Case Summaries

Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor

Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor

 

SUPREME COURT OF SINGAPORE

4 October 2017

MEDIA SUMMARY

Pua Hung Jaan Jeffrey Nguyen v Public Prosecutor

Magistrate’s Appeal No 9043 of 2017/01

Decision of the High Court (delivered by Sundaresh Menon CJ)

1                    The appellant, Pua Hung Jaan Jeffrey Nguyen (the “Appellant”), pleaded guilty to a single charge of driving while having excessive alcohol in his breath or blood under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (the “RTA”). The district judge (the “District Judge”) sentenced him to one week’s imprisonment and disqualified him from holding or obtaining all classes of driving licences for a period of 30 months with effect from the date of release.

2                    Magistrate’s Appeal No 9043 of 2017/01 was the Appellant’s appeal against the sentence imposed on him by the District Judge. It was opposed by the respondent, the Public Prosecutor (the “Respondent”). What stood out on the facts was the Appellant’s previous conviction, in 2012, for an offence of being in charge of a motor vehicle while under the influence of drink under s 68(1)(b) of the RTA. The central question that was raised was whether the custodial threshold had been crossed.

Background to the appeal

3                    The Appellant, an American citizen and Singapore permanent resident, was 34 years old at the time of the offence. At about 4.50am on 29 October 2016, the Appellant was driving his car along Whitley Road when he was stopped at a police road block. The Appellant smelt strongly of alcohol. A breathalyser test was administered and the Appellant’s alcohol level was found to be excessive. He was placed under arrest and escorted to the Traffic Police department for a Breath Evidential Analyser (“BEA”) test. The BEA test revealed that the proportion of alcohol in the Appellant’s breath was 70μg of alcohol per 100ml of breath. This far exceeded the prescribed limit of 35μg of alcohol per 100ml of breath set out in s 72(1) of the RTA. Investigations revealed that the Appellant had been at the Pan Pacific Hotel at about 11.00pm on 28 October 2016, where he had consumed about three glasses of champagne.

Decision on appeal

4                    The court held that the starting point of the analysis was the fact that imprisonment was not mandatory in what it termed “Scenario 4”. Scenario 4 was the scenario where an offender with an antecedent under s 68(1) of the RTA was subsequently convicted under s 67(1) of the RTA. It was also the scenario within which the present case fell. A sentencing court faced with a Scenario 4 offender had a choice whether to impose a fine and a period of disqualification or a term of imprisonment and a period of disqualification. Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 and then enhance the sentence derived from that framework to take account of the Appellant’s antecedent. ([8]–[9] and [52])

5                    The court noted that the difficulty with that and, in a sense, the strongest point in the Respondent’s favour, was the comparison which Scenario 4 invited with what the court termed “Scenario 2”. Scenario 2 was the scenario where an offender with an antecedent under s 68(1) of the RTA was subsequently convicted under the same provision. The court observed that there was attraction in the notion that the statutory framework in respect of offences under ss 67(1) and 68(1) of the RTA could not be ignored and should be taken into account. In this context, a comparison with Scenario 2 pointed towards the imposition of a custodial sentence in the present case. In particular, the court noted that it was somewhat anomalous that imprisonment was mandatory in Scenario 2 but not in Scenario 4, even though, all other things being equal, a Scenario 4 offender would generally be more culpable than a Scenario 2 offender. This was because the second offence in Scenario 4 (which was an offence under s 67(1) of the RTA) was a more serious offence than the second offence in Scenario 2 (which was an offence under s 68(1) of the RTA). Thus, if a custodial sentence were the starting point in Scenario 4, this might go some way towards alleviating this anomaly. ([8]–[9], [38] and [53])

6                    However, the court emphasised that in fact imprisonment was not mandatory in Scenario 4. The court held that it would not be correct for the courts to regard a custodial sentence as the starting point in Scenario 4. To do so would come dangerously close to regarding imprisonment as mandatory in Scenario 4 when the current statutory framework did not require this. Although this anomaly was likely to have been the result of legislative oversight, the court did not think that it would be appropriate to adopt a rectifying construction against the Appellant when what was in question was a penal provision, and when there was an absence of clear evidence of Parliament’s intent. ([54])

7                    In addition, the court observed that the precedents cited by the Appellant involving two charges under s 67(1)(b) of the RTA being prosecuted at the same hearing also pointed strongly against the imposition of a custodial sentence. The court saw neither reason nor basis for imposing a custodial sentence in the present case when a non-custodial sentence was imposed in respect of the later offence in these precedents, even though they were more aggravated. Moreover, this had not only been the sentencing practice of the courts; it also appeared to have been the practice of the Respondent to not seek a custodial sentence in such cases. ([56])

8                    Given that imprisonment was not mandatory in Scenario 4, the court took the view that to determine whether the custodial threshold had been crossed, it had to consider the facts and circumstances of the present Scenario 4 case rather than the sentence prescribed for some other combination of offences. The court held that in the present case, the degree of harm caused and the Appellant’s culpability pointed against the imposition of a custodial sentence, and that this ultimately tilted the balance in favour of the Appellant. There was no actual harm caused by the offence as the Appellant had been apprehended in the course of a road block and, while the Appellant’s alcohol level was certainly on the high side, there was no evidence that the manner of his driving was particularly dangerous. ([49] and [57])

9                    In the circumstances, the court allowed the appeal. The court set aside the sentence of one week’s imprisonment imposed by the District Judge and substituted this with the maximum fine of $5,000. The period of disqualification was to remain, except that it was to take effect immediately. ([59])

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. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

 

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