Public Prosecutor v Ching Ling Ka @ Lincoln Cheng

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 06 December 2017
• Neutral Citation: [2017] SGDC 326
• Court: District Court (Singapore)
• Docket Number: DAC 908124-5 of 2017, MA 9354/2017/01
• Year: 2017
• Published date: 25 April 2018
• Hearing Date: 31 October 2017
• Plaintiff Counsel: DPP Gabriel Choong (31 Oct 2017) and DPP Grace Chua (22 Nov 2017)
• Defendant Counsel: Mr Kesavan Nair (Genesis Law Corporation)
• Subject Matter: Criminal Law,Offences,Road Traffic Act,Drink Driving
• Citation: [2017] SGDC 326

District Judge Shawn Ho: INTRODUCTION

Drink driving is irresponsible. A motorcar in the hands of a drunk driver is a potentially devastating weapon writ large – and needlessly so.¹ Selfish disregard for the lives and safety of pedestrians and other law-abiding road users deserves disapprobation.²

Whilst the law can do its best to deter and compensate, it cannot bring back a life lost nor can it salvage irreparable wounds.³

Drink driving is entirely preventable. Bringing this to sharper focus is the availability of taxis, valets, and other chauffeur-driven private hire cars.⁴

When personal injury is visited upon a victim or damage wrought as a result of the offender’s drink driving under s 67(1)(b) of the Road Traffic Act (“RTA”),⁵ save in an exceptional category of cases,⁶ the starting point for sentencing such a person is a custodial sentence. In other words, the prima facie position is that the custodial threshold has been crossed and an imprisonment term should be imposed unless the mitigating factors warrant a departure from this starting point.⁷

In the present case, the Accused’s car beat the red lights of two junctions along Eu Tong Sen Street, before colliding into a taxi.⁸ The traffic light signals at both T-junctions were already red when the Accused was approaching them.⁹ The impact of the collision caused the victim’s taxi to veer off course and mount the left side road kerb before hitting into the metal pole supporting the sheltered walkway.¹⁰

Repairs to the victim’s taxi – damaged both at its front and rear left – cost about $20,992.81.¹¹ After the collision, the victim experienced pain in his left leg; he did not seek medical attention.¹² The incident was captured by the in-vehicle camera of the Accused’s car.¹³ The Accused’s driving record is not unblemished.

The Accused pleaded guilty to one charge of drink driving under s 67(1)(b) of the RTA. Failing his handheld breathalyser test, he was arrested and escorted to the Traffic Police Department for a Breath Evidential Analyser test, which revealed that he had 43 µg of alcohol in every 100 ml of breath.¹⁴ He consented to another charge of dangerous driving being taken into consideration for sentencing purposes.¹⁵

All things considered, including his mitigation plea, there were no cogent reasons to depart from the starting point of a custodial sentence. In the final analysis, I sentenced the Accused to one week’s imprisonment and three years’ driving disqualification for all vehicle classes.¹⁶

The Defence has appealed against the custodial sentence.¹⁷ The Accused is currently on bail pending the hearing of the appeal; his imprisonment sentence and driving disqualification order have been stayed.

I now set out my reasons. (See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

THE LAW Analytical Framework

The analytical framework of (i) harm,¹⁸ (ii) culpability,¹⁹ (iii) aggravating factors and (iv) mitigating factors is helpful for the sentencing of drink driving cases (“the Analytical Framework”):²⁰

The eclectic ensemble of cases adopting the Analytical Framework is testament to this framework’s versatility: Voluntarily causing grievous hurt under s 325 of the Penal Code: Public Prosecutor v BDB [2017] SGCA 69.²¹ Aggravated outrage of modesty under s 354(2) of the Penal Code: GBR v Public Prosecutor [2017] SGHC 296. Drug importation under s 7 of the Misuse of Drugs Act: Suventher Shanmugam v Public Prosecutor [2017] SGCA 25. Section 28(b) read with s 29(a) of the Prevention of Corruption Act: Seng Hwee Kwang v Public Prosecutor.²² Section 182 of the Penal Code: Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447. Offences under the Workplace Safety and Health Act: Public Prosecutor v GS Engineering & Construction Corp [2016] SGHC 276.²³ Drug trafficking under s 5 of the Misuse of Drugs Act: Vasentha d/o Joseph v Public Prosecutor [2015] SGHC 197.²⁴ Sections 140, 146, and 148 of the Women’s Charter: Poh Boon Kiat v Public Prosecutor [2014] SGHC 186.²⁵

This is unsurprising as the two principal parameters which a sentencing court would generally have regard to in evaluating the seriousness of a crime are: (a) the harm caused by the offence, and (b) the offender’s culpability.²⁶

In Public Prosecutor v Yeo Ek Boon Jeffrey [2017] SGHC 306 at [57] and [60], the 3-Judge Panel stated that for the offence of voluntarily causing hurt to a public servant (i.e. police officers)²⁷ under s 332 of the Penal Code, the “offence-specific and offender-specific aggravating and mitigating factors are necessarily factored into the analysis within the harm and culpability considerations themselves”.

