The Singapore Law Gazette

Supreme Court Judgements for Road Traffic Cases – Recent Developments

The verdant landscape for road traffic cases finds expression in an ensemble of Supreme Court judgments, including Hue An Li, Edwin s/o Suse Nathen, Koh Thiam Huat, Ganesan Sivasankar, Stansilas Fabian Kester and Aw Tai Hock. This article (a) surveys these cases, (b) distils them by motifs (including the shift in the sentencing paradigm for certain traffic offences), and (c) examines the analytical framework, viz. interplay of harm, culpability and mitigating/ aggravating factors. In the final analysis, the Supreme Court judgments underscore the cardinal need for Singapore’s roads to be made as safe as possible for law-abiding road users.

Introduction

The verdant landscape for road traffic cases finds expression in an ensemble of Supreme Court judgments, including Public Prosecutor v Hue An Li(Hue An Li),¹ [2014] SGHC 171. See also Cheah Wui Ling, Criminal Law (2014) 15 SAL Ann Rev 269 at [13.23]–[13.26] and [13.30]–[13.32], and Benny Tan, Jail Term as New Benchmark Sentence for Careless Driving Causing Death – PP v Hue An Li: A Case Commentary, Singapore Law Gazette (December 2014) at pp 34 to 41. Finally, see Sundram Peter Soosay, The Work of Many Hands: The Continuing Confusion over Section 304A of the Singapore Penal Code [2015] Sing JLS 135-161. Edwin s/o Suse Nathen v Public Prosecutor (Edwin s/o Suse Nathen),² [2013] SGHC 194. See also Lee Jwee Nguan and Mohamed Faizal, Criminal Procedure, Evidence and Sentencing (2013) 14 SAL Ann Rev 302 at [14.72]–[14.73].Public Prosecutor v Koh Thiam Huat(Koh Thiam Huat),³ [2017] SGHC 123.Public Prosecutor v Ganesan Sivasankar (Ganesan Sivasankar),⁴ [2017] SGHC 176.Stansilas Fabian Kester v Public Prosecutor (Stansilas Fabian Kester)⁵ [2017] SGHC 185. and Public Prosecutor v Aw Tai Hock (Aw Tai Hock).⁶ [2017] SGHC 240.

Importantly, the judgments underscore the cardinal need for Singapore’s roads to be made as safe as possible for law-abiding road users.

These include drivers, passengers, motorcyclists, pillion, commuters, cyclists, and pedestrians.⁷Public Prosecutor v Roslan Bin Sapthu [2013] SGDC 326 at [11]. For completeness, pedestrians ought to keep a proper lookout for approaching traffic before commencing to cross even at a signalised pedestrian crossing with the lights in their favour: Asnah Bte Ab Rahman v Li Jianlin [2016] SGCA 16 at [75]. The Courts are mindful that a motorcar in the hands of a drunk, speeding or sleepy driver is a potentially devastating weapon.⁸Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28]. For drunk, speeding or sleepy drivers, see Hue An Li at [82]–[92]. See also Practitioners’ Library: Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed: Vol II) at p 1721. Driving is an inherently dangerous activity that can pose serious risk to road users and pedestrians alike: Koh Thiam Huat at [41]. Driving is also a privilege accorded to persons who, through a series of properly administered tests, have demonstrated that they are capable of meeting the standards expected of a reasonably competent driver. Hence, when they elect to drive a vehicle, they should expect the law to hold them to these standards: Jali bin Mohd Yunos v Public Prosecutor [2014] SGCA 50 at [36]. Worse, he may be driving a heavy vehicle⁹ A “heavy vehicle” is defined in section 2 of the Parking Places Act (Cap 214, 2014 Rev Ed). See also section 10B(2) of the RTA and Public Prosecutor vGanesan Sivasankar [2017] SGHC 176 at [45]. There has been a spike in traffic violations by heavy vehicle drivers, rising from 16,413 in 2015 to 18,591 in 2016: Speed Limiting Trials for Heavy Vehicles to Start (The Sunday Times, 17 September 2017). or public service vehicle.¹⁰ A “public service vehicle” is defined in section 2(1) and the Second Schedule of the RTA; it includes private hire buses and cars, school buses and taxis. See also sections 99–111 and 138 of the RTA. There are about 42,800 chauffeur-driven private hire cars and 26,000 taxis: The Rise of Ride-Hailing Apps – Commuters Upbeat, But Is It Downhill for Taxicabs? (The Sunday Times, 13 August 2017). For completeness, about 30,000 e-bicycles have been approved for use since 2004: Warm Response to E-Bike Registration (The New Paper, 15 August 2017).

