Chong Pit Khai v Public Prosecutor

Chan Sek Keong CJ:

[1] This was an appeal against sentence. The facts were that on 9 December 2007, the appellant was stopped at a random police road block at about 4.55am. He smelt strongly of alcohol and a breath analyser test conducted on him revealed 56µg of alcohol per 100ml of breath. He was arrested and subsequently charged in the District Court for drink-driving under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the Act”) to which he pleaded guilty. For convenience, I shall call this offence the “s 67 offence”.

[2] The district judge (“the DJ”) sentenced the appellant to two weeks’ imprisonment and also disqualified him from holding or obtaining a driving licence for a period of two years. In imposing the sentence, the DJ took into consideration as an antecedent the appellant’s conviction in District Arrest Case No 44505 of 2002 (“DAC 44505/2002”) for the offence of being in charge of a motor vehicle whilst under the influence of drink under s 68(1)(b) of the Act. For convenience, I shall call this offence the “s 68 offence”. The DJ also held that, because of this antecedent, the starting point for punishing the appellant was a custodial sentence.

[3] The appellant’s main ground of appeal was that the DJ should not have given any consideration to his earlier conviction under s 68 for the purpose of sentencing him for the s 67 offence as he had not committed the earlier s 68 offence but had pleaded guilty at that time to the relevant charge out of convenience. After hearing counsel for the appellant and the Prosecution, I allowed the appeal, set aside the custodial sentence and imposed the maximum fine of $5,000. Here are my reasons for allowing the appeal on sentence.

[4] This appeal raised two issues relating to previous convictions for the purpose of sentencing. The first issue is whether, for the purpose of sentencing, the court should permit an offender to explain the circumstances of a previous conviction on the ground that he did not commit the earlier offence but had merely pleaded guilty to the charge out of expediency. The second issue is the weight to be given to a previous conviction on a s 68 charge for the purpose of sentencing an offender (here the appellant) for a subsequent s 67 offence. Let me now examine these two issues.

Whether an offender is permitted to explain the circumstances of a previous conviction as an antecedent for the purpose of sentencing

[5] As a general principle, an offender is permitted to explain to the sentencing court the reasons why he pleaded guilty to a previous charge for any offence. The reason is that defendants do plead guilty to criminal charges, especially for minor offences of which they may not be guilty, for a variety of reasons. This is a reality to which the court should not close its eyes or shy away from. In PP v Liew Kim Choo [1997] 3 SLR 699, the High Court observed at [89]:

[6] However, reality (that an innocent accused has pleaded guilty) is one thing; the law is another. The law cannot countenance any attempt to question the reality and the conclusiveness of a conviction without creating chaos in the legal system. As a matter of law, the guilty plea is conclusive evidence of the offender’s guilt. But for the purpose of sentencing the offender for a subsequent offence, the courts have been prepared to adopt a more tolerant attitude if the object of reviewing the earlier conviction is not to deny its existence or legality, but to show the degree of culpability of the offender for the purpose of treating it as an antecedent. The burden is on the offender to prove the degree or extent of his culpability in relation to the earlier offence. The courts generally are and should be sceptical of the genuineness of such claims since they are invariably made after the event and for a self-serving purpose. Nevertheless, there may be cases where the objective or undisputed facts on record can speak convincingly as to the certainty, probability or possibility of such claims being genuine. Each case must depend on its own facts. Let me now examine the facts in the present case.

[7] The appellant had pleaded guilty to the following charge in DAC 44505/2002:

[8] The appellant’s account of how he came to be arrested and charged was as follows. He was a full-time national serviceman, and had returned home from camp on the night in question. He alleged that he had bought a few alcoholic drinks from a nearby 7-Eleven store which he later consumed in his father’s car whilst listening to some music. He had not driven the car but had merely slept in it with the car engine turned off. The car was parked in a parking lot alongside a road. He further alleged that he had pleaded guilty to the s 68 charge because he thought that the offence was a minor one and he did not want the trouble of a trial which would require him to commute between his camp and the court.

