Public Prosecutor v Nur Azhar Bin Sulaiman

• Jurisdiction: Singapore
• Judge: Kamala Ponnampalam
• Judgment Date: 12 March 2013
• Neutral Citation: [2013] SGDC 79
• Court: District Court (Singapore)
• Docket Number: MAC 13333/2011 & DAC 44553/2011
• Published date: 13 March 2013
• Year: 2013
• Hearing Date: 28 January 2013,07 February 2013,28 November 2012
• Plaintiff Counsel: Ms Magdalene Huang, Deputy Public Prosecutor
• Defendant Counsel: Mr John Abraham
• Citation: [2013] SGDC 79

District Judge Kamala Ponnampalam:

This judgment arose from an appeal against sentence by the accused.

The accused, 27 years of age, pleaded guilty to one charge of negligent driving resulting in the death of his pillion rider under section 304A(b) of the Penal Code, Chapter 224. He also pleaded guilty to a second charge for drink driving pursuant to section 67(1)(b) of the Road Traffic Act, Chapter 276.

After considering the circumstances of the case, I sentenced the accused to 2 weeks’ imprisonment and disqualified him from holding or obtaining all classes of driving licence for 5 years for each of the two charges. I ordered the terms of imprisonment to run concurrently.

The Facts

On the night of 26 June 2010, the accused and the deceased met up with some friends at the Brash Basah Complex for drinks. Both the accused and the deceased consumed 3 to 4 cups of liquor each. Later, at about 5 am on 27 June 2010, the accused and the deceased left for home on the accused’s motorcycle.

The accused rode on the PIE in the direction towards Tuas. At the slip road from the PIE into the BKE, the accused’s motorcycle collided into the guardrail at the right side of the slip road. Upon impact, both the accused and the deceased were flung off the motorcycle and they landed on the grass verge behind the guardrail. The deceased sustained multiple injuries and was pronounced dead at the scene.

At the time of the accident, the weather was fine, the road surface was dry, visibility was good and traffic flow was light. There were no inherent defects detected in the accused’s motorcycle that might have led to the accident.

The accused too sustained injuries and was taken to the hospital. HSA’s Toxicology Report on the accused’s blood specimen revealed that the alcohol content in his blood was 83mg/100ml. This exceeded the prescribed legal limit of 80 mg/100 ml of blood.

Mitigation

The defence counsel for the accused submitted a written mitigation plea which set out his personal circumstances. The accused is a first offender. The accused grew up in difficult circumstances. His father was of poor health and could not work. His mother who used to be a homemaker had to work to support the family but her income was barely sufficient to meet the expenses. After completing his O Levels, the accused pursued a Diploma Course at the Ngee Ann Polytechnic. He also worked part time to supplement the household income. After completing his Polytechnic course, the accused enlisted in National Service. He performed well in National Service. In 2008, the accused secured a job with Singapore Airlines as a flight steward and still holds the job to date.

The defence counsel stated that the accident was a personal tragedy for the accused as well. He had lost a good friend in this accident. He was so affected by the accident that he had sold his motorcycle and stopped riding altogether. The accused too was seriously injured in the accident. The defence counsel further submitted that the accused had in fact travelled for about 10.1 km and crossed 17 traffic light controlled junctions before the accident occurred.

The defence submitted that given the facts of this case, a fine would be appropriate punishment. He cited the following cases in support: PP v Lim Yong Gan Gabriel [2010] SGDC 467 PP v Ng Jui Chuan [2011] SGHC 90 PP v Tan Chean Wei [2010] SGDC 240 PP v Lee Kao Chong Sylvester [2012] SGHC 96

The Sentence

The primary issue in this appeal is whether a custodial sentence should have been imposed on the accused. In the landmark case of PP v Gan Lim Soon [1993] 3 SLR 261, the High Court held that:

If death has been caused by a rash act, the proper punishment would be imprisonment … If death has been caused by a negligent act, it would be sufficient in most cases to inflict a fine on the accused.

