Chan Chow Chuen v Public Prosecutor [2024] SGHC 294

Introduction

Mr Chan Chow Chuen (the “appellant”) pleaded guilty in the District Court to two charges under the Road Traffic Act 1961 (2020 Rev Ed) (“RTA”). He was sentenced by the learned District Judge (the “DJ”) as follows:

(a) DAC 917236-2022: A fine of $5,000 in default 20 days’ imprisonment and disqualification from holding or obtaining all classes of driving licences for three years from 5 May 2023 for a charge of drink driving under s 67(1)(b) and punishable under s 67(1) read with s 67(2)(a) of the RTA (the “drink driving charge”); and

(b) DAC 917237-2022: Five days’ imprisonment and disqualification from holding or obtaining all classes of driving licences for 30 months from the date of release from imprisonment for a charge of careless driving under s 65(1)(b) punishable under s 65(5)(c) read with s 65(5)(a) and s 65(6)(i) of the RTA (the “careless driving charge”).

As the appellant was convicted of the drink driving charge together with the careless driving charge, he is a “serious offender” within the meaning of s 64(8) of the RTA and subject to an enhanced punishment regime. The maximum imprisonment term is therefore 18 months, and the maximum fine is $11,500. In addition, unless there are special reasons not to do so, mandatory disqualification of at least two years would have to be imposed. The global sentence imposed by the DJ was a term of five days’ imprisonment, a fine of $5,000 in default 20 days’ imprisonment, and disqualification from holding or obtaining all classes of driving licences for three years. The appellant appeals against the sentence only in relation to the term of five days’ imprisonment for the careless driving charge.

The DJ’s grounds of decisions are set out in Public Prosecutor v Chan Chow Chuen [2023] SGDC 108 (the “GD”). Having considered the parties’ submissions, I allow the appeal and substitute the custodial sentence with a fine of $11,000 in default 44 days’ imprisonment. I also increase the disqualification term to three years, with effect from 5 May 2023. I set out my reasons for so doing below.

The charge

The custodial sentence which is the subject of the present appeal was imposed in connection with the careless driving charge:

Facts

The appellant admitted to the material facts as set out in the statement of facts (“SOF”) without qualification. On 20 May 2022, between 8.00pm and 10.00pm, the appellant consumed two glasses of whiskey at a restaurant. After leaving the restaurant, he retrieved his car from the carpark of his office building nearby. He began to drive home, but stopped his car along Bayfront Link, parking behind the victim’s vehicle. As he attempted to manoeuvre his car out from its parked position behind the victim’s car to resume his journey, the appellant caused the front of his car to collide with the rear right portion of the victim’s car.

The victim subsequently called the police and reported that “THIS CAR … DRIVER REFUSE TO PROVIDE PARTICULARS. I SUSPECT DRUNK”. The reporting officer dispatched to the incident location observed that the appellant reeked of alcohol. The appellant failed a breathalyzer test and was arrested. He was subsequently escorted to the Traffic Police for a Breath Analyzing Device (“BAD”) test, which revealed that the proportion of alcohol in his breath was 64μg per 100ml of breath, in excess of the prescribed limit of 35μg per 100ml of breath.

The appellant subsequently made full restitution to the victim for all damage caused to the latter’s vehicle, amounting to $450 for repairs and $300 for rental.

The proceedings below

The Prosecution’s submissions below

In connection with the careless driving charge, the Prosecution took the position that although the property damage caused was not significant, the custodial threshold was nonetheless crossed in view of the high BAD readings of 64μg per 100ml of breath, which was almost twice the prescribed limit of 35μg per 100ml of breath. It was further submitted that the appellant had a record of compounded traffic offences of crossing double white lines and speeding.

The appellant’s submissions below

The appellant submitted that the collision with the victim’s vehicle had resulted from a “slight miscalculation and poor judgment” (GD at [20]). He pointed out that it had occurred while he was inching out from a stationary position rather than speeding or driving recklessly, and that the accident had not taken place in a residential or school zone (GD at [24]). This being the case, there was no serious potential harm.

