Public Prosecutor v Ganesan Sivasankar

JurisdictionSingapore
JudgeSee Kee Oon J
Judgment Date21 July 2017
Neutral Citation[2017] SGHC 176
Plaintiff CounselBhajanvir Singh and Goh Yi Ling (Attorney-General's Chambers)
Docket NumberMagistrate’s Appeal No 52 of 2016
Date21 July 2017
Hearing Date28 April 2017
Subject MatterSentencing,Benchmark sentences,Criminal Procedure and Sentencing
Year2017
Defendant CounselTan Cheow Hung and Felicia Ong (Beacon Law Corporation)
CourtHigh Court (Singapore)
Citation[2017] SGHC 176
Published date27 July 2017
See Kee Oon J: Introduction

The Respondent was involved in a road traffic accident and was subsequently charged for offences under ss 304A(a) and 337(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). He was convicted after trial in a District Court and sentenced to 12 weeks’ imprisonment in respect of the charge under s 304A(a) of the PC and four weeks’ imprisonment in respect of the charge under s 337(a) of the PC. The terms of imprisonment were ordered to run concurrently. In addition, a disqualification order disqualifying the Respondent from holding all classes of vehicle licence for eight years from the date of release was also imposed in respect of each of the two charges. Dissatisfied, the Public Prosecutor appealed against the District Judge’s sentence in respect of the charge under s 304A(a) of the PC. However, the Prosecution clarified, in its written submissions, that it was only appealing against the 12-week imprisonment term imposed in respect of this charge and not the disqualification order. In addition, the Prosecution did not appeal against the District Judge’s sentence in respect of the charge under s 337(a) of the PC.

After hearing parties on 28 April 2017, I allowed the appeal and enhanced the imprisonment term in respect of the charge under s 304A(a) of the PC to five months. These are the grounds of my decision.

The background facts

The Respondent was an Indian national who was 28 years old at the material time. Part of the Respondent’s duties involved driving a lorry to ferry workers between their dormitory at Woodlands and his company’s premises at Aljunied. The victims were a motorcycle rider, Mr Chan Kock Chong (“Mr Chan”), and his wife and pillion rider, Mdm Lui Yoke Leng (“Mdm Lui”) (collectively, the “Victims”). The Victims were Malaysians who lived in Johor Bahru, Malaysia, and worked in Singapore. They commuted to Singapore daily on Mr Chan’s motorcycle.

On the fateful morning of 3 September 2013, the Respondent woke up late at 7.30 am, which was the time he was supposed to have picked up the workers. In order to make up for lost time, he called one of the workers using his mobile phone and gave instructions for the workers to proceed to an alternative pick-up point outside Woodlands Fire Station along Woodlands Industrial Park D Street 2. It was undisputed that the Respondent had uneventfully used this alternative pick-up point on a number of prior occasions.

At about 8.30 am, the Respondent reached a U-turn along Woodlands Road. The Respondent had to execute this U-turn in order to get to the alternative pick-up point, as Woodlands Industrial Park D Street 2 was on the opposite side of Woodlands Road. He had to very quickly cut across the two lanes of the opposite side of Woodlands Road after executing the U-turn to turn left into Woodlands Industrial Park D Street 2. In fact, there was an additional filter lane for vehicles intending to make the turn into Woodlands Industrial Park D Street 2, and this started even before the U-turn. In his grounds of decision in Public Prosecutor v Ganesan Sivasankar [2017] SGDC 40, the District Judge referred to these two steps of executing the U-turn and cutting across the two lanes of the opposite side of Woodlands Road as “the manoeuvre”.

However, just as the Respondent executed the manoeuvre, Mr Chan’s motorcycle was travelling down the opposite side of Woodlands Road after having negotiated an earlier bend along that stretch of road. The result was a collision between the two vehicles.

An eyewitness saw the Victims being thrown off the motorcycle. Mr Chan suffered various injuries as a result of the collision. This gave rise to the charge under s 337(a) of the PC. Unfortunately, Mdm Lui, who was then five-months pregnant, succumbed to her injuries and passed away. This was the basis of the charge under s 304A(a) of the PC. Tragically, the Victims’ unborn child also did not survive the accident.

The proceedings below

The District Judge thought that the “central contested issue” was whether Mr Chan’s motorcycle was in a position to be seen by the Respondent before the Respondent executed the manoeuvre and, accordingly, whether the manner in which the Respondent executed the manoeuvre was rash in the circumstances. After a comprehensive review of the evidence, the District Judge concluded that Mr Chan’s motorcycle was in a position to be seen by the Respondent at the U-turn before the Respondent executed the manoeuvre.

