Lim Kay Han Irene v Public Prosecutor

Chao Hick Tin JA:

[2] The appellant, a female of 59 years of age, was a member of the medical profession. In the early hours of 27 April 2009, at about 1:32 am, she was observed by an officer manning the Expressway Monitoring Advisory System (“EMAS”) to be sitting on the driver seat of motor vehicle EV 4046S (the “car”) which was stationary along the Pan Island Expressway (“PIE”). Another EMAS officer, Mahapandi Bin Embi (“Mr Embi”) was dispatched to the scene, located along lane three of the PIE in the direction of Tuas near the exit of Clementi Avenue 6, to make enquiries. He arrived at 1:38 am and observed that the car was stationary with its engine running and the headlights on. However, its hazard lights were not turned on. Mr Embi approached the car and spoke to the appellant. In the course of their conversation, Mr Embi noticed that the appellant had alcoholic breath and informed the Traffic Police Ops Control Centre.

[3] Shortly a traffic police officer, Cpl Noor Hibayah arrived at the scene and he observed that the appellant’s breath smelled of alcohol. He conducted a breath analyzer test on the appellant which she failed. The appellant was subsequently placed under arrest for driving while under the influence of alcohol and escorted to the Traffic Police Department for a Breath Evidential Analyzer (“BEA”) Test to be conducted. This was done at about 3:47 am. The BEA Test result revealed that, for every 100 millilitres (“ml”) of the appellant’s breath, there contained 129 microgrammes (“mg”) of alcohol. Accordingly, a charge of drink driving, pursuant to section 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”), was brought against the appellant. She did not contest the charge and pleaded guilty.

[4] In mitigation before the DJ and in submissions before me, counsel for the appellant, Mr Sant Singh SC (“Mr Singh”), provided further context to the incident. Mr Singh explained that the appellant was a senior consultant with the KK Women’s and Children’s Hospital and possessed over 25 years’ experience in the practice of radiology. On 26 April 2009, the day before the incident, the appellant and her husband took a friend and colleague of theirs, one Dr Marielle V Fortier (“Dr Fortier”), who had just arrived in Singapore and was temporarily residing in the appellant’s home, to lunch during the course of which the appellant consumed some wine. After lunch, at around 3 pm, the appellant upon returning to her home, was notified that her aunt, Ms Lee Joo Har (“Aunt”), had suffered an extensive nasal haemorrhage. The appellant shared a very close relationship with her Aunt, a point which will be further elaborated on later (see [31] below). Immediately thereafter, the appellant arranged for her Aunt to be sent to the National University Hospital (“NUH”). This sequence of events was confirmed by Dr Fortier in a letter dated 29 May 2009. A discharge summary from NUH further confirmed that the Aunt was admitted into NUH on 26 April 2009.

[5] After seeing to the administrative arrangements at the hospital, the appellant returned home at around 9 pm for dinner during which she again drank some wine. Mr Singh emphasised that the appellant was, at this time, very disturbed by her Aunt’s hospitalisation. The appellant went to bed at around 10:30 pm. However, before turning in, the appellant consumed a glass of whisky as a nightcap. At 1:20 am, on 27 April 2009, the appellant was awoken up by a telephone call from NUH. She was informed that her Aunt’s condition had taken a turn for the worse and her Aunt had been transferred to the Intensive Care Unit of NUH. Fearing that the worst might happen to the Aunt, the appellant immediately got into her car and drove to NUH, hoping to get there as quickly as possible. From her home at Ascot Rise, the appellant first drove along Dunearn Road before making a u-turn into Bukit Timah Road and heading north towards Clementi Road. The appellant had intended to turn left into Clementi Road but missed the turn and instead found herself turning into the PIE. Realising her mistake, the appellant intended to exit the PIE via the Toh Guan Exit. However, her car unexpectedly stalled, causing it to be stationary along the PIE. Thereafter, the events were as described in [2] and [3] above.

[6] The DJ observed (at [10] of the GD) that, while generally a fine would be the norm for a first offender like the appellant, in circumstances where there were aggravating factors, a custodial sentence may be appropriate. She wrote:

She then continued by noting the various aggravating factors present in the case, which justified the imposition of a custodial sentence. In her mind, there appeared to be four main considerations.

[7] First, the DJ observed that the appellant’s level of alcohol was 3.68 times over the prescribed limit of 35 mg/ 100 ml of breath. This, in her view, was “sufficiently high to create a real risk of the Accused causing injury to people or damage to property on the road” (see [12] of the GD). To her, it was entirely fortuitous that there were no injuries, loss of lives and/or extensive property damage as a consequence of her drink driving. Furthermore, the DJ found that “[t]he usual tariff for an offence of drink driving where the level of alcohol is more than three times the prescribed limit is a custodial sentence” (sse [6] of the GD). Evidently, she felt that precedents tended to suggest that an imprisonment term should be imposed where the alcoholic level in the offender’s breath exceeded three times the prescribed limit. This appeared, from my reading of her written grounds, to be the single most influential factor in the DJ’s decision.