The appellant also submitted that he had not refused to provide his particulars to the victim, but had simply wished to do so in the presence of the police as he had felt uncomfortable with the victim’s allegedly aggressive attitude and manner of speech (GD at [21]). He also highlighted the following facts: he had contacted and compensated the victim, the damage was extremely minor, he had cooperated with police and pleaded guilty, and he was a first-time offender (GD at [22] and [25]).

The DJ’s decision

In determining the sentence for the careless driving offence, the DJ drew on the sentencing band approach set out in Wu Zhi Yong v Public Prosecutor [2022] 4 SLR 587 (“Wu Zhi Yong”) and applied in the case of Public Prosecutor v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng Chang Tong”), which is as follows (GD at [33]):

The DJ acknowledged that the above sentencing bands were set out in connection with more serious offences attracting a total maximum of two years imprisonment, namely reckless driving punishable under s 64(2C)(a) read with s 64(2C)(c) of the RTA in Wu Zhi Yong and careless driving by a serious and repeat offender under s 65(5)(b) read with s 65(5)(c) of the RTA in Cheng Chang Tong (GD at [30]). The DJ thus proposed the following modified sentencing bands in respect of the present offence, which was punishable under s 65(5)(a) read with s 65(5)(c) of the RTA with a total maximum of 18 months’ imprisonment (GD at [38]–[40]):

Having set out these proposed sentencing bands, and in keeping with the sentencing band approach set out in Wu Zhi Yong and Cheng Chang Tong, the DJ first turned to consider the relevant offence-specific factors in the present case. The DJ observed that the appellant’s BAD test reading of 64µg of alcohol per 100ml of breath placed him at the higher end of the second lowest band of the Rafael sentencing band. She noted that a high level of alcohol substantially exceeding the prescribed limit is an aggravating factor (GD at [44]–[45]). There had been serious potential harm given that other motorists and pedestrians might reasonably have been expected to be on the road at the relevant time, and the footage from the victim’s in-vehicle camera had indeed shown other vehicles passing next to the appellant’s car around the time of the accident (GD at [46]–[47]). Finally, there had been actual property damage or harm caused in the present case (GD at [48]). In light of these factors, the DJ thus took the view that the present case fell within the higher end of Band 1 and that an indicative starting point of three weeks’ imprisonment was appropriate (GD at [49]).

Next, the DJ considered the relevant offender-specific factors. She noted that the appellant was traced with eight compounded traffic offences committed between 2002 and 2014, some of which had involved speeding and crossing double white lines and the majority comprising parking offences. The DJ took the view that this “history of recalcitrance and propensity to flout traffic rules” reinforced the need for a deterrent sentence, both on the basis of individual and general deterrence (GD at [16] and [50]). She also noted that the appellant had initially refused to provide his particulars to the victim, despite having a legal duty to do so (GD at [51]). On the other hand, the DJ acknowledged that the appellant had pleaded guilty (GD at [50]), had remained at the scene when the complainant arrived, was remorseful, and had made full restitution (GD at [51]).

Taking these factors together, the DJ calibrated the indicative starting point of three weeks’ imprisonment downward to five days, being on the higher end of Band 1. However, in view of the appellant’s moderately high alcohol level, his driving history, the property damage caused, as well as the serious potential for harm, the custodial threshold had been crossed and a fine would not be appropriate (GD at [52]). The DJ also imposed a disqualification term of 30 months, being on the higher end of the three-year range set out for Band 1 (GD at [53]).

The grounds of appeal

As noted above at [2], the appeal is directed only against the DJ’s holding that the custodial threshold had been crossed, and the imposition of a term of five days’ imprisonment. To this end, the appellant makes the following broad arguments:

(a) There are major points of distinction between the present case and that of Cheng Chang Tong, chiefly that the latter case involved a serious and repeat offender while the appellant in the present case was only a serious offender;

(b) The DJ erred in placing the appellant within the “higher end of Band 1” of the framework in Wu Zhi Yong (see [11] above), as there was no risk of serious potential harm and the actual property damage caused was de minimis in nature;

(c) The DJ placed undue weight on the appellant’s irrelevant compounded offences;

(d) The DJ erroneously considered the appellant’s refusal to provide particulars to the victim as an aggravating factor;

(e) The DJ failed to accord sufficient weight to the appellant’s plea of guilt and full restitution to the victim.

