Public Prosecutor v Lee Kao Chong Sylvester

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 07 May 2012
• Neutral Citation: [2012] SGHC 96
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 279 of 2011
• Year: 2012
• Published date: 10 May 2012
• Hearing Date: 07 March 2012
• Plaintiff Counsel: Ms Sanjna Rai, Mr Prem Raj, and Ms Toh Puay San
• Defendant Counsel: The Respondent in person.
• Subject Matter: Criminal Law
• Citation: [2012] SGHC 96

Chao Hick Tin JA: Introduction

This appeal, Magistrate’s Appeal No 279/2011 (“MA 279/2011”), was brought by the Prosecution against the sentence meted out by the District Judge (“the DJ”) in respect of a charge of negligent driving, which caused the death of one Phyie Phyo Swe (“the deceased”), under s 304A(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The DJ sentenced the Respondent to a fine of $6,000 and disqualified him from driving all classes of vehicles for a period of three years. In imposing this sentence, the DJ also took into consideration a second charge under s 337(b) of the Penal Code for causing hurt to Lin Nandar Han (“the victim”) by doing a negligent act which endangered human life. Having heard the parties on 7 March 2012, I allowed the Prosecution’s appeal and substituted the sentence of a fine with imprisonment for one week. I now give my reasons.

Background The charge

The Respondent pleaded guilty to one charge for causing death by a negligent act under s 304A(b) of the Penal Code. The charge reads as follows:¹

You, … are charged that you, on the 26th day of March 2011, at about 9.59p.m., along Upper Serangoon Road, Singapore, being the driver of motor car bearing registration number SGA8826T, did cause the death of a pedestrian, one Pyie Phyo Swe (male/ aged 31 years old), by doing a negligent act not amounting to culpable homicide, to wit, by failing to keep a proper lookout while reversing the said motor car along Upper Serangoon Road and thereby resulting in a collision with the said pedestrian, who was crossing from the right to left side along the said road, which resulted in the death of the said pedestrian, and you have thereby committed an offence punishable under Section 304A(b) of the Penal Code, Chapter 224.

[emphasis in original]

The facts

The salient facts pertaining to the commission of the offence by the Respondent are as follows. On 26 March 2011, at approximately 9.59pm, the Respondent was driving his motor car along Upper Serangoon Road towards the direction of Serangoon Road.² He was driving along the extreme left lane of the three-lane carriageway road. When the Respondent arrived at the entrance of the Singapore Institute of Commerce (“SIC”), he realised that the gate was closed.³ The Respondent then decided to reverse his vehicle far enough so as to turn left into Lorong Batawi which had an alternative entrance (through a side gate) to the SIC.⁴ The Respondent, in order to take advantage of the lull in the traffic flow at that very moment, quickly reversed so as not to cause any obstruction to oncoming vehicles at the rear.⁵ In the course of speedily reversing his vehicle, the Respondent did check his rear view mirror and turn his head back (towards the left).⁶ However, he failed to look at his speedometer and the right rear view of his vehicle.⁷ As a result, he failed to see the deceased and the victim, who were crossing the same stretch of the road at that very moment from the centre divider at the rear (viewed from the Respondent’s position, from his right to the left side of the road).⁸ Understandably, the victim did not notice the Respondent’s vehicle which was reversing as the deceased and the victim would not have expected any vehicles to come from that direction, their right.

The collision occurred somewhere between the extreme left and the centre lane of the road.⁹ The location was not within 50 metres of any designated pedestrian crossing.¹⁰ The Respondent’s vehicle was believed to have run over the deceased.¹¹ An independent eye witness to the unfortunate event saw the Respondent reversing his vehicle at a fast speed prior to colliding with the deceased and the victim.¹²

As a result of the accident, the deceased sustained multiple injuries and was conveyed to Changi General Hospital.¹³ The deceased remained in a state of coma until 3 April 2011 when his family decided, in the light of his grave state, to withdraw further medical therapy.¹⁴ The deceased was pronounced dead on the same day at 1.30pm.¹⁵

The Health Science Authority certified that the cause of the deceased’s death was pneumonia following severe head injury.¹⁶ The head injury to the deceased was due to the impact of a severe blunt force to the face and skull which could have been sustained by the deceased having been run over by the respondent’s vehicle.¹⁷

At the time of the accident, the weather was fine, visibility was clear, and the road surface was dry.¹⁸ In addition, traffic flow was light and there were no inherent mechanical defects detected in the Respondent’s vehicle following a mechanical inspection of the vehicle carried out after the accident.¹⁹

The DJ’s decision

The DJ first considered the case of Public Prosecutor v Gan Lim Soon [1993] 2 SLR(R) 67 (“Gan Lim Soon”) where Yong Pung How CJ ruled that fines should be imposed as a starting point for such offences (Gan Lim Soon at [10]):

Under s 304A the act can be due to either rashness or negligence. If death has been caused by a rash act the proper punishment would be imprisonment for a term not exceeding two years. If death has been caused instead by a negligent act, it would be sufficient in most cases to inflict a fine on the accused. In this case the charge is for causing death by a negligent act, and in my view the appropriate punishment would be a fine. Accordingly I allow the appeal, set aside the order of acquittal, and impose a fine of $6,000 with a sentence of three months’ imprisonment in default of payment. The respondent is also disqualified from driving all classes of vehicles for five years.

[emphasis added]

The DJ then considered that the Respondent’s level of culpability was mitigated by the steps that he had taken to reverse responsibly – ie., by checking his rear view mirror and by turning his head to the left and back whilst reversing – although he failed to take the critical step of checking the rear right of his vehicle (see [24] of the GD).

The DJ further considered two precedents. Firstly, the case of Sim Chong Eng v Public Prosecutor Magistrate’s Appeal No 119 of 1993, where the offender, a driver of a bus belonging to the Singapore Bus Service (“SBS”) at the time of the commission of the offence, was charged with causing death by doing a negligent act, namely encroaching onto the path of an oncoming bus. The offender was turning out of a bus interchange. Upon reaching the T-junction of the driveway of the interchange, he turned left without stopping and encroached onto the path of another SBS bus, which was on its proper side and hence had the right of way, coming from the opposite direction. A collision occurred between the two buses and the driver of the oncoming vehicle was killed. The offender was sentenced to a fine of $6,000 and disqualified from driving all classes of vehicles for five years.

The DJ next considered the case of Chew Ah Kiat v Public Prosecutor ...