Public Prosecutor v Shahi Neetish Kumar

• Jurisdiction: Singapore
• Judge: Prem Raj Prabakaran
• Judgment Date: 14 February 2019
• Neutral Citation: [2019] SGDC 31
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 920317 of 2017
• Year: 2019
• Published date: 01 May 2019
• Hearing Date: 24 October 2018,05 April 2018,11 July 2018,05 February 2018,11 April 2018,07 November 2018,09 May 2018,16 May 2018,05 October 2018
• Plaintiff Counsel: Gabriel Choong Hefeng (Attorney-General's Chambers)
• Defendant Counsel: Sarbrinder Singh (M/s Sanders Law LLC)
• Citation: [2019] SGDC 31

District Judge Prem Raj Prabakaran: Introduction

The accused is a 34-year-old¹ Indian national. He claimed trial to a charge for driving while under the influence of drink (“drink-driving”). This is an offence under s 67(1)(b) of the Road Traffic Act² (“the RTA”). He was convicted in September 2009 on a similar charge³. This was therefore the second time he was charged with such an offence. Imprisonment is mandatory in the case of a second or subsequent conviction.

At the time of the alleged offence in February 2017, he had been working in Singapore for almost 10 years⁴. He drove a company lorry, bearing license registration number YP 2799K (“the Lorry”)⁵. He also stayed at Ama Keng Hostel (“the Hostel”), a dormitory for foreign workers⁶. The Hostel had been demolished by the time of the trial.

The charge against him read as follows:

…are charged that you, on the 10th day of February 2017, at about 1 am, at 25 Ama Keng Road near Ama Keng Hostel when driving motor lorry YP 2799K, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 77 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.

And further, that you, before the committing of the said offence, that is to say that you, on the 10th day of September 2009 had been convicted at the Subordinate Courts of Singapore, for an offence of Drink Driving under Section 67(1)(b) of the Road Traffic Act, Chapter 276 vide DAC/30653/2009, which conviction has not been set aside, and you shall be punishable under Section 67(1) of Road Traffic Act (Chapter 276, 2004 Rev Ed).

[emphasis added]

This was not the usual case of a driver who was stopped while driving. Here, the accused had parked the Lorry and returned to his room. A breathalyser test was only conducted when police officers went to his room some time later. That said, the accused did not dispute: driving the Lorry back to the Hostel after midnight on 10 February 2017; and the result of the test by the prescribed breath alcohol analyser later that day, that showed not less than 77µg of alcohol in 100ml of his breath.

But, he claimed he only consumed alcohol in his room after he parked the Lorry (ie, he had not driven the Lorry while under the influence of drink)⁷. The Prosecution’s case was that he had driven the Lorry back to the Hostel while under the influence of drink.

I convicted the accused, after reviewing the evidence and the parties’ submissions. I was of the view that he had failed to rebut the assumption in s 71A(1) of the RTA. The assumption therefore applied. It was therefore assumed that “the proportion of alcohol in [his] breath...at the time of the alleged offence [of drink-driving] was not less than [the result of the subsequent breath alcohol analyser test]” (ie, 77µg of alcohol in 100ml of his breath). This was more than double the prescribed limit of 35µg of alcohol in 100ml of breath.

Indeed, I was of the further view – quite apart from the accused’s failure to rebut the assumption – that the evidence showed, beyond reasonable doubt, that he had driven the Lorry to the Hostel while under the influence of drink.

I imposed the following sentence on the accused:

Term of imprisonment	4 weeks
Quantum of fine	$5,000 (in default 25 days’ imprisonment)
Period of disqualification from holding or obtaining a driving licence for all classes of motor vehicles	48 months (with effect from date of release)

An order under s 47F of the RTA was also made. This prohibited him from driving any motor vehicle in Singapore for 48 months (in the event he also held a foreign driving licence).

The accused has since appealed against the conviction and sentence. All aspects of his sentence have been stayed, pending the hearing of his appeals. These are my grounds of decision.

Undisputed facts⁸

The Hostel had two separate entrances a distance apart. The first was only for vehicles, such as lorries (“the Vehicle Entrance”)⁹. The second was only for the workers (“the “Workers’ Entrance”)¹⁰.

The workers stayed in one of three blocks at the Hostel: “Block A”, “Block B”, or “Block C”¹¹. Block B was between Block A and Block C. The accused shared a room on the second storey of Block B with other workers¹².

Alavalagan s/o Marimuthu @ Andrew was a Security Officer at the Hostel. As of February 2017, he had been working at the Hostel for about 7 to 8 months.¹³ He stopped working sometime in April/May 2017 because he was not paid regularly¹⁴.