The respondent’s position is that the DJ was correct in identifying the high alcohol level in the appellant’s breath, the presence of serious potential harm, and the actual property damage as aggravating factors bringing the present case past the custodial threshold. The respondent argues that the eventual sentence of five days’ imprisonment is commensurate with the appellant’s culpability.

My decision

The only issue for my determination in this appeal is whether the DJ had been correct in finding that the custodial threshold had been crossed in the present case, with particular reference to the offence-specific and offender-specific factors identified at [52] of the GD.

The appellant’s alcohol levels

The first of the offence-specific factors identified by the DJ was the appellant’s BAD test result was 64μg of alcohol per 100ml of breath, which the DJ characterised as a “moderately high level of alcohol” (GD at [52]). Respectfully, I have some difficulty with this characterisation. As the DJ recognised, the determination of whether an offender’s alcohol level is high can be made with reference to the sentencing framework set out in in Rafael Voltaire for drink driving offences under s 67 of the RTA, which are as follows (Rafael Voltaire at [31]):

The DJ’s analysis that the 64μg of alcohol per 100ml of breath was “moderately high” (GD at [52]) evidently does not sit well with the DJ’s own prior analysis that the appellant’s alcohol level was “at the higher end of [the] second lowest band of the Rafael Voltaire sentencing band[s]” (GD at [44]). With respect, a fairer characterisation might perhaps have been that his alcohol level fell within the “moderate” range.

Crucially, in the context of sentencing serious offenders under ss 64 or 65 of the RTA, Band 1 of the Wu Zhi Yong sentencing band approach would likely apply to offenders whose alcohol levels are at the lowest or second lowest bands in the Rafael Voltaire framework, which would typically be characterised by “relatively low to moderate levels of alcohol content” (Wu Zhi Yong at [40]–[41]). On the other hand, Band 2 would typically involve offenders with alcohol levels on the “higher side”, falling within the highest or second highest band of the Rafael Voltaire framework (Wu Zhi Yong at [42]). For the same reason, in Cheng Chang Tong, I took the view that a BAD reading of 85μg of alcohol per 100ml of breath constituted a “high alcohol level” (at [50]–[51]). This being the case, while the appellant’s BAD reading of 64μg per 100ml of breath was not negligible or insignificant, I do not think it was correctly characterised as “high”, even if only moderately so.

Moreover, it is also worth noting that Cheng Chang Tong involved not only a significantly higher alcohol level, but a repeat offender who was also a serious offender, while the appellant in the present case is not a repeat offender. He merely comes within the statutory definition of a serious offender, with an alcohol level falling within a different and lower band of the Rafael Voltaire framework. In fairness to the DJ, as noted above at [12], she recognised this difference by proposing adjusted sentencing bands with a one-quarter reduction from those applied in Cheng Chang Tong, on the basis that the total maximum punishment applicable in Cheng Chang Tong pursuant to s 65(5)(b) read with s 65(5)(c) of the RTA was 2 years, while that applicable in the present case pursuant to s 65(5)(a) read with s 65(5)(c) of the RTA is 18 months. However, in my view, deriving proposed sentencing bands for serious offenders by way of a proportionate reduction to those applied to serious and repeat offenders seems to implicitly assume that where a custodial sentence is appropriate for the latter, it will likewise be so for the former, and that the sentences appropriate for each will differ only quantitatively rather than qualitatively. This overlooks the possibility that whether an offender is a repeat offender may, alone or in conjunction with other factors, be relevant to the anterior question of whether the custodial threshold is crossed in the first place.

The extent of harm

The DJ also identified the property damage and serious potential harm as factors pointing to the custodial threshold being crossed in the present case. I agree that where the facts indicate clear potential harm, this may be an aggravating factor. As the DJ observed, other motorists could be seen in the victim’s in-vehicle camera footage passing by the spot in which the appellant had temporarily parked his car, and in any event it would have been reasonable to expect that other motorists and pedestrians would have been present even at 10.45pm (GD at [46]–[47]) at the location in question at Bayfront Link.