Disturbingly, there were 3,880 traffic accidents and 61 deaths on our roads in the first half of 2017.¹¹ Singapore Police Force, Public Affairs Department, News Release on 19 August 2017 at 1.20pm. See also Koh Thiam Huat at [65]–[69]. On a related note, in Stansilas Fabian Kester at [43]–[44], Chief Justice Sundaresh Menon noted that the number of drink-driving cases increased from 520 in 2011 to 1,340 in 2016, with the number of cases in which imprisonment sentences were meted out tripling. Whilst the law can do its best to deter and compensate, it cannot bring back a life lost nor can it salvage irreparable wounds: Asnah Bte Ab Rahman v Li Jianlin [2016] SGCA 16 at [123].

Hence, the Supreme Court judgments for traffic cases are timely and afford a vista of safer roads.¹²Land Transport Statistics in Brief 2015: Expressways, Arterial Roads, Collector Roads, and Local Access Roads. Singapore has an extensive network of roads spanning 3,495 km. Pulling together the various strands, this article:

1. surveys these cases in a table,
2. distils them by motifs, and
3. examines the analytical framework, viz interplay of harm, culpability and aggravating/mitigating factors.

We segue to the Table of Supreme Court Judgments (Road Traffic): 2013–2017.

No.	Case	Offence	Court	Issue
1.	Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194	section 67(1)(b) Road Traffic Act (Cap 276, 2004 Rev Ed) (RTA)	High Court	What is the appropriate benchmark sentence for first time drink-driving offenders under section 67(1)(b) of the RTA?
2.	Muhammad Saiful bin Ismail v Public Prosecutor [2014] SGHC 37	s 43(4) RTA	High Court	What are the sentencing considerations for driving under disqualification under section 43(4) of the RTA?
3.	Tan Kian Tiong v Public Prosecutor [2014] SGHC 153	s 65B RTA	High Court	Is the approach under section 65B – using a mobile phone while driving – the same as that for cases which had previously been dealt with under section 65 of the RTA?
4.	Public Prosecutor v Hue An Li[2014] SGHC 171	s 304A(b) Penal Code (Cap 224, 2008 Rev Ed) (PC)	Three-Judge High Court Panel	What is the appropriate benchmark sentence for causing death by a negligent act under section 304A(b) of the PC?
5.	Jali bin Mohd Yunos v Public Prosecutor [2014] SGCA 50	s 66(1) RTA	Court of Appeal	Does a finding of rashness in road traffic offences require consciousness as to risk?
6.	Chong Jiajun Eugene v Public Prosecutor [2015] SGHC 285	s 129(2)(d) RTA	High Court	When is the custodial threshold crossed for exhibiting a false licence plate under section 129(2)(d) of the RTA?
7.	Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 and Public Prosecutor v Aw Tai Hock [2017] SGHC 240	s 64(1) RTA	High Court	When is the custodial threshold crossed for dangerous driving under section 64(1) of the RTA?
8.	Public Prosecutor v Ganesan Sivasankar [2017] SGHC 176	s 304A(a) PC	High Court	What is the appropriate benchmark sentence for causing death by a rash act under s 304A(a) of the PC?
9.	Stansilas Fabian Kester v Public Prosecutor [2017] SGHC 185	s 67(1)(b) RTA	High Court	When is the custodial threshold crossed for a drunk driver who causes injury and/or property damage?
10.	Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244	s 67(1)(b) RTA	High Court	Is the custodial threshold crossed for offences under section 67 of the RTA when the offender has a section 68 antecedent?
11.	Prathib s/o M Balan v Public Prosecutor [2017] SGHC 303	s 3(1) Motor Vehicle (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed)	High Court	What are the principles to be applied in determining “special reasons”? Does the Court have the power to stay a disqualification pending appeal?
12.	Tang Ling Lee v Public Prosecutor [2018] SGHC 18	s 338(b) PC	High Court	When is the custodial threshold crossed for causing grievous hurt by a negligent act under section 338(b) of the PC?