[8] Secondly, the DJ considered that the appellant made a deliberate and conscious choice to drive while in an inebriated state. According to her, the appellant should have been mindful enough to seek alternative transportation that were available 24 hours such as limousine or taxi services. The fact that the appellant was anxious about her Aunt’s medical condition was, to the DJ, no justification for the appellant to drive while under the influence of alcohol.

[9] Next, the DJ took cognisance of the appellant’s poor medical condition. She noted that in the appellant’s mitigation plea, it was argued that the appellant suffered from what was described as familial involuntary tremors. This is an uncontrollable condition which would affect her fine finger activities and her ability to drive properly. Given this condition, the DJ was of the view that the appellant should not have taken to the wheels on 27 April 2009.

[10] The last factor the DJ took into account was public policy. She cited Yong Pung How CJ who stated in Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 (at [28]) that:

The DJ felt that the policy of protecting members of the public from intoxicated drivers necessitated a strict approach. In her view, like-minded individuals should be deterred from committing the same offence.

[11] In the circumstances, the DJ felt that an appropriate sentence would be 2 weeks’ imprisonment and a period of four years’ disqualification from holding or obtaining a driving licence for all classes of vehicles, reckoned from the date of her release from prison.

[12] Mr Singh contended before me that the Judge’s sentence was manifestly excessive and, for that reason, the custodial sentence should be set aside. In essence, there were three pillars to Mr Singh’s submissions. First, Mr Singh contended that the Judge, in finding that the appellant made a conscious and deliberate decision to flout road safety laws, failed to appreciate the factual matrix of the case. In particular, the Judge failed to fully understand the close and intimate relationship shared between the appellant and her Aunt as well as the appellant’s mental state of mind in the evening of 26 April 2009 and the morning of 27 April 2009. Next, it was argued that the Judge failed to give due weight to various mitigating factors including the fact that the appellant was a first time offender, was deeply remorseful for her actions, has contributed significantly to the progress of Singapore society, and suffered from poor health. Insofar as the deterrent principle was concerned, it was submitted that such a principle has no application in the present circumstances. Finally, contrary to what the DJ had found, Mr Singh argued that previous cases did not establish a pattern of imposing a term of incarceration whenever the level of alcohol in an offender’s breath was more than three times over the legally prescribed limit. In fact, he sought to demonstrate that the contrary was true.

[13] The respondent’s case was straightforward. DPP Lee Lit Cheng (“DPP Lee”) essentially made three points. First, she urged the court to attribute little weight to the various mitigating factors that had been highlighted including the argument that the appellant had occasioned no accident and had posed little danger to the public, was remorseful, had (previous to the offence) a clean driving record, was in ill health and contributed to society. Secondly, she argued, in reference to the events leading to the commission of the offence, that the appellant had, in fact, deliberately driven in full knowledge of the fact that she had consumed alcohol earlier. It was not the case that the appellant had forgotten that she was intoxicated, as portrayed by Mr Singh. Finally, DPP Lee urged the court to uphold the deterrent sentence imposed by the DJ. She contended that the level of alcohol in the appellant’s breath was so high that an imprisonment term was appropriate.

[14] The offence of drink driving is punishable under section 67 of the RTA. That provision states as follows:

[15] It is a trite law that an appellate court should only intervene in the sentence imposed by a lower court where (i) the judge below had erred as to the proper factual basis of the case; (ii) the judge below had failed to appreciate the material placed before him; (iii) the sentence imposed was wrong in principle and/or law; or (iv) the sentence imposed was manifestly excessive or manifestly inadequate as the case may be – see Tan Koon Swan v Public Prosecutor [1985-1986] SLR(R) 976 (at [4], [5] and [8]) and Public Prosecutor v Cheong Hock Lai [2004] 3 SLR(R) 203 (at [26]). For the purposes of this appeal, factors (ii) and (iv) were particularly germane.

