Public Prosecutor v Rangasamy Subramaniam

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] The matter before us concerned a criminal reference that had been taken out by the Public Prosecutor (“the Applicant”) pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). The genesis of this application was the decision of the High Court judge (“the Judge”) setting aside the conviction of Rangasamy Subramaniam (“the Respondent”) under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”) for driving while under the influence of drink (see Rangasamy Subramaniam v Public Prosecutor [2010] 1 SLR(R) 719 (“the GD”)).

[2] Before proceeding to consider the question reserved for our decision in the present application, it would be appropriate that we first set out briefly the specific background of the case. The facts were relatively straightforward.

[3] On 2 December 2007, at about 10.00pm, the Respondent went to a coffee shop at Tanjong Pagar. He claimed that he drank a bottle of beer which he finished by 11.00pm but that he remained at the coffee shop for a while thereafter. The Respondent admitted that on 3 December 2007, at about 2.00am, he got into his car and started to drive home. However, whilst travelling along the Pan-Island Expressway (“the PIE”), he felt sleepy and nauseous. After stopping his car at the road shoulder, he fell asleep in his car.

[4] At 3.54am, the police received a telephone call from someone who stated that “there is a car parked on the PIE with the driver’s door open and he is partially coming out of the car”. The police despatched a patrol car to the scene where they found the Respondent. His speech was found to be slurred and his eyes were bloodshot. Consequently, at 4.42am, the police proceeded to administer a breathalyser test on him. He failed the test and was arrested.

[5] The Respondent was then brought back to the Traffic Police Division Headquarters where a breath evidential analyser (“BEA”) test was administered on him at 5.42am pursuant to s 70(1) of the RTA. His breath alcohol content was found to be 43 microgrammes of alcohol per 100 ml of breath, which was above the legal limit of 35 microgrammes of alcohol per 100 ml of breath. Both the breathalyser test and the BEA test were administered on the Respondent more than 2 hours after he had stopped driving.

[6] The police charged the Respondent for driving while under the influence of drink pursuant to s 67(1)(b) of the RTA. The charge read as follows:

The police relied on the results of the BEA test and the assumption in s 71A of the RTA to show that the Respondent’s alcohol level exceeded the legal limit at the material time. There was no other evidence of the Respondent’s alcohol level. Section 71A provides that in proceedings for an offence under ss 67 or 68, the proportion of alcohol in an accused’s breath at the time of the alleged offence shall be assumed to be not less than that in the specimen of breath provided by him.

[7] During trial, counsel for the Respondent submitted that there was no evidence that the Respondent’s alcohol level during the material time (between 2.00am and 3.54am) exceeded the legal limits. He submitted that the assumption in s 71A of the RTA could not apply in the circumstances to show that the Respondent’s alcohol level had exceeded the limit at the material time because by the time the Respondent was found by the police, he was no longer driving. He also invited the court to amend the charge to one under s 68 of the RTA for being in charge of a motor vehicle when under the influence of drink. Significantly, s 68, unlike s 67, does not provide for disqualification from driving.

[8] The District Judge held that the assumption in s 71A of the RTA applied and convicted the Respondent. She sentenced him to a fine of $3,000 (in default 15 days’ imprisonment) and disqualified him from holding or obtaining a driving license for all classes of vehicles for a period of 2 years (see Public Prosecutor v Rangasamy Subramaniam [2009] SGDC 30). The Respondent appealed against both the conviction and the sentence.

[9] Before the Judge, the Respondent again submitted that under the RTA, the assumption in s 71A could only be used in support of a charge under s 67(1)(b) if the offender was stopped while he was driving or attempting to drive a vehicle, as opposed to a situation where he was merely in charge of a vehicle within the meaning of s 68. The Judge allowed the appeal. He quashed the Respondent’s conviction with respect to the offence under s 67(1)(b) and set aside the sentence imposed. Instead, he found that there was sufficient evidence of the Respondent having been in charge of a motor vehicle when under the influence of drink. Accordingly, he convicted the Respondent of a lesser charge under s 68(1)(b) of the RTA and sentenced the Respondent to a fine of $2,000 (in default 10 days’ imprisonment). There were two main reasons why the Judge decided to quash the Respondent’s conviction that had been imposed by the District Judge:

(a) On a charge under s 68(1) of the RTA for being in charge of a motor vehicle when under the influence of drink, it was open to the accused (here, the Respondent) to prove the circumstances in s 68(2) of the RTA, viz, that at the time he was driving the vehicle, his alcohol level was not over the limit, even though by operation of s 71A(1) of the RTA, his alcohol level at the time he was apprehended would be assumed to be not less than the level found in the specimen given by him. If s 71A(1) of the RTA were applicable to a charge under s 67(1) of the RTA in the circumstances of the present case, the accused would be deprived of the defence available to him under s 68(2) if he had been charged under s 68(1) of the RTA instead (see the GD at [12]).

(b) If s 71A(1) of the RTA was applicable where a person, apprehended while he was in charge of a vehicle (as opposed to while he was driving it), is charged with an offence under s 67(1) of the RTA, then it would mean that he was better off refusing to provide a breath or blood specimen. That was because without the result from the specimen, that person could only be convicted of an offence under s 68(1) of the RTA as opposed to the more severe offence under s 67(1) of the RTA (see the GD at [17]).