Three Motifs for Road Traffic Offences

In a nutshell, the Supreme Court judgments contain three motifs for traffic offences:¹³ To be sure, there have been other significant judgments impacting on road traffic cases, viz beyond RTA offences. These judgments (non-exhaustive) include (a) Muhammad Faizal bin Rahim v Public Prosecutor [2012] 1 SLR 116 (“special reasons” for section 3(1) of the Motor Vehicles (Third Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed)), and (b) Koh Yong Chiah v Public Prosecutor [2016] SGHC 253 (section 182 of the Penal Code (Cap 224, 2008 Rev Ed)).

1. Shift in Sentencing Paradigm – There has been a shift in the sentencing paradigm for certain traffic offences.
2. Traffic Offences are Highly Fact-Specific in Nature – Facts matter.¹⁴ For completeness, see Ross Guberman, Point Taken (Oxford University Press, 2015), pp 41–77. It is essential to set great store by the facts for traffic offences. A fact-sensitive approach leads to better-calibrated outcomes.
3. Analytical Frameworks – These judgments set out useful analytical frameworks to be applied in other cases.

Shift in Sentencing Paradigm

Post-Hue An Li and Jali bin Mohd Yunos

Integral to understanding the shift in the sentencing paradigm for certain traffic offences is the instructive judgment in Koh Thiam Huat.¹⁵ [2017] SGHC 123 at [21] and [36]

The High Court in Koh Thiam Huat at [21] and [36] elucidated on this shift in the sentencing paradigm as follows:

1. Both Hue An Li and Jali bin Mohd Yunos v Public Prosecutor (Jali bin Mohd Yunos) represent a shift in the courts’ sentencing paradigm for traffic offences.¹⁶Koh Thiam Huat at [21]. The post-Hue An Li and Jalibin Mohd Yunos precedents must be carefully scrutinised because the shift in approach may not always have been immediately appreciated: Koh Thiam Huat at [38].
2. Section 338(b) of the Penal Code – After Hue An Li, there has been a discernible shift in the sentencing trend towards more custodial sentences being meted out for offences under section 338(b)¹⁷ An offence of causing grievous hurt to any person by doing any act so negligently as to endanger human life or the personal safety of others. of the Penal Code.¹⁸Koh Thiam Huat at [36]. This observation echoes that of the High Court in Lee-Teh Har Eng v Public Prosecutor (Lee-Teh Har Eng) at [15]–[16].¹⁹Lee-Teh Har Eng (Oral Judgment, 15 December 2016, Magistrate’s Appeal 9099/2016) was referred to in Koh Thiam Huat at [36].
3. Section 304A(b) of the Penal Code – The consequence of Hue An Li is that the lower courts are no longer bound by precedent to consider a non-custodial punishment as the default starting point for offences under section 304A(b) of the PC, but should consider all the relevant considerations in each case in determining the appropriate sentence. The High Court made a similar observation in Lee-Teh Har Eng at [16].²⁰Ibid.
4. Jali bin Mohd Yunos can be seen as further approval of this shift in approach insofar as the Court of Appeal affirmed the not-insubstantial sentence of imprisonment imposed in that case.²¹Koh Thiam Huat at [36].
5. Section 64(1) of the Road Traffic Act (RTA) – In the High Court’s view, this shift in approach applies with equal force for the offence of dangerous driving under section 64(1) of the RTA.²²Ibid.
6. However, this shift in approach does not mean that a custodial term is now the norm for section 64(1) of the RTA. Such a notion has been effectively rejected for offences under sections 304A(b) and 338(b) of the PC, and the same must, a fortiori, be the case for section 64(1) of the RTA, which carries a lower maximum sentence (at least for first offenders). Rather, what this shift in approach calls for is a careful consideration of all the relevant considerations in fashioning a condign sentence.²³Ibid.

