Muhammad Saiful bin Ismail v PP

• Jurisdiction: Singapore
• Judgment Date: 26 February 2014
• Date: 26 February 2014
• Docket Number: Magistrate's Appeal No 206 of 2013 (DAC 31034/2013 and others)
• Court: High Court (Singapore)

Muhammad Saiful bin Ismail

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 37

Sundaresh Menon CJ

Magistrate's Appeal No 206 of 2013 (DAC 31034/2013 and others)

High Court

Criminal Procedure and Sentencing—Sentencing—Driving while under disqualification order—Appellant committing two wholly unconnected sets of offences and sentenced to both imprisonment and disqualification order—Whether period of disqualification order imposed manifestly excessive—Whether manifestly excessive for disqualification order to commence at end of imprisonment term—Section 43 (4) Road Traffic Act (Cap 276, 2004 Rev Ed)

The appellant was stopped at a roadblock on 23 November 2012, and was found to have been riding while subject to a disqualification order.

In an entirely unconnected incident, the appellant was arrested by Central Narcotics Bureau officers on 23 March 2013. He admitted to possessing one packet of methamphetamine with intent to sell, and to possessing four other packets of methamphetamine for his personal consumption.

The appellant pleaded guilty on 21 August 2013 to two sets of charges pertaining to the two incidents above. The district judge sentenced the appellant to a total of five years and eight months of imprisonment and a disqualification from driving for a period of eight years commencing from the appellant's release from prison. The appellant appealed against the commencement date of the disqualification order on the ground that in the terms ordered, the sentence was manifestly excessive.

Held, allowing the appeal and ordering the disqualification period to commence from the appellant's date of conviction:

(1) General and specific deterrence were the sentencing considerations at the forefront when dealing with offences under s 43 (4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the RTA’). The crime of driving while being subject to a disqualification was difficult to detect. A disqualification order was an important punitive element and a disqualification period that was shorter than the original disqualification period would do little to deter future like-minded offenders: at [17] and [18] .

(2) There was no invariable rule that a disqualification period imposed for a s 43 (4) offence had to be double that of the original disqualification period. In most cases, however, such an offender could and should expect a period of disqualification that was at least twice the original period unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability: at [20] .

(3) Section 43 (4) of the RTA was a singly-strict liability offence: the mere act of driving whilst under a disqualification order was all that needed to be proven for the offence to be made out: at [23] and [25] .

(4) The only defensible and principled way to decide on the type and severity of penalty to be imposed in s 43 (4) cases was by having regard to the offender's level of culpability. Mitigating factors included the lack of knowledge of the disqualification order, driving near the end of the original disqualification order, and the weight of the surrounding circumstances. Aggravating factors included the intentional and flagrant breaking of the law, and driving near the beginning of the original disqualification order: at [25] , [30] , [32] , [33] , [34] and [36] .

(5) The starting point had to be that where an accused was sentenced to an order of disqualification as well as a period of imprisonment, the former should commence at the end of the period of imprisonment: at [39] and [46 (a) ] .

(6) Where an offender was sentenced to a disqualification order and a term of imprisonment, with both sentences arising out of separate and unconnected offences, then it might be appropriate to have the disqualification order commence from the date of conviction: at [46 (b) ] .

(7) In this case the circumstances which led to the sentencing court having both the driving and drug offences before it appeared to have been fortuitous. The appellant's fate should not be affected by a matter of chance and timing. A sentencing court should also not make an order that incentivised undesirable behaviour, such as attempts to delay the resolution of an unconnected set of non-driving offences. Additionally, as a matter of parity between like offenders, the aggregate punishment that was imposed should as far as possible not be affected by the sequence in which offences were dealt with by the courts. This would not violate concerns of deterrence because a prospective offender was unlikely to base his actions on the fact that a potential disqualification period would be overtaken by imprisonment: at [42] , [47] and [48] .

[Observation: Proportionality acted as a counterbalance to the principles of deterrence, retribution and prevention in the sentencing matrix: at [21] .

Strict liability offences fell within two classes: singly-strict liability offences where culpability was only excluded at the offence-creating stage, and doubly-strict liability offences, where considerations of culpability were excluded at both the offence-creating and sentencing stages: at [24] .

It was not certain that the same reasoning would apply with equal force if a person commited an offence which invited a period of disqualification after committing an offence that resulted in a term of imprisonment: at [49] .

This case would not have arisen if there was a power to suspend the operation of a disqualification order whenever the disqualification period overlapped with a period of imprisonment. This would require legislative intervention and was a matter which the Minister might wish to consider: at [50] .]

