Wu Zhi Yong v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 19 November 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9865 of 2020

Wu Zhi Yong

and

Public Prosecutor

[2021] SGHC 261

Sundaresh Menon CJ

Magistrate's Appeal No 9865 of 2020

General Division of the High Court

Criminal Procedure and Sentencing — Sentencing — Principles — Offender appealing against sentence — Whether sentence manifestly excessive — Appropriate sentencing frameworks under ss 67(1)(b) and 64(1) Road Traffic Act (Cap 276, 2004 Rev Ed) — Sections 67(1)(b) and 64(1) Road Traffic Act (Cap 276, 2004 Rev Ed)

Held, dismissing the appeal:

(1) The Road Traffic (Amendment) Act 2019 (Act 19 of 2019) (the “Amendment Act”) envisaged a new scheme of penalties for reckless or dangerous driving in a tiered structure calibrated according to the degree of hurt caused. This scheme was now set out in ss 64(2) to 64(2C) of the RTA, calibrated according to whether the harm caused was death, grievous hurt or hurt and then any other case, which included cases of non-personal injury or potential harm. By doing so, Parliament had expressly taken into consideration the broad range of actual and potential consequences arising from reckless or dangerous driving. Specific ranges of punishments were also prescribed for each category of harm; the more serious the harm caused, the harsher the penalties: at [15].

(2) In so doing, Parliament also intended to prescribe stiffer penalties for the offence of drink driving. The penalties were further enhanced where drink driving occurred in conjunction with reckless or dangerous driving, through the introduction of the “serious offender” provisions. Specifically, this was provided for in sub-s (c) of each of ss 64(2), 64(2A), 64(2B) and 64(2C) read with s 64(8), the latter of which defined a serious offender as one who had also been convicted of certain other offences including drink driving under s 67. This wide range of changes underscored Parliament's aim to deter acts of reckless or dangerous driving and drink driving, and to reduce the deadly consequences of such acts: at [16] and [17].

(3) In respect of sentencing an offender liable to be punished under s 64(2C)(a) read with s 64(2C)(c) of the RTA, a modified “sentencing bands” approach was more appropriate. At the first step, the court should identify the band applicable to the offence and the indicative starting point with reference to that band, having regard to the offence-specific factors present. These would encompass factors relating to the manner and mode by which the offence was committed, as well as the harm caused by the offender. At the second step, the court would have regard to the offender-specific factors, being the aggravating and mitigating factors that were personal to the offender: at [29] and [30].

(4) Such an inquiry, however, would necessarily have to encompass the serious offender provision that was contained in s 64(2C)(c) of the RTA. The effect of the additional penalty provision was to enhance the overall range of punishment prescribed under s 64(2C). This was because Parliament's intention in introducing the serious offender provisions (including s 64(2C)(c)) was to punish offenders for the aggravated conduct of driving recklessly or dangerously whilst under the influence of drink. The full criminality of such conduct would only be reflected if the punishment under s 64(2C)(a) read with s 64(2C)(c) was considered as a whole. Calibrating the punishment to be imposed under s 64 as a whole also allowed for a holistic assessment of all the factors that went toward the offender's culpability, and this would also utilise the full sentencing range: at [31] to [34].

(5) At the first step of the inquiry, the court would consider the following non-exhaustive list of offence-specific factors: at [36]:

(a) Serious potential harm and danger, including the condition of the road, the volume of traffic or number of pedestrians actually on or which might reasonably be expected to be on the road at the relevant time, the speed and manner of driving, visibility at the relevant time, the type of vehicle, and any particular vulnerabilities.

(b) Serious property damage, where as a general rule, the amount of any loss or damage might serve as a proxy indicator of harm.

(c) High alcohol level found in the accused person's blood or breath. A high level of alcohol that substantially exceeded the prescribed limit would be an aggravating factor.

(d) An offender's reason or motivation for driving, which could potentially be either a mitigating or an aggravating factor. The gravity of an offender's conduct would be increased if he had, at that time, been driving a passenger for hire or reward.

(e) Increased culpability, including where the accused engaged in a particularly dangerous manner of driving. These included excessive speeding or deliberate dangerous driving, such as in “hell riding” cases.

