Case Update: High Court lays down sentencing framework for negligence in road traffic accidents

Summary by Tedric Chai & Ronald JJ Wong

In Tang Ling Lee v Public Prosecutor [2018] SGHC 18, the High Court judge laid down the sentencing framework for road traffic cases under Section 338(b) of the Penal Code. The judge emphasized that it applied only to road traffic cases (at [24]). A flowchart summarizing the sentencing framework is set out here.

The sentencing framework consists of 3 broad sentencing bands on the basis of: (1) the degree of harm caused by the offence; and (2) the culpability of the offender (at [25]).

Degree of harm caused by offence

  1. The degree of harm caused would generally refer to the nature and degree of grievous bodily injury caused to the victim (at [25]).
  2. The period of hospitalisation leave or medical leave would be a relevant consideration insofar as it represents a medical professional’s opinion as to the length of time required for treatment of the injuries and for the victim to resume his daily activities (at [26]).
  3. Nevertheless, the period of hospitalisation or medical leave is a rough-and-ready proxy for the severity of the victim’s injuries at best, as the assessment of time required for treatment and subsequent recovery may vary from case to case and may also depend on an interplay of various other circumstances, including the opinion of the medical professional as well as the personal characteristics of the victim (at [26]).

Degree of culpability of offender

  1. The degree of culpability would generally refer to the degree of relative blameworthiness disclosed by an offender’s actions, and is measured chiefly in relation to the extent and manner of the offender’s involvement in the criminal act (i.e. the offender’s manner of driving) (at [25]).
  2. Factors that the Court will take into account include: (i) the manner of driving, i.e. how dangerous the driving was and the extent of danger to road users posed by the offender’s conduct; and (ii) the circumstances of driving which might have increased the danger to road users during the incident (at [27]).
  3. For (i) the manner of driving, some examples of situations where culpability would be increased include speeding, drink-driving, sleepy driving, driving while under the influence of drugs, driving while using a mobile phone, flouting traffic rules, driving against the flow of traffic or off the road, involvement in a car chase or a racing competition, or exhibiting poor control of the vehicle. These circumstances in relation to the offender’s manner of driving are aggravating due to the increased danger to road users posed by such conduct. (At [28])
  4. For (ii) the circumstances of driving, this would include instances where the offender drives without a licence or while under disqualification. Also, there may be increased risk where the offender drives: (a) during rush hours when the volume of traffic is heavy; (b) within a residential or school zone; (c) a heavy vehicle that is more difficult to control and requires a quicker reaction time; or (d) where he intends to travel a substantial distance to reach his destination. These circumstances may heighten the danger posed to road users. (At [29])
  5. Where some of the culpability-increasing factors arise, it is possible and indeed likely that additional charges may be preferred and proceeded with. In such circumstances, the respective sentences upon conviction ought to be calibrated as appropriate, avoiding loading or double-counting of the culpability-increasing factors. (At [30])

The sentencing framework comprising 3 presumptive sentencing ranges, which applies where the accused person claims trial, is as follows (at [31]):

Category Circumstances Presumptive sentencing range

(excluding an appropriate period of disqualification from driving)

1 Lesser harm and lower culpability Fines
2 Greater harm and lower culpability OR lesser harm and higher culpability One to two weeks’ imprisonment
3 Greater harm and higher culpability More than two weeks’ imprisonment

Presumptive sentencing ranges are merely starting points which seek to guide the exercise of sentencing discretion, and are not rigid or immutable anchors. In the final analysis, the appropriate sentence to be imposed will be the product of a fact-sensitive exercise of discretion, taking into account all the circumstances of the case. (At [33])

With regard to the sentencing framework, the Court will adopt a 2-step inquiry as follows (at [32]):

  • First, the Court should identify the sentencing band within which the offence in question falls, and also where the particular case falls within the applicable presumptive sentencing range, having regard to the twin considerations of harm and culpability, in order to derive the starting point sentence.
  • Second, further adjustments should then be made to take into account the relevant mitigating and aggravating factors, which may take the eventual sentence out of the applicable presumptive sentencing range.

Examples of relevant mitigating factors may include an offender’s timely plea of guilt, stopping to render assistance to the victim(s), a good driving record, and evidence of remorse.

Relevant aggravating factors may include efforts to avoid detection or apprehension, and the existence of similar antecedents which are indicative of persistent or prolonged bad driving.

For Category 1 cases, culpability-increasing factors would either be absent altogether or present only to a very limited extent, thus suggesting negligence to be at the lowest end of the spectrum. The harm occasioned to the victim(s) would generally be characterised by the lack of very serious or permanent injuries. This is often reflected in the victim having undergone a relatively brief duration of hospitalisation and medical leave (or none at all) and minimal surgical procedures (if any). (At [34])

For Category 2 cases, they comprise offences of a higher level of seriousness. These are usually cases where: (a) the harm is at the lower end of the spectrum but the culpability of the offender is moderate to high; or (b) the harm is serious but the culpability of the offender remains low. Where there are two or more culpability-increasing factors or injuries of a more serious or permanent nature and/or which necessitate significant surgical procedures, the offence would generally fall into Category 2. (At [35])

For Category 3 cases, there are both serious injuries and a moderate to high degree of culpability. A case falling within the Category 3 sentencing band would usually feature at least two culpability-increasing factors and injuries of a very serious or permanent nature and/or which necessitate significant surgical procedures. In this connection, serious long-term injuries occasioned to the victim, such as loss of limb, sight or hearing or paralysis in particular, would generally attract the sentencing band in Category 3. (At [36])

Acts Meditation 1:10-11; 3:21 – King on Clouds

J.J.

“10 And while they were gazing into heaven as he went, behold, two men stood by them in white robes, 11 and said, “Men of Galilee, why do you stand looking into heaven? This Jesus, who was taken up from you into heaven, will come in the same way as you saw him go into heaven.”” – Acts 1:10-11

“[Jesus] whom heaven must receive until the time for restoring all the things about which God spoke by the mouth of his holy prophets long ago.” – Acts 3:21

Why does it matter that Jesus should return to earth in the same way that He ascended to heaven? What is this “same way” anyway?

Continue reading “Acts Meditation 1:10-11; 3:21 – King on Clouds”

Acts Meditation 1:6-8 – Whither the Kingdom?

J.J.

6 So when they had come together, they asked him, “Lord, will you at this time restore the kingdom to Israel?” 7 He said to them, “It is not for you to know times or seasons that the Father has fixed by his own authority. 8 But you will receive power when the Holy Spirit has come upon you, and you will be my witnesses in Jerusalem and in all Judea and Samaria, and to the end of the earth.” – Acts 1:6-8

Now that Jesus had shown Himself to be the Messiah-Christ, would He at this time finally restore the Kingdom of Israel? The disciples had in mind, still, an earthly kingdom. One with military and executive government, taxes and territory.

Jesus does not reject the question outright. It was a valid question. The Kingdom of Israel would eventually be restored. But the question was too narrow.

Continue reading “Acts Meditation 1:6-8 – Whither the Kingdom?”

Acts Meditation 1:4, 14 – Waiting for Promise

J.J.

“And while staying with them he ordered them not to depart from Jerusalem, but to wait for the promise of the Father…” – Acts 1:4

“All these with one accord were devoting themselves to prayer, together with the women and Mary the mother of Jesus, and his brothers.” – Acts 1:14

Jesus ordered, not suggested, His disciples wait in Jerusalem for the promise of the Father.

In fact, Jesus had conveyed this promise before His crucifixion and after His resurrection (Luke 24:49). Why did the disciples have to wait for God to fulfil His promise? Surely, He could fulfil it in an instant?

Continue reading “Acts Meditation 1:4, 14 – Waiting for Promise”

Acts Meditation 1:3 – The Disciples’ Journey

J.J.

He [Jesus] presented himself alive to them after his suffering by many proofs, appearing to them during forty days and speaking about the kingdom of God. – Acts 1:3

Three things Luke describes in this verse. Jesus presented many proofs of his resurrection. Jesus appeared to the disciples for 40 days. Jesus spoke about the Kingdom of God. Our doctor-writer must have meant to say something important here.

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Case Update: Major Shipping & Trading Inc v Standard Chartered Bank (Singapore) Ltd [2018] SGHC 04 – Claim against bank for making unauthorised transactions by fraudster fails

Significance: Singapore High Court construes “good faith” in banking standard terms in the context of unauthorised fund transfers, finds that circumstances were not sufficient to put a reasonable banker on suspicion regarding unauthorised transfers, and finds on reasonableness of exclusion clauses under the unfair contract terms act.

Summary: The plaintiff sued Standard Chartered Bank for remitting monies in four transactions totalling US$1.8 million it claims were not authorised, but were instructed by some third party fraudster who had presumably hacked into the plaintiff’s personnel’s email (possibly through a phishing attack) and sent instructions to the bank. The plaintiff sued the bank for breach of contract–making remittances without authorisation when the bank could not have believed in good faith that the payment instructions were sent by authorised persons, given the suspicious circumstances surrounding their receipt. The plaintiff also claimed the bank breached its duty to use reasonable care and skill under the contract, and also some duty to take steps or systems to prevent unauthorised fund transfers.

The Court (Kannan Ramesh J) first considered the issue of the definition of “good faith” and held, relying on HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd [2012] 4 SLR 738 (CA), and construing the bank account opening documents, that the concept of good faith incorporated a subjective requirement of acting honestly, and the objective element of a lack of gross negligence or recklessness by the bank: at [53].

The Court examined the evidence and found on the facts that on balance of probabilities, the plaintiff’s authorised personnel did not issue the payment instructions to the bank: at [64].

The Court then considered whether the bank was grossly negligent in believing that the plaintiff’s authorised personnel had issued the payment instructions. The plaintiff relied on expert evidence to argue that there were various red flags in the circumstances of the bank’s receipt of the payment instructions which would have given rise to enough suspicion to warrant further investigations of the payment instructions before they were executed. The red flags were (at [68]):

(a) Irregularities concerning the content of the Four Instructions:
(i) The frequency and quantum of the payment instructions were “extremely high” and unprecedented.
(ii) The instructions were to remit monies to beneficiaries and countries to which the plaintiff had not remitted monies before.
(iii) The plaintiff’s name was misspelt as “Major Shipping & Tagging”.
(iv) The purposes of the Four Instructions were not stated on the Four Instructions.
(v) The date of the 3rd and 4th Instructions was erroneously stated.

(b) Irregularities concerning the manner in which the payment instructions were sent to the Bank:
(i) The payment instructions were sent to the Bank by email before being faxed thereto, contrary to the plaintiff’s usual practice.
(ii) The payment instructions were faxed via eFax, which the plaintiff had not used before.
(iii) The payment instructions were sent by email and fax to the Bank notwithstanding that plaintiff’s authorised personnel had learnt to use the S2B Platform as a more efficient way of transferring funds.

(c) Miscellaneous irregularities:
(i) one of the bank’s relationship managers (“RM”) was asked by email for the balance of the Account
(ii) on another occasion, the plaintiff’s authorised personnel purportedly sent the Health Problems email to another RM.

The Court considered the evidence concerning these purported red flags and found that individually and collectively were not sufficient to put the bank on suspicion to question the payment instructions: at [90]-[91]. Accordingly, the Court found that the bank was not negligent in not obtaining call-back information on the payment instructions: at [92]. Thus, the Court found that the bank had believed in good faith that the instructions were sent by the plaintiff: at [94].

In addressing the plaintiff’s arguments on whether the bank could rely on exclusion of liability clauses, the Court also found that it was not unreasonable for the bank to exclude liability for negligence simpliciter under the Unfair Contract Terms Act given that the plaintiff was a commercial entity who entered into a contractual relationship with the bank in the course of its business, the banking experts’ view that such clauses were commonly found in account opening documents and standard terms of Singapore banks, and the volume of transactions banks handle for various customers.

Finally, the Court held that the plaintiff was to pay costs to the bank on an indemnity basis under the bank’s standard terms. Costs amounted to S$384,375.

 

Article: So you want to conduct an initial coin offering (ICO) or digital token sale?

Introduction

So you are a tech startup who want to raise funds. You figure that instead of incurring debt, issuing equity, entering into convertible loan agreements (CLA), you will conduct an initial coin offering (ICO) or digital token sale. Not least because the amounts of money which have been raised by recent ICOs are huge. (I am using ICO because it is a shorter well-recognised abbreviation than “digital token sale”, even though the term ICO may be a bit of a misnomer.)

For every ICO that makes headlines, there are probably many ICOs which fall far below the issuers’ expectations. A lot of this of course is based on investors/purchasers’ sentiment and speculation. But some of that is also dependent on a few things like good marketing, viable underlying business model or technology, a credible team, and fair and reasonable terms of sale. If you do wish to build credibility for your ICO, there are some things which you would want to consider from a legal, regulatory perspective.

Continue reading “Article: So you want to conduct an initial coin offering (ICO) or digital token sale?”

Case Update: Long Kim Wing v LTX-Credence Singapore Pte Ltd [2017] SGHC 151 – employer liable for failing to conduct due inquiry before termination for cause / dismissal

Significance: The Singapore High Court held an employer liable for failing to conduct due inquiry before terminating or dismissing an employee for misconduct.

Although the employee was found to have indeed committed misconduct which justified his dismissal, the Court also found that the employer had breached its employment contract in failing to conduct due inquiry. Under the relevant clause in the contract, it was provided that:-

“The Company may after due inquiry dismiss without notice an employee on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his/her service.”

The Court then had to consider what constituted “due inquiry”. Although the clause was similar to s 14(1) of the Employment Act (Cap 91, 2009 Rev Ed), the employee did not rely on this section as the Act was not applicable to him. The Court then considered case law as well as the website of Singapore’s Ministry of Manpower (“MOM”) (http://www.mom.gov.sg/employment-practices/termination-of-employment (accessed 17 April 2017)). The Court noted that under the subject of “Termination due to employee misconduct” and “Holding an inquiry”, the website states that the employee being investigated for misconduct should have the opportunity to present his case even though there is no prescribed procedure for conducting an inquiry.

At [161]-[162], the Court then opined that the phrase “due inquiry” means something more than just the making of inquiries and the conduct of an investigation. Otherwise the word “inquiry” alone would suffice. The phrase suggests some sort of process in which the employee concerned is informed about the allegation(s) and the evidence against him so that he has an opportunity to defend himself by presenting his position, with or without other evidence. While the website of the MOM does not have the force of law, its guide that the employee concerned should have the opportunity to present his case is a useful one. That accords with notions of justice and fairness especially since serious consequences may follow.  In order for an employee to be given an opportunity to present his case effectively, he must first be informed clearly what the case against him is. This includes the allegation(s) and the evidence against him. While “due inquiry” does not mandate any formal procedure to be undertaken, the more the informality the greater the danger that “due inquiry” was not undertaken. Accordingly, where no formal process was undertaken, the court should be more careful to ensure that the employee’s right is protected.

The Court thus found the employer liable for breaching its obligation to conduct due inquiry. The Court then applied Gunton v Richmond-Upon-Thames London Borough Council  [1980] 3 WLR 714, which entitled the employee his salary for the reasonable time it would have taken the employer to conduct “due inquiry”.

Unfortunately, the evidence adduced by the parties before the Court was scant on this point of how long the reasonable time would have been to conduct due inquiry.

Further,  the Court had some reservation as to whether the Defendant would also be obliged to give the Plaintiff an opportunity to address it on the consequences of his misconduct if it concluded that the misconduct was established. There was no evidence as to what human resource departments do or on the advantages and disadvantages of embarking on such a course of conduct. There was also no evidence or submission as to whether both liability and consequences could be addressed together in the same opportunity given to the Plaintiff or should be done separately: at [182].

The Court then found that the employer would not have required more than seven days, based on the chronology of events which transpired in this case.

Case Update: Long Kim Wing v LTX-Credence Singapore Pte Ltd [2017] SGHC 312 – offer to settle and costs

Significance: Singapore High Court considered that an Offer to Settle (“OTS”) was not validly accepted when it was purportedly accepted by the other party after judgment was given.

The Court also considered whether indemnity costs ought to be ordered in the light of the OTS. The Court thought that the OTS was not a genuine offer to settle all the claims and counterclaims, despite the OTS offer being higher than the actual judgment sum (after taking into account claims and counterclaims). Because this analysis was to be with reference to the claim amount not the actual judgment sum.

The Court then found that on a standard basis, 100% of the costs of the action (for a 7-day trial) was $113,000. The Court then ordered 80% costs to the Defendant. It should be noted that this amount was based on the Appendix G Fee Guidelines on Party and Party Costs. Party and Party Costs are what the court orders. It is different from Solicitor and Client Costs, which are what the client actually pays their solicitors, which is usually much more than the Party and Party Costs.

Case Update: Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2017] SGCA 65 – Singapore Court of Appeal clarifies doctrine of res ipsa loquitur in a fire case

Significance: Singapore Court of Appeal clarifies doctrine of res ipsa loquitur in a fire case based on the tort of negligence.

Brief Facts

The appellant’s premises are situated next to the respondent’s. A fire broke out on the appellant’s premises, which spread to the respondent’s. There were several expert reports adduced at the trial which opined on the source of fire and the cause of fire. At trial, the appellant pleaded and argued that the fire had actually broken out from the respondent’s premises. It also disavowed the expert reports. On appeal, the appellant did a volte-face and relied on the expert reports to then argue that the trial judge should not have found that res ipsa loquitur applied.

Preliminary Issue on Appellant Changing Its Case

The appellant sought leave of court pursuant to O 57 r 9A(4)(b) of the Rules of Court to introduce the new points in the appeal, which contradicted its pleaded case. The Court of Appeal allowed it and distinguished the case of North Staffordshire Railway Company v Edge [1920] AC 254. It observed that the new arguments did not require amendment to the pleadings. The expert reports were already before the court so there’s no issue of adducing fresh evidence. And the trial judge had carefully considered the other possible causes of fire that were raised by the expert reports in relation to the application of res ipsa loquitur. Further, it remains the burden of the respondent to prove res ipsa loquitur such that the appellant can be found prima facie negligent: at [37].

Generally, when an application to introduce on appeal new points not taken in the court below under O 57 r 9A(4)(b) of the Rules of Court, the Court will consider the following factors (at [38]):-

  • (a) the nature of the parties’ arguments below;
  • (b) whether the court had considered and provided any findings and reasoning in relation to the new point;
  • (c) whether further submissions, evidence, or findings would have been necessitated had the new points been raised below; and
  • (d) any prejudice that might result to the counterparty in the appeal if leave were to be granted.

Discussion on Res Ipsa Loquitur

Res ipsa loquitur is a rule of evidence that enables a plaintiff to establish a prima facie case of negligence in the event that there is insufficient direct evidence to establish the cause of the accident in a situation where the accident would not have occurred in the ordinary course of things had proper care been exercised, ie, absent any negligence: at [39].

The 3 requirements for the application of res ipsa loquitur are identified in Scott v The London and St Katherine Docks Company (1865) 3 H & C 596 (“Scott”) followed in BNJ v SMRT Trains Ltd and another [2014] 2 SLR 7 (“BNJ”); see also Tesa Tape Asia Pacific Pte Ltd v Wing Seng Logistics Pte Ltd [2006] 3 SLR(R) 116 (“Tesa Tape”); and Teng Ah Kow and another v Ho Sek Chiu and others [1993] 3 SLR(R) 43 (“Teng Ah Kow”)):-

  • (a) the defendant must have been in control of the situation or thing which resulted in the accident (“the first requirement”);
  • (b) the accident would not have happened, in the ordinary course of things, if proper care had been taken (“the second requirement”); and
  • (c) the cause of the accident must be unknown (“the third requirement”).

Once the 3 requirements are satisfied, the evidential burden shifts to the defendant to rebut the prima facie case of negligence Teng Ah Kow at [22]).

Note however that the mere occurrence of a fire does not in itself give rise to the inference of negligence: [41].

