Rafael Voltaire Alzate v Public Prosecutor

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date28 September 2021
Neutral Citation[2021] SGHC 224
CourtHigh Court (Singapore)
Docket NumberMagistrate’s Appeal No 9001 of 2021
Published date02 October 2021
Year2021
Hearing Date27 July 2021
Plaintiff CounselLuke Lee Yoon Tet (Luke Lee & Co)
Defendant CounselChong Yong and Chng Luey Chi (Attorney-General's Chambers)
Subject MatterCriminal Procedure and Sentencing,Sentencing,Benchmark Sentences,Principles
Citation[2021] SGHC 224
Sundaresh Menon CJ: Introduction

After a night of drinking, the appellant, Rafael Voltaire Alzate (“Alzate”), made an aborted attempt to ride his motorcycle out of a basement carpark. Alzate struggled with his motorcycle as he attempted, unsuccessfully, to exit the carpark where he had left his motorcycle, intending to ride home. He fell and was unable to lift his motorcycle. As it turned out, this was fortunate for him because he was in fact intoxicated at that time. He was eventually discovered, charged, convicted and sentenced to a fine and to a disqualification order by a District Judge (the “District Judge”): see Public Prosecutor v Rafael Voltaire Alzate [2021] SGDC 32 (the “Judgment”).

Alzate paid the fine and his principal contention in this appeal was that there were “special reasons” owing to which, a disqualification order should not be imposed on him. Having heard submissions from both parties, I found that there was nothing special in his reasons that would justify displacing the disqualification order. I therefore dismissed the appeal, and now explain the grounds for my decision.

Facts

Alzate is a 44-year old Singaporean male. He worked as a lecturer at ITE College East from 2009 to 2019 and served as the Head of Enterprise for its Enterprise Development Centre. On 11 June 2020, Alzate met one of his former students from ITE College East, in order to counsel him on the management of his business.

His former student appreciated Alzate’s kindness and brought some whiskey as a gesture of gratitude. They started drinking at about 9 pm and stopped at about 1 am on 12 June 2020. Alzate apparently imbibed about three or four glasses of whiskey.

Alzate had ridden his motorcycle to ITE College East for the meeting at about 5pm and parked it at the basement carpark. After the meeting, he attempted to ride his motorcycle home. As the District Judge put it, this was a “poor decision on his part”: Judgment at [5]. In his state of intoxication, he managed to start his motorcycle and to ride it a short distance within the carpark but he failed to reach the exit. The CCTV footage showed that he lost his balance and fell to the ground together with his motorcycle; he was then unable to lift his motorcycle up and so could not proceed.

When the police arrived at the scene at about 1.28am on 12 June 2020, the officer noted that Alzate “reeked strongly of alcohol”. The officer administered a preliminary breath test which Alzate failed, and he was then arrested and escorted to the station for a Breath Analyzing Device (“BAD”) test. The BAD test was conducted that morning at about 3.31am; it revealed that Alzate’s breath contained 62 microgrammes of alcohol in every 100 millilitres of breath.

Alzate was charged for drink driving under s 67(1)(b) read with s 67(2)(a) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”), as follows:

You are charged that you, on 12 June 2020, at about 1.28 a.m., along the carpark of ‘ITE East College’ off Simei Avenue, Singapore, whilst riding motorcycle FBN84K, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 62 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 under Section 67(1)(b) and punishable under Section 67(1) read with Section 67(2)(a) of the Road Traffic Act (Cap 276, 2004 Rev Ed).

[emphasis in original]

He pleaded guilty to the charge and the District Judge sentenced him to a fine of $4,000 and a disqualification period of 30 months. Dissatisfied with the imposition of the disqualification order, Alzate filed a notice of appeal on the same day. Alzate paid the fine and the District Judge granted a stay of execution on the disqualification order pending the outcome of the appeal.

The District Judge’s decision

Before the District Judge, the Prosecution had sought the imposition of a fine of $4,000 and a disqualification from holding or obtaining all classes of driving license (“DQAC”) for a period of 30 months, relying on Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 (“Edwin Suse”): Judgment at [18].

The Defence took no issue with the proposed fine: Judgment at [22]. It submitted, however, that the court should exercise its discretion not to impose any disqualification prescribed under s 67(1)(a) of the RTA for the following reasons (Judgment at [25]–[33]): Alzate’s personal circumstances: he had been acting in an altruistic endeavour at the time by guiding his former student in his business even though he was no longer with ITE College East. There were special reasons in this case: Alzate was, in fact, acting responsibly by waiting next to his fallen motorcycle. He had only ridden a short distance of approximately 52.9m within the carpark, at which point he realised that he should not continue to ride his motorcycle; After he lost his balance and fell with the motorcycle, he attempted to seek help to lift his motorcycle but there was no one else in the carpark; He had exited the carpark on foot to seek help but to no avail. He could not abandon the motorcycle as it would have caused an obstruction, and it could also have been a danger to others because of the spillage of fuel. Alzate’s act had not endangered anyone since nobody else had been at the carpark at the material time. Alzate made the conscious decision not to ride out from the carpark and onto the road. He, in fact, had no intention to ride home once he realised that he was in no condition to do so.

The Defence also relied on a number of cases, namely: (a) Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 (“Toh Yong Soon”) at [5]; (b) Prathib s/o M Balan v Public Prosecutor [2018] 3 SLR 1066 (“Prathib”) at [11]; (c) Muhammad Faizal Bin Rahim v Public Prosecutor [2012] 1 SLR 116 (“Muhammad Faizal”) at [42]; (d) Coombs v Kehoe [1972] 1 WLR 797 (“Coombs”) and (e) Chatters v Burke [1986] 1 WLR 1321 (“Chatters”). When questioned by the District Judge as to their relevance, however, the Defence accepted that these decisions were not applicable to the present case or otherwise of assistance.

The District Judge nonetheless considered the cases and observed that, as stated in Muhammad Faizal, “special reasons” should be narrowly interpreted, so that it was only reasons connected with the offence and not with the offender that should be considered: Judgment at [51]. Toh Yong Soon, Prathib and Coombs were of no assistance to the Defence because no special reasons were found in any of those cases: Judgment at [52]–[54]. As for Chatters, it was not binding and could, in any event, also be distinguished on the facts because there was an urgent need for the accused person in that case to drive a short distance: Judgment at [54]–[57].

The District Judge also had regard to three other cases, namely: (a) Roland Joseph George John v Public Prosecutor [1995] SGHC 245 (“Roland Joseph”); (b) Sivakumar s/o Rajoo v Public Prosecutor [2002] SGHC 28 (“Sivakumar”); and (c) Cheong Wai Keong v Public Prosecutor [2005] SGHC 126 (“Cheong Wai Keong”). In particular, the District Judge noted that in Cheong Wai Keong, Yong Pung How CJ had pointed out that the English cases such as Coombs and Chatters were not helpful in guiding the approach that we should take. In those cases, regard had been had to the distance travelled and to whether there was other traffic at the time, in coming to a decision as to whether or not the prescribed period of disqualification should be imposed or could be reduced: Judgment at [65]. Yong CJ considered that this would be difficult to apply and instead considered that a simple rule would be more workable and thus preferable; that simple rule being that a person who is convicted of drink driving should presumptively be disqualified. The courts would otherwise find it an impossible task to consider the significance of various distances in deciding whether to dispense with or reduce the period of disqualification. The presumptive rule could be departed from where “special reasons” exist, but it would be for the accused person to establish this and the relative shortness of the distance travelled would not in itself typically constitute a “special reason”: Judgment at [66].

Ultimately, the District Judge concluded that there were no special reasons that justified not imposing the prescribed disqualification order in this case. This was because (Judgment at [69]–[75]): Alzate had, of his own volition, consumed a considerable amount of alcohol, and there was no justification at all for him to attempt to ride his motorcycle. The fact that he had only driven for a short distance within the carpark did not constitute a special reason, as was held in Cheong Wai Keong. The salient fact is that Alzate did attempt to ride home and the main reason he did not get very far was because he was too drunk and had lost his balance as a result. His professed intention to abandon the plan to ride home was irrelevant. Furthermore, it was untenable for Alzate to suggest that he had changed his mind about riding home, when in fact he was not able to do so. The contention that any potential harm was low at that time of the morning could not possibly be a special reason. The fact that Alzate may have been acting altruistically on a mission to help a former student also could not amount to special reason.

In respect of the sentence to be imposed, the Prosecution submitted (and the District Judge agreed) that the Edwin Suse framework for drink driving where no other damage or injury is caused should be modified in view of the 2019 amendments to the the RTA. Relying on the Prosecution’s submissions, the District Judge arrived at a revised framework as follows (Judgment at [77]):

Applying that framework, the District Judge found that Alzate’s...

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