[10] Following the decision of the Judge, the Applicant applied by way of Criminal Motion for a question of law of public interest to be referred to us. The question was phrased as follows:

[11] In his Statement of Case, the Judge expressed his view that the true question that arose from his decision was, instead, more appropriately phrased as follows:

However, as the Applicant was not inclined to alter the question, and as s 60 of the SCJA required the court to certify any application by the Public Prosecutor, the Judge made an order in terms in relation to the motion and reserved the question (as set out in the preceding paragraph) for determination.

[12] The Respondent submitted, as a preliminary point, that the question posed by Applicant ought to be rephrased in accordance with the Judge’s wording (see above at [11]) or as a question of whether, given facts such as those in the present case, s 67 or s 68 of the RTA was the more appropriate charge.

[13] The principles governing the refashioning of a question posed in a criminal reference were set out in Public Prosecutor v Fernandez Joseph Ferdinent [2007] 4 SLR(R) 1 as follows (at [19]):

Bearing the above principles in mind, we were of the view that the question posed by the Applicant need not be rephrased. The question as worded by the Judge simply queried whether the assumption in s 71A of the RTA ought to apply to an offence under s 67 of the RTA where an offence under s 68 of the RTA has been made out. It did not address situations where an offence under s 68 of the RTA had not been made out but where there was a time lag between the driving and the breath test. The narrowness of the Judge’s question made it, in our view, less helpful than the current question posed by the Applicant which was also broad enough to cover the Judge’s question. The question as phrased by the Judge would not furnish guidance in situations such as where a driver who was drunk stopped his car and walked away from the vehicle but was subsequently arrested on suspicion of either having been in charge of a car when under the influence of drink or for driving while under the influence of drink (ie, drink driving). We were also of the view that the question posed by the Applicant ought not to be rephrased as a question of whether, given facts similar to the present case, s 67 or s 68 was the more appropriate charge. The power to decide whether to prosecute under a particular charge lies squarely with the Public Prosecutor. In any event, the question suggested by the Respondent did nothing to clarify the true import of the public interest question posed by the Applicant, ie, the circumstances under which the assumption in s 71A of the RTA would apply to a driver accused of an offence under s 67 of the RTA.

[14] Having heard the submissions of both parties, we held that the question posed by the applicant ought to be answered in the affirmative. We now give the detailed grounds for our decision.

(i) The UK Criminal Justice Act 1925, UK Road Traffic Act 1930 and Straits Settlement Road Traffic Ordinance 1941: one provision combining drink driving and being in control while under influence of drink

[15] The modern day RTA has its genesis in the Road Traffic Ordinance of 1941 (No 17 of 1941) (“RTO 1941”), which was modelled on the contemporary UK provisions of that period. In both the local and UK provisions, the offence of driving while under the influence of drink was indistinguishable from the offence of being in charge of a motor vehicle while under the influence of drink.

[16] Indeed, an early provision did not even refer expressly to the specific action of driving (or attempting to drive) a motor vehicle. This is a significant point which we will return to below (at [41]) inasmuch as it accords with both logic and commonsense that when one is driving a motor vehicle, one is necessarily also in charge of it. However, as we shall also elaborate upon below, it does not necessarily follow that if one is in charge of a motor vehicle, one must simultaneously be driving it. This (early) provision was, in fact, s 40 of the UK Criminal Justice Act 1925 (Cap 86) (“UKCJA 1925”), which read as follows:

[17] However, s 40 of the UKCJA 1925 was just one isolated provision on drink driving. The first substantive UK statute dealing with road traffic offences proper appears to be the UK Road Traffic Act 1930 (Cap 43) (“UKRTA 1930”), to which our attention now turns.

[18] In particular, s 15 of the UKRTA 1930 provided as follows:

During the second reading of the UK Road Traffic Bill on 16 December 1929, Lord Raglan proposed an amendment in favour of excluding the words “or when in charge of” from subsection (1) of the above provision. He pointed out that (see Parliamentary Debates (Hansard) - House of Lords (16 December 1929) vol 75 at col 1337):

Eventually, the amendment was withdrawn. However, the parliamentary speeches in relation to this proposed amendment are instructive. Earl Russell opined thus (see Parliamentary Debates (Hansard) - House of Lords (16 December 1929) vol 75 at cols 1337–1338):

In response to a hypothetical situation by Earl Howe regarding a young lady who found herself unable to drive and was discovered asleep in the vehicle without having attempted to drive, Earl Russell replied (see Parliamentary Debates (Hansard) - House of Lords (16 December 1929) vol 75 at col 1338):

[19] The above extracts reveal that, when the provision was first drafted in the UKRTA 1930, it was envisaged that a person who had been drink driving could be convicted even if he had ceased driving at the time of arrest. However, a person who had fallen asleep in the vehicle as a result of the influence of drink, but who had no intention to operate the vehicle, was not intended to be caught by that provision.

