Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 04 October 2017
• Neutral Citation: [2017] SGHC 244
• Plaintiff Counsel: Anand Nalachandran (TSMP Law Corporation)
• Date: 04 October 2017
• Docket Number: Magistrate’s Appeal No 9043 of 2017/01
• Hearing Date: 20 July 2017
• Subject Matter: Sentencing,Appeals,Criminal Procedure and Sentencing
• Published date: 10 October 2017
• Defendant Counsel: Mark Jayaratnam (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 244
• Year: 2017

Sundaresh Menon CJ: Introduction

The appellant, Pua Hung Jaan Jeffrey Nguyen (the “Appellant”), pleaded guilty to a single charge of driving while having excessive alcohol in his breath or blood under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (the “RTA”, which expression also refers, where applicable, to the corresponding predecessor version). The district judge (the “District Judge”) sentenced him to one week’s imprisonment and disqualified him from holding or obtaining all classes of driving licences for a period of 30 months with effect from the date of release.

Magistrate’s Appeal No 9043 of 2017/01 is the Appellant’s appeal against the sentence imposed on him by the District Judge. It is opposed by the respondent, the Public Prosecutor (the “Respondent”). What stands out on the facts is the Appellant’s previous conviction, in 2012, for an offence of being in charge of a motor vehicle while under the influence of drink under s 68(1)(b) of the RTA. After hearing parties on 20 July 2017, I reserved judgment. I now render my decision.

Facts

The facts giving rise to the offence are unremarkable. The Appellant, an American citizen and Singapore permanent resident, was 34 years old at the time of the offence. At about 4.50am on 29 October 2016, the Appellant was driving his car along Whitley Road when he was stopped at a police road block. The Appellant smelt strongly of alcohol. A breathalyser test was administered and the Appellant’s alcohol level was found to be excessive. He was placed under arrest and escorted to the Traffic Police department for a Breath Evidential Analyser (“BEA”) test. The BEA test revealed that the proportion of alcohol in the Appellant’s breath was 70μg of alcohol per 100ml of breath. This far exceeded the prescribed limit of 35μg of alcohol per 100ml of breath set out in s 72(1) of the RTA. Investigations revealed that the Appellant had been at the Pan Pacific Hotel at about 11.00pm on 28 October 2016, where he had consumed about three glasses of champagne.

Proceedings below

On 26 January 2017, the Appellant pleaded guilty before the District Judge to a single charge of driving while having excessive alcohol in his breath or blood under s 67(1)(b) of the RTA. Section 67 of the RTA provides as follows:

Driving while under influence of drink or drugs

67.—(1) Any person who, when driving or attempting to drive a motor vehicle on a road or other public place — (a) is unfit to drive in that he is under the influence of drink or of a drug or an intoxicating substance to such an extent as to be incapable of having proper control of such vehicle; or (b) has so much alcohol in his body that the proportion of it in his breath or blood exceeds the prescribed limit,

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $1,000 and not more than $5,000 or to imprisonment for a term not exceeding 6 months and, in the case of a second or subsequent conviction, to a fine of not less than $3,000 and not more than $10,000 and to imprisonment for a term not exceeding 12 months.

(2) A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, be disqualified from holding or obtaining a driving licence for a period of not less than 12 months from the date of his conviction or, where he is sentenced to imprisonment, from the date of his release from prison. (3) Any police officer may arrest without warrant any person committing an offence under this section.

Following the Appellant’s plea of guilt and the parties’ submissions on sentence, the matter was adjourned for sentencing. On 13 February 2017, the District Judge sentenced the Appellant to one week’s imprisonment and disqualified him from holding or obtaining all classes of driving licences for a period of 30 months with effect from the date of release. On the same day, the District Judge granted bail pending appeal and stayed the execution of the imprisonment term as well as the disqualification order.

