Public Prosecutor v Tang Kok Wah

CourtDistrict Court (Singapore)
JudgeSalina Bte Ishak
Judgment Date28 January 2010
Neutral Citation[2010] SGDC 29
Citation[2010] SGDC 29
Publication Date11 March 2010
Plaintiff CounselDPP Ang Feng Qian & Inspector K Rasiah
Defendant CounselS K Kumar of S K Kumar & Associates

28 January 2010

District Judge Salina Ishak:

The Accused person was convicted after a trial before me on a charge of drink driving. The charge against the Accused is as follows:

DAC 006400/2008 (“Exhibit C1”)

You,
Tang Kok Wah, male/37 years old
NRIC No: S7100942D(D.O.B. 04/01/1971)

are charged that you, on 16th day of January 2008, at about 3:14 am, along Outram Road, Singapore, when driving motor car SGS 8091B, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 46 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.

He was sentenced to fine of $3,000 in default 15 days’ imprisonment and disqualified from driving for all classes for 2 years.

2. Dissatisfied with my decision, the Accused lodged a Notice of Appeal against his conviction and sentence on the same day i.e. 9 November 2009. The Accused has paid the fine for DAC 006400/2008. Pursuant to his Counsel’s application for a stay of the commencement of the order of disqualification under Section 42(4) Road Traffic Act, I ordered that the disqualification order be stayed pending the hearing of his appeal.

4. The issue before me in the present case was whether there had been any procedural irregularity in the manner the Accused had been asked to provide his breath specimens for the Breath Evidential Analyser(“BEA”) test which amounted to a valid defence for an offence of drink driving.

5. I now set out the evidence before me and give detailed reasons for my decision.

The Prosecution’s Case

PW 1 – Chew Beng Hock

6. The first witness for the prosecution was Station Inspector Chew Beng Hock(“PW1”), a Breath Evidential Test Operator who is attached to the Charge Office, Traffic Police Department. He gave evidence that on 16 January 2008 at approximately 5.03 a.m., he conducted a Breath Evidential Analyser(“BEA”) test one Tang Kok Wah. He identified the Accused as the said person.

7. Prior to the test, the Charge Office had referred the Accused to him at 4.15 a.m. PW1 testified that he explained to him and warned him the consequences of the failure and refusing to provide a breath specimen in English. He also explained to him the way to provide a breath specimen for the BEA test and that the Accused had complied with his instructions.

BEA Machine Number 80-01699 – the first machine

8. PW1 first proceeded to test him using the BEA machine number 80-01699. The Accused complied with his instruction and proceeded to take the test. In the course of the test, PW1 noted a technical problem in that the machine did not produce the double beep sound when the Accused provided a breath specimen until the white cursor was at the end of the display bar.

9. He testified that normally when a person blows and when it reaches the double beep, the machine would accept the result. After the double beep, the test would be considered as successful and the machine would show the BEA reading and proceed to print out the results. In the present case, PW1 further testified that there was no test result print-out. As such, PW1 gave evidence that he suspected that the first BEA machine had a technical problem and was faulty. PW1 further gave evidence that he decided to try the test the Accused using another BEA machine numbered as 80-01698.

BEA Machine Number 80-01698 the second machine

10. PW1 testified that the Accused complied with his instructions and the test was conducted on the second BEA machine. The test was successful and the machine produced a print-out. The copy of the print-out or BEA test result slip was admitted and marked as “Exhibit P1”. PW1 further testified that the test was completed at 0504 hours and the reading was 46 microgrammes of alcohol for every 100 millilitres of breath. PW1 gave evidence that the signature on top portion of the BEA result slip was the Accused signature while the one below was his signature. A copy of the BEA result slip was given to the Accused.

11. PW1 gave evidence that later that morning, he reported the matter to the technician, Mr Victor Khaw (“PW4”’). PW1 reiterated that he had used the second BEA machine as he suspected that the first machine was faulty as there were no results. He also gave evidence that he had not encountered any problems with the second machine on the day in question.