Section 304A(a) of the Penal Code

The seminal case of Hue An Li has also affected the sentencing for offences under section 304A(a) of the Penal Code.²⁴ A Three-Judge High Court Panel, helmed by the Chief Justice, decided Hue An Li. When a Three-Judge panel of the High Court has ruled, its decision should generally represent a final and authoritative determination of the issues arising from the case. This is because a Three-Judge panel is a de facto Court of Appeal – comprising Justices of the Supreme Court, Judges of Appeal and perhaps even the Chief Justice – and is convened precisely to deal with important questions affecting the public interest which require detailed examination: Chew Eng Han v Public Prosecutor [2017] SGCA 60 at [4] and [46]–[50]. This is because in the post-Hue An Li era, a non-custodial outcome for a conviction under section 304A(a) of the Penal Code in a fatal accident case will be an “exceptionally rare” occurrence.²⁵ Ganesan Sivasankar at [49] and [59]. What is perhaps more significant about Hue An Li is that it suggests that, in the context of fatal accident cases under s 304A(a) of the PC, a starting point higher than the four weeks’ imprisonment set out in that case would be appropriate.²⁶ Ganesan Sivasankar at [49] and [60].

Section 67(1)(b) of the Road Traffic Act

It is noteworthy that under Stansilas Fabian Kester – which applies to offences under section 67(1)(b) of the RTA when a drunk driver causes injury and/or property damage – the custodial threshold would prima facie be crossed in any setting save for instances of low culpability and slight harm.²⁷Stansilas Fabian Kester at [77].

Of course, whether or not the custodial threshold is in fact crossed in each case indubitably depends on the facts, which are what we turn to next.

Highly Fact-Specific in Nature

Facts matter

Facts are a kaleidoscope of the colourful vagaries of human behaviour. Each case turns on its facts.²⁸ For completeness, see Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th Ed, 2015), pp 425–427.

This may seem a fairly pedestrian observation. Not so. A seemingly tiny wrinkle may sometimes change the factual complexion of the case. That is why the High Court has repeatedly emphasised a fact-sensitive approach for traffic cases:

1. The highly fact-specific nature of traffic offences means that sentencing, being ultimately a matter of discretion, must be approached judiciously with the highest level of attention to the facts and circumstances of each case.²⁹Ganesan Sivasankar at [57]. The High Court was reiterating the point made in Public Prosecutor v Chia Hyong Gyee (Oral Judgment, 25 May 2017, Magistrate’s Appeal No 001/2017/01). See also Stansilas Fabian Kester at [46] and [73]: “In the final analysis, the appropriate sentence to be imposed will be the product of afact-sensitive exercise of discretion, taking into account all the circumstances of the case.”
2. The facts and circumstances which give rise to traffic offences are so infinitely varied that a blind and rigid adherence to precedents and sentencing norms by default is inadvisable. In this class of offences, attention to the particular facts and circumstances is of paramount importance.³⁰Koh Thiam Huat at [39].
3. It bears repeating that the facts of each traffic case must be carefully evaluated, weighed and assessed.³¹Lee-Teh Har Eng at [13].

An illustration of a traffic case turning on its facts is the High Court decision of Lee-Teh Har Eng at [5]–[13] and [17]–[18]. Accepting that the appellant was confused by the unfamiliar and unusual conditions at a traffic junction,³² See also Tang Ling Lee v Public Prosecutor [2018] SGHC 18 at [46]–[47]. the High Court reduced the one-week imprisonment term to a nominal imprisonment of one day and a maximum fine of $5,000 (in default one week), with the disqualification order of three years to remain.³³ It is also fact-sensitive as to whether a victim belongs to a class of victims recognised as vulnerable: Hue An Li at [81] – “This is not to say that an offender who collides into a member of a class hitherto recognised as ‘vulnerable’ will never be punished more severely. Much will depend on the precise facts of the case.” See also Lee Jwee Nguan and Mohamed Faizal, Criminal Procedure, Evidence and Sentencing (2014) 15 SAL Ann Rev 295 at [14.136]–[14.137].

One related observation in relation to facts is that the prosecution and the defence should not overstate the facts, as this may improperly colour the Court’s assessment.³⁴ This echoes the point made in Public Prosecutor v Lee Beng Yong @ Muhammad Zaki Lee (Oral Judgment, 19 July 2017, Magistrate’s Appeal No 9026/2017) at [4]. In that case, when the accused pleaded guilty, the prosecution had submitted that he had “barged” into the classroom. However, this was not supported by the statement of facts which stated that the accused knocked on the classroom door and waited until the door was opened by one of the students before he entered the classroom: Public Prosecutor v Lee Beng Yong [2017] SGMC 12 at [20].