(f) The offender's conduct following the offence or attempt to evade arrest, in that conduct that was “belligerent or violent” upon arrest would constitute an aggravating factor. Likewise, the failure to stop in an attempt to evade arrest or avoid apprehension should also weigh against an offender.

(6) The applicable sentencing range was a fine of between $2,000 and $15,000 and/or an imprisonment term not exceeding 24 months, as well as a disqualification period of no less than two years. The appropriate bands when sentencing an offender under s 64(2C)(a) of the RTA read with s 64(2C)(c) were therefore as follows: at [38] and [39]:

(a) Band 1: A fine of between $2,000 and $15,000 and/or up to one month's imprisonment and a disqualification period of two to three years.

(b) Band 2: Between one month's and one year's imprisonment and a disqualification period of three to four years.

(c) Band 3: Between one year's and two years' imprisonment and a disqualification period of four to five years.

(7) Band 1 consisted of cases at the lower level of seriousness, with no offence-specific aggravating factors present or, where they were present only to a limited extent. The offender's blood alcohol level was also likely to be at the lowest or second lowest bands of the framework recently set out in Rafael Voltaire Alzate v PP[2022] 3 SLR 993 (“Rafael Voltaire Alzate”). Band 2 consisted of cases reflecting a higher level of seriousness and would usually contain two or more offence-specific aggravating factors. In these cases, the level of culpability and the blood alcohol level would typically both be on the higher side. Given the legislative emphasis on the factor of drink driving, where an offender's blood alcohol level was in the highest or second highest band of the framework in Rafael Voltaire Alzate, the case was likely to fall at least within Band 2. Band 3 consisted of the most serious cases of reckless or dangerous driving whilst under the influence of drink. In these cases, there would be multiple aggravating factors suggesting higher levels of culpability and higher alcohol levels: at [40] to [44].

(8) At the second step of the analysis, the court would have regard to the offender-specific factors. Offender-specific aggravating factors included offences taken into consideration for the purposes of sentencing, the presence of relevant antecedents (apart from where the offender's antecedents had been taken into account under the “repeat offender” or “serious repeat offender” provisions), and evidence showing a lack of remorse. Offender-specific mitigating factors included evidence of remorse and an offender's youth: at [48].

(9) When the serious offender provision in s 64(2C)(c) applied, as a general rule the sentences under ss 64 and 67 should run concurrently in so far as any term of imprisonment or disqualification order was concerned. The serious offender provision would only apply when the facts engaged by both charges bore some correlation to each other. This reading was borne out by the statutory wording of the provisions, as s 64(2C)(c) was only engaged when an offender was a serious offender. Section 64(8) in turn defined “serious offender” as an offender who was convicted of an offence under s 67 or 70(4) in relation to the offender's driving which was an offence under sub-s (1). As the facts underlying the offence under s 67 had to be in relation to the same act of driving which gave rise to the offence under s 64, the provisions pointed to the offences engaging an identical or largely overlapping set of facts: at [56].

(10) Further, the operation of the enhanced penalty provision in s 64(2C)(c) was contingent on the offender also being convicted of either an offence under s 67 or 70(4) of the RTA. For this reason, it necessarily followed that the Prosecution would have to charge an offender for, and proceed on, both offences under ss 64 and 67 for the enhanced penalty provision to apply. This was so even when both charges related to the identical act of wrongdoing. These factors pointed towards the conclusion that the sentences for both offences should run concurrently, because the punishment for the offence of dangerous or reckless driving would already have been enhanced on account of the serious offender provision by a range that was similar to that applicable under s 67, although to a degree that was likely to be greater by reason of correctly treating the two as a compound offence rather than as two separate and unrelated offences. The conclusion that the sentences should run concurrently was also consistent with the spirit of the principle that a person ought not to be punished twice for the same offence: at [57] to [60].

(11) In relation to the offence under s 67, as Wu had 46 microgrammes of alcohol per 100ml of breath, he was liable to be sentenced to a fine of between $2,000 to $4,000, and a disqualification term of between 24 to 30 months following the sentencing framework set out in Rafael Voltaire Alzate. There was no indication in the Statement of Facts that Wu admitted to that there were any further aggravating factors that pertained specifically to this offence...