking a small glass of beer that night. He claimed he had to take the first breathalyser test while he was wearing his helmet. He also claimed that he had experienced chest pains while taking the BEA test. He said that he had informed an Indian Muslim officer of this. However, he did not know the officer`s identity.

The appellant claimed to have experienced this problem six to seven months prior to the incident. He first sought medical attention at the Singapore General Hospital (`SGH`) for this problem on 3 August 1999. On 30 August 2000, more than six months after the incident, he consulted Dr Tan Kok Leong (`DW2`). In the light of the medical tests which he conducted on the appellant and of the medical reports from SGH, DW2 concluded that the appellant had Chronic Obstructive Lung Disease (`COLD`).

The district judge`s decision

The judge set out the prosecution`s case and the defence`s case. He then accepted that, as the appellant was suffering from COLD at the material time, he had a defence of reasonable excuse. However, he also held that the prosecution had disproved this defence on a balance of probabilities because the appellant did not tell PW3 about his illness and, in any case, the appellant was not suffering from an asthma attack then. The judge was of the opinion that the appellant had used his medical condition as an excuse, after he was charged. In sentencing the appellant, the judge considered his antecedents, including one under s 67(1). He was not moved by the appellant`s plea in mitigation.

The issues

The issues in the appeal were:

(1) Whether the appellant had a defence of `reasonable excuse` within the meaning of s 70(4).

(2) Whether the present conviction should have been treated as a `second conviction` for the purposes of s 67(1).

THE FIRST ISSUE: WHETHER THE APPELLANT HAD A DEFENCE OF `REASONABLE EXCUSE`

Section 70(4) provides:

A person who fails, without reasonable excuse, to provide a specimen when required to do so in pursuance of this section shall be guilty of an offence and if it is shown

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