SUPREME COURT OF SINGAPORE
22 November 2024
Case summary
Chan Chow Chuen v Public Prosecutor [2024] SGHC 294
General Division of the High Court/Magistrate’s Appeal No 9096 of 2023
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Grounds of Decision of the General Division of the High Court (delivered by Justice See Kee Oon):
Outcome: The General Division of the High Court (the “Court”) allows the appellant’s appeal against his sentence of five days’ imprisonment and substitutes it with a fine of $11,000, holding that the custodial threshold had not been crossed in view of the minimal actual property damage and lack of any other significant aggravating factors.
Pertinent and significant points of the judgment
• Deriving sentencing bands for serious offenders by applying a proportionate reduction to those applied to serious and repeat offenders implicitly assumes that the difference between the sentences appropriate to each will differ only quantitatively rather than qualitatively. This overlooks the possibility that whether an offender is a repeat offender may be relevant to the anterior question of whether the custodial threshold is crossed in the first place: at [22].
• Potential harm ought to be determined with reference to the distance an offender intended to travel, rather than the distance actually travelled: at [24].
• Not every case of drink driving will entail such a degree of potential harm that a substantial sentence of imprisonment should follow, and the court should be cautious not to find heightened or increased potential harm too readily and without sufficient basis: at [25] and [32].
• While a term of imprisonment will be an appropriate starting point where damage to property has been caused, this is simply a general rule of thumb which applies before consideration of aggravating and mitigating factors. Moreover, a minimum level of severity is necessary for property damage to amount to an aggravating factor militating in favour of a custodial sentence: at [26]–[28].
• Antecedents which are dated or which do not pertain to an offender’s manner of driving are of limited relevance as an aggravating factor: at [30]–[31].
Background to the appeal
1 The appellant had consumed two glasses of whiskey before proceeding to drive home from his office. Shortly after beginning his journey home, he stopped his car along Bayfront Link to respond to a text message from his wife, parking behind the victim’s vehicle. When attempting to manoeuvre his car out from behind the victim’s vehicle in order to resume his journey home, the appellant accidentally caused the front of his car to collide with the rear portion of the victim’s vehicle.
2 The victim requested the appellant to provide his particulars, but called the police after the appellant declined to do so. The police later arrived and the appellant was made to take a Breath Analyzing Device test, which revealed that the proportion of alcohol in his breath was 64μg per 100ml of breath, in excess of the prescribed limit of 35μg per 100ml. The appellant subsequently made full restitution to the victim for all the damage which had been caused to the victim’s vehicle, which amounted to $450 for repairs and $300 for rental.
3 The appellant was later charged with one charge of drink driving under s 67(1)(b) of the Road Traffic Act 1961 (2020 Rev Ed) (“RTA”), and one charge of careless driving s 65(1)(b) of the RTA, and pleaded guilty to both charges. In connection with the drink driving charge, the District Judge (the “DJ”) sentenced the appellant to a fine of $5,000 and a disqualification order of three years.
4 As for the careless driving charge, the DJ noted that, having been charged under s 67(1)(b) of the RTA, the appellant qualified as a “serious offender” and was therefore liable to a maximum of 18 months’ imprisonment under ss 65(5)(a) read with 65(5)(c) of the RTA. The DJ therefore adopted the sentencing band approach in Wu Zhi Yong v Public Prosecutor [2022] 4 SLR 587 (“Wu Zhi Yong”) and Public Prosecutor v Cheng Chang Tong [2023] 5 SLR 1170 (“Cheng Chang Tong”), set out in respect of offences carrying a maximum imprisonment term of two years, and applied a proportional downward calibration of the sentencing ranges applicable to each band to reflect the difference in maximum imprisonment term.
5 Applying this framework, the DJ took the view that the appellant’s “moderately high” level of alcohol, his prior driving-related antecedents which reflected a “history of recalcitrance and propensity to flout traffic rules”, and the actual and serious potential harm in the present case meant that the custodial threshold had been crossed. She thus imposed a sentence of five days’ imprisonment and a 30-month disqualification order in connection with the careless driving charge.
6 The appellant subsequently appealed only against the sentence of five days’ imprisonment.
The court’s decision:
7 Wu Zhi Yong at [40]–[41] had characterised breath alcohol levels falling within the lowest and second lowest bands of the framework set out in Rafael Voltaire Alzate v Public Prosecutor [2022] 3 SLR 993 (“Rafael Voltaire”) as involving “relatively low to moderate levels of alcohol content”. Given that the appellant’s breath alcohol level fell within the second lowest band of the Rafael Voltaire framework, a fairer characterisation might perhaps have been that his alcohol level fell within the moderate range: at [20]–[21].
8 Deriving sentencing bands applicable to serious offenders by applying a proportionate reduction to those applied to serious and repeat offenders under ss 65(5)(b) read with 65(5)(c) of the RTA implicitly assumes that the difference between the sentences appropriate to each will differ only quantitatively rather than qualitatively. This overlooks the possibility that whether an offender is a repeat offender may be relevant to the anterior question of whether the custodial threshold is crossed in the first place: at [22].
9 Potential harm ought to be determined with reference to the distance the appellant intended to travel, rather than the distance he actually travelled. His intended route home would have entailed travelling a distance of over 10km and would have brought him through a residential area, and it was purely fortuitous that his journey was brought to an end close to its beginning: at [24].
10 Not every case of drink driving will entail such a degree of potential harm that a substantial sentence of imprisonment should follow. The appellant had not been speeding or driving recklessly or dangerously, nor was he aggressive, hostile, or violent. The court should be cautious not to find heightened or increased potential harm too readily and without sufficient basis: at [25] and [32].
11 That a term of imprisonment will be an appropriate starting point where damage to property has been caused is simply a general rule of thumb which applies before consideration of aggravating and mitigating factors. The comments in Wu Zhi Yong at [36(b)] appear to suggest that a minimum level of severity is necessary for property damage to amount to an aggravating factor pursuant to the first stage of its sentencing band approach. The property damage caused in the present case was slight, amounting to little more than a light graze. Repairs only involved respraying to rectify the damaged paintwork, the cost of which was far lower than in Cheng Chang Tong. The minimal property damage in the present case did not bring it past the custodial threshold: at [26]–[28].
12 Unlike the offender in Cheng Chang Tong, the appellant’s antecedents mostly comprised parking offences, which did not relate to his manner of driving. The appellant’s antecedents were also far more dated, which further limited the weight which they ought to carry. The appellant’s compounded offences therefore did not militate in favour of a custodial sentence: at [30]–[31].
13 The potential harm was not serious or heightened, and the appellant’s alcohol level was not insignificant but also not properly characterised as “high”. In view of these only two mildly aggravating factors, the present case fell on the borderline and did not clearly call for a custodial sentence. A fine of $11,000 and an increase in the disqualification period to 36 months in connection with the careless driving charge would be appropriate, resulting in a global sentence of $16,000 and a three-year disqualification period: at [35]–[37].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.