Case Summaries

Guay Seng Tiong Nickson v Public Prosecutor

13 May 2016

Media Summary

High Court Magistrate’s Appeal No 9040 of 2015

Guay Seng Tiong Nickson v Public Prosecutor [2016] SGHC 94

Background

  1. This was an appeal against sentence brought by the appellant. The appellant was involved in a tragic road accident that claimed the life of a two-month old infant. He was charged with causing death by a negligent act under s 304A(b) of the Penal Code. He pleaded guilty and was sentenced by the district judge to a term of four weeks’ imprisonment and a five-year disqualification order. On appeal, he submitted that the imprisonment sentence was manifestly excessive and that he should be sentenced to a fine instead. He did not contest the disqualification order.

  2. The appellant’s principal contention was that the death of the deceased was caused at least in part by the failure of the father to ensure that the deceased was secured by an approved child restraint. The appellant contended that the deceased might not have died if he had been properly restrained; and that this was a factor he had no control over. He therefore submitted that his sentence should be reduced to reflect the fact that he was not the sole cause of the death of the deceased.

Facts

  1. On 20 October 2014, the appellant made a right turn at the cross-junction of Ayer Rajah Avenue and North Buona Vista Road. He had been travelling along North Buona Vista Road in the direction of Holland Road. Travelling on the same road, but in the opposite direction was another car driven by the father. There were two passengers in the car. The first was the mother of the deceased. She was seated in the left rear seat and was cradling the deceased, the second passenger, in her arms. As the father approached the cross-junction, the light was in his favour. He maintained a speed of about 50 – 60km per hour as he drove into the cross-junction. As the appellant turned right, his car cut across the path of the father’s car as it was proceeding through the cross-junction. The father could not stop his car in time and collided into the side of the appellant’s car.

  2. At the hospital, tests revealed that the deceased had a blood clot on the left side of his brain and emergency surgery was organised to remove it. Tragically, however, the deceased suffered a cardiac arrest during the operation and succumbed to his injuries.

  3. Video footage revealed that the appellant made the turn and drove into the cross-junction without stopping. It is not disputed that the father had the right of way throughout the entire episode.  

Judgment

  1. The conclusion of the High Court (“the court”) was that the imprisonment sentence imposed by the district judge was not manifestly excessive and the appeal was dismissed.  

Reasons for the judgment

  1. The appellant’s principal contention on appeal raised a fundamental question which could broadly be framed as follows: In the context of criminal negligence under s 304A(b) of the Penal Code, could the negligent acts of the victim or of third parties which contribute to the death of the victim have a mitigating effect on the sentence to be imposed an offender?

  2. The court explained that where the conduct of the victim or a third party had a direct bearing on the culpability of the offender, it should, in keeping with the principle of proportionality, be taken into account when determining the sentence to be meted out. Proportionality required that the sentence be commensurate to the gravity of the offence, which is measured by, among other things, the moral culpability of an offender. In the context of a traffic death case, the moral culpability of the offender is usually linked to the extent of the offender’s negligence and it can, in some circumstances, be affected by the behaviour of a third party or of the victim.

  3. Save in the circumstances outlined above, the court held that it would be improper to have regard to the fact that there exists another contributing cause to the death as a factor relevant in sentencing.

  4. The court therefore rejected the submission that the fact that the negligence of the victim or a third party was a contributory cause of the death should, without more, be taken into account as a mitigating factor. This submission rested on the erroneous assumption that the law needs to “apportion” responsibility between all persons whose actions might have contributed to the result which forms the subject matter of the offence. This was the approach in the civil law of negligence where damages are apportioned between multiple tortfeasors for a single indivisible injury so as to prevent double recovery on the part of the claimant. However, this was not the position in the criminal law. The criminal law, unlike the civil law, is not concerned with recovery of loss on the part of the victim. Instead, it is concerned with punishment of the offender for his criminal conduct.

  5.  The court further elaborated that where the conduct of the victim or third parties, whether negligent or otherwise, has materially contributed to the outcome for which the offender is being charged, but has no bearing on the culpability of the offender, it should not affect the sentence to be imposed.

  6. Therefore, the failure to properly secure the deceased in an approved restraint was not a relevant consideration in sentencing in this case since it had no bearing on the culpability of the appellant. The fact of the matter remained that the appellant drove into a cross-junction without keeping a proper lookout. That the deceased was not in an approved restraint was neither here nor there. It did not in any way impact the assessment of whether the appellant was more or less negligent in failing to meet the standard of care which was expected of all drivers. It was therefore irrelevant to the appellant’s moral culpability.

  7. The court agreed with the appellant that the district judge erred in considering both the injuries to the deceased and the damage to the vehicles as aggravating factors because it amounted to double counting in the circumstances of the case.

  8. Dealing with the appellant’s claim that he had a mistaken belief that he had the right of way, the court held that a mistaken belief as to the effects of road signs or traffic lights cannot possibly be advanced as a mitigating factor in the context of criminal negligence that causes a road death. If anything, such ignorance would itself be indicative of the offender’s unsuitability to be allowed to drive at all given the potential dangers that this can give rise to. Secondly, negligence is found where an accused is adjudged to have fallen below the objective standard of the reasonable person. While, proof that an offender knowingly ran a risk was an aggravating factor, the lack of an advertence to the risk of harm was not a mitigating factor per se.

  9. The court also rejected the appellant’s submission that the district judge placed excessive weight on the fact that the appellant did not stop at the cross-junction to wait for the arrow light signal to appear. While it might not have been legally obligatory for the appellant to stop to wait for the arrow light signal, he was obliged to slow down with a view to check for oncoming traffic before navigating the turn and, if necessary, stop to avoid a collision.

  10. In conclusion, the court held that while the district judge erred in considering the injuries of the deceased and the damage to the vehicles as aggravating factors, a custodial sentence was plainly called for.

  11. The presence of several aggravating factors including the fact that the appellant was a new driver who was not used to or familiar with a new car and that the junction was a major intersection which demanded a greater degree of care from the appellant meant that a sentence in excess of four weeks would not have been out of place. While there were some mitigating circumstances present including the appellant’s remorse and his timeous plea of guilt, the sentence of four weeks’ imprisonment was not manifestly excessive and the appeal was therefore dismissed.

     

    This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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