An example of overstating the facts may be found in Ganesan Sivasankar at [44]–[45], where the prosecution argued that the accused person was bound to a higher duty of care as he was driving a “heavy vehicle”. It was submitted that his failure to exercise such caution while driving was an aggravating factor. However, the High Court pointed out that the accused person’s lorry was not a heavy vehicle under the RTA.³⁵ For completeness, see the definition of a “heavy vehicle” in section 2 of the Parking Places Act (Cap 214, 2014 Rev Ed). Moreover, it could be driven by a holder of a Class 3 driving licence.³⁶ For another example of one side overstating its case, see also Chong Jiajun Eugene v Public Prosecutor [2015] SGHC 285 at [17].

To be sure, an advocate needs to advance his side’s best case. Often, the advocate tries hard to push the limits to amplify his point.³⁷ The High Court in Mia Mukles v Public Prosecutor [2017] SGHC 252 at [4]–[7], [21]–[22] and [44]–[47], cautioned against making submissions without evidential basis. In certain cases, there may even be room for rhetorical flourishes and florid language. But we should refrain from embroidering the facts – the sweet spot nestles between overstating and understating one’s case.³⁸ Especially when there is video footage from an in-vehicle camera in traffic cases.

Analytical framework

The jurisprudence for traffic cases has developed organically from the steady accretion of judicial decisions. This allows for the interplay between various judgments. Two examples illustrate this.

First pair of cases: Edwin s/o Suse Nathen and Stansilas Fabian Kester

First, the pair of drink driving cases – Edwin s/o Suse Nathen and Stansilas Fabian Kester – should be read together.³⁹Stansilas Fabian Kester at [76]. See also Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor [2017] SGHC 244 at [27].

In Stansilas Fabian Kester, among other things, the offender’s culpability is categorised into Low (low alcohol level), Medium (moderate to high alcohol level), and High (high alcohol level).⁴⁰Stansilas Fabian Kester at [75]. The level of culpability also depends on whether there was evidence of dangerous driving behavior. While Stansilas Fabian Kester did not explicate on the alcohol levels,⁴¹ The offence under section 67(1)(b) of the RTA was enacted on 10 May 1996, following the passing of the Road Traffic (Amendment) Act 1996 (No 11 of 1996) (“the Amendment Act”). The Amendment Act effected two changes which are relevant for present purposes. First, it repealed section 70 of the Road Traffic Act (Cap 276, 1994 Rev Ed). Second, it re-enacted section 67 of the RTA. See Stansilas Fabian Kester at [30]–[38]. For a critique of the provisions before they were amended, see Chan Wing Cheong, Drink Driving Law: A Wrong Turning in the Road Traffic Act? (1994) SAcLJ 82–95. guidance was given in Edwin s/o Suse Nathen at [17], [18] and [22]:

• • Low level of alcohol:⁴² For cases at the borderline where the offender’s alcohol level is close to the prescribed limit: Edwin s/o Suse Nathen at [17]. >35–54µg per 100ml of breath.
  • Moderate to High level of alcohol:⁴³Edwin s/o Suse Nathen at [18]. 55–69µg per 100ml of breath.

In a situation when a drunk driver causes injury and/or property damage (ie, where Stansilas Fabian Kester applies), it would also be helpful to refer to Edwin s/o Suse Nathen for relevant aggravating or mitigating factors⁴⁴Edwin s/o Suse Nathen at [24]–[33]. See also Stansilas Fabian Kester at [46]. and to understand the three sentencing objectives of disqualification orders.⁴⁵ A disqualification order combines the three sentencing objectives of punishment, protection of the public and deterrence and should increase in tandem with the severity of the offence: Edwin s/o Suse Nathen at [13]–[14]. See Koh Thiam Huat at [64]. See also Chief Justice Sundaresh Menon, Sentencing Conference 2014: Opening Address (Singapore Law Gazette, February 2015) at [8]–[9]. (See also Menon CJ’s Opening Address, Sentencing Conference 2017 at [25] and [30]–[31].)⁴⁶ The four sentencing considerations – retribution, rehabilitation, deterrence, and prevention – are “mutually reinforcing rationales for punishment” and “the ultimate goal of all of these sentencing objectives is the protection of the public through the prevention of crime”.

