Loophole in penalty framework for two drinking-related traffic offences, says CJ
Chief Justice Sundaresh Menon has flagged a loophole in laws to deal with reoffenders of drinking-related traffic offences that could result in some recalcitrant drivers getting off lightly. Photo: TODAY file photo.
SINGAPORE — Chief Justice Sundaresh Menon has flagged a loophole in laws to deal with reoffenders of drinking-related traffic offences that could result in some recalcitrant drivers getting off lightly.
This “anomaly”, in CJ Menon’s words, arises when someone who has been convicted of “being in charge of” a vehicle after drinks — such as getting into the driver’s seat without driving off — is hauled to court again for drink-driving. An offender with this sort of criminal history may be sentenced to a fine, even though he or she had committed a more severe crime in the second instance.
In contrast, a judge has no choice but to impose jail time on an offender who had committed the same two drinking-related traffic offences in the reverse order. Similarly, an imprisonment sentence is mandatory for someone who is a second-offender of drink-driving, or being in charge of a vehicle under the influence of alcohol. For all reoffenders of these offences, disqualification from driving is automatic.
The loophole was likely the result of a legislative oversight, CJ Menon said, and “if that is the case, legislative reform would be desirable”.
His remarks came in a written judgment released on Wednesday (Oct 4), as he allowed the appeal of Pua Hung Jaan Jeffrey Nguyen, 34, against his sentence of one week’s jail for drink-driving on Oct 29 last year. He had a previous conviction in 2012 for being in charge of a motor vehicle under the influence of alcohol.
CJ Menon noted that offenders such as Nguyen “would generally be more culpable”, given that drink-driving was a more serious offence.
If a custodial sentence was the “starting point” for such repeat offenders, it might go some way towards alleviating this “anomaly” in the punishment framework.
CJ Menon also noted a hypothetical situation raised by prosecutors when the case was heard in the lower courts. Prosecutors had noted that an offender with an antecedent of being in charge of a vehicle after consuming alcohol beyond the prescribed limit may be “incentivised” to drive, instead of simply sitting in the vehicle after drinking, given that they know they may escape with a fine.
But CJ Menon said: “It seems untenable that as between two irrational choices (namely, driving the vehicle, on the one hand, and sitting in the vehicle and waiting for a driver to come by, on the other), a person with (such an) antecedent ... should have a greater incentive to drive the vehicle.”
CJ Menon also noted Nguyen’s arguments, where he cited two cases in the past where offenders who had committed drink-driving offences twice were not sentenced to jail.
In both these cases, both charges of drink-driving were heard in the same hearing, which meant the offender was not treated as a repeat offender.
Nguyen had argued that these were more aggravated offences than his, yet jail had not been imposed.
CJ Menon said the fact remains that “imprisonment is not mandatory” in scenarios like Nguyen’s. By treating a custodial sentence as the starting point here would “come dangerously close to regarding imprisonment as mandatory” in this case, he added.
Eventually, CJ Menon allowed Nguyen’s appeal and replaced his jail term with the maximum fine of S$5,000. He kept the 30-month disqualification period imposed on Nguyen.
The Ministry of Home Affairs had said in February that it was conducting a review of penalties under the Road Traffic Act in order to take a tougher stance against irresponsible motorists.
"We will study the High Court’s judgment as part of this review,” a spokesperson for the ministry said in response to queries from TODAY.