Following the Respondent’s conviction, the Prosecution urged the District Judge to impose a sentence of nine to ten months’ imprisonment in respect of the charge under s 304A(a) of the PC, together with a disqualification order for eight to ten years. On the other hand, the Respondent submitted that an aggregate term of not more than five weeks’ imprisonment would be appropriate.

The District Judge first considered the Respondent’s degree of rashness. He held that this was a case where the Respondent had “looked without seeing”. Thus, while Mr Chan’s motorcycle was close enough to be seen by the Respondent at the U-turn, the District Judge “could not find enough evidence to go further and find (or even comfortably infer) that [the Respondent] did in fact see” Mr Chan’s motorcycle at the U-turn. The District Judge noted that there could have been many reasons for this. However, there was no explanation from the Respondent as to what was really going on. Based on the evidence presented, there was not enough for the District Judge to go beyond the basic particulars as set out in the charges. Without the ability to discern between the various possibilities, the District Judge resolved the doubt in favour of the Respondent. He stated as follows:

… This meant that I took the position that the Accused could have, and ought to have kept a proper lookout for all on-coming traffic while at the U-turn point; that he could have seen the scooter approaching as it was then around the area near lamppost 322; that he ought to have given way to the scooter by not encroaching into the path of the scooter; that he ought to have continued to keep a proper look out as he cut left across the lanes, including by checking his left blind spot; that he had failed to keep a proper lookout at both instances; and that his actions of executing the U-turn and cutting left across the lanes and into the path of the scooter without having kept a proper lookout was rash in the circumstances.

Ultimately, the District Judge held that this was a “base lined case of rashness”.

On this basis, the District Judge distinguished the precedents tendered by the Prosecution (Public Prosecutor v Bu Xiao Ming District Arrest Case No 2644 of 2014 (“Bu Xiao Ming”); Public Prosecutor v Chew Tuan Peow District Arrest Case No 15059 of 2011 (“Chew Tuan Peow”); and Public Prosecutor v Chua Joo Boon Fabian District Arrest Case No 19869 of 2010 (“Fabian Chua”)) as they involved much higher degrees of rashness and clear instances of illegal manoeuvres. Instead, the District Judge found a precedent cited by the Respondent (Public Prosecutor v Nandprasad Shiwsaakar [2014] SGDC 391 (“Nandprasad”)) to be much closer on the facts. The sentence imposed in that case was six weeks’ imprisonment and eight years of driving disqualification from all classes. From this, the District Judge made an upward adjustment to take into account the serious consequences in this case and the fact that the Respondent was convicted after a full trial. The District Judge also considered the degree of rashness to be aggravated as there were two distinct points where the Respondent bore the obligation to keep a proper lookout: one at the U-turn and the other while cutting across the lanes. Accordingly, the District Judge sentenced the Respondent to 12 weeks’ imprisonment in respect of the charge under s 304A(a) of the PC and four weeks’ imprisonment in respect of the charge under s 337(a) of the PC, with both terms of imprisonment to run concurrently. In addition, he also imposed, in respect of each of the two charges, a disqualification order disqualifying the Respondent from holding all classes of vehicle licence for eight years from the date of release.

The issues arising in this appeal

As noted earlier, the Prosecution’s appeal was ultimately only against the District Judge’s sentence of 12 weeks’ imprisonment in respect of the charge under s 304A(a) of the PC (see [1] above). In urging me to increase the imprisonment term to one of at least nine months, the Prosecution contended that the District Judge: erred in finding, or in any event placing undue weight on his finding, that the Respondent did not see Mr Chan’s motorcycle; failed to adequately consider the aggravating factors; and erred by disregarding the sentencing norm for fatal accident cases under s 304A(a) of the PC.

The Prosecution’s contentions provided a convenient framework for analysing the various issues that were raised in this appeal. Correspondingly, the three broad issues that I had to determine were: the factual basis for sentencing; the applicable aggravating factors; and the sentencing approach for fatal accident cases under s 304A(a) of the PC.

I now turn to consider these issues seriatim. For the avoidance of doubt, the term “fatal accident cases” is used in these grounds of decision to refer only to traffic death cases. It is not intended to cover fatal accidents arising in other contexts.

The factual basis for sentencing The parties’ respective positions

The Prosecution made two submissions with regard to the factual basis for sentencing. First, it was argued that the District Judge erred in finding that the Respondent did not see Mr Chan’s motorcycle. Since Mr Chan’s motorcycle was in a position to be seen and was in fact seen by the eyewitness who was the driver of the car immediately behind the Respondent’s lorry at the U-turn, there...

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    ...work and submissions of both the Prosecution and the Defence (who took on this case pro bono). 1 Public Prosecutor v Ganesan Sivasankar [2017] SGHC 176 at [57]. The High Court was reiterating the point made in Public Prosecutor v Chia Hyong Gyee (Oral Judgment, 25 May 2017, Magistrate’s App......
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