Public Prosecutor v Desmond Lau (Desmond Liu)

• Jurisdiction: Singapore
• Judge: Salina Bte Ishak
• Judgment Date: 15 November 2011
• Neutral Citation: [2011] SGDC 381
• Court: District Court (Singapore)
• Docket Number: DAC 5341/2011, Magistrate’s Appeal No 264/ 2011/01
• Published date: 18 November 2011
• Year: 2011
• Hearing Date: 14 November 2011
• Plaintiff Counsel: Deputy Public Prosecutor Yang Ziliang
• Defendant Counsel: Mr AndrewJ Hanam of Andre LLC
• Citation: [2011] SGDC 381

District Judge Salina Ishak: The Charge

The Accused, Desmond Lau (Desmond Liu) had pleaded guilty before me to a charge of drink driving under Section 67(1)(b) Road Traffic Act (Cap 276) in DAC 5341/2011. Although his plea was taken much earlier on 23 May 2011, due to disagreement on the contents of the written plea in mitigation between the Prosecution and the Defence, the Accused was eventually sentenced on 14 November 2011.

Summary of Facts

The Amended Statement of Facts (“Exhibit P1A”) reads as follows:

Amended Statement of Fact (“Exhibit P1A”)

1. The complainant is one Station Inspector 3118 Kasmawati Samian attached to Traffic Police Department.

2. The defendant is one Desmond Lau (Desmond Liu), M/30 yrs(D.O.B.: 30.11.1980). He was the driver of motor van GT 116 L at the time of offence.

3. On 28 th January 2011 at about 12.50 am, the defendant was driving motor van GT116L along Ang Mo Kio Avenue 3 in the direction of Ang Mo Kio Avenue 1. Somewhere near to bus stop B02, the defendant was stopped by the complainant for a spot check at the police road block along the said location. The complainant approached the defendant, and upon talking to the defendant, he noticed that the defendant had alcoholic breath with flushed face and blood shot eyes. Breathalyzer test was conducted on the defendant and he failed the test. The defendant was placed under arrest for driving whilst under the influence of alcohol and he was escorted to the Traffic Police Department for Breath Evidential Analyser (BEA) test.

4. The Breath Evidential Analyser test was conducted by Station Inspector 183 Zainudin Bin Majid on the same day at about 1.52 am at Traffic Police. The breath test revealed that the proportion of alcohol in defendant’s breath was 48 microgrammes of alcohol in every 100 millilitres of breath. The prescribed limit is 35 microgrammes of alcohol per 100 millilitres of breath.

5. Further investigation revealed that the defendant before the committing of the said offence, that is to say that on 8th August 2003 had been convicted in Subordinate Courts of Singapore for an offence under Section 67(1)(b) of the Road Traffic Act, Chapter 276, vide DAC 38476/03 which conviction has not been set aside, and the defendant shall be punishable under Section 67(1) of the Road Traffic Act, Chapter 276.

6. Hence, the defendant has committed the offence of Driving whilst under the influence of alcohol under Section 67(1)(b) of the Road Traffic Act, Chapter 276.

Antecedents

The Accused has a similar previous conviction on 8 August 2003 in Court 21 for an offence of drink driving. He was fined $3,000 and disqualified for 30 months for all classes of vehicles.

Prosecution’s Address on Sentence

In his oral submissions, DPP Yang Ziliang submitted that a custodial sentence is the appropriate sentence for the present case. In support of this position, he tendered three cases, namely, PP v Tan Chen Chey [2009] SGDC 485, PP v Anthony Yee Kum Choon [2010] SGDC 250 and PP v Siew Meng Chun Andy [2010] SGDC 465. He further submitted that in both the cases of PP v Tan Chen Chey and PP v Anthony Yee Kum Choon, the Court had considered Chong Pit Khai v PP [2009] 3 SLR(R) 423. In addition, it was submitted that the three Magistrate’s Appeals against sentence in respect of the cases tendered by the prosecution were dismissed by the High Court.

On the issue of disqualification under Section 67(2) Road Traffic Act, DPP Yang submitted that whether the disqualification should be given or not is a two-stage process as set out in paragraphs 32 to 34 of my decision in PP v Tan Chen Chey. It was further submitted that the crucial prerequisite is stated in paragraph 17 of CJ Yong Pung How’s decision in Sivakumar s/o Rajoo v PP [2002] SGHC 28 which reads as follows:

“ … Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive and that he had explored every reasonable alternative before driving (see, for example, Evans v Bray [1077] RTR 24, R v Baines [1970] Crim LR 590).”

