Sundaresh Menon CJ (delivering the grounds of decision of the court):
Introduction
This was an appeal against sentence brought by the Public Prosecutor (“the appellant”). The respondent, Hue An Li (“the respondent”), was involved in a tragic vehicular accident when she momentarily dozed off while driving and collided into a lorry. Among other consequences, this caused the death of a passenger in the lorry. The respondent pleaded guilty on 10 September 2013 to a charge of causing death by a negligent act, an offence under s 304A(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). Two other charges, one of causing grievous hurt by a negligent act (see s 338(b) of the Penal Code) and the other, of causing hurt by a negligent act (see s 337(b) of the Penal Code), were taken into consideration for sentencing purposes. The respondent was sentenced to a fine of $10,000 (in default, five weeks’ imprisonment) and was disqualified from driving for five years from the date of her conviction, ie, from 10 September 2013 (see Public Prosecutor v Hue An Li [2013] SGDC 370 (“the GD”)). The appellant appealed essentially on the basis that a custodial sentence ought to have been imposed on the respondent. Some important questions were raised, particularly in relation to the appropriate sentencing benchmarks and considerations that should guide sentencing decisions in cases of negligent driving which result in death and which are prosecuted under s 304A(b) of the Penal Code (“s 304A(b) traffic death cases”). We accordingly appointed Mr Zhuo Jiaxiang (“Mr Zhuo”) as amicus curiae.
At the end of the hearing, we allowed the appeal and varied the sentence to four weeks’ imprisonment. We upheld the five-year disqualification period imposed by the district judge (“the DJ”), save that we ordered it to take effect from the date of the respondent’s release from prison. We also ordered the fine of $10,000, which the respondent has already paid, to be returned to her. We now give the detailed reasons for our decision.
The facts
The respondent worked in the surveillance department of Marina Bay Sands Casino. On 14 March 2013, she ended her 12-hour shift at 7.00pm. She took a short nap in her car, a Hyundai Avante, before meeting her friends later that night at East Coast Park. The respondent left East Coast Park at about 6.30am the next morning, dropped her friend off at Pasir Ris and was making her way back to her home at Farrer Park when the accident occurred at around 7.20am. According to the First Information Report, the police were notified of the accident at 7.22am on 15 March 2013.
At the material time, the respondent was travelling westwards in the middle lane of the three-lane Pan-Island Expressway. She spotted a slow-moving lorry in the leftmost lane and decided to overtake the lorry, which was travelling at about 60–65 km/h. Video footage provided by a member of the public showed the respondent’s car gradually veering left before its front left collided with considerable force into the right rear of the lorry. The brake lights of the Avante only came on upon impact with the lorry. The collision caused the lorry to rotate in an anti-clockwise direction, hit the leftmost barricade of the expressway and flip. The lorry came to rest on its starboard side in a position between the emergency lane and the leftmost lane. There were nine foreign workers being transported in the rear cabin of the lorry at that time, all of whom were thrown out of the vehicle as a result of the collision. Of the nine, eight were injured, while one was pronounced dead at the scene. The lorry driver and his front passenger were also injured. At the time of the accident, the weather was fine, the road surface was dry, visibility was clear and traffic flow was light.
In the respondent’s mitigation plea, her counsel, Mr Akramjeet Singh Khaira (“Mr Khaira”), submitted that the respondent was unable to recall how the collision happened; the only explanation put forward was that she “in all probability, blanked out due to her tired mental state”.1Para 22(b) of the respondent’s plea in mitigation. It should also be noted that the respondent, in two cautioned statements, said that she had just bought the Avante and was still getting used to it. Records indicated that she had purchased the vehicle two weeks prior to the accident.