In the early morning of 10 February 2017, Andrew was stationed at the guard post near the Vehicle Entrance (“the Guard Post”). He was stationed there daily¹⁵. He had started work at 8:00pm on 9 February 2017. He would have ended his shift at 8:00am on 10 February 2017¹⁶. Another Security Officer was stationed at the Workers’ Entrance¹⁷. There was a Closed Circuit Television (“CCTV”) camera at the Worker’s Entrance¹⁸. No footage was retrieved from this CCTV camera. There was, however, no evidence as to whether it was working at the relevant time.

Vehicular access into the Hostel was controlled by a gate at the Vehicle Entrance (“the Gate”)¹⁹. The Gate was in front of the Guard Post. Andrew’s duties at the Guard Post included²⁰: recording the license registration numbers of vehicles entering and leaving the Hostel; and closing the Gate at 12:00am and reopening it at 5:00am.

Andrew had been instructed by the Hostel management that no vehicles were to enter the compound after midnight²¹.

Andrew closed the Gate at 12:00am on 10 February 2017²².

Accused drove Lorry back to Hostel after midnight

That same day, the accused tried to enter the Hostel in the Lorry after midnight²³. He had driven the Lorry²⁴ to the Hostel²⁵ after leaving Blue Stars Dormitory (also a dormitory for foreign workers)²⁶ “sometime past midnight”²⁷.

The accused stopped the Lorry in front of the Gate²⁸. He was alone in the Lorry²⁹. Andrew refused to open the Gate as it was already past midnight³⁰. The accused sounded the horn of the Lorry repeatedly and asked Andrew to open the Gate³¹. Andrew refused. He told the accused he would call the police³².

The accused then reversed the Lorry from the Gate and turned right into Ama Keng Road. He drove along this road, turned right, and parked the Lorry outside the Workers’ Entrance³³. He then returned to his room³⁴.

First Information Report by Security Officer at 1:02am

It turned out that Andrew did in fact call the police. He did so at 1:02am that same day, and reported that the accused³⁵:

… IS DRUNK AND REFUSES TO LEAVE. HE IS STILL OUTSIDE THE DORMITORY.

This report led to Staff Sergeant Ahmad Bazly bin Alias (“Bazly”) and his partner³⁶ being dispatched to the Hostel. They arrived at about 1:20am³⁷. They first spoke to Andrew. They went to the accused’s room a while later.

Bazly’s interview with accused (1:38am – 1:50am)

At about 1:38am³⁸, Bazly woke the accused (who was sleeping in the room) and spoke to him. His conversation with the accused was recorded by his body-worn camera (“the BWC”)³⁹. The footage lasted about 12 minutes⁴⁰. The accused answered Bazly’s questions voluntarily⁴¹. The key aspects of their conversation appear at Annex A to these grounds. In essence, the footage recorded the following (stated chronologically): When Bazly asked the accused if he had drunk, the accused denied and stated “[p]reviously I drink”. In response to Bazly’s subsequent statement that “[j]ust now you got drink”, the accused denied and repeated “[p]reviously I drink”. The accused then clarified that “[p]reviously” meant “2 hours before” when Bazly asked him “Previously when”⁴². When Bazly responded that this meant that the accused had indeed drunk, the accused repeated “2 hours before”⁴³. Bazly then asked the accused if he wanted his breath to be tested and if “[j]ust not you got drink or not”. The accused replied “[j]ust now I never drink” and again stated “2 hours before”⁴⁴. When Bazly asked the accused if he had driven after drinking, the accused replied, “I never drive”⁴⁵. Bazly told the accused there was a “camera” and asked him if he had “drink and drive…just now the lorry”. The accused replied “Yah”⁴⁶. When Bazly asked the accused “[h]ow many did you drink”, he replied “2 cans”⁴⁷. He repeated “2 cans” very soon after⁴⁸.

Accused failed preliminary breath test at 1:49am

At about 1:48am, Bazly conducted a preliminary breath test⁴⁹ on the accused using a handheld breathalyser. This test had to be repeated five times, as the accused was not blowing properly into the tester⁵⁰. The accused failed this test on the fifth occasion it was conducted, at about 1:49am⁵¹.

Accused failed breath alcohol analyser test at 5:21am

Bazly arrested the accused at about 2:55am⁵² for drink-driving⁵³. The accused was then driven to the Jurong Police Divisional Headquarters. There, he provided a specimen of his breath for analysis by the prescribed breath alcohol analyser. This test was conducted at about 5:08am. It ended at about 5:21am. The accused’s breath was found to contain not less than 77µg of alcohol in 100ml of his breath⁵⁴. This was more than double the prescribed limit of 35µg of alcohol in 100ml of breath⁵⁵.

More body-worn camera footage

More footage was recorded by the BWC between 1:50am and about 2:17am⁵⁶. The accused and the police officers did not speak during this period.

The battery on the BWC ran out after 2:17am⁵⁷. Bazly did not replace the battery until about 2:41am⁵⁸. No footage was thus recorded between 2:17am and 2:41am. Further footage was recorded thereafter, from about 2:57am to about 2:59am⁵⁹. The accused was in the police car by this time.

Accused’s...