Public Prosecutor v Kek Yoke Boon Alvin

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 25 June 2018
• Neutral Citation: [2018] SGDC 151
• Court: District Court (Singapore)
• Docket Number: DAC 919278 of 2018
• Published date: 28 June 2018
• Year: 2018
• Hearing Date: 25 June 2018
• Plaintiff Counsel: Deputy Public Prosecutor Teo Lu Jia
• Defendant Counsel: Mr Sunil Sudheesan and Ms Diana Ngiam (Quahe Woo & Palmer LLC)
• Subject Matter: Criminal Law,Road Traffic Act,Driving under the Influence of Drink,Second Conviction
• Citation: [2018] SGDC 151

District Judge Shawn Ho: INTRODUCTION

The Accused pleaded guilty to one count of drink driving under s 67(1)(b) of the Road Traffic Act (“RTA”). His Breath Evidential Analyser test revealed that he had 65µg of alcohol in every 100 ml of breath (1.85 times the prescribed limit). And, this was his second conviction for drink driving.

Second Conviction for Drink Driving

Was a jail term mandatory for second offenders under s 67(1) of the RTA? The short answer was ‘Yes’.

The first port of call was the Court of Criminal Appeal case of Public Prosecutor v Tan Teck Hin [1992] 1 SLR(R) 672 (“Tan Teck Hin”). The Court of Criminal Appeal stated that, under s 67(1) of the RTA (Cap 276, 1985 Rev Ed), repeat offenders were subject “to both a minimum fine and a mandatory term of imprisonment”¹ (at [7]).

The High Court in Public Prosecutor v Lee Soon Lee Vincent [1998] 3 SLR(R) 84 at [38] (“Lee Soon Lee Vincent”) agreed that a jail term was mandatory for second offenders under s 67(1) of the RTA. In reaching this conclusion, the High Court considered the Road Traffic (Amendment) Bill 1990.

At the second reading of the Road Traffic (Amendment) Bill 1990, the Minister for Law and Home Affairs, Professor S. Jayakumar, said [Singapore Parliamentary Debates, Official Report (28 March 1990) vol. 55 at col 960]:

Sir, at present, a person driving under the influence of alcohol is liable to a fine not exceeding $1,000 or imprisonment not exceeding six months. Repeat offenders can be fined up to $2,000 or imprisoned for 12 months, or both. The amendments seek to enhance this penalty by increasing the fine and imposing mandatory imprisonment for repeat offenders. … For a repeat offender, the fine will be between $3,000 and $10,000, but this repeat offender will be subject to mandatory imprisonment, the period of which will not exceed 12 months. The court will decide on the period of imprisonment. [emphasis added]

To be sure, in Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423 (“Chong Pit Khai”), the High Court did not express a conclusive view on the matter of whether second offenders would be liable to mandatory imprisonment. Its obiter comments, which gave me pause, were as follows (at [24]): (a) The drafting for the s 67 offence was unclear and it created considerable difficulties for a court applying criminal sanctions, although in practical terms it may not matter that much as to whether the High Court in Lee Soon Lee Vincent was correct or wrong in its interpretation. (b) A closer study of Tan Teck Hin will show that the statement was obiter and that it was probably a restatement of the parliamentary statement made without any detailed examination of the words of the section.² (c) The controlling words for the s 67 offence in both the 1985 version and the 1990 version were the same, ie, “shall be liable ... to”. Since Parliament retained the same words in the 1990 version, the presumption is that Parliament did not intend to change their meaning. Accordingly, it was difficult to understand the reasoning that their meaning had now changed in the context of the 1990 version as a matter of grammar or statutory construction. One explanation could be that the substitution of the words “or to imprisonment ... or to both” by the words “and to imprisonment” was due to a change in drafting technique and not a change in legislative intention.³

For completeness, the High Court in Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244 at [17] said that it was not necessary for the court “to come to a view on this issue in the present case because it does not appear to be either party’s suggestion that imprisonment is not mandatory (for second offenders under s 67(1) of the RTA)”.

In the final analysis, a jail term was mandatory for second offenders under s 67(1) of the RTA. There were three interlacing reasons for this.

First, under the stare decisis doctrine, I was bound by the High Court’s decision in Public Prosecutor v Choo Kok Hwee [2014] SGHC 126 at [11] (“Choo Kok Hwee”). The High Court in Choo Kok Hwee – which expressly considered Chong Pit Khai – held that it was mandatory to jail second offenders.