Second pair of cases: Hue An Li and Ganesan Sivasankar

The second example relates to the appropriate benchmark sentence under the Penal Code for causing death by negligent act under section 304A(b) (Hue An Li) or by rash act under section 304A(a) (Ganesan Sivasankar).⁴⁷ See DJ Toh Yung Cheong, Revisiting Rash Driving (2011) 23 SAcLJ 271–306. See also Stanley Yeo, Chan Wing Cheong, and Neil Morgan, Criminal Law in Malaysia and Singapore (Singapore: LexisNexis, Revised Second Edition, 2015) at [4.29]–[4.30]. Prosecutorial discretion determines the proceeded charges: Public Prosecutor v Kong Hoo (Private) Limited [2017] SGHC 65 at [74], and Ganesan Sivasankar at [33]. See Cheong Suk-Wai, In Chambers: 150 Years of Upholding the Rule of Law (Straits Times Press, 2017), pp 13–19 and 207. See also Chen Siyuan, Evidence and Criminal Procedure: Gradual Developments Towards Clarity in a Maze of Statutory Enactments in Singapore Law: 50 Years in the Making (Academy Publishing, General Editors: Goh Yihan and Paul Tan, 2015), pp 415 and 428–435.

Reading them together – Hue An Li overlaid with Ganesan Sivasankar – offers a broader understanding of the spectrum of offences under section 304A:

1. In Hue An Li, the High Court stated that the starting point for sentencing for offences of causing death by negligent act is a short custodial term of up to four weeks.⁴⁸Hue An Li at [61] and [133].
2. In the post-Hue An Li era, a non-custodial outcome for a conviction for causing death by a rash act will be an “exceptionally rare” occurrence.⁴⁹ Ganesan Sivasankar at [49] and [59].
3. Hue An Li suggests that, in the context of fatal accident cases under section 304A(a) of the Penal Code, a starting point higher than the four weeks’ imprisonment set out in that case would be appropriate.⁵⁰ Ganesan Sivasankar at [49] and [60].
4. While a conviction under section 304A(a) does not necessarily carry a heavier sentence than a conviction under section 304A(b),⁵¹ Ganesan Sivasankar at [48] and [60]. all other things being equal, rashness would attract a heavier sentence than negligence.⁵²Jali bin Mohd Yunos at [36]. See also Ganesan Sivasankar at [48] and [60].

Framework of harm, culpability, and aggravating/mitigating factors

Lastly, we turn to the analytical framework of (a) harm, (b) culpability, (c) aggravating factors and (d) mitigating factors (“the analytical framework”).⁵³ For completeness, see the two-step sentencing bands framework in Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 [at paragraphs 73(a), (c) and (d)]. At the first step, the court should have regard to the offence-specific factors in deciding which band the offence in question falls under. Once the sentencing band, which defines the range of sentences which may usually be imposed for an offence with those features, is identified, the court has to go on to identify precisely where within that range the present offence falls in order to derive an “indicative starting point”. At the second step, the court should have regard to the aggravating and mitigating factors which are personal to the offender to calibrate the sentence. These are factors which relate to the offender’s particular personal circumstances. See also the helpful five-step sentencing framework in Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [71]–[84]. At the Opening of the Legal Year 2018, the Attorney-General stated that his Chambers will “anchor (their) sentencing positions based on the level of culpability and harm, which is then adjusted for any aggravating and mitigating factors”: Attorney-General’s Speech, Opening of the Legal Year 2018 (Singapore, 8 Jan 2018) at [25].

“Harm” is a measure of the injury which has been caused to society by the commission of the offence.⁵⁴Koh Thiam Huat at [41]. See also Aw Tai Hock at [33]. “Culpability” is a measure of the degree of relative blameworthiness disclosed by an offender’s actions and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act.⁵⁵ Koh Thiam Huat at [41]. See also Aw Tai Hock at [35].