[20] Section 15 of the UKRTA 1930 was imported into Singapore largely unchanged in the form of s 27 of the RTO 1941, which read as follows:

For the purpose of the present analysis, the main difference between the two provisions is that in s 27 of the RTO 1941 the words “or when in charge of” were replaced with “sitting in the driving seat of a motor vehicle”. The Report of the Select Committee appointed by the Straits Settlements Legislative Council to review the draft Road Traffic Bill (on 14 October 1940) as well as the Minutes of the meeting of the Straits Settlements Legislative Council (on 14 February 1941) relating to the Road Traffic Bill are silent on why these changes were made. Nevertheless, it is plausible, in our view, that the insertion of the words “sitting in the driving seat of the motor car” and (in particular) the proviso to s 27(1) were intended to avoid the conviction of an accused in situations such as that posed in the hypothetical situation suggested by Earl Howe, where persons who had taken alcohol but had no intention to drive were found in a motor vehicle (see above at [18]). Section 27 of the RTO 1941 was subsequently renumbered as s 26 of the Road Traffic Ordinance 1955 (“RTO 1955”), and the amount of the fine that could be imposed was raised, but otherwise the provision remained the same until the Road Traffic Ordinance 1961 (“RTO 1961”) came into force.

(ii) The UK Road Traffic Act 1956, the UK Road Traffic Act 1960 and the Singapore Road Traffic Ordinance 1961: separate provisions for driving under influence of drink or drugs and being in charge of motor vehicle when under the influence of drink or drugs

[21] The offence of driving under the influence of drink and being in charge of a motor vehicle when under the influence of drink remained one and the same in the UK until the UK Road Traffic Act 1956 (“UKRTA 1956”) was enacted. The decoupling of the two offences appears to have come about as a result of a growing sentiment that was aired in the UK Parliament to the effect that to treat both offences as being equally culpable offences was unreasonable. In the words of Lord Brabazon of Tara (see Parliamentary Debates (Hansard) - House of Lords (21 December 1954) vol 190 at col 608):

And, as observed by Earl Jowitt (see Parliamentary Debates (Hansard) – House of Lords (21 December 1954) vol 190 at col 633):

Finally, in the words of Earl Howe (see Parliamentary Debates (Hansard) - House of Lords (14 March 1955) vol 191 at col 1006):

[22] During the Second Reading of the UK Road Traffic Bill on 12 June 1956, the Chancellor of the Duchy of Lancaster (The Earl of Selkirk) had this to say about the decoupling of the two offences (see Parliamentary Debates (Hansard) - House of Lords (12 June 1956) vol 197 at col 846):

[23] Having regard to the background set out above, it appears clear that the two offences were decoupled in order to prevent the injustice that would result from the conflating of drink driving with (a) the situation where a person was drunk and in control of a motor vehicle but had not driven it; and (b) the situation where a person was drunk but had not driven and could not have been said to have been in control of a motor vehicle in any other than an extremely technical sense. More importantly (for the purposes of the present proceedings), it is clear that this decoupling was not intended to detract – in any way – from the need to proscribe (in no uncertain terms) the first offence, viz, drink driving, which, by its very nature (as demonstrated, inter alia, by s 40 of the UKCJA 1925 (see above at [16])), necessarily entails the accused being in charge of the motor vehicle in the first place. Looked at in this light, the second offence is much narrower inasmuch as it refers to a situation where the accused, whilst also being in charge of the motor vehicle and intending to drive it, has not, at the time of being apprehended, yet driven it.

[24] To summarise, there was a decoupling of offences with the result (in substance) that whilst the accused is in charge of the motor vehicle in the case of both offences, the first offence relates to actual drink driving (which is obviously more serious as the danger to the safety of others would be a very real and immediate one) whereas the second offence relates to a situation where the accused is apprehended before he or she has actually driven the motor vehicle. However, legislative safeguards were required with respect to the second offence in order to exclude from prosecution persons who, whilst unfit to drive the motor vehicle concerned, had in fact not driven it and could be shown to have no intention of driving it, lest injustice occur. It was this injustice that was the subject of much criticism in the UK Parliament (as set out above at [21]–[22]) and which the UKRTA 1956 in general and s 9 thereof in particular were supposed to meet. It is also important to note, at this juncture, that the Public Prosecutor would have the discretion as to which one of these two offences it wished to charge the accused with. Indeed, since the first offence, of actual drink driving, necessarily entails the accused being in charge of the motor vehicle in the first place, it is clear that the accused could potentially be charged with either offence (which was precisely the fact situation that arose in the present proceedings). How that discretion is to be exercised is a matter for the Prosecution, having regard to all the circumstances of the case (see [63] below).

[25] Returning to the UKRTA 1956, the new s 9 read, in fact, as follows:

[26] It can be seen that s 9 of the UKRTA 1956 attempts to capture the situation where the accused is in charge of a motor vehicle insofar as he or she has not driven it but is apprehended at a point in time when he or she can be shown to have the intention of driving it. As a corollary, it also attempts, therefore, to exclude from its ambit persons who can be demonstrated not to have driven the motor vehicle and to have no intention of driving it. Whereas there is potential danger to other persons in the former situation, there is no danger to other persons at all in the latter situation, and this would justify the exclusion of such a situation from the ambit of s 9 altogether. It should be reiterated that s 9 did not appear to have been intended to impact (in any way) the quite separate offence of actual drink driving under s 15 of the UKRTA 1930 (reproduced above at [18]), which was an offence that presented even greater potential danger to other persons and hence entailed more severe penalties. Indeed, s 9(1)(b)(i) and (ii) capture situations such as those in the English decisions of Jowett-Shooter v Franklin [1949] 2 All ER 730 and Jones v English [1951] 2 All ER 853, which were decided pursuant to s 15 of the UKRTA 1930 and which, in order to do justice to the accused concerned, entailed the court concerned exercising its discretion under that particular provision to order that the accused not be disqualified from holding a driving licence.