Bringing this to sharper focus was the Minister for Home Affairs’ statement during the second reading of the Road Traffic (Amendment) Bill 1990, where the Minister was clear and unequivocal on the mandatory imprisonment for second offenders (ss 9A(2)(b)(i) and 9A(3)(c) of the Interpretation Act, and Tan Cheng Bock v Attorney-General [2017] SGCA 50 at [46] to [53]).⁴ Finally, this was consistent with the Sentencing Practice in the Subordinate Courts (3rd Edition: Vol II) at 1722 which stated as follows:

For repeat offenders, a sentence of imprisonment and fine is mandatory. [emphasis added]

Accordingly, informed by the Supreme Court jurisprudence and parliamentary debates, a jail term was mandatory for second offenders under s 67(1) of the RTA.

In any event, as noted in Chong Pit Khai at [24], “in practical terms it may not matter that much” as to the exactness of the interpretation in Lee Soon Lee Vincent. This was probably because the sentencing norm for s 67(1)(b) of the RTA (second conviction) was a custodial sentence ranging from 2 to 5 weeks’ imprisonment.⁵

All things considered, I sentenced the Accused to (i) 2 weeks’ imprisonment, (ii) a fine of $4000 i/d 20 days, and (iii) 3 years’ driving disqualification for all vehicle classes.⁶ The Statement of Facts can be found at Annex A.

No appeal was lodged. I now set out my brief reasons.

SENTENCING CONSIDERATIONS

Prescribed Punishment . The prescribed punishment for s 67(1)(b) of the RTA, in the case of a second or subsequent conviction, is as follows: Fine of not less than $3,000 and not more than $10,000 and Imprisonment for a term not exceeding 12 months, and Disqualification from driving for a period of not less than 12 months, unless there are special reasons to order otherwise.⁷

The components of the overall sentence generally are not to be regarded as mutually compensatory. Hence, increasing the fine and custodial sentence should not be taken to mandate imposing a reduced disqualification period than would otherwise have been ordered. The most important sentencing principles engaged in disqualification orders are the protection of society and deterrence: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].⁸

I was mindful that the offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought therefore to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment devised by Parliament.⁹ (See also Singapore Parliamentary Debates, Official Report (27 February 1996) vol. 65 at cols 716–724)

Sentencing Norm . The sentencing norm for s 67(1)(b) of the RTA (second conviction) is 2 to 5 weeks’ imprisonment, a fine of $4,000 to $7,000, and a disqualification period of 4 to 6 years.¹⁰

Sentencing Submissions . The Prosecution sought a sentence of at least 2 weeks’ imprisonment, a fine of $4,000, and a disqualification period of 3 years.¹¹ The Defence sought a sentence of around 1 week’s imprisonment, a fine of up to $10,000, and a disqualification period of more than 3 years.¹²

Cooperation with the Authorities and Plea of Guilt . I gave due weight to the Accused’s cooperation with the authorities¹³ and plea of guilt at the earliest possible stage.¹⁴ That said, given the Breath Evidential Analyser test results and his arrest at the scene, the evidence against him was overwhelming¹⁵ and lends itself to the conclusion that he had little choice but to plead guilty.¹⁶

Social Contributions . The fact that an offender has made past contributions to society would carry modest weight and can be displaced where other sentencing objectives assume greater importance.¹⁷ Any mitigating weight afforded by a lessened need to specifically deter a drunk driver will be readily offset by the interest of general deterrence.¹⁸

In the present case, the need for general deterrence assumes greater importance than the Accused’s social contributions and any trace of his capacity and willingness for reform that might be gleaned from his character references.¹⁹ For the rehabilitative rationale for sentencing, save in the case of young offenders, contributions to the public will have limited weight.²⁰ All things considered, limited weight was placed on the Accused’s social contributions.

Driving Record . The Accused’s driving record was not unblemished.²¹ He had driving-related compounded offences. An offender’s compounded offences are a relevant sentencing consideration for road traffic violations: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [39]-[47].²² In the present case, I placed little weight on his compounded offences.

APPROPRIATE SENTENCE

Sentence . Sentencing is a multi-layered determination of what is just in the circumstances before the court,²³ and it is ultimately an exercise in evaluative ethical judgment: Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [48]. I endeavoured to evaluate all the relevant considerations in fashioning a condign sentence. For completeness, I considered the fact that the Accused’s drink-driving antecedent was in 2004.

All things considered, including his mitigation plea, the following sentence was imposed:

DAC NO.	SENTENCE
DAC 919278/2018 s 67(1)(b) RTA	2 Weeks’ Imprisonment, Fine of $4000 i/d 20

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