Public Prosecutor v Soyed Foysal Ahamed Pavel

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 21 May 2018
• Neutral Citation: [2018] SGDC 131
• Court: District Court (Singapore)
• Hearing Date: 21 May 2018
• Docket Number: DAC 937042-3 of 2016, MA-9155-2018-01
• Plaintiff Counsel: Deputy Public Prosecutor Lee Zu Zhao
• Defendant Counsel: Mr Wee Hong Shern
• Subject Matter: Criminal Law,Offences,Driving Whilst Under Disqualification
• Published date: 05 December 2018

District Judge Shawn Ho: INTRODUCTION

Disqualification orders meld various sentencing objectives,¹ the most important of which are to: Protect Society, because disqualification orders are meant to prevent future harm that the offender may cause to the public,² and to Deter, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

Driving whilst under disqualification is grossly irresponsible – it is about as grave an offence as a motorist can commit.³ There are three interlacing reasons for punishing these offenders strictly.

The first reason is the offender’s deliberate disregard of the court order.⁴ Bringing this to sharper focus is the danger posed to the public. Not only does the offender compromise the safety of our roads, luckless victims of traffic accidents are at risk of being without compensation because the offender would not be covered by insurance.⁵

In the present case, the Accused pleaded guilty to 2 charges: (i) driving whilst under disqualification under s 43(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”) and (ii) using a vehicle without third-party motor insurance under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed). The Statement of Facts can be found at Annex A.

In keeping with the gravity of s 43(4) of the RTA, offenders who drive whilst under disqualification must expect an imprisonment term of four to eight weeks and in most cases, a disqualification period that is at least twice the original disqualification period.⁶

In this regard, the Prosecution sought a sentence of at least six weeks’ imprisonment and a disqualification period of at least one year for s 43(4) of the RTA.

As against this, the Defence urged the Court to impose a fine or a one-day custodial sentence. To this end, the Defence referred to three cases, of which two were unreported – Public Prosecutor v Giuseppe De Vito (MA 282/2010) and Catherine Peter v Public Prosecutor (MA 25/2010).⁷

With respect, these unreported cases were of limited assistance because in unreported cases, there are no written grounds of decision to explain the reasons behind imposing a certain sentence: Muhammad Khalis bin Ramlee v Public Prosecutor [2018] SGHC 116 at [64]. Furthermore, the High Court in Giuseppe De Vito and Catherine Peter made it clear that these two cases were not to be used as precedents.⁸

In any event, any similarities were more apparent than real with regard to Giuseppe De Vito. Here, the Accused did not travel a short distance. As a matter of fact, he had driven from Middle Road to Upper Serangoon Road before he was stopped at a road block.⁹ He also did not suffer from any mental disorder.¹⁰

That said, according to Dr Tommy Tan, the Accused was overwhelmed by mixed emotions at the material time,¹¹ and he had forgotten to fetch his friend from the airport.¹² I also noted that the Accused had engaged Mr Sagir to drive that day.¹³ While I gave due weight to these points, they were outweighed by other sentencing considerations, such as the protection of society and deterrence.

Furthermore, there was no emergency situation requiring the Accused to drive.¹⁴ In Giuseppe De Vito, the offender’s wife was in the early stages of a difficult pregnancy (high risk of miscarriage) and had suddenly felt very unwell and bled from her vagina.¹⁵

For Catherine Peter, the High Court made it clear that this was “a one-off case”. Based on the notes of evidence, the High Court had alluded to the offender’s “profile” but did not elaborate.¹⁶ The Accused’s profile did not match that of the offender in Catherine Peter, nor was he in a similar situation in relation to his children.¹⁷

We turn now to the third case of Aquaro Massimo. The High Court reduced the custodial sentence based on two main reasons: (a) the offender had used a motorcycle (as opposed to a motor car or heavy vehicle) and (b) there were sympathetic considerations.¹⁸

In Aquaro Massimo, the offender’s 14-year old daughter struggled to adjust to Singapore, and he planned to send her back to Italy. Having locked herself in the bathroom, she was crying incessantly and getting into a hysterical fit.¹⁹ The offender had received several telephone calls from his wife, and he spent an hour in vain to catch a taxi home. Against this backdrop, he rode a motorcycle towards home.

