PP v Wong Yew Foo

• Jurisdiction: Singapore
• Judgment Date: 10 July 2013
• Date: 10 July 2013
• Docket Number: Magistrate's Appeal No 310 of 2012
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Wong Yew Foo

Defendant

[2013] SGHC 129

Chan Seng Onn J

Magistrate's Appeal No 310 of 2012

High Court

Criminal Law—Offences—Causing death by rash or negligent act—Sentencing—Failure to keep proper lookout—Collision between motor car and cyclist—Driver's alcohol level over prescribed limit—Effect of 2008 amendments to Penal Code—Whether drink-driving an aggravating factor—Whether fine only or imprisonment—Section 304 A Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Principles—Intervention by appellate judge to correct sentences—Whether manifestly inadequate sentence

Road Traffic—Offences—Drink-driving—Sentencing—First-time offender—Involvement in accident causing death—Whether fine only or imprisonment—Section 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed)

When exiting from a slip road onto a main road, the respondent driver failed to keep a proper lookout and give way to a cyclist travelling on the main road. This resulted in a collision between his motor car and the cyclist. The cyclist was run over by the motor car and pinned under it; he suffered multiple injuries and was pronounced dead at the scene. Police officers at the scene observed that the respondent smelled of alcohol and apprehended him. Subsequently, a breathalyser test conducted on the respondent revealed that he had 42µg of alcohol in every 100 ml of breath, in excess of the prescribed limit by 7µg. The respondent pleaded guilty to (a)causing death by negligent act under s 304 A (b) Penal Code (Cap 224, 2008 Rev Ed) and (b)drink driving under s 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed). For (a), the district judge sentenced him to a fine of $10,000 (in default two months' imprisonment) and disqualified him from driving all classes for a period of four years. For (b), he was sentenced to a fine of $2,500 (in default two weeks' imprisonment) and disqualified from driving all classes of vehicles for a period of two years. The Prosecution appealed against both sentences.

Held, allowing the appeal:

(1) Previous authorities had stated that the starting point as regards sentencing for the offence of causing death by negligent act was the imposition of a fine unless aggravating factors rendered it a ‘most unusual case’ rising to the level of culpability as that of a rash act to warrant a custodial sentence. The authorities thus appeared to evince a sentencing dichotomy between the offences of causing death by rashness and causing death by negligence: at [23].

(2) However, it was questionable if this sentencing principle was still applicable after the 2008 amendments to the Penal Code. Section 304 A Penal Code had been bifurcated into separate rashness and negligence limbs, ss 304 A (a) and 304 A (b)Penal Code, each attracting different statutorily prescribed maximum sentences. Hence, the rationale for the sentencing dichotomy expounded in earlier authorities had been considerably weakened. Moreover, the prescribed statutory maximum sentence prescribed for the rashness limb had been increased to five years whilst the negligence limb attracted a prescribed maximum sentence of two years. Any sentence imposed in respect of the s 304 A (b) Penal Code offence would depend on the seriousness of the accused's negligence: at [25] to [27].

(3) Apart from his failure to keep a proper look out, the respondent's conscious decision to drink and drive was an act of complete selfish disregard for the safety of other fellow road users. The respondent could not have been ignorant of the risk that his judgment and driving skills were impaired as a result of his inebriation. Yet he took that risk to drive a car, which could cause death to others in a serious accident. Taken as a whole, the respondent's conduct fell egregiously below the standard of what a prudent and reasonable man would do and he could be said to have acted with culpable rashness. The imposition of a custodial sentence was thus warranted: at [32] and [33].

(4) If the respondent's claim in his mitigation plea that his view of the road had been compromised were true, it was all the more incumbent on him to exercise extra prudence when checking for oncoming traffic - for instance, by bringing his vehicle to a complete stop at the give way line and checking for oncoming traffic before slowly easing out and exiting the slip road. The fact that the deceased and his bicycle were dragged by the respondent's car for a distance of approximately a full car length was inconsistent with the respondent's account of slowing down at the slip road: at [36] and [38].

(5) Regarding the s 67 (1) (b) Road Traffic Act offence, a custodial sentence appeared to be the starting point where the offender was involved in an accident where death was caused. The length of the custodial sentence would in turn depend on the aggravating and mitigating circumstances of the case - in particular, the quality of driving and amount by which the offender was over the prescribed limit. The sentence meted out had to also be calibrated according to the offender's culpability: at [41], [42] and [44].

(6) Despite being the designated driver for the evening, the respondent still consumed two bottles of beer, thus knowingly placing himself in a difficult position. Little weight should be given to the respondent's mitigation that he genuinely believed that he was fit to drive as he had not drunk much and allowed himself a precautionary period before taking the wheel: at [43], [45] and [46].

