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Singapore – In The Blink Of An Eye: Causing Death By Negligent Driving Can Land You In Jail.

21 January, 2015

 

Legal News & Analysis – Asia Pacific – Singapore  Dispute Resolution

 

Section 304A of the Penal Code makes it an offence to cause the death of any person by doing any rash or negligent act not amounting to culpable homicide. In the case of a rash act punishable under s 304A(a), the punishment is up to 5 years’ imprisonment, or fine, or both, while a negligent act is punishable under s 304A(b) with up to 2 years’ imprisonment, or fine, or both.

 
In early September 2014, the High Court issued a landmark decision, Public Prosecutor v Hue An Li [2014] 4 SLR 66 (“Hue An Li”), which established a new sentencing benchmark of imprisonment for negligent driving causing death. The Chief Justice, sitting in a specially constituted panel of 3 Judges including Chao Hick Tin JA and Tan Siong Thye J, held that the default benchmark sentence for a traffic death case under s 304A(b) is a short custodial sentence of up to four weeks’ imprisonment. Previous cases had indicated that a negligent driver who committed an offence under s 304A(b) would usually be fined.

 
This commentary reviews the High Court’s reasons for imposing a higher sentencing benchmark and the relevant sentencing considerations for a traffic death case under s 304A(b). It also highlights that things that can happen in a blink of an eye can land you in jail, so drive carefully.

 
The Facts Of Hue An Li

 
The accused worked in the surveillance department of a casino, which required her to work 12-hour shifts and to be “mentally alert for long periods of time”. On 14 March 2013, after completing her 12-hour shift at 7.00pm, the accused took a short nap in her new car before meeting her friends later that night at East Coast Park.

 
At about 6.30am the next morning, the accused dropped her friend off at Pasir Ris and then took the Pan-Island Expressway (“PIE”) to return to her home at Farrer Park. While driving along the PIE in good traffic conditions, she dozed off momentarily and her car collided into a lorry. This fleeting lapse resulted in the death of a passenger on the lorry and injuries to the lorry driver and 9 other passengers.

 
The accused pleaded guilty to a charge of causing death by a negligent act under s 304A(b) of the Penal Code, with two other charges – causing hurt by a negligent act (s 337(b) of the Penal Code) and causing grievous hurt by a negligent act (s 338(b) of the Penal Code) – taken into consideration for sentencing purposes. In the District Court, she was fined SGD 10k and disqualified from driving for five years. On the prosecution’s appeal to the High Court, the fine was revoked and she was ordered to serve a four-week imprisonment term. The five-year driving disqualification order remained.

 

High Court’s Reasons For Imposing A Higher Sentencing Benchmark

 

In setting the higher sentencing benchmark for a traffic death case under s 304A(b), the High Court reasoned as follows:

 

  • the amendment to s 304A of the Penal Code in 2008 distinguished between a rash act which caused death (under s 304A(a)) and a negligent act which caused death (under s 304A(b)), each with different starting points for sentencing. Previously, s 304A had provided a single punishment for causing death (up to 2 years’ imprisonment, or fine, or both), whether by a rash or a negligent act;

 

 

  • the harsher sentencing regime for a rash act which caused death was justified “on the basis that the offender was actually advertent to the potential risks which might arise from his conduct, but proceeded anyway despite such advertence”. In contrast, the lower maximum imprisonment sentence for a negligent act causing death recognized that the offender was not aware of the potential risks which might arise from his conduct;

 

 

  • in view of the different sentencing regimes for rash and negligent acts under s 304A(b), the High Court declined to follow the past sentencing practice of a fine and set the default benchmark sentence in a traffic death case under s 304A(b) at a brief period of imprisonment for up to four weeks. However, a sentence of imprisonment will not necessarily be imposed in every such case, because all the circumstances of the case as well as any aggravating and/or mitigating factors must be examined to determine the gravity of the particular offender’s conduct; and

 

 

  • notwithstanding that a rash act causing death is a more serious offence than a negligent act causing death, an offender convicted of a rash act might receive a lighter sentence than another offender who was convicted of a negligent act in different circumstances. This was because the presence of mitigating and/ or aggravating factors, and not merely whether the act was rash or negligent, would determine the actual sentence.

 
Relevant Sentencing Considerations

 
The High Court discussed a number of relevant sentencing considerations for a traffic death case under s 304A(b). In particular, the amount of harm caused, whether the victim belonged to a vulnerable class of road users and whether the offender’s judgment was impaired due to a prolonged period of time without sleep before the accident were significant in Hue An Li.