[16] As the main reason why the DJ thought it necessary to impose a custodial sentence on the appellant was on account of precedents, I shall now turn to consider them. But I would hasten to add that precedents would, at best, only provide guidelines. Much would depend on the facts and circumstances of each individual case. Here I am reminded that for the purposes of sentencing, the factual matrix of the case remains the paramount consideration: see Tan Kay Beng v Public Prosecutor [2006] 4 SLR(R) 10 at [45]. Of course, the court is not totally at liberty, nilly willy, to disregard precedents. I think the following observations of the High Court in Soong Hee Sin v Public Prosecutor, [2001] 1 SLR(R) 475 (at [12]) aptly describes the position:

Central to the DJ’s decision was that, in her view, previous cases have established a pattern of imposing a custodial sentence where the level of alcohol involved was three or more times over the prescribed limit. However, it should be noted that the DJ did not cite any case in support of that assertion.

[17] The only case which DPP Lee pointed to was Kim Seung Shik v Public Prosecutor, MA 277/2009/01 (“Kim Seung Shik”). That was a case which I decided last year and for which no written judgment was issued. As such, a brief summary of the facts is in order. The case involved a South Korean national, aged 40, who was working in Singapore for a Korean company. His three children were staying with him in Singapore and his wife had returned to South Korea to seek treatment for a medical condition. After a company event in which the offender had consumed alcohol, he decided to return home quickly as he was worried about his children who were left without any parental supervision. As the offender was driving out of the carpark of Katong Mall, he turned into a wall. Shortly thereafter, having exited from the carpark onto East Coast Road, he collided into the side of a motor taxi. Later, it was established that the offender’s level of alcohol was 117 mg/100 ml of breath, or 3.34 times over the prescribed limit. In the district court, the offender was sentenced to 3 weeks’ imprisonment and a disqualification period of 2 years for all classes of vehicles from the date of his release from imprisonment. On appeal, I reduced the imprisonment term to 1 week. However, I note that there were at least three important differences between Kim Seung Shik and the present case. First, no damage was caused in the present case. In fact, the appellant in the instant case did not even get into an accident. Secondly, unlike the offender in Kim Seung Shik, no evidence was tendered before this court to demonstrate that the appellant could not control her car. This is a point which I will explore further at [27] – [28]. Thirdly, the offender in Kim Seung Shik deliberately drove with full knowledge that he was under the influence of alcohol. As I will explain later (at [31] – [34]), the same factor was not present in the instant case.

[18] On the other hand, Mr Singh took pains to point out various cases which seemed to suggest that the contrary was, in fact, true – that first time offenders of drink driving, even where the level of alcohol involved was significantly high, were usually punished with a fine and a period of disqualification from driving. He referred, first, to the case of Wong Kwee Cheong v Public Prosecutor, MA 208/2001/01 (“Wong Kwee Cheong”). This case is unreported but may be found summarised in Sentencing Practice in the Subordinate Courts, (LexisNexis: 2003, 2 Ed) (“Sentencing Practice”) (at [945]) as follows:

Notably, while the breath alcohol level of the offender in Wong Kwee Cheong (being 2.8 times above the legal limit) was not as high as the appellant’s in the instant case, the drink driving in Wong Kwee Cheong resulted in a collision with a parked taxi and both vehicles were slightly damaged.

[19] Another case relied upon by the appellant was Public Prosecutor v Emmett Ian Michael, [2004] SGDC 251 (“Emmett Michael”). In this relatively straightforward case, the offender was involved in traffic accident when the car he was driving collided with another vehicle along Clemenceau Avenue. It was found that at the relevant time, the alcohol level in the offender’s breath was 96 mg/100 ml. This, as the district judge in the case noted, was more than two and a half times the prescribed limit and was “[t]he most serious aggravating factor in this case”: see [12] of Emmett Michael. In the circumstance, the district judge there chose to impose a $4,300 fine and a 3-year disqualification. On appeal, the period of disqualification was reduced to 2 years. No imprisonment term was imposed. Again, it is significant to note that property damage was caused by the offender’s drink driving.

[20] Finally, Mr Singh also made reference to the case of Public Prosecutor v Tay Wee Wah, DAC 63960/2009 (“Tay Wee Wah”). This was a case recently decided by the district court on 9 December 2009. The statement of facts indicated that the offender was involved in a minor accident along the ECP. The proportion of alcohol in the offender’s breath was 107 mg/100 ml. Other than the above, no other material information could be discovered from the statement of facts. The same DJ that decided this case at the court below imposed, in Tay Wee Wah, a sentence of a $4000 fine (in default 20 days’ imprisonment) and 3 years’ disqualification for all classes. It would be noted that 107mg/ 100 ml of breath was 3.06 times over the prescribed limit.

[21] In addition to the cases cited by the appellant, Sentencing Practice provides (at [941] – [942]) further examples of cases where the level of alcohol in the offender was considered high but where a term of imprisonment was not imposed. These cases are summarised in the following table.