[27] Section 9 of the UKRTA 1956 was re-enacted – in substantially the same form (at least insofar as the elements of the substantive offences were concerned) – as s 6 of the UK Road Traffic Act 1960 (Cap 16) (“UKRTA 1960”) that read as follows:

[28] Following the developments in the UK, which were also reflected in the corresponding laws of the Federation of Malaya, the local Road Traffic Ordinance (“RTO 1961”) was amended in 1961 in order to provide for the separate offences of driving under the influence of drink or drugs and for being in charge of a motor vehicle when under the influence of drink or drugs. The respective provisions (viz, ss 27 and 28 of the RTO 1961) read as follows:

[29] The amendments were introduced to bring the provisions of the RTO 1961 “into line with Federation and United Kingdom legislation” (see Singapore Parliamentary Debates, 14 June 1961, vol 14 at col 1640 (per the Minister for Labour and Law, Mr K M Byrne)). Section 27(2) of the RTO 1961 was repealed in 1968 and ss 27 and 38 of the same Act were renumbered as ss 28 and 29, respectively, but otherwise these provisions remained largely the same in the Revised Edition of the Road Traffic Act of 1970 (“RTA 1970”). These sections were again renumbered, this time as ss 29 and 30, in the 1973 Reprint of the Road Traffic Act (“RTA 1973”). The fact that the local provisions replicated, in both letter and purpose, the corresponding provisions in the UK is a point of the first importance. Put simply, the distinction between the offences of drink driving and being in charge of a vehicle while under the influence of drink in the UK and the reasons for such a distinction apply with equal force locally.

[30] Prior to 1976, there was no provision in our local Road Traffic Act for blood, urine or breath testing. The statute also did not require persons to submit to medical examinations. Provisions for blood and urine testing were first introduced in the 1976 amendments to the RTA 1973. It became obligatory for a person arrested under s 29 (for drink driving) or s 30 (for being in control of a motor vehicle when under the influence of drink or drugs) of the RTA 1973 to provide a specimen of his blood or urine for a laboratory test if required to do so by the police. The relevant provisions read as follows:

Section 30B of the RTA 1973 (reproduced above) created a presumption that if a person’s blood was tested and found to have an alcohol blood concentration in excess of 110 mg of alcohol in 100 ml of blood, that person was incapable of having proper control of a motor vehicle. This presumption, however, could be rebutted by evidence that the accused was capable of having proper control of a motor vehicle. The introduction of this provision was welcomed by Members of Parliament as certifying whether or not a person was intoxicated under the previous law was difficult and depended on the individual judgment of the medical practitioner concerned (see Singapore Parliamentary Debates, Official Report (25 March 1976) vol 35 at col 965 (per the Member of Parliament for Kim Seng, Dr Ong Leong Boon)).

[31] In the 1985 Reprint of the Road Traffic Act, ss 29, 30, 30A and 30B were renumbered as ss 68, 69, 70 and 71 respectively. Parliament made two further amendments to these provisions in the same year as a result of the increase in serious and fatal accidents involving drivers and motorcycle riders who were under the influence of alcohol (see Singapore Parliamentary Debates, Official Report (30 August 1985) vol 46 at col 326 (per the Minister for Home Affairs and Second Minister for Law, Professor S Jayakumar)). First, the blood alcohol concentration limit in s 71 was lowered from 110 mg of alcohol in 100 ml of blood to 80 mg of alcohol in 100 ml of blood. This was done because, as the Minister for Home Affairs, Professor Jayakumar explained, “[a]mending the legal blood alcohol content level from the existing 110 mg/100 ml to 80 mg/100 ml will serve to deter motorists from driving if they consume alcohol excessively” (see Singapore Parliamentary Debates, Official Report (30 August 1985) vol 46 at col 327). Secondly, the use of breathalysers was introduced as a screening (as opposed to an evidentiary) measure by way of s 71A. Prior to the introduction of breathalysers, where a driver was suspected to be under the influence of alcohol, he had to be brought to a hospital for blood and urine tests. Professor Jayakumar observed that this was “a troublesome as well as an unpopular procedure – both for the individual and the Police” (see Singapore Parliamentary Debates, Official Report (30 August 1985) vol 46 at col 326). With the introduction of breathalysers, the driver would be brought to the hospital for confirmatory blood and urine tests only where the reading of the breathalyser exceeded the legal prescribed limit. In the 1985 Revised Edition of the Road Traffic Act (“RTA 1985”), ss 68, 69, 70, 71 and 71A were renumbered as ss 67 (driving while under the influence of drink or drugs), 68 (being in charge of a motor vehicle when under the influence of drink or drugs), 69 (blood and urine test), 70 (presumption of incapability of having proper control of motor vehicle), and 71 (breath tests), respectively. Section 71 read as follows:

[32] In 1990, ss 67 and 68 were amended to increase the sentence that could be imposed for the respective offences. In 1993, s 67A was inserted to empower the courts to impose a range of punishment on persons who had been convicted multiple times for specific offences, of which drink driving was one. In Parliament, the Minister for Home Affairs, Professor Jayakumar, observed as follows (see Singapore Parliamentary Debates, Official Report (18 January 1993) vol 60 at col 429):

(v) The 1996 round of amendments to the Road Traffic Act 1994: introduction of BEA testing and assumption of alcohol/breath levels

[33] In the 1996 round of amendments to the 1994 Revised Edition of the Road Traffic Act (“RTA 1994”), a new regime of breath testing was introduced in the form of ss 67 to 71C. The material extracts are set out below:

[34] Following the 1996 amendments, s 71A provided for the use of the results of a BEA test as evidence for offences under s 67 and s 68. Unlike s 70 of the RTA 1994, the new s 71A provided that the BEA reading was not just a rebuttable presumption but an assumption that would apply unless the exceptions in s 71A(2) were made out. New offences (for driving or being in charge of a vehicle while having so much alcohol in the body that the proportion of it in the breath or blood exceeded the prescribed limit) were created in the form of s 67(1)(b) and s 68(1)(b). The rationale for these extensive changes can be found in the following extract from the speech of the Minister for Home Affairs, Mr Wong Kan Seng (see Singapore Parliamentary Debates, Official Report (27 February 1996) vol 65 at cols 722–724):

[35] It is clear, from the extract reproduced in the preceding paragraph, that the BEA assumption was introduced as an evidentiary measure to enable the Prosecution to secure the conviction of persons committing offences under ss 67 and 68 of the RTA. No further material amendments to ss 67–71C were made in the 1997 Revised Edition of the Road Traffic Act (“RTA 1997”) but in the (latest) 2004 Revised Edition of the RTA, s 71C was renumbered as s 72.

[36] The long title of the RTA reads as follows:

The long titles of earlier versions of the Road Traffic Act, however, shed more light on the legislative intention of the statute itself. The long title of the RTO 1941, for example, stated that its purpose was, inter alia, “to make provision for the protection of third parties against risks arising out of the use of motor vehicles”.

[37] The protection of road users from the risks of harm, particularly in relation to drink driving, is a theme that has been reiterated in Parliament on numerous occasions.

[38] For example, the Minister for Home Affairs, Professor Jayakumar, expressed the following view (see Singapore Parliamentary Debates, Official Report (28 March 1990) vol 55 at cols 958 and 960):

[39] Professor Jayakumar reiterated his views at a subsequent session of Parliament thus (see Singapore Parliamentary Debates, Official Report (18 January 1993) vol 60 at col 429):

[40] We have set out a comprehensive account of both the historical context of the RTA as well as its legislative purpose as an understanding of both is, in our view, of the first importance in answering the question reserved for our determination.

[41] Looking at the historical context, it is clear that what are now ss 67 and 68 of the RTA are both premised on the accused having been in charge of the motor vehicle concerned. Indeed, this is why both provisions were part of a broad provision (in s 40 of the UKCJA 1925 (reproduced above at [16])), which referred only to an offence of being drunk whilst in charge of a motor car (but which was clearly targeted at both actual drink driving as well as being in charge of a motor car, whilst drunk, with the intention of driving it). These two specific aspects were, in fact, incorporated in s 15 of the UKRTA 1930 (reproduced above at [18]). However, because the second offence (viz, being in charge of a motor car, whilst drunk, with the intention of driving it) could – in certain exceptional fact situations (see above at [21]–[24]) – catch conduct which Parliament never intended to capture (hence, resulting in injustice), s 9 of the UKRTA 1956 (reproduced above at [25]) was enacted. As we have seen, this last-mentioned provision (later re-enacted as s 6 of the UKRTA 1960 (reproduced above at [27])) formed the basis for the substantive offences in ss 27 and 28 of the (Singapore) RTO 1961 (reproduced above at [28]), which (in turn) constituted the progenitors of both ss 67 and 68 of the RTA, respectively. In the circumstances, therefore, having a common root or source, it is clear, in our view, that s 71A of the RTA ought, in principle, to apply to both ss 67 and 68, regardless of whether or not the accused was driving a vehicle at the time of the arrest. This conclusion is buttressed by the objectives of the provisions relating to drink driving in the RTA itself – a point to which our attention must now turn.

[42] The issue that arises in the present proceedings in relation to the purpose of the RTA is neatly encapsulated in the following question: could Parliament have intended that the assumption under s 71A of the RTA would not apply to an accused charged under s 67(1)(b) of the RTA where the accused was not driving a vehicle at the time of the arrest? Having considered the fact that ss 67 and 68 of the RTA had been enacted (originally as ss 27 and 28 of the RTO 1961) prior to s 71A of the RTA which was itself enacted as an evidentiary tool to assist in securing convictions for these two offences in the appropriate fact circumstances, and having taken into account the uniform (and strict) approach towards drink driving as demonstrated in the relevant proceedings in Parliament (see generally above at [37]–[39]), we are of the view that this could not have been the intention of Parliament. Further, s 67 of the RTA plainly states that any person who, when driving or attempting to drive a motor vehicle on a road or other public place, had so much alcohol in his body that the proportion of it in his breath exceeded the prescribed limit shall be guilty of an offence. There is nothing in that particular provision to suggest that the offence abates just because the drink driver stops after a particular point of time. Certainly, nothing in the Parliamentary Debates (see generally above at [34]–[35]) as well as in the relevant provisions suggest that those who drive with excess alcohol could necessarily escape punishment just because there was a lapse of time between the commission of the offence and the arrest.

