Public Prosecutor v Sinnathamby s/o Arumoh

• Jurisdiction: Singapore
• Judge: Sharmila Sripathy-Shanaz
• Judgment Date: 03 November 2022
• Neutral Citation: [2022] SGDC 257
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. 904223 of 2020
• Published date: 10 November 2022
• Year: 2022
• Hearing Date: 28 July 2021,29 July 2021,13 July 2022,25 July 2022,26 July 2022,14 October 2022,03 November 2022
• Plaintiff Counsel: Sean Teh and Joseph Gwee (Attorney-General's Chambers)
• Defendant Counsel: Amarjit Singh s/o Hari Singh (Amarjit Sidhu Law Corporation) (till 11 November 2021),Accused in person (from 11 November 2021)
• Subject Matter: Criminal Law,Offences,Road Traffic Act,Drink Driving,Driver Sleeping in Stationary Vehicle,Not Driving at Time of Arrest,Elements,Section 71A(1) Assumption,Section 71A(2) Requirements,Burden of Proof
• Citation: [2022] SGDC 257

District Judge Sharmila Sripathy-Shanaz: Introduction

In the late hours of 4 February 2020, the Accused was found by the police while sleeping in a stationary lorry parked along a service road located near his place of residence. A breath evidential analyser test (“BEA”) revealed that his breath contained 44 microgrammes of alcohol in 100 millilitres of breath, which exceeded the prescribed limit.

The Accused has contested the charge of driving whilst under the influence of alcohol pursuant to s 67(1)(b) of the Road Traffic Act (“RTA”), contending that the excess alcohol in his breath was attributable to several cans of beer that he had consumed with a friend after he had parked and ceased to drive his lorry.

Having heard the evidence and considered the submissions of the parties, this is my judgment.

The Applicable Legal Principles The elements of an offence under s 67(1)(b)

An offence under s 67(1)(b) is established by the single fact that the proportion of alcohol in the offender’s body exceeds the prescribed limit in s 72(1) of the RTA: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [11], Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 at [34].

In the context of the present case, the key elements of the offence are: that the Accused had driven the lorry sometime between 9.00 p.m. and 10.00 p.m. on 4 February 2020 from Jalan Buroh to the service road at Block 445B Fernvale Road (“the service road”); and that while driving the lorry, the proportion of alcohol in his breath exceeded the prescribed limit of 35 microgrammes in 100 millilitres of breath.¹

The assumption under s 71A(1) RTA

To prove the second element, the Prosecution can rely on the assumption in s 71A(1) which provides that the proportion of alcohol in an offender’s breath at the time of the alleged offence shall be assumed to be not less than that in the specimen of breath provided by him.

As a threshold requirement, and before the s 71A(1) assumption can apply, it must first be shown that the offender had driven at the time of the alleged offence. Once the preliminary act has been proved, the assumption applies even if the offender was not driving at the time of his arrest. In other words, the offence does not abate just because the drink driver had ceased driving at the time of his arrest: Public Prosecutor v Rangasamy Subramaniam [2011] 1 SLR 767 (“Rangasamy”) at [35], [41] – [42], [48], [53], [59] and [61].

The requirements to displace the assumption (s 71A(2) RTA)

Pursuant to s 71A(2), the assumption will be displaced if the offender proves, on a balance of probabilities, that: he consumed alcohol after he had ceased to drive and before he provided the specimen (“the first limb”, commonly known as the defence of post-incident drinking); and had he not done so, the proportion of alcohol in his breath would not have exceeded the prescribed limit (“the second limb”). If either limb is not satisfied, the assumption would operate and the offender would be guilty of drink driving.

Citing DPP v Williams [1989] Crim LR 382, the Court of Appeal in Rangasamy discussed how the assumption in s 71A(1) would operate (at [57]):

In Williams, police officers found a car parked near an address where they found the respondent at around 4am. The respondent admitted that he had driven the car and said his last drink had been some five hours earlier. The respondent failed the breath test that was administered and was charged for drink-driving. The respondent submitted that by his imprecise admission of having driven that night he could have been indicating that he had driven before he drank and as such the Prosecution had not proven that at the time of driving the respondent was in excess of the prescribed limit. This was rejected by the High Court who held that the respondent bore the burden of displacing the assumption that his breath/alcohol proportion had exceeded the statutory limit. Once he had admitted driving and once the specimen he gave showed that he was over the prescribed limit at the time of sampling, [the UK equivalent to s 71A of the RTA] operated to transfer the burden to the respondent. Since that burden had not been discharged, the assumption applied and the respondent was guilty of drink driving.