Moreover, I also agree with the Prosecution that the potential for harm has to be assessed with reference not only to the actual distance that the appellant travelled, but the distance which he intended to travel. In the present case, the journey from the appellant’s workplace to his home would have entailed a distance of over 10km, and would have brought him into a residential area. This being the case, it could not be gainsaid that there would have been some potential for harm. It is not disputed however that the appellant had driven only some 600m from his office building before stopping the car to respond to a text message from his wife. It was also entirely plausible that because he was texting his wife in response, his head was seen “drooping down” in the victim’s in-car camera footage. It was in some sense purely fortuitous that his journey was brought to an end so close to its beginning.

However, while drink driving is a serious matter and is not to be condoned or trivialised, I do not think that every such case will necessarily exceed the custodial threshold, especially where any damage caused is minimal and no other aggravating factors are present. Indeed, as observed by Aidan Xu J in Fan Lei v Public Prosecutor [2024] SGHC 278 (“Fan Lei”), the fact of inebriation will typically be the subject of a separate charge under s 67 of the RTA in cases such as the present. While a relevant factor in sentencing under s 65 of the RTA, the court should not be too quick to find on this basis heightened or increased potential harm of such a degree that a substantial sentence of imprisonment should follow (Fan Lei at [10]). I concur with this analysis. I address the issue of potential harm further below at [32].

Moreover, I do not think that the actual property damage caused to the victim’s vehicle ought to have been given significant weight in determining whether the custodial threshold was crossed. While it was suggested in Wu Zhi Yong that a term of imprisonment will be an appropriate starting point where damage to property has been caused as a result of driving while under the influence of drink, this is simply a general rule of thumb which applies before consideration of aggravating and mitigating factors (Wu Zhi Yong at [53]–[54]). In identifying serious property damage as an aggravating factor to be considered at the first stage of its sentencing band approach, Wu Zhi Yong would seem to suggest that a minimum level of severity is necessary for property damage to amount to an aggravating factor for purposes of the indicative starting point under the first stage of its sentencing band approach (at [36(b)]).

This being the case, in my judgment, the DJ erred in taking into account the minimal property damage caused as a factor which brought the present case past the custodial threshold and within the higher end of Band 1 of the Wu Zhi Yong framework.

The appellant’s compounded offences

I turn next to consider the DJ’s reliance on the appellant’s compounded offences. The DJ observed that in Cheng Chang Tong at [60], I had regarded the offender’s past traffic convictions and numerous compounded offences as indicative of his “history of recalcitrance and propensity to flout traffic rules and reinforce the need for a deterrent sentence, both on the basis of individual and general deterrence”. The DJ appears to have drawn the same conclusion in the present case, based on the appellant’s eight compounded offences.

With respect to the learned DJ, the difficulty with this analysis is twofold. First, the appellant only has a history of compounded offences. He has no actual antecedents in the form of court convictions. The last of the compounded offences in Cheng Chang Tong was also much more proximate in time to the index offence, with an interval of only approximately two years (see Cheng Chang Tong at [60]). On the other hand, the appellant’s last compounded offence occurred in 2014, approximately eight years prior to the present offence. As observed in Leong Mun Kwai v Public Prosecutor [1996] 1 SLR(R) 719 at [20], for convictions which occurred a long time ago, the length of time during which an offender has maintained a blemish-free record must be taken into consideration for purposes of sentencing. In the present case, the fairly long interval of eight years is a significant point of distinction between Cheng Chang Tong and the present case. Indeed, during the hearing before me, the Prosecution accepted that the dated nature of the compounded offences meant that they ought to carry at best limited weight.