[43] It is now appropriate to turn to two other issues which figured prominently in the arguments of counsel for the Respondent. The first relates to the reasons given by the Judge in the court below for arriving at the decision he did. The second relates to case authorities which counsel for the Respondent sought to rely upon in support of his client’s case. Let us consider each issue seriatim.

[44] As just mentioned, counsel for the Respondent relied on the reasons that the Judge in the court below gave for quashing the conviction imposed by the District Judge. These have already been referred to above (at [9]). To recapitulate, they were as follows.

[45] First, the Judge was of the view that on a charge under s 68(1) of the RTA, it was open to the accused to prove (by way of a defence) that the circumstances in s 68(2), viz, that at the time he or she was driving the motor vehicle, his or her alcohol level was not over the limit, even though by operation of s 71A of the RTA, his or her alcohol level at the time he or she was apprehended would be assumed to be not less than the level found in the specimen given by him or her. In other words, if s 71A of the RTA were applicable to a charge under s 67(1) of the RTA in the circumstances of the present case, the accused (here, the Respondent) would be deprived of a defence that would have been available to him under s 68(2) of the RTA if he had been charged under s 68(1) instead (see the GD at [12]). However, where a single act could constitute the basis for more than one offence, the Prosecution has the discretion to choose which section to proceed under. If so, this particular reason is, with respect, premature as the availability of a defence to the accused becomes a relevant issue only after the charge is preferred. Put simply, if a charge is preferred against the accused under s 67(1) of the RTA, then no issue with regard to a defence under s 68(1) can be raised in any event. A corollary of this is that the accused is still entitled to (and is not, therefore, deprived of) his or her defence under s 68(2) of the RTA if he or she is charged under s 68(1) of the RTA. This brings us back to the question of prosecutorial discretion which is, of course, a quite separate and distinct issue altogether.

[46] Secondly, the Judge was of the view that if s 71A of the RTA were applicable where a person, apprehended whilst he was in charge of a vehicle (as opposed to whilst he was driving it), was charged with an offence under s 67(1) of the RTA, it would mean that he was better off refusing to provide a breath or blood specimen. This was because without the result from the specimen, he could only be convicted under s 68(1) of the RTA; if he gave a specimen and admitted that he had driven the motor vehicle earlier, he could be convicted under the more severe offence under s 67(1) of the RTA (see the GD at [17]). With respect, however, this particular reason ignores the fact that, in addition to a conviction under s 70 of the RTA, the failure to provide a specimen could also attract (pursuant to s 69(4) of the RTA) a fine ranging between $1,000 to $5,000 or a jail term of up to 6 months for a first time offender. In the case of a repeat offender, the fine that could be imposed is increased to between $3,000 and $10,000 and the jail term could be one of up to 12 months. Arguably, as a person refusing to provide a specimen could be sentenced to a longer period in jail, he would not necessarily be better off refusing to provide a breath or blood specimen even if by doing so he would be charged under s 68(1) instead of s 67 and would not be disqualified from driving.

[47] Therefore, we were not convinced that either of the reasons relied upon by the Judge in the court below supported a negative answer to the question referred to us in the present proceedings. On the contrary (and as we have seen), the key factors centring on the historical context as well as the legislative purpose embodied in the RTA support an affirmative answer to the said question instead.

[48] It was also argued that, if the assumption in s 71A of the RTA applied even when a driver was arrested after having stopped the motor vehicle, there would be no incentive for him or her to cease drink driving once he or she had commenced. It was argued, conversely, that if the assumption in s 71A did not apply, the driver would have an incentive to stop because then he or she could only be charged with the lesser offence under s 68 of the RTA which did not provide for disqualification of driving licenses. However, an offence does not cease to be an offence just because the accused, having already committed the act constituting the offence, decides to refrain from continuing with the conduct concerned. Further, it is not, strictly speaking, accurate to state that a driver has no incentive to stop once he or she had commenced drink driving. If the driver voluntarily arrests the risk he or she was hitherto posing to the public in ceasing to drive, his or her initiative could well be taken into account in mitigation. One would imagine that if the accused had only driven, say, a few metres and stopped (so that there was, albeit only technically speaking, an offence committed under s 67 of the RTA), the Prosecution might even decide, in the special circumstances of the case, to prefer a charge against the driver under s 68 of the RTA instead. In any event, the parliamentary background (referred to above at [37]–[39]) demonstrates, in no uncertain terms, that the provisions in the RTA (in relation, inter alia, to drink driving) were clearly intended to have a deterrent effect. Hence, the imposition of more severe penalties as well as a strict application of the applicable provisions would serve to help achieve this deterrent effect, which consists of deterring all drivers from drink driving in the first place.

[49] Let us turn now to a brief consideration of a few relevant case authorities cited in both the local as well as English contexts.

