By Benny Tan
The Singapore legislature introduced a set of refined and interlinked provisions in the Road Traffic Act 1961 (RTA), which came into force on 1 November 2019. These provisions were intended to deal better with cases in Singapore where motorists drove dangerously or carelessly while under influence of drink or drugs. However, these provisions when applied may give rise to an issue of double-counting in punishment, and the way in which the courts have applied these provisions is such that in some cases this double-counting is fully ameliorated while in other cases it is not. In my article ‘Sentencing Offenders Under the Road Traffic Act for Driving Dangerously or Carelessly While Under Influence: Resolving the Double-counting Quandary’ published in the Singapore Academy of Law Journal, I submit that there is a more attractive solution to addressing the issue.
The legislature had designed these RTA provisions such that, generally speaking, for a motorist caught driving dangerously or carelessly while under influence, in respect of his conviction for the offence of Reckless or Dangerous Driving or Driving Without Due Care or Reasonable Consideration (as the case may be), he shall be punished for the fact that he drove dangerously or carelessly on a road, as well as for the fact that he so drove while under influence along that same length of road, and the sentence imposed on him for the conviction of this offence shall be based on the sum of the two aforementioned components.
Additionally, the provisions, as a general rule, require the Prosecution in such cases to also charge the motorist for the offence of Driving While Under Influence of Drink or Drugs based on the same stretch of driving as that for his charge of Reckless or Dangerous Driving or Driving Without Due Care or Reasonable Consideration.
Since these provisions came into force, the Singapore courts have applied the provisions in a way which gives rise to a double-counting quandary (compare, for example, Wu Zhi Yong v Public Prosecutor [2022] 4 SLR 587 and Public Prosecutor v Chow Chee Kin [2022] SGDC 45). This is because vis-à-vis the sentence for the offence of Reckless or Dangerous Driving or Driving Without Due Care or Reasonable Consideration, the legislative intention is that the motorist is punished for both the fact that he drove dangerously or carelessly as well as the fact that he so drove while under the influence of drink or drugs. In relation to the sentence for Driving While Under Influence of Drink or Drugs, the usual sentencing principles require that the motorist be punished for driving under influence, and the fact that he at the same time drove dangerously or carelessly is always an aggravating factor to be considered. Accordingly, then, if the individual sentences for the two offences are aggregated cumulatively to reach an overall sentence, the offender will be punished twice both for driving dangerously or carelessly and for driving while under influence.
Furthermore, the offences of Reckless or Dangerous Driving or Driving Without Due Care or Reasonable Consideration and the offence of Driving While Under Influence of Drink or Drugs share many common aggravating factors, and where these factors apply the offender will similarly be punished twice in respect of these factors.
In cases where the court first determined that the condign punishment for both offences is an imprisonment term, the court has then proceeded to order the two imprisonment terms to operate concurrently. The Criminal Procedure Code 2010 (CPC) expressly enables this. In such cases, any concern of double-counting is completely ameliorated.
On the other hand, in cases where the court first ascertained that the condign punishment for the two offences is either both a fine, or a fine and an imprisonment term, the courts have imposed the two sentences as is. The CPC does not provide for an equivalent legal avenue where a court may order that two sentences of a fine or a sentence of an imprisonment term and a fine be implemented concurrently.
The end result is that in some cases the concern of double-counting can be wholly ameliorated while in other cases the offender faces the entire, or at least partial, brunt of being punished twice. The question of which category each case falls in seems arbitrary in the sense that whether the double-counting is fully ameliorated or not is not in any way justified on the basis of any conventional offence or offender-specific sentencing considerations.
The main submission that I offered in my article is that in respect of a motorist who drove dangerously or carelessly while at that same time was under the influence is convicted of the two offences, the legislative intention is actually that the motorist be sentenced only for his conviction for Reckless or Dangerous Driving or Driving Without Due Care or Reasonable Consideration. The legislative intention is that no separate penalty need be imposed for the conviction of Driving While Under Influence of Drink or Drugs. On a related note, given that in such cases the punishment for the latter offence has been fully accounted for and subsumed under the punishment for the former offence, the latter is not a distinct offence from the former. Consequently, the provisions in the CPC do not require that a separate punishment be imposed for the offender’s conviction for Driving While Under Influence of Drink or Drugs. So, the courts should generally not impose such a separate punishment. This is the best approach as it ensures that any double-counting concern can be fully ameliorated in every case.
Keywords: Road Traffic Act, sentencing, dangerous driving, careless driving, drink driving
AUTHOR INFORMATION
Benny Tan is Assistant Professor at NUS Law, and an Advocate and Solicitor (Singapore).
Email: lawbtzp@nus.edu.sg