Public Prosecutor v Rangasamy Subramaniam

• Jurisdiction: Singapore
• Judge: Salina Bte Ishak
• Judgment Date: 28 January 2009
• Neutral Citation: [2009] SGDC 30
• Court: District Court (Singapore)
• Published date: 10 February 2009
• Citation: [2009] SGDC 30
• Plaintiff Counsel: DPP Ng Cheng Thiam
• Defendant Counsel: S K Kumar of S K Kumar & Associates
• Year: 2009

28 January 2009

District Judge Salina Ishak:

The Charge

1. This is a fairly straightforward case where the main charge relates to the offence of drink driving. The facts are largely undisputed and the only issue before me was a point of law raised by the defence. The Accused Rangasamy Subramanian faced two charges before me, namely a charge of drink driving under Section 67(1)(b) Road Traffic Act (Cap 276) and second charge of stopping and allowing his vehicle to remain at rest on the shoulder of the expressway under Rule 8 Road Traffic (Expressway Traffic) Rules. The charges are as follows:

DAC 051987-2007 (“Exhibit C1”)

1^st CHARGE

You,
Rangasamy Subramaniam, male/55 years old
NRIC NO: S 0887148 E (DOB: 29/12/1951)

are charged that you, on the 3 December 2007 at about 3.54 am, along Pan Island Expressway 14.5 km mark towards Tuas, Singapore, when driving motor car SGG4774D, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 43 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath, and you have thereby committed an offence punishable under Section 67(1)(b) of the Road Traffic Act, Chapter 276.

DAC 051988-2007 (“Exhibit C2”)

2nd CHARGE

You,
Rangasamy Subramaniam, male/55 years old
NRIC NO: S 0887148 E (DOB: 29/12/1951)

are charged that you, on the 3 December 2007 at about 3.54 am, along Pan Island Expressway 14.5 km mark towards Tuas, Singapore, being the driver of motor car SGG4774D did stop and allow the vehicle to remain at rest on the shoulder of the expressway and you have thereby committed an offence under Rule 8 Road Traffic Rules (Expressway Traffic) Rules and punishable under Section 131(2) of the Road Traffic Act chapter 276.

2. The Accused claimed trial to the first charge and indicated that he would plead guilty to the second charge. The main thrust of the Accused’s defence according to Counsel, was the ‘applicability of Section 71A Road Traffic Act’ in respect of the first charge. In the course of the trial, it became clear that the main thrust of the defence was that the first charge was not made out as the prosecution had not adduced evidence of:

i) the Accused’s alcohol level between 2.00 am to 3.54 am and

ii) that the Accused’s alcohol level was above the prescribed limit of 35 mcg in 100 millilitres of breath.

3. The prosecution elected to proceed to trial on both the first and second charges.

The trial

“PW 1” - Eric Hon Men Lip

4. The first witness for the prosecution was Eric Hon Men Lip, presently a Senior Investigator with a loss adjusters firm. Prior to that, from 12 July 1993 to 2 September 2008, he was in the Singapore Police Force for 15 years and his last posting was with the Traffic Police Department as a Station Inspector.

5. PW 1 testified that he had recorded a long statement (“Exhibit P1”) and two caution statements (“Exhibit P2” and “Exhibit P4”) from the Accused on 3 December 2007. Prior to the recording of these statements, PW 1 had obtained the BEA slip (“Exhibit P3”) and the figure of 43 mcg reflected in the caution statement in respect of the first charge“Exhibit P2” was obtained from the said slip. After the recording of these statements, PW 1 had informed the Accused that the Court date will be fixed and instructed the Charge Office personnel to release the Accused on bail. PW 1 testified that he had no further dealings with the Accused after the recording of the statements.

6. PW 1 also confirmed that it was the message in the First Information Report (“Exhibit P5”) made on “03-12-2007 / 03:54:30” which led to the arrest of the Accused as well as the recording of the three statements from him. The text of “Exhibit P5” is as follows:

“>>TUAS 14.5 KM

THERE IS A CAR PARKED ON THE PIE WITH THE DRIVER’S DOOR OPEN AND HE IS PARTIALLY COMING OUT OF THE CAR, IT IS A HYUNDAI AVANTE. AFTER THE OVERHEAD BRIDGE.”

7. During cross-examination, PW 1 testified that he had sight of the arrest report (“Exhibit P6”) prepared by PW 3 Corporal Mohammed Feroz Bin Hussien. He confirmed that in the arrest report, the date, time and place of arrest was stated as 3/12/07 at 4.42 am along PIE at the 14.5 km mark. He further testified the time of offence in the arrest report would be the time the Accused was placed under arrest after the roadside breathalyser test had been administered. PW 1 gave evidence that he had informed the Accused that the time of offence as 3.54 am as he would always base the time of offence on the First Information Report.