The District Judge subsequently issued the full grounds for her decision on 10 March 2017 (see Public Prosecutor v Pua Hung Jaan Jeffrey Nguyen [2017] SGDC 63 (the “GD”)). She considered that the key point in this case was that the Appellant had previously been convicted on 17 May 2012 for an offence of being in charge of a motor vehicle while under the influence of drink under s 68(1)(b) of the RTA. She noted that the Appellant had been fined $1,000 in respect of that offence. An offence under s 68(1) of the RTA arises when the offender is not driving the vehicle but is in charge of it. In this regard, s 68 of the RTA provides as follows:

Being in charge of motor vehicle when under influence of drink or drugs

68.—(1) Any person who when in charge of a motor vehicle which is on a road or other public place but not driving the vehicle — (a) is unfit to drive in that he is under the influence of drink or of a drug or an intoxicating substance to such an extent as to be incapable of having proper control of a vehicle; or (b) has so much alcohol in his body that the proportion of it in his breath or blood exceeds the prescribed limit,

shall be guilty of an offence and shall be liable on conviction to a fine of not less than $500 and not more than $2,000 or to imprisonment for a term not exceeding 3 months and, in the case of a second or subsequent conviction, to a fine of not less than $1,000 and not more than $5,000 and to imprisonment for a term not exceeding 6 months.

(2) For the purpose of subsection (1), a person shall be deemed not to have been in charge of a motor vehicle if he proves — (a) that at the material time the circumstances were such that there was no likelihood of his driving the vehicle so long as he remained so unfit to drive or so long as the proportion of alcohol in his breath or blood remained in excess of the prescribed limit; and (b) that between his becoming so unfit to drive and the material time, or between the time when the proportion of alcohol in his breath or blood first exceeded the prescribed limit and the material time, he had not driven the vehicle on a road or other public place. (3) On a second or subsequent conviction for an offence under this section, the offender shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, be disqualified from holding or obtaining a driving licence for a period of 12 months from the date of his release from prison. (4) Where a person convicted of an offence under this section has been previously convicted of an offence under section 67, he shall be treated for the purpose of this section as having been previously convicted under this section. (5) Any police officer may arrest without warrant any person committing an offence under this section.

I pause here to note that under s 67(1) of the RTA, an offender who commits a second or subsequent offence “shall be liable … to imprisonment”. Similarly, under s 68(1) of the RTA, an offender who commits a second or subsequent offence “shall be liable … to imprisonment”, but for a shorter maximum period (six months) than the second or subsequent offender under s 67(1) of the RTA (12 months). Further, under s 68(4) of the RTA, an offender under s 68 of the RTA who has been previously convicted of an offence under s 67 of the RTA shall be treated for the purpose of s 68 of the RTA as having been previously convicted under s 68 of the RTA. No equivalent provision exists in s 67 of the RTA.

The District Judge accordingly considered the four scenarios that could present themselves in relation to the interplay between ss 67(1) and 68(1) of the RTA. These were previously set out in Public Prosecutor v Ow Weng Hong [2010] SGDC 284 (“Ow Weng Hong”) (at [7]):

Scenario	Antecedent	Current conviction	Punishment
1	Section 67(1), RTA	Section 67(1), RTA	Mandatory imprisonment and fine and disqualification
2	Section 68(1), RTA	Section 68(1), RTA	Mandatory imprisonment and fine and disqualification
3	Section 67(1), RTA	Section 68(1), RTA	Mandatory imprisonment and fine and disqualification
4	Section 68(1), RTA	Section 67(1), RTA	Fine and disqualification; or imprisonment and disqualification

For convenience, I shall refer to these four scenarios as “Scenario 1”, “Scenario 2”, “Scenario 3” and “Scenario 4”, respectively.

The District Judge agreed with the Respondent that it seemed anomalous that an offender in Scenario 4 (“Scenario 4 Offender”) might be sentenced to only a fine and disqualification, as compared with an offender in Scenario 2 (“Scenario 2 Offender”), for whom a term of imprisonment would be mandatory. She thought, in relation to most drunk driving cases, that a Scenario 4 Offender might generally be considered more culpable than a Scenario 2 Offender. Moreover, she highlighted the observation in Ow Weng Hong (at [29]) that even if a Scenario 4 Offender were sentenced to imprisonment, this sentence might be described as “less harsh” than the sentence for which a Scenario 2 Offender would be liable, which would comprise both imprisonment and a fine. Notwithstanding this, the District Judge found it clear that: (a) an antecedent under s 68(1) of the RTA did not constitute a prior conviction for the purposes of s 67(1) of the RTA so as to attract a mandatory imprisonment term; and (b) there was no basis to adopt the position that an imprisonment term should be the starting point when sentencing the Appellant, who fell within Scenario 4. However, while the District Judge was unable to agree that an...