After analysing several cases, the Court observed that the courts have generally declined to apply res ipsa loquitur in situations where there is simply no evidence of any act or omission (including any breach of statutory duty) by the defendant that could have caused the fire. In addressing the second requirement in Scott, the court must necessarily examine whether there was any act or omission on the part of the defendant that could have caused the fire. Absent that, the rule simply does not apply: at [47].

Generally, where the defendant has committed a negligent act or omission, the court is more likely to apply the rule where such negligent act or omission has created or increased the risk of the occurrence of fire. This would cause his negligence (as a cause of the fire) to shift into the “realm of probabilities” (Sisters of Charity of the Immaculate Conception v Robert J Fudge Ltd [1988] NBJ No 322 (“Sisters of Charity”)). In order to raise a prima facie inference of negligence, the plaintiff must “at the close of [its] case” and “[o]n the assumption that a submission of no case is then made”, show that on the evidence, in the ordinary course of things, the accident was “more likely than not” caused by the defendant’s negligence (Lloyde v West Midlands Gas Board [1971] 1 WLR 749): at [50].

Application to Facts

In this case, the appellant had been charged and convicted several times for breaches of the Fire Safety Act (“FSA”). The Court noted that this is particularly relevant to the court’s assessment of whether the second requirement of res ipsa loquitur is satisfied. The convictions presented the clearest objective evidence that the appellant had, by its conduct, increased the risk of fire on its premises. In examining whether the FSA convictions had any nexus to the increase in the risk of fire, it is relevant to consider whether the convictions concerned acts or omissions that occurred in the location where the fire started: at [52].

On the facts, the appellant was found to have allowed its foreign workers to cook on its premises. The area where cooking took place was in close proximity to the area where the fire started. At that time, there were 10 workers living in the premises. They were cooking past 11.15pm. This was a contravention of the FSA as the premises was not supposed to be living quarters. The Court found that the appellant’s conduct increased the risk of fire occurring and made it more probable that the fire would not have occurred if proper care had been taken by the appellant: at [53].

The Court noted that generally, the mere presence of some evidence indicating other possible causes of the fire has never been sufficient to preclude the application of res ipsa loquitur: at [61].

The Court drew a distinction between “non-negligent causes” and “neutral causes”. It noted that it is never a matter of raising possibilities in order to exclude the application of the rule. The court must be satisfied at the close of the plaintiff’s case that the explanation that rests on the negligence of the defendant is that which is more probable than not; and if the court is satisfied of that, the defendant can only overcome it by adducing evidence to show that there are other causes that are more probable. In order to displace the inference, it will not suffice for the defendant to establish a neutral event: at [64].

Once a prima facie inference of negligence arises, it is insufficient for the defendant, in its attempt to rebut the inference, to merely show that the accident was due to a neutral event. The defendant must go on to show either that (a) this neutral event does not connote negligence on its part (ie, the event was a non-negligent cause of the accident); or (b) it had exercised all reasonable care in relation to that event. In seeking to show a cause which does not connote negligence, the appellant must positively point to “its absence as more probable”: at [66].

In this case, the expert reports relied on by the appellant merely identified the possibility of other physical causes of the fire without expressing any view as to whether or not there was any negligence with regard to those causes, so they do not assist the appellant: at [70]. Further, the appellant also did not adduce sufficient evidence to show that it had exercised all reasonable care in relation to its electrical appliances and wirings: at [71].

On the third requirement in Scott, the presence of other “possible” causes does not per se mean that the third requirement of res ipsa loquitur is not satisfied: at [76].

On the facts of the case, the evidence available shows that the precise cause of the fire had not been established on the balance of probabilities: at [80].

The Court further emphasised that the the rule applies in cases where there is genuine difficulty with establishing the cause of the incident and not in cases where, merely by reason of the way the case was run, there was no evidence on the relevant issues before the court. The rule is a practical outworking of the burden of proof in cases where there are real difficulties in establishing what in fact happened, and not a means by which to overcome the shortcomings in the evidence arising only from the failure of the plaintiff to prove his case in the appropriate way: at [84].