All of the above three cases also did not involve any collision with another vehicle or damage to other property. The only case cited in Sentencing Practice in which the offender’s blood alcohol content was significant and a custodial sentence imposed in spite of the fact that there was no accident was the case of Thakur Kewalram Samtani v Public Prosecutor, MA 368/1994/01 (“Thakur Samtani”). In that case, the offender was observed by the police to be driving in a zigzag manner. After testing, it was found that he had a blood alcohol content of 276 mg/ 100 ml. This was 3.45 times over the prescribed limit. In the circumstances, the trial court imposed a sentence of two weeks’ imprisonment and a disqualification order from driving for five years. However, unlike the present case, the offender in Thakur Samtani, like the one in Kim Seung Shik, was clearly shown to have been unable to control his vehicle. Moreover, in Thakur Samtani the offender did not have the same mitigating circumstances as the present case, ie, being awoken up in the dead of night and being told that the condition of someone who was very dear, and was in hospital, had deteriorated badly.

[22] Hence, the precedents were, at best, inconclusive as to whether there was a rule or trend of imposing custodial sentences in cases where the blood alcohol content in an offender was high. In any case, it certainly could not be said, as the DJ did (at [6] of the GD), that the “usual tariff for an offence of drink driving where the level of alcohol is more than three times the prescribed limit is a custodial sentence.” There was no pattern that the court would impose custodial sentence as long as the alcohol level of the offender was three or more times over the prescribed limit. Indeed, there was no basis for any court, in working out the appropriate sentence for drink driving offences, to begin with that premise. The judge should consider the full range of sentences that avails her at law, taking into account all aggravating and mitigating factors.

[23] In this respect, the case of Public Prosecutor v Lee Meng Soon, [2007] 4 SLR(R) 240 (“Lee Meng Soon”), is instructive. In that case, the offender failed to keep a proper lookout while on his way to have supper and collided with a motorcycle that was travelling in front of his car. The rider of the motorcycle and the pillion rider both suffered serious injuries. After being apprehended, the respondent was found to have 77mg of alcohol in every 100 ml of breath. This was 2.2 times over the prescribed limit. Two charges were brought against him, one for drink driving and the other for failure to render assistance. Insofar as the drink driving charge was concerned, the trial court imposed a $3,000 fine and a disqualification period of two years. Against this sentence the prosecution appealed. On appeal, the High Court imposed a two-week imprisonment term and a disqualification period of three years. In so doing, the High Court held (at [21]) as follows:

In Lee Meng Soon, the court considered that the offender’s breath alcohol level, being 2.2 times over the legally prescribed limit, was high. However, the court made clear that that factor alone would not merit an imprisonment sentence. It was the combination of the high alcohol level and the fact that the offender had poor control of his vehicle that warranted a custodial term.

[24] In the present case, it was clear that the alcohol level in the appellant’s breath, being 3.68 times over the prescribed limit, must be considered to be significantly high. However, like the High Court in Lee Meng Soon, I did not think that this fact in itself was sufficient to warrant a custodial sentence, particularly for a first time offender. It must be borne in mind that the extent to which a person would be affected by a certain level of alcohol in the body would differ from person to person. Thus, how well an offender could control his vehicle would be a very pertinent consideration. Of course, I do not rule out the possibility of a situation whereby the alcohol level involved was so high as to merit an imprisonment term on its own. For the purposes of this case, I need not have to speculate whether an offender in that condition would in any case be able to control his vehicle. Here, however, although the alcohol level in the appellant’s body was significantly higher than the prescribed limit, to warrant the imposition of a custodial sentence, there had to be other aggravating factors present. I will now turn to consider these other factors.

[25] It will be recalled that, in Lee Meng Soon (see [23] above), it was held that the offender’s ability to control his vehicle was an important consideration in determining whether a custodial sentence should be imposed for an offence of drink driving. An offender’s ability to control his vehicle is relevant in both situations where the offence of drink driving could be committed under s 67 of the RTA (see [14] above). First, under s 67(1)(a), if due to intoxication, a driver is unable to control his vehicle, he would be guilty of the offence of drink driving. This factor, thus, goes directly towards the commission of the offence. Secondly, if the alcohol level in a driver’s body exceeds the prescribed limit, he would ipso facto be guilty of the offence of drink driving under s 67(1)(b) and it does not matter whether at the relevant time, he was or was not able to control the vehicle. However, if in addition, the driver was, in fact, unable to control his vehicle, that would be an aggravating factor for imposing a heavier sentence. Thus, under s 67(1)(b), an offender’s ability to control his vehicle is relevant for the purposes of sentencing. I now turn to consider whether the appellant, in addition to breaching the prescribed limit of alcohol in her breath, was also unable to control her vehicle.

