Public Prosecutor v Balasubramaniam

Judgment Date15 January 1992
Date15 January 1992
Docket NumberMagistrate's Appeal No 314/91/01
CourtHigh Court (Singapore)
Public Prosecutor
Plaintiff
and
Balasubramaniam
Defendant

[1992] SGHC 5

M Karthigesu J

Magistrate's Appeal No 314/91/01

High Court

Road Traffic–Offences–Drink driving–“Special reasons” for not ordering disqualification–Defence of spiking–Whether accused had discharged burden of proof–Whether trial judge properly exercised discretion not to disqualify accused–Section 67 (1) Road Traffic Act (Cap 276, 1985 Rev Ed)–Words and Phrases–“Special reasons”–Section 67 (1) Road Traffic Act (Cap 276, 1985 Rev Ed)

The respondent pleaded guilty to a charge under s 67 (1) of the Road Traffic Act (Cap 276, 1985 Rev Ed). In mitigation, the respondent claimed that someone had “spiked” his whiskey with brandy without his knowledge. The magistrate imposed a fine of $1,200 but did not order a disqualification as he found that there were “special reasons” for not ordering a disqualification. The Prosecution appealed against the magistrate's failure to order a disqualification.

Held, allowing the appeal and ordering a disqualification of 18 months:

(1) For an accused person in the respondent's position to discharge the onus of proving “special reasons” not to order a disqualification, evidence of all the relevant facts and the surrounding circumstances both in respect of the accused and of the adding of the additional alcohol to the drink of the accused must be placed before the court, including medical or scientific evidence where necessary: at [8] and [9].

(2) It was not enough for a court to conclude that a “special reason” not to order a disqualification existed; the court must additionally consider whether it should exercise its discretion in favour of the accused. The magistrate, in exercising his discretion not to disqualify the respondent, failed to address himself to the question of whether the respondent should have realised that he was unfit to drive due to the presence of alcohol in his body: at [13]and [14].

(3) A person who was already drinking a high alcoholic content drink like whiskey could not be heard to say that unbeknown to him, more whiskey had been added to his drink which accounted for the excess over the permitted limit, or even that another spirit of equal alcoholic content like brandy had been added to his whiskey unbeknown to him which accounted for the excess over the permitted limit, without calling some medical or scientific evidence to prove that the mixture of whiskey and brandy significantly increased its potency: at [17].

(4) To be a special reason under s 67, the extenuating or pressing circumstances must relate to the offence itself and not the offender: at [21].

(5) The magistrate's findings were no more than assumptions which had no scientific or common sense basis. As a result, the respondent had not discharged the burden of proof on a balance of probabilities, and the magistrate's decision not to order a disqualification was a wrong exercise of his discretion: at [26].

Adams v Bradley [1975] RTR 233 (folld)

Deputy Public Prosecutor v Barker [1990] RTR 1 (refd)

Deputy Public Prosecutor v Younas [1990] RTR 22 (refd)

Kanapathipillai, Re [1960] MLJ 243 (folld)

Pridige v Gant [1985] RTR 196 (folld)

Pugsley v Hunter [1973] 1 WLR 578; [1973] RTR 284 (folld)

Whittall v Kirby [1947] KB 194 (folld)

Williams v Neale [1971] RTR 149 (refd)

Road Traffic Act (Cap 276, 1985 Rev Ed)s 67 (1) (consd);ss 67 (2),131 (1) (d)

Road Traffic Rules 1981 (GN No S 171/1981)r 27B

Palaniappan Sundararaj (Deputy Public Prosecutor) for the appellant

V Ramakrishnan (V Ramakrishnan & Co) for the respondent.

Judgment reserved.

M Karthigesu J

1 On 28 August 1991, J Balasubramaniam, the respondent, was charged in the Magistrate's Court that he, on or about 11 February 1991 at about 11.00pm, drove motor car EW 5254 X along Tiong Bahru Road whilst under the influence of drink to such an extent as to be incapable of having proper control of the motor car. This is an offence under s 67 (1) of the Road Traffic Act (Cap 276) (“the Act”) and is punishable, on a first conviction, with a fine of not less than $1,000 and not more than $5,000, or to imprisonment for a term not exceeding six months. A conviction for this offence carries a compulsory disqualification from holding or obtaining a driving licence for a period of not less than 12 months from the date of conviction, “unless the court for special reasons thinks fit to order otherwise”. The period of disqualification of not less than 12 months is without prejudice to the power of the court to order a longer period of disqualification.

2 The respondent was also charged that on the same date and time and at the same place, he drove the same motor car otherwise than in an orderly and careful manner and with due regard for the safety of others, in that he collided into the rear of motor car EW 1429 K. This is an offence under r 27B of the Road Traffic Rules 1981 and punishable under s 131 (1) (d) of the Act with a fine of $1,000 or to a term of imprisonment not exceeding three months, for a first offence.

3 The respondent pleaded guilty to the drunken driving charge and consented to the careless driving charge being taken into account for the purposes of sentencing. The learned magistrate who heard this case accepted the plea of guilty on the drunken driving charge on the statement of facts presented by the Prosecution, which the respondent accepted, convicted the respondent of the drunken driving charge and after hearing a plea in mitigation, to which I shall refer later in some detail, sentenced the respondent by imposing a fine of $1,200 but did not order a disqualification as he found that there were “special reasons” for not ordering a disqualification.

4 The Public Prosecutor now appeals against that part of the sentence of failing to order a disqualification.

5 The statement of facts, after reciting the facts of the collision as stated in the careless driving charge, states that no one was hurt but when the police arrived at the scene of the collision, the respondent whose breath smelt of alcohol was placed under arrest and later taken to Tan Tock Seng Hospital where he consented to a sample of his blood being taken for analysis, which was shown to contain 233.1mg of ethanol per 100ml of his blood. Investigations revealed that the respondent and some of his friends were celebrating the Chinese New Year at a restaurant along Cantonment Road on the day stated in the charges (11 February 1991) at about 10.00pm. The respondent and his friends consumed alcoholic drinks. At the time of the accident the weather was fine, the road surface dry, visibility fair and the flow of traffic light. Thus it was suggested in the statement of facts that the collision was due to the...

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