8. When asked by the Defence whether the time of 3.54 am in paragraph 3 of “Exhibit P1” was suggested or told to the Accused by PW1, PW 1 testified that it was in response to his specific question that on 3.54 am while he was driving along PIE 14.5 km mark Tuas what had happened. The Accused had responded that he felt sleepy so he drove to the road shoulder in order to take a rest. The Accused had also told him that he could not remember for how long he had slept before he was woken up by the police officer.

Application to amend the first charge

9. After the evidence PW 1 and the admission of the Accused’s three statements, the prosecution made an application to amend the first charge in relation to the time of offence from “3.54 am” to “between 2.00 am to 3.54 am”. Counsel had objected to this application on the basis that the prosecution was interpreting the time of offence as stretching from 2.00 am to 3.54 am. He questioned the availability of the evidence which showed the Accused’s alcohol level from 2.00 am to 3.54 am. He argued that Section 71A(1) Road Traffic Act was meant to apply to a situation where after the road breathalyser test had been conducted and if the person fails. In the present case, from the arrest report, the time of the alleged offence should be 4.42 am.

10. In response, the prosecution submitted that the amendment was based on the factual evidence adduced and that the trial had not reached a stage where the application of Section 71A was required. In Exhibit P1, it states that the Accused had left the coffee shop at 2.00 am. The starting point when he drove the vehicle was 2.00 am and the second point is 3.54 am when the car was found on the road shoulder at the 14.5 km mark. The car could not have reached the location unless someone had driven it. In Exhibit P1, it was stated that the Accused had driven the said vehicle and at 3.54 am, he felt sleepy and had taken a nap.

11. Further, in Exhibit P1, the Accused had admitted that he was tested at the scene and he had failed. He was referred to the Traffic Police Department and a BEA test was administered and the test result showed the level as 43 mcg. Exhibit P3, the BEA slip, indicated the timing of the test as 5.54 am. If the timing of the offence is taken at 5.54 am, the Accused was at the station and was not driving. The prosecution submitted that the test must be extrapolated backwards to the time when he drove the vehicle between 2.00 am and 3.54 am. If we were to go backwards to the time between 2.00 am to 3.54 am, the amount would have been higher and as such the charge had stated an amount not less than 43 mcg. Further, the Accused had admitted that he had consumed a bottle of Tiger beer which is not inconsistent with the results of road side breathalyzer and the BEA test. It was submitted that the Accused had therefore been driving while having a large amount of alcohol in his body and this fell foul of Section 67(1)(b) Road Traffic Act.

12. After hearing the submissions by both the prosecution and the defence, I allowed the prosecution’s application to amend the first charge to reflect the time of offence as “between 2.00 am and 3.54 am” as it was within the provisions of Section 159(1) Criminal Procedure Code (Cap 68) as it gave particulars that as are reasonably sufficient to give the Accused notice of the matter with which he is charged. In my view, from the undisputed evidence adduced by the prosecution including the unchallenged long statement of the Accused (“Exhibit P1”), it was clear that the Accused was not driving his motor car SGG4774D along the Pan Island Expressway 14.5 km mark towards Tuas at 3.54 am as stated in the original charge but during an earlier time period. The amended charge read as follows:

(“Exhibit C1A”)

Amended 1^st CHARGE

You,
Rangasamy Subramaniam, male/55 years old
NRIC NO: S 0887148 E (DOB: 29/12/1951)

are charged that you, on the 3 December 2007 between 2 am and 3.54 am, along Pan Island Expressway 14.5 km mark towards Tuas, Singapore, when driving motor car SGG4774D, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 43 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath, and you have thereby committed an offence punishable under Section 67(1)(b) of the Road Traffic Act, Chapter 276.

Accordingly, the amended charge was read to the Accused and his plea taken. The Accused elected to maintain his plea and the trial proceeded with the next prosecution witness.

“PW 2” – Ng Guan Ling

13. The next witness for the prosecution was PW 2, Senior Staff Sergeant Ng Guan Ling, who had been with the Traffic Police Department for the past 17 years. He testified that he had conducted the BEA test on the Accused on 3 December 2007 at 5.54 am. He confirmed that his name and signature was on Exhibit P3. He gave evidence that prior to the test, they would observe the subject, interview him and warn him of the consequences of failing to provide breath specimen for analysis. He testified that the Accused understood the consequences and did not object to the test being conducted. He did not give any reasons why he could not give his breath specimen.

14. PW 2 gave evidence that after he administered the warning on the Accused, he had given his consent to...