[26] For sentencing purposes, it must be borne in mind that just because the breath or blood alcohol level of an offender exceeds the prescribed limit does not mean that he is also unable to control his vehicle. This is because under s 67(1)(b) of the RTA, once a driver was caught with a blood or breath alcohol level beyond the prescribed limit, he would ipso facto be guilty of the offence of drink driving. This can also be discerned from the legislative history of section 67 of the RTA, aptly summarised in Lee Meng Soon (at [17] – [19]) as follows:

Thus, it would not follow from the mere commission of an offence under s 67(1)(b) that the driver was also incapable of controlling his vehicle ((cf Stafford Rosemary Anne Jane (administratrix of the estate of Stafford Anthony John, Deceased) v Goo Tong Sing and another), [2006] 3 SLR(R) 277 at [38]). This further fact must be proved. Hence, in order that the court may take this fact into account for the purposes of sentencing, it must be demonstrated by the prosecution, by adducing cogent evidence, that the offender was unable to control his vehicle independently of the alcohol level in the offender’s blood or breath. The nature of such evidence may include, but is not limited to, the manner in which the offender had gotten into an accident/s such as in Kim Seung Shik and Lim Meng Soon or the fact that the offender was driving in a strange and dangerous manner such as in Thakur Samtani.

[27] In the present case, there was no evidence to show that the appellant was unable to control her car in the early morning of 27 April 2009 when she was attempting to get quickly to NUH to be with her Aunt. What was notable was the fact that she had driven for some distance from her home in Ascot Rise to somewhere near the PIE exit of Clementi Avenue 6 without being involved in an accident. In short, there was absolutely no evidence that the appellant’s manner of driving was dangerous or, in any other way, beyond what is ordinarily acceptable bearing in mind that EMAS cameras were installed along the PIE.

[28] At this juncture, I must address a point made by the DJ in her GD (at [12]), where she stated that:

It appeared to me that the DJ had used the level of alcohol in the appellant’s breath to presume that the appellant was incapable of controlling her car and that the appellant would, if given enough time on the road, eventually have caused personal or property damage. As such, the DJ had considered the possibility of the appellant causing an accident to be an aggravating factor. She would appear to have assumed that just because the alcohol level in the appellant’s body was high that the appellant was likely to have caused injury to others or damaged property. With respect, I think the DJ’s reasoning was flawed. As I have earlier explained (see [25] – [26], above) a driver would be guilty of an offence under s 67(1)(b) by the mere fact that he has a certain level of alcohol in his breath or blood. His guilt did not depend on the extent of his inability to control the vehicle. In ascertaining the appropriate sentence, the degree to which an offender was unable to control his vehicle must be demonstrated by objective evidence: see, for example, Lim Meng Soon (at [28] – [29]). In the present case, there was absolutely no evidence that the appellant’s ability to control her car was hampered in any way. The fact of the matter was that the appellant was not involved in any accident. Neither had she injured any person. Hence, it was wrong on the part of the DJ to speculate that the appellant would likely to have caused personal injury or damage to property and, on that assumption, to inflict a heavier sentence on the appellant. I would reiterate that there was nothing in evidence to suggest that the appellant was unable to control her car that morning and thus, other than the mere fact of a high alcohol content in her breath, there was no other aggravating factor.

[29] I now turn to consider a very important factor in ascertaining the appropriate punishment for the appellant, ie, the degree to which the appellant was culpable for the offence. Culpability must be distinguished from guilt. There was no doubt that the appellant in this case was guilty of the charge brought against her and demonstrating her remorse, she had pleaded guilty forthwith. She should, thus, be punished for the offence. However, the sentence which should be meted out to the appellant must be calibrated according to the degree to which she was culpable for the offence. Unlike guilt, which simply refers to the satisfaction of the legal requirements of the offence as set out in statutory materials, culpability pertains to the moral blameworthiness of the offender. Thus, while guilt sees things in black and white, culpability takes a more nuanced approach, viewing matters in shades of grey and blue. Deliberate, purposeful and calculated harm-causing must be differentiated from unintended or incidental peccadilloes. In assessing the degree of culpability of an offender, the court must take into account, all the circumstances, including the reason why the person drove on that occasion and only when this is done would the sentence meted out be fair and proportionate.

[30] At [13] of her GD, the DJ had taken the view that the appellant had deliberately chosen to drive with full awareness that she was inebriated. The DJ wrote as follows:

The DPP took very much the same approach in her argument before me and this was set out at [23] of her written submissions:

In my view, both the DJ and the respondent had taken too clinical a reading of the situation without fully appreciating the emotional state of the appellant at the relevant time when she received the call from the hospital and decided to drive there straight away. Let me explain.