12. During his cross-examination, PW1 testified that the serial number for the second BEA machine was 80-01698. When he was asked when the first machine 80-01699 was last used, he testified that he did not have the station diary but indicated that he believed that it was used earlier. When asked by Counsel what was wrong with the first machine, PW1 responded that he was not the expert and that he had suspected and reported that the machine was faulty. When he was further asked if he was in a position to say what was wrong with the machine, he maintained that he was not an expert and testified that there was no result when the Accused tried to blow into the machine. When it was suggested to him that the first BEA machine was not faulty, PW1 responded that there was no test result when the Accused attempted to blow into the machine and as such suspected that there was a technical problem.

13. During his cross-examination when it was suggested to PW1 that even before the Accused was asked to blow into the machine, he would have to calibrate the machine, PW1 responded that the machine calibrates itself by doing a self-test. PW1 testified in respect of the first machine, before he conducted the test, a self-test was done and it had showed that it was in order. Nevertheless, when there was no successful result after the Accused’s BEA test, PW1 suspected that the machine was not in order. When it was suggested to him that a BEA operator would know whether a machine is in order or not even before a test is conducted, PW1 replied that he was not in a position to explain and as it was a machine, he would not know when it was going to give a technical problem. He further testified that as he suspected that the first machine had technical problems. He used another machine as it was fair to the Accused.

14. When Counsel highlighted that PW1 would have looked at the machine, ensured that it had calibrated itself such that it was in a position for the ‘taker of the test’ to blow into it, PW1 responded that the Accused had cooperated fully and had blown into the machine but there was no result. As such, they were unable to proceed with the test as there was no reading. PW1 then used the second BEA machine and the result of the test was 46 microgrammes. He added that they did not proceed using the result from the first machine as there was no result to proceed on the charge.

15. When Counsel highlighted that he was instructed by the Accused that he had blown into the first machine not once but twice, PW1 responded that he was unable to recall the number of times the Accused had blown into the first machine but testified that they would allow a few attempts within a period of two minutes. When Counsel put to PW1 that Accused had instructed that when he blew into the machine, PW1 had told him it was alright and told him to wait aside, PW1 disagreed.

16. During his cross-examination, PW1 confirmed that he had been trained to conduct the BEA test. He had attended a 3-day course and he started as a qualified BEA operator since 1997. When it was suggested once again that as a qualified BEA operator, he would be able to tell even before starting the test whether the machine was in order or not because he ‘would have to check the calibrator and make sure that there is no impurities or other people’s breath presenting the machine’, PW1 responded for the first BEA machine before he had conducted the test, the machine self-calibration showed that it was in order. It was after the test was conducted that he encountered a technical problem that he was unable to explain. When asked further if there will be a print out to show that the calibration was in order, PW1 replied in the negative. He further testified that the result of the self-calibration and the results are found together in the print-out. In the present case, there was no print-out for the first machine.

17. When PW1 was asked if he did anything to obtain the print-out from the first machine, he replied that the test was completed without any results and as such the test was not successful because there were no results. He suspected that there was a technical problem with the machine when there was no print-out. When it was suggested to PW1 that according to there Accused there was a print-out from the first machine, PW1 responded that there was no print-out and that was why he decided to use the second machine. When it was put to PW1 that there was a print-out from the first machine after the Accused had blown into it as directed, he disagreed. When PW1 was asked if Mr Victor Khaw i.e. PW4 had put up a report to confirm that there was no print-out from the first machine, PW1 responded that he did not know.

18. During his cross-examination, when asked if a BEA operator would have to carry out 3 or 4 functions before a person is asked to blow into it namely firstly to check to see if the machine is working, secondly to see if the machine calibrates itself, thirdly to see whether the air in the machine is cleared or not and fourthly to see whether the ‘machine can blow and purge it’, PW1 responded that this was the normal practice when one starts using the BEA machine. It will do a self-test with all the functions. As an operator, PW1 would explain to the subject that they are to provide the breath specimen with one long blow into the machine. That is when the machine is ready. In the present case, after the test there was no result and so he decided to use...

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