The contours of the Analytical Framework were explored in Koh Thiam Huat, Aw Tai Hock, and Stansilas Fabian Kester for offences under ss. 64(1) and 67(1)(b) of the RTA.²⁸

Interplay of Harm and Culpability

In Stansilas Fabian Kester, the High Court set out indicative sentencing ranges, calibrated according to the degree of harm caused and the offender’s culpability.²⁹ For easy reference, these indicative sentencing ranges are summarised below:

Culpability Harm Caused	Low	Medium	High
Slight	Fine	Up to 1 month’s imprisonment	Up to 2 months’ imprisonment
Moderate	Up to 1 month’s imprisonment	Up to 1 month’s imprisonment	Up to 2 months’ imprisonment
Serious	Up to 1 month’s imprisonment	Up to 2 months’ imprisonment	2 to 4 months’ imprisonment
Very Serious	Up to 2 months’ imprisonment	2 to 4 months’ imprisonment	4 to 6 months’ imprisonment

The High Court in Stansilas Fabian Kester also helpfully stated the following points in relation to the degrees of harm (personal injury/ property damage)³⁰ and culpability (alcohol level/ dangerous driving behaviour):³¹

Harm		Culpability
Slight	Slight or moderate property damage and/or slight physical injury characterised by no hospitalisation or medical leave	Low	Low alcohol level and no evidence of dangerous driving behaviour
Moderate	Serious property damage and/or moderate personal injury characterised by hospitalisation or medical leave but no fractures or permanent injuries	Medium	Moderate to high alcohol level or dangerous driving behaviour
Serious	Serious personal injury usually involving fractures, including injuries which are permanent in nature and/or which necessitate significant surgical procedures	High	High alcohol level and dangerous driving behaviour
Very Serious	Loss of limb, sight or hearing or life; or paralysis

As regards whether there is dangerous driving behaviour, the factors that affect culpability would generally include:³² The Manner of Driving. This assesses how dangerous the driving was and the extent of danger to road users posed by the offender’s conduct.³³ The Circumstances of Driving. The circumstances surrounding the incident that may have increased the danger to road users during the incident.³⁴ The Offender’s Reasons for Driving. The offender’s reasons or motivations for driving.³⁵

Edwin Suse Nathen Overlaid with Stansilas Fabian Kester

In Stansilas Fabian Kester, the offender’s culpability is also categorised into Low (low alcohol level), Medium (moderate to high alcohol level), and High (high alcohol level).³⁶ While Stansilas Fabian Kester did not explicate on the alcohol levels, guidance was given in Edwin s/o Suse Nathen at [17], [18] and [22]: Low level of alcohol:³⁷ >35 – 54 µg per 100 ml of breath. Moderate to High level of alcohol:³⁸ 55 – 69 µg per 100 ml of breath.

Reading them together – Edwin s/o Suse Nathen overlaid with Stansilas Fabian Kester – offers a broader understanding of s 67(1)(b) of the RTA: Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244 at [27].³⁹

It would also be helpful to refer to Edwin s/o Suse Nathen for relevant aggravating or mitigating factors⁴⁰ and to understand the three sentencing objectives of disqualification orders.⁴¹ (See also Menon CJ’s Opening Address, Sentencing Conference 2017 at [25] and [30]-[31])⁴²

Aggravating Factors

Aggravating factors include an offender’s bad driving record, as well as his lack of remorse.⁴³ Belligerent and violent conduct upon apprehension is yet another type of aggravating factor that may justify an increase in the sentence.⁴⁴

Mitigating Factors

Mitigating factors include the offender’s remorse and a clean driving record.⁴⁵ Restitution is another mitigating factor.⁴⁶

APPLICATION TO THE FACTS Harm

There was moderate property damage. Repairs to the taxi – damaged on both its front and rear left – cost about $20,992.81.⁴⁷ The metal pole supporting the sheltered walkway was scratched.⁴⁸

Curiously, the Defence argued that “it appears from the photographs of the damaged taxi that the collision with the metal pole resulted in greater damage than that caused by the collision with our client’s motor car”.⁴⁹

With respect, insofar as this attempted to downplay the harm wrought by the Accused’s drink driving, it was misconceived. Simply put, it was the Accused’s drink driving that set in train the events leading to the collision. He flouted the red lights at two traffic junctions, causing his car to collide into the victim’s taxi. The impact of this collision made the victim’s taxi veer off course and mount the left side road kerb along Eu Tong Seng Street before hitting into the metal pole supporting the sheltered walkway.⁵⁰

After the collision, the victim experienced pain in his left leg; he did not seek medical attention.⁵¹ There was slight harm.⁵² It was purely fortuitous that serious injuries were not visited upon pedestrians or other road users at both junctions.

Culpability

There was medium culpability.⁵³...