Public Prosecutor v Rangasamy Subramaniam

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 November 2010
• Neutral Citation: [2010] SGCA 40
• Date: 10 November 2010
• Docket Number: Criminal Reference No 3 of 2010
• Published date: 05 April 2011
• Plaintiff Counsel: Bala Reddy, Ng Cheng Thiam and Mohamed Faizal (Attorney-General's Chambers)
• Hearing Date: 21 May 2010
• Defendant Counsel: S K Kumar and Krisha Morthy (S K Kumar & Associates)
• Court: Court of Appeal (Singapore)
• Subject Matter: Road Traffic

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

The matter before us concerned a criminal reference that had been taken out by the Public Prosecutor (“the Applicant”) pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). The genesis of this application was the decision of the High Court judge (“the Judge”) setting aside the conviction of Rangasamy Subramaniam (“the Respondent”) under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”) for driving while under the influence of drink (see Rangasamy Subramaniam v Public Prosecutor [2010] 1 SLR(R) 719 (“the GD”)).

The Background

Before proceeding to consider the question reserved for our decision in the present application, it would be appropriate that we first set out briefly the specific background of the case. The facts were relatively straightforward.

On 2 December 2007, at about 10.00pm, the Respondent went to a coffee shop at Tanjong Pagar. He claimed that he drank a bottle of beer which he finished by 11.00pm but that he remained at the coffee shop for a while thereafter. The Respondent admitted that on 3 December 2007, at about 2.00am, he got into his car and started to drive home.¹ However, whilst travelling along the Pan-Island Expressway (“the PIE”), he felt sleepy and nauseous. After stopping his car at the road shoulder, he fell asleep in his car.

At 3.54am, the police received a telephone call from someone who stated that “there is a car parked on the PIE with the driver’s door open and he is partially coming out of the car”.² The police despatched a patrol car to the scene where they found the Respondent. His speech was found to be slurred and his eyes were bloodshot. Consequently, at 4.42am, the police proceeded to administer a breathalyser test on him. He failed the test and was arrested.

The Respondent was then brought back to the Traffic Police Division Headquarters where a breath evidential analyser (“BEA”) test was administered on him at 5.42am pursuant to s 70(1) of the RTA. His breath alcohol content was found to be 43 microgrammes of alcohol per 100 ml of breath, which was above the legal limit of 35 microgrammes of alcohol per 100 ml of breath. Both the breathalyser test and the BEA test were administered on the Respondent more than 2 hours after he had stopped driving.

The police charged the Respondent for driving while under the influence of drink pursuant to s 67(1)(b) of the RTA. The charge read as follows:³

You,

Rangasamy Subramaniam

NRIC No.: S-[xxx]

Male, 56 years old (D.O.B.: 29 Dec 1951)

are charged that you, on the 3rd day of December 2007, between 2 am and 3.54 am, along Pan Island Expressway 14.5 km towards Tuas, Singapore, when driving motor car SGG 4774 D, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 43 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath, and you have thereby committed an offence punishable under section 67(1)(b) of the Road Traffic Act, Chapter 276.

The police relied on the results of the BEA test and the assumption in s 71A of the RTA to show that the Respondent’s alcohol level exceeded the legal limit at the material time. There was no other evidence of the Respondent’s alcohol level. Section 71A provides that in proceedings for an offence under ss 67 or 68, the proportion of alcohol in an accused’s breath at the time of the alleged offence shall be assumed to be not less than that in the specimen of breath provided by him.

During trial, counsel for the Respondent submitted that there was no evidence that the Respondent’s alcohol level during the material time (between 2.00am and 3.54am) exceeded the legal limits. He submitted that the assumption in s 71A of the RTA could not apply in the circumstances to show that the Respondent’s alcohol level had exceeded the limit at the material time because by the time the Respondent was found by the police, he was no longer driving. He also invited the court to amend the charge to one under s 68 of the RTA for being in charge of a motor vehicle when under the influence of drink. Significantly, s 68, unlike s 67, does not provide for disqualification from driving.

The District Judge held that the assumption in s 71A of the RTA applied and convicted the Respondent. She sentenced him to a fine of $3,000 (in default 15 days’ imprisonment) and disqualified him from holding or obtaining a driving license for all classes of vehicles for a period of 2 years (see Public Prosecutor v Rangasamy Subramaniam [2009] SGDC 30). The Respondent appealed against both the conviction and the sentence.