The contours of the analytical framework were examined in Koh Thiam Huat, Aw Tai Hock, and Stansilas Fabian Kester for offences under sections 64(1) and 67(1)(b) of the RTA.⁵⁶Koh Thiam Huat at [41]–[49]. See also Aw Tai Hock at [29]–[40] and Stansilas Fabian Kester at [47]–[48], [74], [91] and [114].

Stansilas Fabian Kester applies to a situation when a drunk driver causes injury and/or property damage. In this regard, the High Court set out indicative sentencing ranges, calibrated according to the degree of harm caused and the offender’s culpability.⁵⁷Stansilas Fabian Kester at [78]. For easy reference, these indicative sentencing ranges are summarised below:

The High Court in Stansilas Fabian Kester also helpfully stated the following points in relation to the degrees of harm (personal injury/property damage) and culpability (alcohol level/dangerous driving behaviour):⁵⁸ Stansilas Fabian Kester at [75].

In Aw Tai Hock, the High Court held that the various degrees of harm – as set out in Stansilas Fabian Kester for drunk driving under section 67(1)(b) of the RTA – are useful and equally relevant in the context of dangerous driving under section 64(1) of the RTA.⁵⁹ Aw Tai Hock at [33]. These degrees of harm may also be relevant to other provisions such as section 337 of the Penal Code. For completeness, see also section 47D of the RTA which defines “serious injury”.

The High Court in Aw Tai Hock also stated that the factors that affect culpability for dangerous driving offences would generally include:⁶⁰ Aw Tai Hock at [37]–[40].

1. the manner of driving;⁶¹ This assesses how dangerous the driving was and the extent of danger to road users posed by the offender’s conduct: Aw Tai Hock at [38].
2. the circumstances of driving;⁶² The circumstances surrounding the incident that may have increased the danger to road users during the incident: Aw Tai Hock at [39]. and
3. the offender’s reasons for driving.⁶³ The offender’s reasons or motivations for driving: Aw Tai Hock at [40].

Frameworks are helpful in navigating sentencing submissions. In this connection, the eclectic mix of cases adopting the analytical framework is testament to this framework’s versatility:

1. Cheating at play under section 172A(2) of the Casino Control Act (Cap 33A, 2007 Rev Ed): Logachev Vladislav v Public Prosecutor.⁶⁴ [2018] SGHC 12.
2. Voluntarily causing grievous hurt under section 325 of the Penal Code: Public Prosecutor v BDB.⁶⁵ [2017] SGCA 69. For voluntarily causing hurt under section 323 of the Penal Code, see Public Prosecutor v Lim Yee Hua [2017] SGHC 308.
3. Aggravated outrage of modesty under section 354(2) of the Penal Code: GBR v Public Prosecutor.⁶⁶ [2017] SGHC 296 at [28].
4. Drug importation under section 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (Misuse of Drugs Act): Suventher Shanmugam v Public Prosecutor.⁶⁷ [2017] SGCA 25.
5. Section 28(b) read with section 29(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed): Seng Hwee Kwang v Public Prosecutor.⁶⁸ Seng Hwee Kwang v Public Prosecutor (Oral Judgment, 15 February 2017, Magistrate’s Appeal No 9114/2016).
6. Offences under the Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed): Public Prosecutor v GS Engineering & Construction Corp.⁶⁹ [2016] SGHC 276. See also Lee Jwee Nguan and Mohamed Faizal, Criminal Procedure, Evidence and Sentencing, (2016) 17 SAL Ann Rev 382 at [14.108]–[14.144].
7. Section 182 of the Penal Code: Koh Yong Chiah v Public Prosecutor.⁷⁰ [2017] 3 SLR 447.
8. Drug trafficking under section 5 of the Misuse of Drugs Act: Vasentha d/o Joseph v Public Prosecutor.⁷¹ [2015] SGHC 197
9. Sections 140, 146, and 148 of the Women’s Charter (Cap 353, 2009 Rev Ed): Poh Boon Kiat v Public Prosecutor.⁷² [2014] SGHC 186. For completeness, see also Ding Si Yang v Public Prosecutor [2015] SGHC 8 (Sentencing Guideline Framework of Annex A at [28]).