[9] The appellant’s account would suggest that he had not driven the car while under the influence of alcohol and this was consistent with what he had stated in his statement made under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) which he had made in the course of police investigations before he was charged. The s 122(6) statement was as follows:

[10] As the account appeared credible, I called for the court records relating to DAC 44505/2002 to verify his account. The records showed that, at the first hearing of the case, the appellant appeared in person and admitted the statement of facts and made the following mitigation plea:

[11] As the mitigation plea suggested that the appellant might not have driven the car at all, the district judge rejected his guilty plea and adjourned the hearing to another day. At the next hearing, the appellant again appeared in person, pleaded guilty unconditionally and in mitigation only asked for leniency. He was fined $1,600.

[12] The relevant portions of the admitted statement of facts were as follows:

[13] It should be noted that nowhere in the statement was there an admission that he had driven the car at any time. This raised a question of construction of s 68 as to whether Parliament intended to make it a s 68 offence for a person to merely sleep in a car whilst under the influence of drink (since the appellant had admitted to having consumed alcohol before he slept in the car), or there must be some evidence of the accused having driven the car before he was found in it. The district judge in DAC 44505/2002 did not have to decide this issue as the appellant had pleaded guilty to the s 68 charge. But it should be noted that what the appellant admitted to in the statement of facts was, in substance, no different from what he had claimed at the earlier hearing when his plea of guilt was rejected. Before me, counsel for the appellant did not make this argument but merely contended that the DJ was wrong to treat the conviction as an antecedent as the appellant did not commit the offence but had pleaded guilty out of convenience or expediency. The DJ rejected the submission, and treated the conviction as a relevant factor in assessing the proper sentence for his s 67 offence.

[14] Since, in the eyes of the offender and the public, a custodial sentence is generally regarded as a reflection of the higher culpability of the offender, it is incumbent on the court to consider carefully the facts of each case and the arguments of counsel. In the present case, counsel argued that, firstly, the appellant’s conviction under s 68 was not a first offence for the purpose of sentencing him for the s 67 offence and, secondly, the previous s 68 offence should not be given any weight as he had pleaded guilty only out of convenience. These two arguments are distinct, and I shall deal with them separately.

[15] This appeal centres on the appropriate sentence for a s 67 offence and not for a s 68 offence. The s 67 offence involves a person, who being unfit to drive, drives or attempts to drive a motor vehicle whilst under the influence of drink to such an extent as to be incapable of having proper control of the vehicle, or when the driver’s alcohol level exceeds the prescribed limit for the offence. Section 67 is so drafted to take into account the physiological effect of alcohol or any drug on the consumer. A s 68 offence, however, involves a person being “in charge” of a motor vehicle which is on a road or other public place when under the influence of drink or drugs or when his alcohol or drug level exceeds the prescribed limit for the offence. Both offences target the same mischief, viz, the risks to other users of the road when the driver may not be fully in control of his actions. However, a s 67 offence is more serious than a s 68 offence because the risk has actualised in a s 67 offence, whereas, in a s 68 offence, the risk has either passed or may only actualise in the future. This distinction is reflected in the punishments prescribed for both offences.

[16] Section 67 provides as follows:

[17] Section 68 provides as follows:

[18] The following points may be noted on a plain reading of the two sections. First, the penalty prescribed for a s 67 offence is about twice as serious as a s 68 offence. In fact, the prescribed penalty for a first s 67 offence is the same as the penalty for a second s 68 offence. The reason for the different treatment can be explained on the basis that, in a scenario involving a s 67 offence, the risk of injury to life and limb as well as damage to property is current (as he is driving or about to drive) whereas for a s 68 offence, the risk is past and gone. The offender of a s 68 offence is being punished for having driven even though he might not have caused any injury to life and limb. The s 68 offence is to deter people from driving in those two situations prescribed by the section.

[19] Secondly, a conviction for a s 67 offence is deemed to be a previous conviction for a s 68 offence for the purpose of sentencing an offender for a subsequent s 68 offence, but a conviction for a s 68 offence is not deemed as a previous conviction for a s 67 offence for the purpose of sentencing an offender for a subsequent s 67 offence. Again, the difference in treatment can be explained by the fact that a s 68 offence is already subsumed in a s 67 offence. A person who is driving a vehicle must, perforce, be in charge of the vehicle, in the sense of having control of its operation. That also explains why a s 67 offender is punished twice as much as a s 68 offender. If one point is assigned to a s 68 offence (A) and two points to a s 67 offence (B), there would be no difference mathematically between A+B and B+A, as each combination has three points. However, there is a difference in terms of assessing the gravity of either A or B in a second offence for the purpose of punishment. In a B+A combination, the offender has already been punished for B (a two-point offence): therefore, using B (a two-point offence) as a previous conviction for A (a one-point offence) to punish him for a one-point offence would not be unfair since, theoretically, the punishment is on a 1+1 basis (treating B as a one-point offence) or, alternatively, on a 2+1 basis. In contrast, in an A+B combination, using A (a one-point offence) as a previous conviction for B (a two-point offence) would result in punishment on a 1+2 basis or, alternatively, on a 2+2 basis (treating A as a two-point offence) which would not be proportionate to the gravity of his culpability, and therefore unfair to the offender. Treating a s 68 offence as a previous conviction for a subsequent s 67 offence would have deemed a s 68 offence as a s 67 offence for the purpose of punishing an offender for a subsequent s 67 offence.

[20] The third point is that neither s 67 nor s 68 explicitly imposes a mandatory custodial sentence for subsequent offenders although the punishment is enhanced by making the offender liable to both a fine and imprisonment. However, there is an obiter dictum of the Court of Appeal to the effect that ss 67 and 68 should not be given their plain meaning and should be read to impose a mandatory jail sentence for a repeat offender under either section. The correctness of this dictum turns on the meaning of the words “shall be liable” in the context of ss 67 and 68. This issue is discussed below.

[21] In PP v Lee Soon Lee Vincent [1998] 3 SLR 552 (“Vincent Lee”), Yong Pung How CJ, in correcting his remarks on the meaning of “shall be liable” in his earlier decision in Seah Swee Hock v PP Magistrate’s Appeal No 176 of 1997, said at [14] that:

Having accepted that to be the established meaning of the expression in Seah Swee Hock v PP, Yong CJ, in Vincent Lee, declined to apply it to the same expression used in s 67(1) of the Road Traffic Act (Cap 276, 1985 Rev Ed) (“the 1985 Act”) as amended in 1990 (“the 1990 version”). To appreciate his reasoning, it is necessary to set out the terms of the 1990 version and the preceding 1985 version of s 67(1), (“the 1985 version”).

[22] In the 1985 version of s 67(1), it was provided that a person found guilty of drink-driving “shall be liable on conviction to a fine … or to imprisonment … and in the case of a second or subsequent conviction to a fine … or to imprisonment … or to both” [emphasis added]. On the other hand, in the 1990 version of s 67(1) (which remains the same today), it was provided that a person found guilty of drink-driving “shall be liable on conviction to a fine … or to imprisonment … and, in the case of a second or subsequent conviction, to a fine … and to imprisonment” [emphasis added].

[23] Yong CJ was initially of the view that the word “or” in relation to a first-time offender meant that the latter was liable to be fined or imprisoned but not both but, in the case of a second-time offender, the word “and” meant that he was liable to be fined and imprisoned, but neither was mandatory. However, he was persuaded by the Prosecution that, when Parliament removed the words “or to imprisonment … or to both” from these two sections and substituted them with the words “and to imprisonment”, it had intended to make the sentence of imprisonment mandatory for a second offence. The Prosecution had referred to dicta in previous decisions, and also to the parliamentary statement of the competent Minister when moving the amendment to the 1985 Act in 1990, in submitting that the sentence of imprisonment for a second s 67 offence was mandatory. Yong CJ also referred to the following statement of law made by the Court of Appeal in PP v Tan Teck Hin [1992] 1 SLR 841 at 844, [7] that:

[24] This issue is not relevant in the present appeal as the appellant is not a repeat offender with respect to the s 67 offence. I refer to this issue only because the drafting is unclear and it creates considerable difficulties for a court applying criminal sanctions, although in practical terms it may not matter that much as to whether Yong CJ was correct or wrong in his interpretation. I should mention, however, in this connection, that I was a member of the Court of Appeal in PP v Tan Teck Hin that made the quoted statement. But, a closer study of the judgment in that case will show that the statement was obiter and that it was probably a restatement of the parliamentary statement made without any detailed examination of the words of the section. The controlling words in both the 1985 version and the 1990 version were the same, ie, “shall be liable ... to”. Since Parliament retained the same words in the 1990 version, the presumption is that Parliament did not intend to change their meaning. Reduced to its essence, what ss 67 and 68 provide is that, for a first offence, the offender is liable to a fine or imprisonment, but, in the case of a second offence, the offender is liable to a fine and imprisonment. In the case of a first offence, the offender is liable to be punished in the alternative; in the case of a second offence, the offender is liable to be punished cumulatively. But since the controlling words were still “shall be liable … to”, it is difficult to understand the reasoning that their meaning has now changed in the context of the 1990 version as a matter of grammar or statutory construction. One explanation could be that the substitution of the words “or to imprisonment … or to both” by the words “and to imprisonment” was due to a change in drafting technique and not a change in legislative intention. In any case, as I have said earlier, whatever the correct interpretation may be, the court has the power to impose a custodial sentence even for a first offence in an appropriate case, and a fortiori for a second offence.

[25] In her grounds of decision (“the GD”), the DJ discussed the sentencing principles relating to offences under ss 67 and 68 (see PP v Chong Pit Khai [2008] SGDC 121 at [24]) as follows:

There are two points in this passage that require comment. The first is the principle of parity in sentencing. The second is the use of a starting point in sentencing: in this case, for the purpose of maintaining parity in sentencing.

[26] As to the first point, the DJ’s statement of the sentencing principle in the two sets of circumstances referred to in the passage just quoted is too wide and her analysis of the law is wrong. First, if there was a need for parity in the prescribed punishment, Parliament would have said so. Instead, Parliament has provided to the contrary. Second, it is incorrect to treat the combination of a previous s 68 offence and a current s 67 offence as more serious than the combination of a previous s 67 offence and a current s 68 offence. As I have shown earlier (at [19] above), Parliament in fact did not treat the combination B+A as being more serious than the combination A+B for the purpose of punishment. What Parliament intended was to treat a combination of B+B as more serious than a combination of A+A. Parliament was not addressing the issue of parity in the combinations discussed at [19] above. For this reason, the principle of parity is not relevant in the present case. It also follows from this that, with respect to the second point, it was wrong of the DJ to adopt a term of imprisonment as a starting point.

[27] The DJ’s decision to impose a custodial sentence as deterrence is, however, understandable from a policy point of view in order to reduce the prevalence of drink-driving. At [32] and [33] of the GD, the DJ said:

[29] In the present case, it is accepted by the Prosecution and the appellant’s counsel that there is no reported High Court precedent for a case where the offender of a s 67 offence has also had a previous conviction for a s 68 offence. It may therefore be necessary for this court to set a sentencing precedent for future cases, but, in my view, using an imprisonment term for each and every case as a starting point is not necessarily desirable as a sentencing precedent. The present case shows why it is not desirable.

[30] I will now consider the question whether the appellant committed a s 68 offence in 2002. It may be recalled that the appellant was found asleep at 5.15am at the driver’s seat with his head leaning against the window of motor car No SBT 2788 T. The vehicle was parked in a gazetted parking lot beside a public road outside his flat. The engine was not switched on and the windows were wound up. He was woken up by a policeman, who administered a breath analyser test on him, which he failed. He was then brought back to Tanglin Police Station where he underwent another breath test which showed that he had 82µg of alcohol per 100ml of breath. The prescribed limit was 35µg of alcohol per 100ml of breath. If he had not been woken up by the policeman, he would probably have slept on until the effect of the alcohol had dissipated. It was on these facts that he was charged under s 68(1) of the Act for being in charge of a motor vehicle while having an amount of alcohol in his body in excess of the prescribed limit.

[31] Section 68(1) does not define the meaning of the words “being in charge of”. That phrase implies the ability to control or having the power to do something with the motor vehicle, such as to drive it somewhere. The offender should at least have some degree of physical ability to do any of these things by himself. It is difficult to envisage a person being in charge of a vehicle if he is simply sleeping in it, especially when the vehicle is properly parked in a designated parking lot. Nevertheless, in PP v Oh Yin Yan Ronnie [2007] SGDC 35, it was held that a driver found sleeping in a lorry along an expressway was still in charge of the lorry. In that case, it could reasonably be inferred that the driver had driven the lorry before stopping. Otherwise, it could not have been on the shoulder of an expressway. But, the same inference could not necessarily be made in the case of the appellant with respect to the s 68 offence.

[32] The issue is: What is s 68 of the Act directed against? It is directed against any person in charge of a vehicle who is either unfit to drive (because he is, say, drunk) or because he has an excess amount of alcohol in his blood. But suppose there is evidence that the vehicle cannot be driven at all because it cannot be started for some reason, or the accused is able to prove that he simply wanted to rest in his car (without having previously driven it). For both of these illustrations, s 68(2) would literally apply, but should the accused be convicted, or even charged? Is s 68 directed against the risk of the person in charge of a vehicle driving it before he becomes fit to drive or before the effects of alcohol on him have worn off? To my mind, it is evident that s 68 is directed against a potential harm to the public (or to oneself). An offence should not be directed against an act which is harmless. It is therefore reasonable to construe the scope of s 68 with this basic objective in mind.

[33] In the present case, the appellant claimed that he had not driven his father’s car but had only slept in it because he felt unwell, presumably from too much drinking. He had told a consistent story even though he had pleaded guilty to the s 68 charge after his first qualified plea had been rejected. But subsequently he pleaded guilty again on substantially the same facts, and the plea was then accepted. It is of course arguable that he must have driven the car as he was found asleep at the driver’s seat. If he had wanted to rest in his father’s car, the obvious thing to do would be to sit at the back seat where he could lie down and rest more comfortably. However, the appellant also said that he wanted to listen to some music, and of course he would have to open the door of the car first before he could get in, and it is normal to do so by opening the front door where the driver’s seat is. So, his story was not entirely improbable. If this raises a question of reasonable doubt, then he ought to be entitled to that doubt.

[34] Nonetheless, as the appellant had pleaded guilty to the s 68 charge voluntarily after he had ample time to think about whether he should defend the charge, I am unable to hold that the DJ was wrong to treat the appellant’s conviction for the s 68 offence as an antecedent (but not as a first offence) for the purpose of sentencing him for the s 67 offence. However, for the reasons I have given above, I gave the appellant the benefit of the doubt and treated his s 68 conviction as a very weak antecedent in the present case.

[35] The DJ referred to two decisions in support of the custodial sentence she imposed on the appellant. In the first case, that of PP v Lechimanan s/o G Sangaran [2007] SGDC 229, the offender was convicted of a s 67 offence for drink-driving and a s 65(a) offence for driving without due care and attention. He also had a previous conviction for a s 68 offence (fined $1,000) and for a s 65 offence for driving without due care or reasonable consideration (fined $1,000). He was sentenced to three weeks’ imprisonment for the s 67 offence. The sentence was affirmed on appeal by the High Court (Lechimanan s/o G Sangaran v PP Magistrate’s Appeal No 136 of 2007). In the second case, that of PP v Goh Whei-Cheh Benedict [2007] SGDC 304, the offender was sentenced to three weeks’ imprisonment for a s 67 offence. In that case, not only did the offender have a previous conviction for a s 68 offence, he was also facing one other charge under s 65(b) (for inconsiderate driving). To aggravate matters, a charge under s 68 and one under s 182 of the Penal Code (Cap 224, 1985 Rev Ed) (for making a false statement to a public servant) stemming from a separate incident were taken into consideration for the purpose of sentencing.

[37] The DJ also dealt with the nature of aggravating circumstances for the purpose of sentencing a drink-driving offender. At [20] of the GD, the DJ referred to Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) at pp 938–939, which states that:

However, I would qualify this statement by saying that a high level of alcohol is an aggravating circumstance in determining the level of fine to be imposed, but I do not consider it by itself to be a sufficient factor in raising the punishment to a custodial sentence unless the level of alcohol is sufficiently high to create a reasonable risk of the offender causing injury to people or damage to property on the road. It is the risk of inflicting social costs on the public that should be the aggravating factor. Each case must therefore depend on its own facts. That said, the facts showed that the level of alcohol in the appellant’s body was moderate and that it did not impair his ability to drive or control his vehicle.

[38] For these reasons, the DJ was wrong in principle in ratcheting up the normal sentence of a fine to a custodial sentence. But because the appellant has an antecedent, I increased the fine to the maximum of $5,000 which should be sufficient punishment for the appellant.