In contrast, the Accused had used a motor car and not a motorcycle.²⁰ After receiving a phone call from his wife at 2 a.m.,²¹ the Accused had remained at Middle Road and “watched football until 3.45 a.m. before deciding to leave”.²² In his long statement recorded by the Police, the Accused failed to mention his son’s health.²³ This sits uncomfortably with the Accused hitching his mitigation plea to the wagon of his son’s health, including saying that he vomited and annexing a medical certificate.²⁴ In fact, the Defence conceded that the Accused had “no critical need to drive the vehicle i.e. (there was) no immediate or life threatening emergency”.²⁵

In sum, there was no emergency situation requiring the Accused to drive.²⁶ Instead, he had driven home because he was “very tired at that time”.²⁷

Here, the length of time from the start or end of the original disqualification order was a neutral factor in sentencing. The fact that the Accused had driven at about the mid-point of his 6-month disqualification period was neither aggravating nor mitigating.

At this juncture, I pause to note that the Accused’s driving record was not unblemished. In addition to his conviction for using a mobile phone whilst driving under s 65B of the RTA, he had 16 driving-related compounded offences. I was mindful that the composition fines were mostly for parking offences that were somewhat dated. I placed little weight on his driving record.

I gave due weight to the Accused’s cooperation with the authorities and plea of guilt.

All things considered, including his mitigation plea, an appropriate sentence would be the lower end of the usual tariff of four to eight weeks’ imprisonment for s 43(4) of the RTA. Accordingly, I sentenced the Accused as follows:

DAC NO.	SENTENCE
DAC 937042/2016 s 43(4) RTA	4 Weeks’ Imprisonment & Disqualification of 12 months for all vehicle classes with effect from the date of release
DAC 937043/2016 s 3(1) MV(TPRC)A28	$500 i/d 2 days’ imprisonment & Disqualification of 12 months for all vehicle classes with effect from the date of conviction

The Defence has appealed against the custodial sentence. The Accused is on bail pending appeal. His custodial sentence and driving disqualification orders have been stayed.

A summary of my grounds of decision can be found below at [66]. I now set out my detailed reasons. (See also Wilkinson’s Road Traffic Offences, Sweet & Maxwell (28th Ed, 2017, General Editor: Kevin McCormac) at [11-71]-[11-95])

LEGISLATIVE INTENT FOR ROAD TRAFFIC (AMENDMENT) ACT 1993

The punishment set out in s 43(4) of the RTA for driving whilst under disqualification was enhanced in 1993, via the Road Traffic (Amendment) Act 1993 (Act 3 of 1993), to a fine of up to $10,000 and/or imprisonment of up to three years.

As the Minister for Home Affairs, Professor S. Jayakumar, explained in moving the second reading of the Road Traffic (Amendment) Bill 1992 (Bill 37 of 1992), which proposed this enhanced punishment [Singapore Parliamentary Debates, Official Report (18 January 1993) vol. 60 at col 426-428]:

… There have been a number of cases ... where motorists who are disqualified by the courts from driving for committing a serious offence, have deliberately ignored the court’s prohibition and continued to drive. ...

According to the Traffic Police, there are more [of] such offenders, but it is not easy to catch them. The Traffic Police can detect them only when they are stopped for some traffic offence or when they are involved in an accident.

I hope Members will agree that such a driver is really a menace to all other road users. He is, in fact, a lethal, unguided missile. Moreover, when he causes an accident, the victims will not legally be covered by insurance. ...

We turn next to the sentencing considerations for the present case.

SENTENCING CONSIDERATIONS

Prescribed Punishment . The prescribed punishment for section 43(4) of the Road Traffic Act is: A fine not exceeding $10,000, or Imprisonment not exceeding 3 years, or To both.

The prescribed punishment for section 3 of the Motor Vehicles (Third-Party Risks and Compensation) Act is a fine not exceeding $1,000 or to imprisonment for a term not exceeding 3 months or to both. There is also a mandatory disqualification of at least 12 months unless there are special reasons. (See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: 2017; Binder 3, Chapter XVII: Sentencing) at [3751])

I was mindful that the offence’s statutory maximum sentence signals the gravity in which Parliament views such offences. A sentencing judge ought therefore to take this into account when determining precisely where the offender’s conduct falls within the entire range of punishment devised by Parliament.²⁹

Sentencing Norm . The usual tariff for s 43(4) of the RTA is four to eight weeks’ imprisonment.³⁰ A disqualification period that is at least twice the original disqualification period is imposed in most cases, unless this would be disproportionate in all the circumstances, including by reason of strong mitigating circumstances or a decreased level of culpability.³¹

Sentencing Submissions . The Prosecution sought a sentence of at least 6 weeks’ imprisonment and a disqualification period of at least 1 year.³² The Defence urged the Court to impose a fine or a one-day custodial sentence.³³

Cooperation with the Authorities and Plea of Guilt . I gave due weight to...