[50] Counsel for the Respondent cited two local decisions for the proposition that in situations such as the present (in which the accused had ceased driving at the time of the arrest), a charge under s 68 of the RTA (and not one under s 67) ought to be preferred against the accused.

[51] Turning to the first decision, in Ho Chun Kow v Public Prosecutor [1990] 1 SLR(R) 575, one of the issues that arose was whether s 68 of the RTA 1985 (ie, being in charge of a vehicle when under the influence of drink or drugs) was “an offence in connection with the driving of a motor vehicle” within the meaning of s 42 which provided that any court “before which a person is convicted of any offences in connection with the driving of a motor vehicle may, in any case except where otherwise expressly provided by this Act and shall, where so required by this Act, order him to be disqualified from holding or obtaining a driving licence for life or for such period as the court thinks fit”. Chan Sek Keong J held that it was not.

[52] The basis of Chan J’s holding was essentially that not all factual circumstances in which a s 68 offence could be made out would fall within the context of being “in connection with” the driving of a motor vehicle even though there may be some overlap between the two. He rightly observed (at [7]) that to hold otherwise “would mean that the existence of the discretionary power of disqualification [in s 42] is dependent not on the nature of the offence but on the circumstances in which the offence is committed”. The case, however, should not be taken to stand for the entirely different proposition that where the accused has ceased driving and a s 68 offence can be made out, a s 67 offence should not be preferred.

[53] Chan J observed thus (at [8]):

This passage in fact buttresses our view that even where the accused has ceased driving at the time of his or her arrest, he or she may nevertheless be convicted for the offence of driving under the influence of drink or drugs under s 67 of the RTA, notwithstanding the fact that the elements constituting an offence under s 68 of the RTA may also be made out. Indeed, this is not surprising for, as the learned judge pertinently points out, an offence committed under s 67 must necessarily entail the accused being in charge of the motor vehicle which, ceteris paribus, constitutes an offence under s 68 as well.

[54] In the second decision, Chong Pit Khai v Public Prosecutor [2009] 3 SLR(R) 423, the appellant pleaded guilty at trial to a charge of drink driving under s 67 of the RTA. In sentencing the appellant, the district judge took into consideration an antecedent, viz, a prior conviction under s 68 of the RTA for being in charge of a motor vehicle while intoxicated. The appellant then appealed on the ground that the district judge should not have given any consideration to his earlier conviction under s 68 of the RTA for the purpose of sentencing him for an offence under s 67 of the RTA. Chan Sek Keong CJ allowed the appeal. He held that while a conviction for an offence under s 67 was deemed, under the RTA, to be a previous conviction for an offence under s 68, the RTA did not deem a conviction for an offence under s 68 as a previous conviction for an offence under s 67. It was in that particular context that Chan CJ observed thus (at [18]):

[55] As already mentioned, the learned Chief Justice was illustrating the difference in culpability between an offence under s 67 of the RTA and an offence under s 68 of the RTA for the purposes of explaining why a conviction under s 68 of the RTA could not be treated as a prior conviction for the purposes of sentencing for an offence under s 67 of the RTA. The above extract should therefore not be misread to stand for the proposition that, once a drink driver has stopped driving, he or she cannot be charged under s 67 any longer but can only be charged under s 68 instead. Indeed, the converse is true. As already noted (above at [24]), the Prosecution has the discretion to choose between preferring a charge under s 67 or, instead, under s 68. Further, one should also note the reference by the Chief Justice to the purpose of s 68 as centring on the need “to deter people from driving in those two situations prescribed [in s 68(1)(a) and (b)]”.

[56] Finally, we turn briefly to two English decisions which were cited and (more importantly) distinguished in the court below, viz, DPP v Williams [1989] Crim LR 382 (“Williams”) and Millard v DPP [1990] Crim LR 601 (“Millard”), respectively.

[57] In Williams, police officers found a car parked near to an address where they found the respondent at around 4am. The respondent admitted that he had driven the car and said his last drink had been some 5 hours earlier. The respondent failed the breath test that was administered and was charged for drink driving. The respondent submitted that by his imprecise admission of having driven that night he could have been indicating that he had driven before he drank and as such the Prosecution had not proven that at the time of driving the respondent was in excess of the prescribed limit. This was rejected by the High Court who held that the respondent bore the burden of displacing the assumption that his breath/alcohol proportion had exceeded the statutory limit. Once he had admitted driving and once the specimen he gave showed that he was over the prescribed limit at the time of sampling, s 10(2) operated to transfer the burden to the respondent. Since that burden had not been discharged, the assumption applied and the respondent was guilty of drink driving.

[58] In Millard, the defendant ate sandwiches and drank a bottle of white wine for lunch between 1.15pm and 3.45pm before returning to his office where he remained until 5.30pm. After leaving his office, he drove his car to a public house where he drank nearly all of a large whisky. He then left, returned to his car and, at about 6.10pm, drove to another parking place before returning to the public house. After he had drunk most of a pint of beer there, police officers spoke to him and invited him outside. He was asked to take a roadside breath test, which he did. The test was positive and so he was arrested and taken to a police station. At the police station, between 7.15pm and 8.15pm, he provided specimens of breath and blood which were found to contain alcohol above the prescribed limit. He was charged. At the conclusion of his evidence, it was submitted on his behalf that the court should hear expert evidence for the purpose of calculating retrospectively the effect of the whisky drunk by the defendant prior to driving and the beer drunk by him after driving. The court held that it was not open to the defendant to introduce evidence of such retrospective calculation. The defendant chose not to adduce evidence relating to the beer he had drunk after driving (by doing so he might have brought himself within the exceptions of the UK equivalent of s 71A of the RTA so that the assumption would not apply) and he was convicted of the drink driving offence.