Before the Judge, the Respondent again submitted that under the RTA, the assumption in s 71A could only be used in support of a charge under s 67(1)(b) if the offender was stopped while he was driving or attempting to drive a vehicle, as opposed to a situation where he was merely in charge of a vehicle within the meaning of s 68. The Judge allowed the appeal. He quashed the Respondent’s conviction with respect to the offence under s 67(1)(b) and set aside the sentence imposed. Instead, he found that there was sufficient evidence of the Respondent having been in charge of a motor vehicle when under the influence of drink. Accordingly, he convicted the Respondent of a lesser charge under s 68(1)(b) of the RTA and sentenced the Respondent to a fine of $2,000 (in default 10 days’ imprisonment).⁴ There were two main reasons why the Judge decided to quash the Respondent’s conviction that had been imposed by the District Judge: On a charge under s 68(1) of the RTA for being in charge of a motor vehicle when under the influence of drink, it was open to the accused (here, the Respondent) to prove the circumstances in s 68(2) of the RTA, viz, that at the time he was driving the vehicle, his alcohol level was not over the limit, even though by operation of s 71A(1) of the RTA, his alcohol level at the time he was apprehended would be assumed to be not less than the level found in the specimen given by him. If s 71A(1) of the RTA were applicable to a charge under s 67(1) of the RTA in the circumstances of the present case, the accused would be deprived of the defence available to him under s 68(2) if he had been charged under s 68(1) of the RTA instead (see the GD at [12]). If s 71A(1) of the RTA was applicable where a person, apprehended while he was in charge of a vehicle (as opposed to while he was driving it), is charged with an offence under s 67(1) of the RTA, then it would mean that he was better off refusing to provide a breath or blood specimen. That was because without the result from the specimen, that person could only be convicted of an offence under s 68(1) of the RTA as opposed to the more severe offence under s 67(1) of the RTA (see the GD at [17]).

Following the decision of the Judge, the Applicant applied by way of Criminal Motion for a question of law of public interest to be referred to us. The question was phrased as follows:⁵

Whether the assumption under Section 71A of the Road Traffic Act applies to an accused charged under Section 67(1)(b) of the Road Traffic Act where the accused was not driving a vehicle at the time of the arrest.

Preliminary objection

In his Statement of Case, the Judge expressed his view that the true question that arose from his decision was, instead, more appropriately phrased as follows:⁶

[W]hether the assumption under s 71A of the Road Traffic Act (“RTA”) applies to an accused person charged under s 67(1)(b) of the RTA where he was arrested in circumstances under which a charge of s 68(1) of the RTA was made out.

However, as the Applicant was not inclined to alter the question, and as s 60 of the SCJA required the court to certify any application by the Public Prosecutor, the Judge made an order in terms in relation to the motion and reserved the question (as set out in the preceding paragraph) for determination.

The Respondent submitted, as a preliminary point, that the question posed by Applicant ought to be rephrased in accordance with the Judge’s wording (see above at [11]) or as a question of whether, given facts such as those in the present case, s 67 or s 68 of the RTA was the more appropriate charge.

The principles governing the refashioning of a question posed in a criminal reference were set out in Public Prosecutor v Fernandez Joseph Ferdinent [2007] 4 SLR(R) 1 as follows (at [19]):

[A] refashioning of a question being posed by an applicant to this court in a criminal reference is neither novel nor inappropriate. The overriding task of this court in any criminal reference is to clarify questions of law of public interest. It should not be forgotten that the primary objective of such a process is to allow this court an opportunity to provide an authoritative articulation of the applicable principles for future cases. This purpose would undoubtedly be frustrated if this court is compelled to decide on questions that may be of insignificant utility as a result of the use of inappropriate nomenclature by an applicant. For that reason, where a question is couched in a manner which would inadvertently mask its true import… the court retains a discretion to pose the question in a manner which will be more appropriate and which will ensure that the substance of the question is rendered clear, save that the refashioned question has to remain within the four corners of s 60 of the SCJA.

Bearing the above principles in mind, we were of the view that the question posed by the Applicant need not be rephrased. The question as worded by the Judge simply queried whether the assumption in s 71A of the RTA ought to apply to an offence under s 67 of the RTA where an offence under s 68 of the RTA has been made out. It did...