The case of Wong Hoi Len v PP [2009] 1 SLR (R) 115 is often cited in support of the contention that a harsher sentence ought to be imposed in cases where an accused person commits an offence while intoxicated.

After an examination of the cases decided after Wong Hoi Len, this article argues that the mere fact that an accused is intoxicated during the commission of the offence is not, without more, an aggravating factor in all cases.

Wong Hoi Len

In Wong Hoi Len, the victim, a taxi driver, picked up the accused who had just finished a drinking session with his friends. While in the taxi, the accused threw up and soiled the taxi. The victim stopped the taxi, alighted and reprimanded the accused. The accused responded by pushing the victim to the ground with both hands and rained several blows with his fists on the victim’s forehead and face.

The Court considered if intoxication should be an aggravating factor in sentencing, and canvassed the law as it then stood in England, Australia and Singapore. It observed that in England, intoxication is regarded as an aggravating, not mitigating, factor, while the position in Australia was less unified with some courts treating intoxication as an aggravating factor while others treat it as an aggravating and mitigating factor, thereby cancelling out the effect.

The Court then considered the law in Singapore and noted the position set out in “Sentencing Practice in the Subordinate Courts” (LexisNexis, 2nd Ed, 2003), which stated that in exceptional cases, the Court may regard intoxication as an explanation and a mitigating factor if it can be shown affirmatively that the accused’s conduct was out of character. The Court in Wong Hoi Len held that this was not satisfactory given that it left open the possibility of intoxication being a neutral, aggravating and mitigating factor. The Court declined to follow the broad proposition in Mani Nedumaran v PP [1998] 1 SLR 411, which states that the effect of alcohol is not a mitigating factor, without going so far as to state that it was aggravating.

Ultimately, the Court in Wong Hoi Len held that:

“Singapore, being a cosmopolitan city state reputed for its safe environment, cannot risk allowing alcohol-related offending to spiral out of control. This danger is an ever-lurking one and it is in the community’s interest that public drunkenness and its attendant disruptive conduct must not be allowed to take root here in Singapore. No intoxicated individual must be given the licence to roam public streets at night spoiling for trouble and/or behave in a disorderly and loutish manner. Such behaviour must be emphatically discouraged. I am therefore of the unwavering opinion that a sentencing judge should ordinarily take into account an offender’s intoxication as an aggravating consideration. Those who voluntarily imbibe alcohol must, in the usual course of events, take full responsibility for their subsequent offending.” [Emphasis added.]

Further, following Australian authorities, it was held that if the “offender’s intoxicated state during the encounter had, by itself, caused the victim to experience an increased state of terror or alarm, then that might be properly regarded as a further aggravating factor.”

After Wong Hoi Len

The case of PP v Son Myungdu [2010] SGDC 144 is a significant decision following Wong Hoi Len. There, the accused plead guilty to criminal intimidation and voluntarily causing hurt. The accused was drinking with his friends and thereafter entered a supermarket, took a knife and ran out. He then went to a coffee shop and threatened an assistant working there which caused the assistant to hide behind the cashier’s counter. The accused then went up the stairs behind the coffee shop to a workers’ quarters and entered a room there. The accused pushed the victim, who was staying there, and slapped the victim on the side of the face. A scuffle then broke out where the left earlobe of the victim was slashed. The accused then pointed the knife at the victim and made stabbing motions. After some people tried to stop the accused, he fled the scene and was arrested soon after. His blood alcohol level after his arrest was 175mg per 100ml.

In mitigation, it was highlighted that the accused was generally a person of good character. It was submitted that the offences were out of character and committed because he was intoxicated. The prosecution there highlighted that the accused’s intoxication was an aggravating factor in light of Wong Hoi Len. Significantly, the prosecution argued that it is only in exceptional circumstances that intoxication can be a mitigating factor and that due to public deterrence reasons, it is likely that it may only refer to circumstances where the accused may have consumed alcohol involuntarily.

The Court did not consider the facts of this case “special or exceptional” so that the accused’s self-intoxication was a mitigating or neutral factor and held that it aggravated the seriousness of the offence for the following reasons:

  1. First, the accused “had recklessly and irresponsibly consumed copious amounts of alcohol that evening without due regard for the consequences.” He engaged in three separate drinking sessions and had wilfully consumed much more alcohol than what he was ordinarily accustomed to;
  2. Second, the accused “went on an indiscriminate spree of criminal activity and in the process of which he caused hurt to one person and several other people were subjected to fear of physical harm.” The accused also put the occupants of the room in fear.

The Court in Son Myungdu held that intoxication in that case was an aggravating factor only because the accused’s intoxication had “terrifying” consequences for the victim and the other people he encountered. Thus, while not referencing it specifically, the Court in Son Myungdu applied the holding of Wong Hoi Len where it was held that to cause the victim alarm or terror while intoxicated would be a further aggravating factor, separate and distinct from the mere fact of being intoxicated. Thus, Son Myungdu illustrates that Wong Hoi Len does not stand for the proposition that intoxication must in every case be viewed as an aggravating factor.