The decision below
In the proceedings below, the DJ began with the premise that a fine was not necessarily the starting point when sentencing an offender for the offence under s 304A(b) of the Penal Code, and that it was not necessary to establish a “most unusual case” (see [4] of the GD) before the imposition of a custodial sentence might be called for. Whether a custodial sentence ought to be imposed would depend on the nature and extent of the offender’s culpability: the more serious the negligence, the more a custodial sentence would be warranted (see likewise [4] of the GD). The DJ quoted extensively from the decision of the High Court in Public Prosecutor v Ng Jui Chuan [2011] SGHC 90 (“Ng Jui Chuan”), which laid down (at [7]) the following propositions: Driving while feeling sleepy was not an offence, let alone an offence of rashness. It might, however, become so if the driver knew that he was in all likelihood going to fall asleep. The length of time without sleep that a driver could safely endure was a subjective factor. Some drivers might fall asleep after just ten hours without sleep, while others might be able to drive without posing any danger even after 24 hours without sleep. The point at which a person fell asleep was, ironically, a point which he would never be aware of.
The DJ agreed that there was no merit in the Defence’s submission that imposing a custodial sentence on the respondent would send the wrong message that employers of foreign workers, who commonly transported them in the rear cabin of lorries, bore no responsibility for the safely of their employees. The DJ noted that in Singapore, employers were allowed, subject to certain requirements, to transport their workers in the rear cabin of lorries (at [7] of the GD).
The issue in this case, the DJ stated, centred on the culpability of the respondent. In his view, the aggravating factors were that: (a) the respondent had momentarily blanked out while driving; and (b) the collision had resulted in enormous and tragic consequences (at [8] of the GD).
The DJ considered, on the one hand, that the thin skull rule did not apply in criminal cases (citing Public Prosecutor v AFR [2011] 3 SLR 653 (“AFR”)), and thus, a person could not be imputed to intend all the consequences, no matter how remote, of an act done by him on another. However, the DJ also said that “[u]ndeniably, the extent of harm and loss must be taken into consideration by a sentencing court” (at [9] of the GD).
In all the circumstances, the DJ concluded that a custodial sentence was not warranted having regard, in particular, to the following considerations: The respondent worked in the surveillance department of a casino. This required her to be “mentally alert for long periods of time” (at [10(iii)] of the GD). Due to the nature of her work, which required her to work 12-hour shifts, the respondent “could only meet up with friends during the night and in the wee hours of the morning” (at [10(iii)] of the GD). The respondent had just bought the Avante shortly before the accident and was still getting used to it (at [10(iii)] of the GD). What happened on the day of the accident was unfortunate as the respondent had “blanked out for a moment due to her tired mental state” (see likewise [10(iii)] of the GD). Although the respondent had not had proper sleep for the 24-hour period preceding the accident, she had taken some, albeit insufficient, precautions. In particular, she had taken a short rest in her car after finishing work on 14 March 2013 before meeting her friends later that night (at [10(iv)] of the GD). The length of time without sleep that a driver could endure without experiencing adverse effects that might affect his ability to drive was a subjective factor. The evidence did not show that the respondent had made a conscious decision to drive despite knowing that she was very tired and sleepy. In particular, it had not been proved that she knew that she would, in all likelihood, fall asleep at the wheel at the time she decided to drive (see likewise [10(iv)] of the GD). The respondent did not break any traffic rules at the material time and was travelling within the speed limit (at [10(v)] of the GD). In the aftermath of the accident, the respondent had wanted to call for an ambulance, but was informed that that had already been done. She had also taken the initiative of directing traffic until she was sent to the hospital (at [10(vii)] of the GD). The respondent was sincerely remorseful and had not driven since the accident even though her driving licence had not been revoked. She had even made several trips to Hindu temples to pray for the soul of the deceased victim as well as for those who had been injured and all their family members (at [10(viii)] of the GD). General deterrence had a limited role in sentencing in s 304A(b) traffic death cases (as defined at [1] above) because “law-abiding persons are apt to be revolted by the prospect of injuring others by their driving and therefore do not need the added disincentive of a criminal penalty to keep them from offending” (at [10(ix)] of the GD, citing Public Prosecutor v Abdul Latiff bin Maideen Pillay [2006] SGDC 245 at [13]). Even if general deterrence was a relevant factor, a deterrent sentence need not always take the form of a custodial sentence because a severe fine might suffice (at [10(x)] of the GD). Specific deterrence was of limited relevance in s 304A(b) traffic death cases except where the offender had a bad driving...