This is perhaps unsurprising as the two principal parameters which a sentencing court would generally have regard to in evaluating the seriousness of a crime are:⁷³ Lim Ying Luciana v Public Prosecutor and another appeal [2016] 4 SLR 1220 at [28], Public Prosecutor v Tan Thian Earn [2016] 3 SLR 269 at [19], Koh Thiam Huat at [41], and Ganesan Sivasankar at [33] and [53]–[56]. See also Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [33]. In Public Prosecutor v Sakthikanesh s/o Chidambaram & Ors [2017] SGHC 178 at [50]–[56], the Three-Judge Panel held that exceptional performance during National Service reduces neither the defaulter’s culpability nor the harm he had caused by his offence. (a) the harm caused by the offence, and (b) the offender’s culpability.⁷⁴ In Public Prosecutor v Yeo Ek Boon Jeffrey [2017] SGHC 306 at [52], [57] and [60], the Three-Judge Panel stated that for the offence of voluntarily causing hurt to a public servant (ie, police officers and public servants who are performing duties akin to police duties at the material time) under section 332 of the Penal Code, the “offence-specific and offender-specific aggravating and mitigating factors are necessarily factored into the analysis within the harm and culpability considerations themselves”.

Finally, there is a distinction between offence-specific and offender-specific factors. Offence-specific factors relate to the manner and mode in which the offence was committed as well as the harm caused to the victim, whereas offender-specific factors are the aggravating and mitigating factors which are personal to the offender and which relate to the offender’s particular personal circumstances.⁷⁵Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [34]. See also Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [39].

Offence-specific factors comprise factors going towards: (a) the harm caused by the offence; and (b) the offender’s culpability.⁷⁶ The categories may not always be watertight. For instance, the degree of planning and premeditation and the level of sophistication, were categorised as offence-specific factors going towards the offender’s culpability in Logachev Vladislav; yet, the High Court observed that they may also relate to the harm caused by the offence in so far as they affect the likelihood of harm: Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [38]. These factors may be aggravating or mitigating, and different factors may apply depending on the particular offence in question.⁷⁷Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [34]. See also Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [36].

For example, for the offence of dangerous driving under section 64(1) of the RTA, the factors increasing the offender’s culpability would include a particularly dangerous manner of driving. As illustrations, the aggravating factors identified in Hue An Li, ie, speeding, drink-driving and sleepy driving, would clearly contribute to this, as would driving while using a mobile phone.⁷⁸ Koh Thiam Huat at [41]. See also Ganesan Sivasankar at [54]. In addition, if the dangerous driving was deliberate (for instance, in “hell riding” cases), this would also indicate a higher level of culpability.⁷⁹ Ibid.

In comparison, offender-specific factors comprise other aggravating and mitigating factors which do not directly relate to the commission of the offence.⁸⁰Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [34]. See also Ng Kean Meng Terence v Public Prosecutor [2017] SGCA 37 at [36]. These aggravating factors include the number of charges taken into consideration, relevant antecedents demonstrating recalcitrance, and the evident lack of remorse.⁸¹Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [37] and [64]–[66]. See also GBR v Public Prosecutor [2017] SGHC 296 at [39].

Mitigating factors include a timeous plea of guilt, voluntary restitution, cooperation with the authorities, and the presence of a mental disorder or intellectual disability on the offender’s part that relates to the offence.⁸²Logachev Vladislav v Public Prosecutor [2018] SGHC 12 at [37] and [67]–[70]. See also GBR v Public Prosecutor [2017] SGHC 296 at [39]. In Stansilas Fabian Kester, the High Court stated the need to justify the mitigating value of public service and contributions by reference to the four principles of sentencing – retribution, rehabilitation, deterrence, and prevention.⁸³Stansilas Fabian Kester at [94]–[101].

Conclusion

The Supreme Court judgments for traffic cases are timely and afford a vista of safer roads. In the final analysis, these judgments underscore the cardinal need for Singapore’s roads to be made as safe as possible for law-abiding road users.

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The author would like to thank the Presiding Judge of the State Courts and DJ Ronald Gwee for their very helpful comments and suggestions. All errors remain the author’s own. All views expressed in this article are those of the author and do not represent the views of his organisation.