[31] In order to understand the trauma which the call from the hospital had caused in the appellant, the most critical fact which must be borne in mind was the extremely close relationship which the appellant shared with her Aunt. Mr Singh explained that the Aunt had looked after the appellant when the latter was young whilst the latter’s parents were away. Accordingly, a bond akin to a mother-daughter relationship developed between them over several decades. This intimacy was further accentuated when the appellant moved into her current home at 10 Ascot Rise which was next door to her Aunt’s home at 8 Ascot Rise. Moreover, the appellant had always taken care of her Aunt’s health and medical needs. This close relationship was also evidenced by the fact that the Aunt had named the appellant as the major beneficiary under the Aunt’s will and given the appellant a power of attorney to handle matters on her behalf.

[32] Against that backdrop, it would be understandable if the appellant, prior to retiring to bed the evening before, was very disturbed by the fact that her Aunt had been admitted into NUH as a consequence of the latter suffering from an extensive nasal haemorrhage. Therefore, I could hardly disagree with the appellant’s counsel’s claim that the appellant went to bed distraught and in an agitated state of mind. This assertion was supported by the letter from Dr Fortier, dated 29 April 2009, tendered in evidence. Dr Fortier had written as follows:

Such emotional fragility could only have been exacerbated by the early morning call from NUH on 27 April 2009, informing the appellant that her Aunt’s condition had deteriorated. In those circumstances, I could hardly disagree with Mr Singh that the only thought in the appellant’s mind at that moment was to get to her Aunt at NUH as quickly as possible as the appellant feared for the worst. Nothing demonstrated the haste at which the appellant proceeded more than the fact that the call came at 1:20 am and, by 1:32 am, the appellant’s car was observed to be stationary along the PIE in the direction of Tuas. Given this time frame and the fact that the appellant would have required time to get ready to leave the house, it was clear that panic overcame her. This explained why calling for a taxi or her regular limousine service was not in her mind at the relevant time.

[33] Under such circumstances, it was, to me, understandable that the appellant had not fully appreciated the fact, when she took to the wheels at that unearthly hour, that she had drunk alcohol at lunch and dinner the night before. In her anxiety to see her Aunt, it was not improbable that what she had drunk the day before was not foremost in her mind. I could not agree with the DJ that the appellant had made a conscious and deliberate decision to flout the road traffic laws of Singapore. She acted on the spur of the moment. I also found it hard to accept the respondent’s contention that the appellant could not have forgotten about her consumption of alcohol since the alcohol level in her breath was very high. In my opinion, such an argument did not sufficiently take into account the state of anxiety and panic the appellant was in - being awoken abruptly in the middle of the night and being told that her Aunt’s condition had deteriorated. It was entirely human if her thoughts then were to get to her Aunt’s bedside as soon as possible, lest the Aunt might slip away before she reached there. Panic had simply overwhelmed her. It was an emotional crisis. It was therefore necessary for the court to view her action, and in turn her state of mind, in that condition, and not that of a mind which was cool and calm and unaffected by such emotional trauma. While it was true that the appellant had voluntarily consumed wine and some hard liquor that evening, she had no plans at all to leave the house. She was in bed by 10.30 pm and what happened two and a half hours later was something totally unexpected. That must have come as a shock.

[34] This factual matrix served as the context to the appellant’s behaviour, a context that must be fully appreciated in order to correctly ascertain the culpability of the appellant. When evaluating such an offender’s culpability, the court should refrain from using ex post facto reasoning, viewed from the perspective of an objective person not under similar stress, to gauge the reasonableness of the offender’s actions. Such an approach would be artificial and unfair to the offender, as in determining the degree of culpability of the offender, the court is essentially seeking to understand his or her actions in their context. The court should step into the shoes of the offender and see the material events unfold through the eyes of the offender. Only by so doing would the court be able to correctly appreciate the various variables that contributed to the offender’s behaviour. In the present case, although the appellant’s actions could not be said to be reasonable or responsible if a purely objective test was used, it could also not be denied that her sense of judgment was gravely affected by the emotional crisis, and the fear of what would happen to the Aunt. Putting it another way, it would be fair to say that her good sense of judgment had momentarily taken leave of her. While I am not for a moment suggesting that she had not committed an offence under s 67(1)(b), and indeed she had, it is altogether another thing to say that she had committed the offence with full knowledge that she was intoxicated. It would be unjust to equate her behaviour to that of someone who had deliberately driven with full knowledge that he was intoxicated. It was not even analogous to a situation where an offender placed himself in a difficult position by driving out for drinks, for such a person should have appreciated the possible consequences of his actions. Looking at the action of the appellant at its worst, the appellant’s fault lay in not taking time to compose herself and consider the fact that she had consumed alcohol just hours before.