[59] The Judge was of the view that the respective accused in Williams and Millard were not arrested whilst driving a motor vehicle (see the GD at [23]). This stems, in fact, from the Judge’s observation that s 68 of the RTA “caters for the situation where a person is not apprehended while driving or attempting to drive a vehicle, but where he can be said to be in charge of the vehicle, such as in the present case where he had stopped it at the road shoulder and had fallen asleep in it” (see the GD at [5]). Whilst this last-mentioned observation is correct, this does not meet the argument that, if the accused has already driven under the influence of alcohol or drugs, then he or she would, ex hypothesi, have already committed an offence under s 67(1) of the RTA. More importantly, as we have already explained above, such an offence does not thereby cease to be an offence just because the accused had literally stopped driving the motor vehicle.

[60] More importantly, perhaps, the Judge was also of the view that the respective courts in both Williams and Millard had not considered the reasons referred to in the preceding section of this judgment. However, we have already explained why those reasons ought not to be accepted. Indeed, it would appear to us that both Williams and Millard are, indeed, relevant and buttress the decision which we have arrived at in the context of the present proceedings.

[61] The Respondent had suggested that a police officer had to determine whether a 67 offence or a s 68 offence was going to be proceeded with before the police officer procured the breath specimen. We do not agree. Pursuant to s 69(5) of the RTA, all the police officer needs is reasonable cause to suspect that either offence has been carried out. A person arrested pursuant to s 69(5) may be required to take a BEA or a blood test pursuant to s 70. The results of that test form the basis of the assumption in s 71A of the RTA. On a literal reading, there is nothing in s 71A stating that if the police officer initially procured a breath specimen for a BEA with reasonable cause to suspect drink driving, it could not subsequently be assumed that the accused had the same alcohol levels as the breath specimen if a charge of being in charge of a vehicle when under the influence of drink was preferred instead. Of course, as a threshold requirement, it must first be shown that the accused had driven at the time of the alleged offence before the s 71A assumption can apply to a charge pursuant to s 67. The assumption can hardly apply to an offence if the preliminary act forming the offence itself (viz, that the accused had driven or was driving the vehicle) is not made out in the first place. However, once the preliminary act has been proved, the assumption regarding the results of a breath or blood test under s 71A ought to apply regardless of whether it was procured in the course of investigation into an offence under s 67 or s 68 of the RTA. In the English House of Lords decision of DPP v Butterworth [1994] 3 WLR 538, the accused refused to provide a breath sample and contended that his conviction for failure to provide a sample was unsound because at the time the request was made to furnish the sample, the police were still uncertain as to which particular offence he had committed. The House of Lords held that the police was entitled to investigate generally whether an offence had been committed, and to contend that the police had to have a particular offence in mind before a request for a sample could be made would impose, on the police, an unnecessary burden at a point before they even knew whether the person had exceeded the limit of whatever statutory offence they were investigating. We would adopt the same approach in the local context. It would be unduly restrictive to require the police to decide in advance what offence an accused was going to be charged with when the whole purpose of the taking of the breath and blood specimen was to determine whether an offence under s 67 or 68 of the RTA was likely to have taken place in the first place.

[62] Counsel for the Respondent also suggested that the phrase “at the time of the alleged offence” [emphasis added] in s 71A of the RTA referred to the time the accused was arrested. In other words, the assumption is that the proportion of alcohol in the accused’s breath or blood is not less than in the specimen at the time of the arrest rather than at the time of the driving for the purposes of an offence under s 67 of the RTA. We find this argument to be wholly without merit. First, it equated (or, rather, conflated) the meaning of “offence” with that of “arrest”. This cannot be correct as the act which constitutes the “offence” is not the arrest as such but, rather, the drink driving. Secondly, the purpose of establishing an assumption was to assist the Prosecution in surmounting the (otherwise extremely difficult) evidential hurdle of demonstrating that an accused was unfit to drive. This purpose would be entirely frustrated if “time of the offence” were interpreted to mean the point or time of arrest.

[63] As there is an overlap in the ingredients of a s 67 offence and a s 68 offence, the Prosecution has an absolute discretion to decide which offence it will charge the offender with in any particular case. The court cannot interfere with its decision, but we would imagine that if the Prosecution invariably uses s 67 of the RTA for every case where a driver is found sitting or sleeping in a motor vehicle by the side of the road, it may actually encourage drink drivers not to stop driving and continue on his or her journey in the hope that he or she would arrive safely at his destination. This is obviously a situation the Prosecution may want to avoid and therefore we would think that it would take this consideration into account in exercising its discretion in the circumstances of each case.

[64] For the reasons set out above, we answered the question posed by the Public Prosecutor in the affirmative and restored the sentence of the District Judge.