(7) The sentences imposed by the district judge for the s 304 A (b)Penal Code offence and s 67 (1) (b)Road Traffic Act offences were thus manifestly inadequate. For the former, the fine imposed was substituted with a sentence of four months' imprisonment and the disqualification period was enhanced from four to six years. For the latter, the fine imposed was substituted with a sentence of two months' imprisonment with the disqualification period of two years to remain. Both sentences were made to run concurrently: at [60].

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (folld)

Lim Kay Han Irene v PP [2010] 3 SLR 240 (folld)

Mohamad Iskandar bin Basri v PP [2006] 4 SLR (R) 440; [2006] 4 SLR 440 (not folld)

PP v Gan Lim Soon [1993] 2 SLR (R) 67; [1993] 3 SLR 261 (not folld)

PP v Goh Teck Guan MAC 2209-2210/2013 (refd)

PP v Kwong Kok Hing [2008] 2 SLR (R) 684; [2008] 2 SLR 684 (folld)

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

PP v Lee Kao Chong Sylvester [2012] SGHC 96 (refd)

PP v Lee Meng Soon [2007] 4 SLR (R) 240; [2007] 4 SLR 240 (folld)

PP v Lim Eng Kiang MA 48/92/01-02 (not folld)

PP v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR (R) 601; [2008] 1 SLR 601 (folld)

PP v Mohamed Zairi bin Ahmad MAC 11783/2011; DAC 39997-39999/2011 (refd)

PP v Su Hong DAC 17678-17680/2007 (refd)

PP v Syamsul Hilal bin Ismail [2012] 1 SLR 973 (folld)

PP v Tan Chean Wei [2010] SGDC 240 (distd)

PP v Tan Siam Poo DAC 25841/2009 (distd)

PP v Teo Poh Leng [1991] 2 SLR (R) 541; [1992] 1 SLR 15 (folld)

PP v Teo Seng Hock MA 273/95/01 (not folld)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (folld)

PP v Zaw Myint Tun DAC 16003/2006 (distd)

Penal Code (Cap 224, 2008 Rev Ed) s 304 A (consd) ;ss 304 A, 304 A (a) , 304 A (b)

Road Traffic Act (Cap 276, 2004 Rev Ed) s 67 (1) (b) (consd) ;ss 67, 67 (1) , 84 (1) , 84 (3) , 84 (7)

Mark Tay and Yvonne Poon (Attorney-General's Chambers) for the appellant

Raj Singh Shergill (Lee Shergill LLP) for the respondent.

Chan Seng Onn J

1 This was an appeal by the Prosecution against the sentences meted out on the accused (‘the Respondent’) by the district judge (‘the DJ’) in respect of two charges - one charge under s 304 A (b)Penal Code (Cap 224, 2008 Rev Ed) (‘PC’) and one charge under s 67 (1) (b) Road Traffic Act (Cap 276, 2004 Rev Ed) (‘RTA’).

2 At the conclusion of the appeal, I allowed the Prosecution's appeal. I now set out my reasons.

The background

3 According to the statement of facts (‘SOF’), on 4 April 2012, at about 7.00 pm, the Respondent drove his motor car to Lorong 15 Geylang to meet up with three of his friends at a coffee shop for dinner and drinks. They ordered a total of six bottles of beer, of which the Respondent consumed two bottles. At about 8.45 pm, the Respondent left the coffee shop and drove his motor car to send a friend home before heading home himself.

4 At about 9.29 pm, the Respondent was driving along Lower Delta Road after dropping his friend off. The Respondent entered a slip road leading to Jalan Bukit Merah. Without stopping his motor car at the give way line, the Respondent proceeded to exit the slip road and turn left into Jalan Bukit Merah in the direction of Queensway.

5 In doing so, however, the Respondent failed to keep a proper lookout and thus did not see one Sin San Wah (‘the deceased’) cycling along the extreme left lane of Jalan Bukit Merah. The front right of the Respondent's motor car thus collided with the deceased's bicycle. Upon impact, the deceased was run over by the motor car and was pinned under it. The deceased suffered multiple injuries and was pronounced dead at the scene by a paramedic at 9.55 pm.

6 At the time of the accident, the weather was fine, road surface was dry and the visibility was fair. The traffic flow along Jalan Bukit Merah towards the direction of Queensway was light.

7 The police officers who arrived at the scene to investigate the collision observed that the Respondent smelled strongly of alcohol. The Respondent was then placed under arrest and escorted to Traffic Police Headquarters for investigations. At about 11.45 pm, a breath evidential analyser test which was conducted revealed that the proportion of alcohol in the Respondent's breath was 42µg of alcohol in every 100 ml of breath. This exceeded the prescribed limit by 7µg.

The charges

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