DPP Yang highlighted that in paragraph 7 of the mitigation, it is not shown that there was no alternative but for the Accused to drive or that he had explored every reasonable alternative before driving such as calling for a taxi or calling for an ambulance. He submitted that there was therefore no room for any discretion to be applied. He further testified that if the Court wishes to consider the discretion, the prosecution would like to point out that at paragraph 7 of the mitigation, the child was only brought to the clinic the next morning and not immediately to the hospital during the night. Mitigation

In his written plea in mitigation, his Counsel, Mr Andrew J Hanam submitted that the Accused is married to Ms Aw Liling (“Carol”) and they have a young child Carey Lau Qian Ru born on 3 April 2010 and who was 9 months old at the time of the offence. The Accused’s mother has kidney failure and is required to go for dialysis at the National Kidney Foundation on Mondays, Wednesdays and Fridays from 6.30 a.m. to about 11 a.m. He is the only child to his aged parents. His father who is in his 60s is a retired odd job worker while his mother is a housewife and is generally not capable of work due to her medical condition. The Accused takes his mother for her dialysis treatment on Mondays, Tuesdays and Fridays and spends Sunday, Tuesday and Thursday nights at his parents’ home so that he can take his mother for dialysis treatment early the following morning. His parents live at Blk 141 Serangoon North Avenue 2, #13-14, Singapore 550141.

On other days and nights, the Accused lives with his wife at her parents’ home located at Blk 466 Ang Mo Kio Avenue 10, #02-1028, Singapore 560466. The distance between the two houses is a 10 minute car ride. They have applied for a new flat from HDB and are still waiting for a flat.

On Thursday 27 January 2011, the Accused was at his parents’ home. At about 9 pm, he went downstairs to Block 151 to eat his dinner. At the coffeeshop, he met an old friend and decided to have dinner with his friend. The friend had been drinking beer and the Accused joined him. The Accused is unsure how many glasses of beer he had as after taking a few sips, the mug of beer would be topped up by the beer promoter. As the alcohol level was 48 microgrammes, his Counsel submitted that he must have had about 3 mugs. He left the coffeeshop at about 11 p.m. and walked to his parents’ flat, had a shower and then went to sleep.

At about 12.30 a.m. on 28 January 2011, the Accused was awoken and received a telephone call from his wife who was panicking as their daughter had a fever of 38 degrees and the wife, Carol, did not have any medication for high fever. He was concerned for his baby and for the state of anxiety that his wife was in and immediately put on his clothes and got into his car. He had driven for less than 5 minutes when he was stopped at a road block. After he was detained, the Accused told the traffic police that he was rushing to his wife and sick baby. He called his wife to let her know what was going on and the wife spoke to the traffic police to explain her baby’s illness and asked for compassion. In the end, the baby was not taken to hospital in the early hours of the day. The wife subsequently took the baby to a clinic later that morning. By that time the fever had subsided.

It was submitted that the Accused did not intend to drink drive. This was not the usual situation of a person deliberately going out in his car to a pub to drink and then attempt to return home and driving while intoxicated. He further submitted that there were extenuating circumstances in the present case.

Submissions on the Law

Counsel submitted that the Court has generally imposed custodial sentences in respect of a second drink driving offence. The Court looks at mitigating and aggravating factors and sentences imposed have taken these into account. He then set out a summary of previously decided cases namely, PP v Anthony Yee Kum Choon [2010] SGDC 250, PP v Ow Weng Hong [2010] SGDC 284, PP v Lee Soon Lee Vincent [1998] 3 SLR(R) 84 and PP v Lee Meng Soon [2007] 4 SLR(R) 240. I noted that the last case, Lee Meng Soon’s case, the Accused was a first offender for the offence of drink driving.

Counsel then submitted that the ‘sentence under Section 67(1) of the Road Traffic Act does not provide for a mandatory term of imprisonment’. He submitted that this is the finding by CJ Chan Sek Keong in Chong Pit Khai v PP [2009] 3 SLR(R) 423. After citing several extracts from that case, Counsel further submitted that since the Court has the discretion as to whether to impose a custodial sentence, it was submitted that the Court ought not to impose a custodial sentence on the Accused in the present case. Counsel urged the Court to impose the minimum fine of $3,000 in the present case due to the facts of the case.

The Disqualification

Counsel submitted that with regards to the disqualification from driving, the Court has discretion not to impose any disqualification or disqualification for less than 12 months if there are ‘special reasons’. He submitted that in Roland Joseph George John v PP [1995] 3 SLR(R) 265, CJ Yong Pung How gave a situation of a man rushing his seriously ill wife to the hospital as constituting ‘special reasons’. I noted that in paragraph 6 of his judgment, CJ Yong had in actual fact cited other factors when he gave the example, namely:

‘the man who comes home late one night from a drunken party to find his wife seriously. There is no one else around; there are no taxis easily available; even the ambulance may not be able to respond soon enough. The man decides to drive in spite of his inebriated condition, so as to rush his wife to the hospital. He is stopped by the police...