Public Prosecutor v Ong Heng Chua and another appeal

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 25 April 2018
• Neutral Citation: [2018] SGHC 95
• Docket Number: Magistrate’s Appeal Nos 9312/2017/01 and 9312/2017/02
• Date: 25 April 2018
• Published date: 01 May 2018
• Plaintiff Counsel: Yang Ziliang (Attorney-General's Chambers)
• Defendant Counsel: Carmen Chen Mei Hui (Farallon Law Corporation)
• Court: High Court (Singapore)
• Hearing Date: 14 February 2018
• Subject Matter: Sentencing,Criminal Procedure and Sentencing

See Kee Oon J: Introduction

Both the Prosecution and Ong Heng Chua (“the offender”) have appealed against the sentence of a fine and a disqualification order in respect of a charge of causing grievous hurt by a negligent act which endangered human life, an offence under s 338(b) of the Penal Code (Cap 224, 2008 Rev Ed). The charge read as follows:

You…..are charged that you, on 25 November 2016, at or about 4.50am, being the taxi driver of SH9458L, at the entrance of the carpark of Blk 343 Ubi Ave 1, Singapore, did cause grievous hurt to one Gwee Wan, the rider of motorcycle FX9777K, by doing an act so negligently as to endanger the personal safety of others, to wit, by failing to follow the directional sign of the road, allowing your vehicle to encroach into the opposite side of the road against the flow of traffic, thereby colliding into the said Gwee Wan and causing her to sustain serious injuries and fractures, and you have therefore committed an offence punishable under Section 338(b) of the Penal Code, Chapter 224.

The offender pleaded guilty to the charge in the District Court, and was sentenced to a fine of $5,000 (in default 5 weeks’ imprisonment) and disqualification from holding or obtaining all classes of driving licences for 18 months. The Prosecution appealed against the sentence of a fine, and submitted that a custodial term of one week is warranted. The offender appealed only against the disqualification order of 18 months, and submitted that a disqualification order of six months is appropriate.

Having heard submissions from the parties, I allow the Prosecution’s appeal against sentence and dismiss the offender’s appeal.

Facts

The facts are set out in the statement of facts which the offender had admitted to without qualification. The in-car camera footage from the taxi which the offender was driving at the material time had also been admitted in evidence.

As stated in the statement of facts, on 25 November 2016, at about 4.50 a.m., the offender was driving his taxi along Ubi Avenue 1 towards Ubi Avenue 2 on a single lane two-way road. Upon reaching the entrance of the HDB open-air carpark of Block 343 Ubi Avenue 1, the offender made a wide left turn into the said carpark. While completing the left turn, his taxi began to travel in the middle of the opposite lane of the entrance to the carpark. The right half of his taxi was encroaching into the opposite side of the road and therefore going against the road direction. The offender then continued to drive into the carpark with his car straddling the opposite lane, instead of moving back into his own lane. According to his mitigation, he did so because he noticed that the road ahead “inevitably merged into a single lane of road with no lane markings” and had “decided to prematurely travel in the middle of the road in anticipation of the merging lane”¹.

At the same time, the victim, a 55-year-old female, was leaving the said carpark on her motorcycle. As the victim was making a left turn from a side road of the carpark, which was on the offender’s right, the right side of the front of the offender’s taxi collided into her motorcycle. The victim had failed to stop at the stop line before making the left turn after leaving the carpark.

As a result of the collision, the victim suffered the following injuries: Left proximal humerus fracture; Left distal radius fracture; Left fibula head and Gerdy’s tubercle fracture; and Left thigh laceration. The victim was treated with Open Reduction Internal Fixation². She was warded on 25 November 2016 and was discharged on 7 December 2016 with 32 days of medical leave.

At the time of the accident, the road surface was dry, traffic volume was light and visibility was good.

The Prosecution sought a sentence of one week’s imprisonment and at least 18 months’ disqualification from all classes of driving licences. The offender sought a fine of not more than $4,000 and no disqualification order. He was sentenced to a fine of $5,000 (in default 5 weeks’ imprisonment) and disqualification from holding or obtaining all classes of driving licence for 18 months with effect from 4 October 2017. The fine of $5,000 has been paid and the order of disqualification stayed pending appeal.

The proceedings below

The District Judge’s grounds of decision is reported at Public Prosecutor v Ong Heng Chua [2017] SGMC 63 (“GD”).