 
Amount Of Harm Caused

 
The key issue was whether a sentencing court can take into account the full extent of the harm caused by a particular criminal act. Under the thin skull rule (which originated in the law of tort), a person can be held responsible for all consequences of his actions. Although previous cases had held that the thin skull rule did not apply in criminal law, the High Court held that “the thin skull rule cannot be ignored in the context of criminal negligence”. Thus, even if a negligent driver’s actions resulted in harm which he did not intend and was beyond his control, the full extent of the harm caused by his actions is a relevant factor to be considered in determining the appropriate sentence.

 
The High Court justified its view on three legal grounds, one of which was that the maximum punishment for negligence-based offences under the Penal Code frequently increased as the resulting harm became more serious, thereby indicating that Parliament intended that the extent of the harm was relevant for sentencing purposes.

 
Vulnerable Class Of Road Users

 
The High Court held that that there was no rule that offenders in s 304A(b) traffic death cases should be punished more harshly simply because they had collided into a vulnerable class of road users, as one concern was that wasteful litigation would ensue over whether a particular class of road users ought to be recognized as vulnerable. Nevertheless, the victim’s vulnerability may be taken into account for the purposes of sentencing on the particular facts of the case.

 
Impaired Judgment Due To Sleepy Driving

 
The High Court acknowledged that it was difficult to set a meaningful common standard of “permissible” sleep deprivation, beyond which it is illegal for a person to drive, because what constitutes sufficient sleep is subjective. However, where an accident had occurred and investigations revealed that the offender went through a prolonged period of time without sleep before the accident, this was likely to be an aggravating factor.

 
Application Of Aggravating Factors

 
The High Court further took into account the accused’s advertence or non-advertence to the risks she was running and observed that the District Court had erred in not placing any, or in not placing sufficient weight, on the following aggravating factors:

 

  • the accused had gone for more than 24 hours without proper sleep before the accident;
  • she must have appreciated that the intense concentration required by her work would have drained her mentally;
  • she was mindful of the risk of being overcome by fatigue and therefore thought it necessary to have a brief rest before meeting her friends;
  • she was still in the midst of getting used to her new car, which she had bought shortly before the accident;
  • she must have known that the expressway in the morning rush hour was likely to be increasingly crowded with relatively fast- moving traffic, which required her to be more alert; and
  • the collision caused 1 death and injuries to 10 others, of whom 7 suffered grievous hurt and 1 was now paralysed from the waist down.

 
The High Court noted that the above factors, which were “matters within [the accused’s] knowledge”, had “increased the risk that [she] would end up being overcome by fatigue and, as a result, drive in a state of unconsciousness with disastrous consequences”.

 
Practical Implications Of Hue An Li

 
Results Matter Even If You Have No Control Over Them

 
Although the accused in Hue An Li did not know that her momentary lapse would result in a death and serious injuries to many passengers, the High Court took into account the outcome of the accident for the purposes of sentencing.

 
The four-week imprisonment term in Hue An Li can be justified in view of the two additional charges that were taken into consideration for the purposes of sentencing. However, collateral harm caused by the collision should not be given the same weight in every case as the sentencing court should focus on the total number of charges before it and consequently the total extent of the harm done.

 
Sleepy Driving Is Dangerous

 
The High Court noted in Hue An Li that it was impractical to set a law that it was “illegal to drive without having had eight hours of sleep within the preceding 24 hours”. However, that a driver was sleep-deprived at the material time would be taken into account for the purpose of sentencing under s 304A(b) of the Penal Code.

 

Given that sleepy driving is at least as dangerous as drink driving, drivers should bear in mind the High Court’s caution of “the consequences of the tremendous risks that they take on, not only to themselves but also to other innocent road users, when they drive despite not being in a fit condition to do so”.

 
Assess All Your Decisions In Driving

 
Drivers need to be mindful that all their decisions made while driving in a sleep-deprived state could be taken into account for the purposes of sentencing. The High Court in Hue An Li considered as aggravating that the accused ought to have been more alert in peakhour expressway conditions. It would therefore be prudent for drivers who are sleep-deprived to assess whether they are even in a position to make decisions on when and where to drive.

 
Conclusion

 
The default benchmark sentence set in Hue An Li is only a guideline. As the Chief Justice observed, the sentencing benchmark “is liable to be adjusted up or down by reference to the extent of negligence involved as well as the presence of aggravating and/or mitigating factors”.

 
As sentencing for negligent driving causing death under s 304A(b) involves complex considerations which Hue An Li had only briefly touched on, legal advice should be sought to ensure that submissions made on the appropriate sentence are calibrated to the facts of a particular case.

 

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For further information, please contact:

 

Sunil Sudheesan, Partner, RHTLaw Taylor Wessing
sunil.s@rhtlawtaylorwessing.com

 
Diana Ngiam, RHTLaw Taylor Wessing
diana.ngiam@rhtlawtaylorwessing.com

 

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