However, the same court clarified this position in the later case of PP v Poh Teck Huat [2003] 2 SLR 299:

I would take this opportunity to clarify that Gan Lim Soon does not mean that a custodial sentence is mandated every time a human life is lost as a result of a rash act. A simple examination of the language of s 304A shows that Parliament had clearly accorded the sentencing court discretion to impose a fine or sentence of imprisonment regardless of whether death is the result of a rash or negligent act.

In Mohamed Iskandar Bin Basri v PP [2006] SGHC 158, the High Court emphasized that imprisonment could be imposed for a negligent act if the facts warrant it or in a most unusual case. The courts have since departed from this rash/jail, negligence/fine dichotomy.

In PP v Abdul Latiff bin Maideen Pillay [2006] SGDC 245, the District Court concluded that denunciation and retribution played a central role in the sentencing of traffic death cases under section 304A. The court was of the view that specific deterrence was unlikely to feature prominently as an important sentencing goal except where the offender has a bad driving record. General deterrence was also regarded as having a limited role in sentencing as most people would not want to cause injury with their driving and therefore would not need the disincentive of a criminal penalty to keep them from offending. However, the court found that general deterrence was still relevant in conveying a message of fear – a legal threat – to potential offenders. The District Court then held that the “most unusual case” which would attract a custodial sentence is one where the driving is so negligent that it incites outrage or is wholly inexcusable. I agree with this sentencing approach adopted by the District Court.

In PP v Abdul Latiff bin Maideen Pillay, the accused was driving a taxi and had failed to keep a proper lookout at a signalized pedestrian crossing. He collided into an 85-year old pedestrian and caused her death with his negligent driving. The court considered this a serious case of negligent driving and imposed a term of 2 weeks’ imprisonment “to mark the gravity of the offence … to encourage greater vigilance amongst drivers and to achieve the desired denunciatory effect in sentencing.”

The District Court in Public Prosecutor v Jamil bin Kassan [2009] SGDC 167 adopted this sentencing approach as well and added that if the offender causes the death while committing another traffic offence, such as making an illegal turn, drink driving or speeding, this is a relevant factor in the court’s determination of whether the negligence is wholly inexcusable such that the custodial threshold has been breached. The accused in this case was also a taxi driver. He was speeding and had failed to keep a proper look-out. He collided into a pedestrian who was crossing the road from his right to the left which resulted in her death. The road conditions were fine, the deceased was carrying bulky items in her hands and the accident occurred just in front of the MRT station. He was charged with causing death by a negligent act. The District Judge could find no reason for the accused to have failed to notice the deceased and found his negligence wholly inexcusable. He was sentenced to one week’s imprisonment and disqualified for a period of five years.

I turn now to consider the cases cited by the defence. Public Prosecutor v Lim Yong Han, Gabriel [2010] SGDC 467 In this case, the accused pleaded guilty to one count of causing death and one count of causing hurt and endangering human life by his negligent driving. He had driven across two double white lines and encroached onto the path of a taxi and collided into it. The taxi driver was hurt and his rear seat passenger was killed. The accused was fined a total of $9,000 and disqualified from driving all classes of vehicles for 12 months. The prosecution appealed against the sentence and the High Court increased the period of disqualification to 6 years. Public Prosecutor v Ng Jui Chuan [2011] SGHC 90 In this case, the accused claimed trial to two charges for causing the death of a pedestrian and causing hurt and endangering the life of the pedestrian’s husband who was walking beside her. The accused had fallen asleep at the wheel and he was charged with rash driving. At the end of the trial, the District Judge convicted him on amended charges for negligent driving and imposed a total fine of $9,500 and disqualified him from driving for a period of three years. The prosecution appealed against the amendment of the charges and the sentence imposed. The High Court upheld the amendments to the charge and the imposition of a fine. The court found that the accused person’s culpability was shown to be attributable to his falling asleep at the wheel which did not warrant a custodial sentence. Public Prosecutor v Tan Chean Wei [2010] SGDC 240 The accused pleaded guilty to two charges. The first was for causing death of a pedal cyclist by his negligent driving in that he failed to have proper control of his van which veered right and collided into the cyclist. The second charge was for driving whilst under the influence of drugs prescribed by his physician. The District Court noted that the...