Intoxication May Explain the Commission of an Offence in Certain Cases

This was precisely the approach taken in a number of other authorities following Wong Hoi Len. A review of the authorities illustrates that while an accused’s voluntary intoxication is not a mitigating factor; it is not an aggravating factor in all cases. Rather, the fact that an accused was voluntarily intoxicated at the time of the offence may considered an explanation for the commission of the offence, in circumstances where the offence appears to be entirely out of the accused’s character.

Thus in PP v Gurvail Singh Dhot [2009] SGDC 147 the accused was behaving in a rowdy manner outside a pub. When police arrived and pinned him down, the accused bit the victim police officer in the left rib. The accused was charged with an affray, public disorder and using criminal force on a public servant.

In sentencing, the Court expressly considered the fact that police officers should be protected while executing their duty at cases of violence against such officers should be punished robustly. The Court did not take the view that the mere fact that the accused was intoxicated was an aggravating factor. Rather, the Court considered intoxication as a fact which explained the conduct of the accused.

In PP v Quek Keng Siang Billy [2014] SGDC 285, the accused admitted using criminal force on a public servant by spitting in the face of a police officer and a charge for disorderly behaviour for using vulgarities at police officers. The court accepted that offences being committed impulsively without premeditation was a mitigating factor. The accused was intoxicated and the court was hesitant to hold that as a mitigating factor—but left the door open on this point:

“The accused had been drinking (see SOF paragraph [3]). The fact that the accused was intoxicated at the time of the commission of the offences cannot be a mitigating factor. It is well established that intoxication as a mitigating factor is likely to be regarded with scepticism by the Courts. Only in exceptional cases where it is shown affirmatively the offences were committed under the influence of alcohol was out of character, the court may regard it as an explanation and a mitigating factor. This is not the case here.” [Emphasis added.]

The subsequent case of PP v An Heejung [2015] SGDC 59 also appears to have followed this line of reasoning. There, the accused boarded a taxi. The accused was drunk and fell asleep along the way and the taxi driver could no longer communicate with him. The taxi driver then stopped his taxi and called the police for assistance. Police officers were dispatched to the scene and went into the taxi where the accused was. The accused suddenly kicked the victim twice on his chest, before coming out of the taxi and raising his fist at him.

In sentencing, the court considered that the accused was not a habitual drinker and this was a completely one-off incident. This was therefore a rare occasion and the accused was unlikely to reoffend given his good character and law abiding, gentle nature. The court held that a noncustodial sentence would be appropriate in such cases.

Finally, in PP v Lim Chee Yin Jordon [2018] SGHC 46 the accused was drunk and alone. He did not have a driving licence nor did he know how to drive. While walking home, he saw an empty lorry with the engine running and decided to drive it to the nearest MRT station. He drove the lorry for less than 10 minutes. He was charged with theft of a motor vehicle, driving without a licence and rash driving.

Following Wong Hoi Len, the prosecution submitted that intoxication was an aggravating factor. Upon a holistic view of the facts, the Court did not agree and held that the accused had tried to drive when he cannot drive. This was uncharacteristic and could be explained by the fact that he was intoxicated.

Voluntary Intoxication as a Mitigating or Neutral Factor

Drawing the strands together, this article submits that Singapore Courts will ordinarily consider intoxication as an aggravating factor in cases where the accused roamed “public streets at night spoiling for trouble and/or behave[ed] in a disorderly and loutish manner.” On this note, self-intoxication will be an aggravating factor if there is evidence that the accused’s intoxicated state itself had caused the victim to experience increased terror or alarm.

As held in Son Myungdu however, Wong Hoi Len is not authority for the proposition that intoxication must be viewed as aggravating in every case. Much depends on the particular facts. In cases such as An Heejung, Quek Keng Siang Billy and Gurvail Singh, the fact that the accused was intoxicated should not be considered an aggravating factor but may be viewed as an explanation for the offence. Similarly, it can also be used to explain conduct which did not make sense that the time, such as in Lim Chee Yin Jordon.

As noted above, the Court in Wong Hoi Len observed that Australian case authorities were not unified on this issue. Since then, the broad positon in the various Australian jurisdictions and New Zealand appears to be that intoxication is neither a mitigating factor not an aggravating factor, i.e. a neutral factor. [1]

Unlike in Singapore, the mitigating and aggravating factors which the courts in New Zealand and most Australian jurisdictions will consider in sentencing are statutory.[2] These statutes specifically provide that intoxication is not a mitigating factor that an accused can rely on in sentencing. However, these statutes also do not list intoxication as an aggravating factor in sentencing. It is submitted that the affirmation that self-intoxication is not a mitigating factor as opposed to listing it as an aggravating factor is entirely consistent with the policy of discouraging loutish and violent behaviour while intoxicated.

As was noted in the second reading speech of the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 (NSW), the provision providing that intoxication is not a mitigating factor was included “[t]o make it clear that drugs and alcohol are not an excuse for violent behaviour” and that “the choice to become intoxicated should not lead to reduced culpability.” As the antipodean approach illustrates, it is therefore not necessary to mandate self-intoxication as an aggravating factor in every case to fulfil the policy objective of discouraging intoxicated and loutish behaviour in society.