In the court below, the Prosecution submitted orally that the custodial threshold was crossed because the culpability of the offender was high and the injuries sustained by the victim were significant: the offender had driven his vehicle against the flow of traffic and continued to travel in the middle of the two lanes without showing any effort to get his car back into his own lane; he had a bad driving record; and he had caused the victim to sustain serious bodily hurt. The Prosecution submitted that one week’s imprisonment and at least 18 months’ disqualification were warranted.

On the other hand, the offender argued that only a fine was warranted. He submitted that he had slowed down substantially to about 10 to 15 km/h when he made the left turn. It was also submitted that the victim herself had failed to stop at the stop line and had instead made an abrupt and sharp left turn out from the minor road. As a result, she appeared in his line of sight suddenly and he could not take any evasive action except to apply the brakes. The offender further argued that his acts of assistance by calling the ambulance and the police and remaining at the scene, as well as his remorse and cooperation with the police should be given mitigating weight.

The District Judge considered at the outset that the main sentencing consideration was deterrence and that this might be achieved by the imposition of a high fine and a disqualification order. A custodial sentence was not the default punishment for s 338(b) of the Penal Code.

The District Judge went on to consider the level of harm and culpability of the offender. At [18] of the GD, he considered that the victim suffered fractures and was hospitalised and discharged with 32 days of medical leave. He noted the absence of any indication of permanent physical disability and any loss of limb. He also considered the harm caused to her motorcycle. He concluded that the level of harm caused was serious.

The District Judge found that the offender was driving against the road direction for quite a distance (at [20] of the GD). The visibility was good but it was still dark. He did not accept that the offender had slowed down to 10 to 15 km/h right before the collision but he agreed that there could have been slowing-down due to the presence of a road hump (at [21] of GD). There was no evidence to support the contention that the design of the inward curb of the road would require road users to veer their vehicles to the right, contrary to the offender’s submission. As for the victim, she exited the car park without stopping at the stop line. At [24] of the GD, the District Judge concluded that the offender’s culpability was low in the circumstances, noting in particular the failure of the victim to stop at the stop line, the location of the accident, and that there was no evidence of speeding on the part of the offender.

The District Judge gave weight to the offender’s early plea of guilt, and gave him credit for surrendering the video card from his in-vehicle camera, and for rendering assistance and calling the ambulance. The District Judge also found that the offender’s bad driving record warranted a deterrent sentence in the form of a high fine and a disqualification order, but not a custodial sentence. The factor that tipped in favour of a non-custodial sentence was the failure on the part of the victim to stop at the stop line (at [26] of the GD).

The appeal

In their submissions on appeal, both the Prosecution and the offender made reference to Tang Ling Lee v PP [2018] SGHC 18 (“Tang Ling Lee”), where I had set out the sentencing framework for causing grievous hurt by a negligent act which endangered human life under s 338(b) of the Penal Code in the context of road traffic accidents. The Prosecution submitted for a custodial sentence of one week’s imprisonment based on the framework. The Prosecution submitted that the offender’s culpability was moderate: the offender had flouted traffic rules by substantially encroaching into the opposite lane, driving against the flow of traffic and effectively driving in the middle of two lanes for a few seconds before colliding into the victim. The Prosecution also argued that the victim’s negligence had no bearing on the offender’s culpability based on Guay Seng Tiong Nickson v PP [2016] 3 SLR 1079 (“Nickson Guay”). As the level of harm caused was moderate, the Prosecution argued that the case fell under Category 2 of the framework set out in Tang Ling Lee, for which the presumptive sentence was one to two weeks’ imprisonment. The Prosecution further submitted that too little weight was placed by the District Judge on the offender’s bad driving record. Lastly, the Prosecution argued that the disqualification order of 18 months was not manifestly excessive.

On the other hand, the offender argued that his culpability was low in comparison with various precedents, including PP v Lim Pui Kee [2016] SGMC 15 (“Lim Pui Kee”); PP v Han Peck Hoe [2014] SGDC 58 (“Han Peck Hoe”) and PP v Lee-Teh Har Eng (Magistrate’s Appeal No 9099 of 2016) (“Lee-Teh Har Eng”). It was submitted that what the offender did was different from the precedents where the accused collided with other road users who had the right of way due to a failure to keep a proper lookout, where the accused made illegal U-turns, and where the accused failed to conform to traffic light signals. In contrast, the offender had slowed down after the road hump, checked for any oncoming vehicles and the victim...