[35] To summarise, the special circumstances of this case were two-fold. First, the appellant, at no time, had ever intended to drink and drive. At the time when the appellant consumed alcohol, during lunch and dinner of 26 April 2009, she had no intention of taking the wheel. When the appellant decided to drive to the hospital, in the early hours of 27 April 2009, the fact that she had consumed alcohol earlier had understandably slipped her mind. Secondly, the appellant’s failure to appreciate that she had consumed alcohol could, to an extent, be understood. She had gone to bed on 26 April 2009, expecting the effects of the alcohol to be dispelled when she woke up the next morning. Unfortunately, she was awoken prematurely by the urgent call from NUH. To worsen matters, the call brought grave news that her Aunt was in critical condition. In such extenuating circumstances, it was not surprising that panic took over and the appellant failed to appreciate that she had consumed alcohol a few hours earlier. Accordingly, I was of the view that the level of the appellant’s culpability was not of that level which the DJ had sought to attribute to her.

[36] Another important pillar in the DJ’s decision rested on the public policy of deterring drink driving. She felt that the general and specific deterrence considerations warranted a custodial sentence. This was also a point that the respondent pursued in the appeal. In Public Prosecutor v Tan Fook Sum, [1999] 1 SLR(R) 1022, Yong Pung How CJ, sitting in the High Court, explained the two facets to the principle of deterrence. He stated as follows (at [18]):

I shall now consider briefly whether the principles of general and specific deterrence were relevant considerations in the present appeal.

[37] The concept of specific deterrence revolves around the idea of discouraging an offender from re-offending. As was explained by V K Rajah J in Public Prosecutor v Law Aik Meng, [2007] 2 SLR(R) 814 (“Law Aik Meng”) (at [21]):

In essence, specific deterrence seeks to add further disincentive to offending by increasing the costs of criminal endeavours. In this manner, the law hopes to persuade the offender, when faced with a similar situation, to choose the right path. However, it is important to appreciate that underlying the concept of specific deterrence is the premise that the offender was capable of making rational choices. The offender must have had the ability to consider the pros and cons of each course of action available to him. If this was not so, specific deterrence would have little or no weight since imposing a greater cost on criminal activities would have little impact on his future choices, made under similar circumstances. This was a point touched on in Law Aik Meng (at [22]) as follows:

[38] The same point was underlined in Public Prosecutor v Loqmanul Hakim bin Buang, [2007] 4 SLR(R) 753 when the High Court made the following observations (at [26]):

[39] In the present case, I was of the view that the case for a specific deterrence was a less compelling, although not altogether irrelevant, consideration in the sentencing of the appellant. First, I was persuaded that the appellant had, by nature, little or no propensity to drink and drive. Mr Singh pointed out that the appellant, in the first place, did not have the habit of driving regularly. Moreover, on occasions where she would be drinking, the appellant had always used limousine services so that she would not have to drive. Indeed, produced in evidence were tax invoices and a letter from Nev and Freddy Limousine Svcs showing that the appellant had regularly and frequently engaged their services since 2004. Such evidence pointed towards the fact that the appellant generally had the desire to avoid drink driving. Secondly, as I pointed out earlier, the circumstances in which the appellant committed her offence were unique. Unlike most other offenders of drink driving, the appellant was not deliberately being reckless. One could say that at the crucial moment in time, the appellant was simply not thinking rationally and the fear of what would happen to her Aunt dictated her actions.

[40] I now turn to the question of general deterrence. In this regard, the specific or individual circumstances in which the particular offence was committed takes a backseat and the importance of upholding law and public order comes to the fore. As explained in Law Aik Meng (at [24] and [27]):

The High Court in Law Aik Meng further clarified (at [22]) that general deterrence, like specific deterrence, has little part to play in the sentencing of an offender when the crime was an “undeterrable” kind. This is because other like-minded individuals, when placed in a similar situation, would, like the offender, be unable to make a conscious decision to avoid committing the offence. The principle of general deterrence, accordingly, had little relevance to the present appeal.

[41] However, I am in no way suggesting that normally drink driving is “undeterrable”. Indeed, it is deterrable. It would only become “undeterrable” when the offence was committed in the extremely limited circumstances like the present where the appellant was in no position to overcome the extreme emotional upheaval which she was experiencing at that moment. As mentioned before (see [39] above), where the appellant was aware that she would be involved in drinking at an outing, she would arrange for the use of limousine services so as to avoid any incident of drink driving. In short, there was evidence to suggest that as far as drinking and driving were concerned, she was generally conscious of the need to be on the right side of the law. Therefore, where an offence of drink driving is committed, the court in determining the sentence, must take into consideration all the circumstances and calibrate the sentence to be imposed so that the ends of justice will be met.