Second, the nature of the prior antecedents is another key point of distinction between the present case and that of Cheng Chang Tong. In Cheng Chang Tong, not only had the offender been convicted of speeding twice in 1998 and 2004, but he also had compounded speeding offences in 1990, 1995, 1998, and 2007, an inconsiderate driving offence in 2012, and an offence for crossing double white lines in 2020 (at [59]–[60]). It is noteworthy that all these offences relate to the offender’s manner of driving. On the other hand, while the appellant had one compounded offence for crossing double white lines and another for speeding, the remaining six comprised parking offences (GD at [16]). It would thus be incorrect to say that the compounded offences taken as a whole were serious or aggravating in nature. In calibrating the aggravating effect of antecedents, regard must be had not only to the absolute number of antecedents under the RTA, but also the nature of the prior offences. Taken together with the considerably longer interval between the present offence and the last compounded offence, I am respectfully of the view that the DJ’s finding that the appellant exhibited the same “recalcitrance and propensity to flout traffic rules” as the offender in Cheng Chang Tong (GD at [50]) was overstated and inappropriate. The appellant’s compounded offences ought not have been regarded as a significant aggravating factor militating in favour of a custodial sentence.

Overview and comparison with Cheng Chang Tong

As I have already noted above (at [27]), when compared to Cheng Chang Tong, the actual harm caused by way of property damage in the present case was slight. The only other aggravating factor here was the potential harm which might have been occasioned as a result of the appellant’s actions. While this factor could not be disregarded, I do not think that it carries substantial weight on the facts as the potential harm should be evaluated having regard to the appellant’s manner of driving. In this regard, it should be borne in mind that any assessment of potential harm necessarily involves a measure of speculation as to what might have occurred (or not occurred) if the appellant had continued driving. The facts revealed that the appellant had not been speeding or driving recklessly or dangerously, nor had he been aggressive, hostile, or violent even though he was inebriated. As rightly suggested by Xu J in Fan Lei at [10], the courts should be cautious not to find heightened or increased potential harm too readily and without sufficient basis.

While the appellant had initially refused to comply with the victim’s initial request for his particulars, he had remained on the scene, had made no attempt whatsoever to flee or evade the consequences of his actions, and had cooperated with the police when they arrived. It is not entirely clear whether the DJ had placed any weight on the appellant’s initial refusal to provide particulars in her assessment of whether the custodial threshold was crossed. It would appear more likely that she had not, since she still imposed a custodial sentence despite observing that the appellant had remained at the scene and had demonstrated remorse for his actions, and did not identify his initial refusal to provide his particulars as one of the factors relevant to her finding that the custodial threshold had been crossed (GD at [51]–[52]).

This being the case, the present case is distinguishable from Cheng Chang Tong on several fronts. To sum up, Cheng Chang Tong involved a higher alcohol level pursuant to the Rafael Voltaire framework, a greater extent of property damage, a repeat offender with a greater number of relevant and temporally proximate antecedents, and one who fled the scene after the collision.

Conclusion

For the foregoing reasons, the present case is one falling on the borderline, with only two mildly aggravating factors. The first was the potential harm, which was not serious or heightened on my assessment of the facts. The second was the appellant’s alcohol level which, while not insignificant, was also not in my view properly characterised as “high”, even if only moderately so. On the facts, these two factors without more do not clearly call for a custodial sentence, nor do they bring the case within the higher end of Band 1 of the Wu Zhi Yong sentencing bands.

It also bears reiterating that the Wu Zhi Yong sentencing bands were set out in the context of reckless driving under s 64(1) of the RTA and applied to a repeat and serious offender in Cheng Chang Tong. For the reasons set out above at [22], adaptation of the sentencing bands for offences involving only serious offenders by way of proportionate reduction may not adequately capture differences in culpability for the purposes of determining whether the custodial threshold is crossed.

Accordingly, I allow the appeal and substitute the term of five days’ imprisonment in connection with the careless driving charge with a fine of $11,000 in default 44 days’ imprisonment. In addition, the disqualification term is increased from 30 months to three years, with effect from 5 May 2023. Together with the fine of $5,000 and disqualification of three years from holding or obtaining all classes of driving licences in connection with the drink driving charge, the global sentence is a fine of $16,000 and a three-year disqualification from 5 May 2023.

I understand that the appellant has already paid the fine of $5,000 in respect of the drink driving charge and has been under the disqualification order since 5 May 2023.