Aquaro Massimo v PP [2012] SGHC 6 (refd)

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

Fam Shey Yee v PP [2012] 3 SLR 927 (refd)

Kim Sung Young v PP [2003] SGDC 267 (refd)

Meeran bin Mydin v PP [1998] 1 SLR (R) 522; [1998] 2 SLR 522 (folld)

PP v Catherine Peter [2010] SGDC 28 (refd)

PP v Chin Thian Seong [2007] SGDC 163 (refd)

PP v Choo Puay Lan [2010] SGDC 64 (refd)

PP v Giuseppe De Vito [2010] SGDC 340 (refd)

PP v Koh Yiong Lionel [2007] SGDC 279 (refd)

PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (folld)

PP v Lee Cheow Loong Charles [2008] 4 SLR (R) 961; [2008] 4 SLR 961 (folld)

PP v Lian Chee Yeow Michael [2011] SGDC 190 (refd)

PP v Lim Keng Chuan [2010] SGDC 233 (refd)

PP v Loh Teck Lok [2007] SGDC 193 (refd)

PP v Muhammad Fazil bin Azman [2010] SGDC 168 (refd)

PP v Poh Chee Wee Vincent [2007] SGDC 280 (refd)

PP v Rennie Siow Chern Hua [2007] SGDC 131 (refd)

PP v Saiful Rizam bin Assim [2014] SGHC 12 (folld)

PP v Tan Chen Chey [2009] SGDC 485 (refd)

PP v Tan Fook Sum [1999] 1 SLR (R) 1022; [1999] 2 SLR 523 (folld)

PP v Tan Thiam Soon [2011] SGDC 228 (refd)

PP v Yapp Chong Meng Ronald [2010] SGDC 163 (refd)

PP v Yapp Chong Meng Ronald MA 240/2010 (9 September 2010) (refd)

Yeo Chew Song v PP MA 296/94/01 (refd)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 5 (1) (a) , 5 (2) , 8 (a) , 33

Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) ss 3 (1) , 3 (2)

Road Traffic Act (Cap 276, 2004 Rev Ed) ss 29 (1) , 42, 42 (1) , 42 A, 42 A (d) , 43 (4) , 43 (5) , 120 (4) , 132

Road Traffic (Prescribed Offences and Prescribed Notices) Rules (Cap 276, R 28, 1999 Rev Ed)

Road Traffic (Traffic Signs) Rules (Cap 276, R 33, 1999 Rev Ed) r 13 (1)

Appellant in person

Tan Wen Hsien (Attorney-General's Chambers) for the respondent.

Sundaresh Menon CJ

1 This was an appeal brought by Muhammad Saiful bin Ismail (‘the appellant’) against the decision of the district judge (‘the DJ’) in PP v Muhammad Saiful bin Ismail [2013] SGDC 313 (‘the GD’). The appellant pleaded guilty on 21 August 2013 to the following charges:

(a) trafficking 0.26 g of methamphetamine, a Class A Controlled Drug, an offence under s 5 (1) (a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) read with s 5 (2) of the same Act and punishable under s 33;

(b) possession of 2.68 g of methamphetamine, a Class A Controlled Drug, an offence under s 8 (a) of the MDA and punishable under s 33;

(c) riding a motorcycle whilst under a disqualification order, an offence under s 43 (4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (‘the RTA’); and

(d) using a motorcycle without insurance coverage, an offence under s 3 (1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) and punishable under s 3 (2) of that Act.

2 The appellant also consented to the following three charges being taken into consideration for sentencing:

(a) using a motorcycle after the expiry of the period for which road tax had been paid, an offence under s 29 (1) of the RTA;

(b) failing to obey traffic signals, an offence under s 120 (4) of the RTA; and

(c) making an unauthorised U-turn, an offence under rule 13 (1) of the Road Traffic (Traffic Signs) Rules (Cap 276, R 33, 1999 Rev Ed).

3 The DJ sentenced the appellant to a total of five years and eight weeks' imprisonment, five strokes of the cane, a fine of $600 and a disqualification from holding or obtaining all classes of driving licences for a period of one year with effect from the date of conviction, and for a period of eight years from the date of release from prison.

4 The appellant only challenged the start date of the eight-year disqualification order (‘the disqualification order’). The appellant submitted that the disqualification order should start from the date of his conviction rather than from the date of his release from prison. I allowed the appeal and I now give my reasons for doing so.

Facts

5 The charges stemmed from two separate incidents. On 23 November 2012 at about 4.30 am, the appellant was stopped at a roadblock for a spot check. He was found to have been riding whilst...