[42] At this juncture, I wish to state that this court was and is conscious that drink driving remains a serious problem in Singapore society. The DJ provided two tables containing some telling statistics in her GD (at [16)], reproduced as follows:

The above tables demonstrate two points. First, the number of fatal drink driving accidents and, correspondingly, the number of persons killed due to drink driving had increased from 2007 to 2008. Second, although the number of non-fatal drink driving accidents had decreased from 2007 to 2008, it still hovered at an undesirable level.

[43] I turn, now, to address the last aggravating factor that the Judge had relied on in imposing an imprisonment term. The Judge had written (at [15]) of her GD as follows:

[44] It cannot be disputed that the appellant should not have driven her car on the morning of 27 April 2009 when she suffered from such a condition. However, as I have explained earlier, the grave emotional stress under which the appellant belaboured that morning were such that while her decision to drive remained unforgivable (in the sense that it did not excuse her for the offence of drink driving), it was at least understandable why she took to the wheels. More importantly, and in any event, the appellant’s medical condition had nothing to do with her offence of drink driving. It was a wholly separate impediment to her ability to drive. Hence, while it may be a relevant consideration in assessing whether to allow the appellant to retain her driving licence, it certainly was not an aggravating factor justifying the imposition of a custodial term for the appellant’s offence of drink driving.

[45] On the other hand, I must also add that I was also not persuaded by Mr Singh’s argument that the appellant’s ill health was a relevant mitigating factor in this case. In Leaw Siat Chong v Public Prosecutor, [2001] 3 SLR(R) 646 (“Leaw Siat Chong”), Yong Pung How CJ addressed a similar argument, that the appellant’s poor medical condition should warrant a lesser sentence, as follows (at [13]):

Ultimately, whether a case is exceptional would depend upon the severity of the offender’s illness. The sort of circumstances in which judicial mercy has not been exercised were helpfully compiled by the High Court in Chng Yew Chin v Public Prosecutor, [2006] 4 SLR(R) 124 (“Chng Yew Chin”). In that case, the appellant, who suffered from nasopharyngeal cancer, was convicted of outraging the modesty of his domestic helper. It was argued that his medical condition should be a mitigation factor in his favour. In response, the court noted as follows (at [52]):

[46] From precedents, judicial mercy has been exercised in two types of cases:

[47] In the present case, I did not think that the appellant’s medical condition fell within either of the two categories in which judicial mercy has been exercised. It was submitted that, in addition to the familial involuntary tremors described in [41] which only causes involuntary finger movements, the appellant suffered from two other ailments. The first, and more serious, one is a severe anaphylactic reaction. This is a reaction to an unknown food substance which may cause cardiovascular collapses. While this is a fairly serious condition, I am convinced that, with the proper attention and medical care, the appellant’s condition can be sufficiently addressed in prison without endangering her life. The other ailment is what is known as Morton’s metatarsalgia of the right foot. This merely results in pain in walking and requires that special footwear be made available. Such an ailment does not merit the exercise of judicial mercy.

[48] In passing, I should allude to counsel’s submission that the appellant had rendered distinguished public service as a well-respected radiologist. That this was a factor which the court could take into consideration for purposes of sentencing was recognised in the case of Glenn Knight v Public Prosecutor [1992] 1 SLR(R) 523. However, in this case, I did not think I needed to rely on this as a further factor to come to my decision.

[49] In conclusion, let me emphasise that I was, in this case, only concerned with the question as to what was a just punishment to impose on the appellant, taking into account all the circumstances. The fact that the appellant had committed an offence of drink driving was not in issue. To summarise, generally the norm in the sentencing of a first offender of drink driving is a fine. Sentencing precedents do not bear out the assertion that when the offender’s blood or breath alcohol level was three times over the prescribed limit, a custodial sentence was usually imposed. Aggravating factors must be found to justify the imposition of an imprisonment term in the present case. None, in my view, could be found here. First, no evidence was adduced to demonstrate that the appellant was unable to control her vehicle. Secondly, there were extenuating circumstances when the appellant took to the wheels to drive to the NUH that morning- see [30] to [34] above. This was not the normal case of an offender who, after a drinking binge, decided to drive home. The appellant was deeply remorseful of her action. Accordingly, I found that there were no aggravating circumstances present warranting the imposition of a custodial sentence.

[50] In the result, I made the following orders which I deemed just in the circumstances: