REVISITING RASH DRIVING

AuthorTOH Yung Cheong LLB (Hons) (National University of Singapore); LLM (London); District Judge, Subordinate Courts, Singapore.
Date01 December 2011
Citation(2011) 23 SAcLJ 271
Published date01 December 2011

This article discusses the fault element of rashness in the context of the group of Penal Code offences that deal with the doing of a rash Act. Despite their general application, many cases involving these provisions are related to bad driving. The existing cases will be examined and it will be pointed out that while the definition of rashness as advertent risk-taking had previously been affirmed as the current state of Singapore law, two recent cases involving bad driving suggest that the courts have extended rashness to include inadvertent risk-taking. This article will examine the arguments in support of inadvertent risk-taking as well as the subjectivist objections and suggest that a definition of rashness should include situations where the offender is indifferent to or shows a disregard for the personal safety of others, whether or not he is conscious of the danger his conduct created.

I. Introduction

A. The definition of rashness

1 The doctrine of mens rea suggests that a person should only be convicted of a crime if he possesses a relevant mental state or “guilty mind”. Under the Penal Code,1 there is a group of Penal Code offences that has rashness as an essential ingredient of the offence. These offences are graded according to the consequences that result from the doing of the rash act. At one end, there is the doing of a rash act that endangers human life or the personal safety of others under s 336(a) and at the other end there is the doing of a rash act that causes death under s 304A(a). In between, there are intermediate offences that deal with the causing of simple hurt and grievous hurt under s 337(a) and s 338(a) respectively. In addition, the question of whether an offender is rash or merely negligent is also relevant to the sentencing of offenders for

offences such as dangerous driving causing death under s 66(1) of the Road Traffic Act.2 This article discusses the meaning of rashness with particular reference to cases of bad driving and to two recent decisions of the High Court.

2 The meaning of rashness was explained by Rubin JC in the case of PP v Teo Poh Leng3 (“Teo Poh Leng”). In Teo Poh Leng, the driver lost control of her vehicle which mounted the pavement and collided with three persons. Two of the three persons died and the driver was charged with causing death by doing a negligent act under s 304A of the Penal Code.4 The driver was fined and disqualified from driving and the Public Prosecutor appealed against the sentence. Rubin JC noted that the driver was only alleged to have been negligent and sought to explain the distinction between rashness and negligence by citing three Indian cases. In Nidamarti Nagabhushanam,5 Holloway J stated:

Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.

3 In Empress of India v Idu Beg,6 Straight J said:

Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.

4 Finally, in Bhalchandra Waman Pathe v The State of Maharashtra,7 it was held that:

A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness.

5 The common element in these three definitions is that rashness is distinct from intention and desire and has at it roots the requirement of knowledge. This is evidenced by the phrases “acting with the consciousness” and “hazarding … with the knowledge”. From these definitions, it also appears that rashness requires that the actor knows that he is doing an act that “may” result in consequences which are “mischievous” and “illegal”.

6 This author agrees with Victor Ramraj‘s conclusion that rashness in this advertent form has previously been treated by Singapore law in a manner consistent with the English concept of recklessness which is “conscious risk-taking on the part of the accused”.8 For the purposes of this article, this core definition of rashness will be referred to as “advertent risk-taking”.

7 There are two riders to this assertion though it does not affect the central premise that rashness according to Teo Poh Leng9 appears to involve consciousness of the possibility of illegal and mischievous consequences:

(a) Victor Ramraj points out a “curious anomaly” in Teo Poh Leng which appears to label an actor as rash despite the fact that there is no longer a subjective awareness of an unreasonable risk.10

(b) Stanley Yeo and Neil Morgan point out that Singapore and Malaysian cases suggest that rashness is less culpable than recklessness as the latter involves a “callous disregard for the safety of other road users”.11 On the other hand, rashness is less blameworthy as it does not involve a “callous disregard”. Furthermore, the driver may even have acted in the hope that the consequences will not materialise.

8 Notwithstanding these riders, both sets of authors agree with the proposition that rashness and recklessness in the Singapore context

involve knowledge of the possibility of the consequence occurring.12 In a later part of this article, it will be pointed out that the High Court has in a recent case explained that rashness “implies a disregard to the possibility of injury or death”.13 As such, the difference between recklessness and rashness (if any) appears to boil down to the difference between a “callous disregard” and mere “disregard”. As the focus of this article is on the consciousness (or lack thereof) of risk, this suggested difference is not significant and recklessness and rashness are treated here as interchangeable terms.

9 Recently, the High Court had the opportunity to consider the meaning of rashness in two separate cases, Lim Hong Eng v PP14 (“Lim Hong Eng”) and Sankar Jayakumar v PP15 (“Sankar Jayakumar”). Both cases involved drivers who were charged with causing grievous hurt by the doing of a rash act under s 338 of the Penal Code16 and dangerous driving causing death under s 66(1) of the Road Traffic Act.17 In both cases, the definition of rashness was crucial to the determination of the appeal.

10 In Lim Hong Eng,18 Justice Choo Han Teck applied the definition in Teo Poh Leng19 and found the driver to be merely negligent rather than rash. Subsequently, Sankar Jayakumar20 was also heard before Choo J and this time he affirmed the driver‘s conviction. On reviewing both cases, it is suggested that the High Court decision in the second case is inconsistent with advertent risk-taking However, it is submitted that the decision can be justified on the basis of an understanding of rashness that has advertent risk-taking as its core but is expanded to include the concept of “indifference” or “disregard”. In the final part of this article, a justification for this expanded concept of rashness generally and as it relates to cases of bad driving will be put forward.

II. The cases

A. Lim Hong Eng v PP21

11 The junction of Whitley Road and Dunearn Road is an intersection of two heavily used roads with the Singapore Chinese Girls School located at one corner of the junction and Raffles Town Club at another corner. A little further along Whitley Road, we find St Joseph‘s Institution while Anglo Chinese School (Barker) can be found further along Dunearn Road. An Electronic Road Pricing Gantry also helps to regulate traffic flow in the direction of the city during peak hours.

12 On the afternoon of Christmas Eve of 2006, the offender was driving down Whitley Road with the intention of turning right at the traffic-light controlled junction of Whitley Road and Dunearn Road in order to reach Raffles Town Club. When the offender reached the junction, she drove through a red light and hit a motorcycle that was travelling along Dunearn Road in the direction of the city. The rider of the motorcycle and his passenger were flung off the motorcycle. The rider suffered a compound fracture of his leg while the passenger subsequently passed away as a result of the injuries she suffered.

13 The offender was subsequently charged with causing the death of the passenger by dangerous driving under s 66(1) of the Road Traffic Act22 and a charge of causing grievous hurt to the rider by the doing of a rash act under s 338 of the Penal Code.23

14 From the grounds of decision of the District Judge,24 it appears that the Prosecution did not explicitly seek to prove that the offender possessed the mental state of advertent risk-taking at the time of the offence. Instead, the Prosecution took the following position:25

Position of the prosecution is clear. Prosecution is not trying to prove that the accused was speeding and neither is the...

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