Lim Hong Eng v Public Prosecutor

Choo Han Teck J:

[1] The appellant was convicted of one charge of causing death by dangerous driving, an offence punishable under s 66(1) of the Road Traffic Act (Cap 276, 2004 Rev Ed) with imprisonment for a term not exceeding five years, and one charge of causing grievous hurt by doing a rash act, an offence punishable under s 338 of the Penal Code (Cap 224, 1985 Rev Ed) with imprisonment for a term which may extend to two years, or a fine of up to $1,000, or both. The District Judge sentenced the appellant to 18 months’ imprisonment and disqualified her from holding or obtaining a driving licence for all classes of vehicles with effect from the date of release from prison for the first charge, that is, the charge for causing death by dangerous driving. She was sentenced to six months’ imprisonment for the second charge, that is, the charge for causing grievous hurt by doing a rash act. Both terms of imprisonment were ordered to run concurrently, making her total term of imprisonment 18 months. The Appellant has appealed against the conviction and sentence of both charges.

[2] The charges against the appellant concerned a road accident which resulted in injury to a motorcyclist and the death of his pillion rider. The accident occurred at the junction of Whitley Road and Dunearn Road (“the Junction”) on Christmas Eve in 2006. At the material time, about 3.48 pm, the appellant was driving her car along Whitley Road in the direction of Orchard Road, and had intended to make a right turn into Bukit Timah Road and then a U-Turn to Raffles Town Club after the Junction. As her car crossed into the Junction she collided with a motorcycle that was travelling along Dunearn Road towards Newton Circus. As a result of the collision, the motorcyclist and the pillion were flung off the motorcycle. The motorcyclist suffered a compound fracture to his left leg while the pillion subsequently succumbed to her injuries and died.

[3] The appellant submitted that the District Judge had erred in fact by placing undue weight on the evidence of one Lim Kian Seng (“Lim”), a taxi driver at the scene at the material time. Lim, a prosecution witness, testified that the motorcyclist moved forward into the Junction when the traffic light turned green in his favour. The obvious implication was that the appellant drove through the Junction against the red light (NE pp 20–21). The appellant also submitted that the District Judge had erred by failing to give due credit to the appellant’s consistent evidence that, inter alia, she did not know that the traffic light was not in her favour, and finding that the appellant intentionally drove in a dangerous manner. On the evidence, I see no reason to impugn the finding that the appellant drove through the Junction when the traffic lights were not in her favour. Having regard to the overall evidence, and in particular, the evidence of Lim, whose testimony was accepted by the trial judge, I am of the view that this finding of fact cannot be challenged. As regards the finding that the appellant drove through the Junction intentionally when the traffic lights were not in her favour, I am of the view that this finding was irrelevant so far as guilt was concerned. The offence of dangerous driving is not an offence that depended on an intention to drive dangerously. Whether the accused was driving dangerously is a question of fact to be determined by the court. The subjective intention or knowledge of the accused is relevant only for the purposes of sentencing. Thus, in Lim Chin Poh v PP [1969-1971] SLR 247, Choor Singh J held (at [10] and [13]):

[4] The state of mind of the appellant at the time, however, was relevant where the question was whether the offence of causing grievous hurt by a rash act had been made out. A rash act should be distinguished from a negligent act by the state of mind of the accused, as would be demonstrated in the following cases that were cited by M P H Rubin JC in PP v Teo Poh Leng [1992] 1 SLR 15. In Nidamarti Nagabhushanam (1872) 7 MHC 119, Holloway J stated (at 120):

Similarly, in Empress of India v Idu Beg (1881) ILR 3 All 776, Straight J stated (at 779–780):

Likewise, in the case of Bhalchandra Waman Pathe v The State of Maharashtra (1969) 71 Bombay LR 634 (SC), it was held (at 637):

[5] Rashness thus implies a disregard to the possibility of injury or death. The appellant, in the present case, did not appear to have shown such disregard. It appears from the evidence that she was not aware that the traffic lights had turned red. This was a finding of fact made by the District Judge, who held that the appellant did not intend to beat the red light, and had entered the Junction unaware not only of the fact that the lights were red against her but also that the motorcycle was passing through the Junction (Judgment at [44]). The court’s finding was supported by Lim’s evidence that the appellant’s vehicle moved at a constant speed without any evasive action being taken (NE at p 22). In fact, the prosecution, in its submissions below, conceded (NE at p 150):

[6] In my view, the appellant’s conduct was more negligent than rash. The prosecution’s concession in its submissions below that the appellant’s conduct was one of omission (see the previous paragraph) further reinforces this view. The prosecution, in its submissions to this court, stated that if the appellant had not acted rashly, the charge of causing grievous hurt by doing a rash act should be amended to one of dangerous driving simpliciter under s 64(1) of the Road Traffic Act, which is an offence punishable with imprisonment for a term not exceeding 12 months, or a fine of up to $3,000, or both. In my view, there is no prejudice to the appellant if the charge was amended as the prosecution suggested, since the case would have proceeded in the same manner if a charge of dangerous driving had been proceeded with from the outset. As such, I would amend the second charge to a charge of dangerous driving under s 64(1) of the Road Traffic Act and convict the appellant accordingly.

[7] As I mentioned, the state of mind of the appellant would have an impact on her culpability, and thereby, her punishment. In the present case, the prosecution conceded that the appellant did not intentionally disregard the red light at the Junction. It seemed clear from the evidence and the trial judge’s findings that the nature of the appellant’s culpability lay in her failure to keep a proper lookout. That, in my view, did not merit a harsh custodial sentence. A long custodial sentence for a traffic offence is appropriate when the offender endangered the lives of others in a rash or reckless manner (such as driving at an excessive speed) and not when her conduct was merely negligent.

[8] Having regard to the facts and circumstances, I am of the view that a sentence of one day’s imprisonment, as well as a long period of disqualification from holding or obtaining a driving licence, would be an adequate punishment in respect of the first charge.