(emphasis added)

In assessing the burden placed on an offender seeking to displace the assumption, regard may be had to R v Drummond [2002] EWCA Crim 527 at [31],² where the English Court of Appeal distilled the type of scientific evidence an offender can be expected to adduce to prove the second limb of s 71A(2):

[T]he relevant scientific evidence to set against the result ascertained from the specimen of breath or blood is all within the knowledge (or means of access) of the accused rather than the Crown. This evidence will include: (1) the amount which the accused had to drink after the accident; (2) what is called [the accused’s] “blood-breath ratio”, important for calculating the rate at which his body absorbs alcohol; (3) the rate at which [the accused’s] body eliminates alcohol over time; (4) the accused’s body weight.

The burden on the offender is an onerous one and while the Court has a discretion to find the assumption discharged without expert evidence, this is only in rare cases where a layman could reliably and confidently say that the alcohol consumed after the offender had stopped driving, explained the excess alcohol found in his breath. Where the latter is not obvious to a layman, it remains necessary for the offender to call expert evidence in order to discharge the onus of proof which rests upon him: DPP v Dukolli [2009] EWHC 3097, Pugsley v Hunter [1973] RTR 284. Such evidence would enable the Court to ascertain if the BEA test result is consistent with the offender’s account of post-incident drinking.

The Key Issues for Determination

In the present case, the Accused does not dispute the first element of the charge, viz. that he had driven his lorry sometime between 9.00 p.m. and 10.00 p.m. on 4 February 2020 from Jalan Buroh to the service road. He also does not dispute the BEA test result disclosing that the proportion of alcohol in his breath at 2.23 a.m. on 5 February 2020 was 44 microgrammes per 100 millilitres of breath and thus exceeded the prescribed limit.

Therefore, the second element, viz. whether the proportion of alcohol in the Accused’s breath exceeded the prescribed limit at the time that he drove the lorry, is the primary issue for determination in this case.

Allied to this, and given the Prosecution’s reliance on the assumption in s 71A(1) to prove the second element,³ are the secondary issues of: whether, as asserted by the Accused, he had consumed alcohol after he had ceased to drive and before he provided the specimen; and if so, whether the proportion of alcohol in his breath would not have exceeded the prescribed limit but for this consumption.

For the Accused’s benefit since he is a litigant-in-person, I also address (albeit briefly since the law on this issue is clear) his contention that he is not guilty of the offence as he had not been driving and was merely resting in his vehicle at the time of his arrest.⁴

I examine these issues in due course, but turn first, to summarize the evidence led by the respective parties.

The Prosecution’s Case

The facts, according to the various Prosecution witnesses, are as follows.

The first information report

At about 10.54 p.m. on 4 February 2020, the police received a telephone call from Mr Ngo Kwang Hock (“Mr Ngo”) who reported a possible drunk driver.⁵ Mr Ngo had sought police assistance after hearing three long “dragging” horns from a lorry parked along the service road, over the span of about 90 minutes; from about 9.00 p.m. to sometime after 10.00 p.m.⁶ After the second horn, Mr Ngo observed someone lying across the seats in the lorry with his head resting on the passenger seat and his leg near the steering wheel.⁷

Investigations at the scene

Sergeant Md Ridwan Bin Abdullah (“Sgt Ridwan”) and Senior Staff Sergeant Noreffendi Bin Othman (“SSSgt Noreffendi”) were despatched to the scene and arrived at about 11.24 p.m.⁸ to find the Accused asleep, slumped over the steering wheel⁹ in the driver’s seat of a stationary lorry bearing registration number YP 8295H (“the lorry”). The driver’s door was ajar, the engine was not running, the headlights were switched off and the hazard lights were on.¹⁰ The officers took photographs of the scene¹¹ before approaching the Accused. After several unsuccessful attempts at rousing him by shaking his shoulder, the Accused awoke and, in response to the officers’ preliminary queries, stated that he had been resting in his lorry as he resided in the vicinity. He was observed to be drowsy with slurred speech and had “alcoholic breath”. When asked if he had consumed any alcohol, the Accused informed the officers that he had drunk a can of beer at his workplace in Jalan Buroh.¹² He also informed the officers that he had neither alighted from the lorry nor consumed any alcohol after parking at the service road.¹³

Based on their observations of the Accused, the officers decided to conduct a formal interview. Guided by Exhibit P2 (also referred to interchangeably in the notes of evidence as the proforma), a series of questions were posed to the Accused and his responses duly recorded.¹⁴ SSSgt Noreffendi testified that he penned down the exact answer given to each question. When the Accused could not provide an answer, the question would be left blank.¹⁵

For ease of reference, the salient parts of Exhibit P2 are reproduced. In the proforma, the Accused stated that he had consumed one can of beer and had thereafter driven from his workplace at Jalan Buroh to the incident location:

He denied consuming alcoholic beverages after stopping his vehicle:

As the Accused was unable to provide...