1 The appellant failed to keep a proper lookout at a zebra crossing (“Crossing”) that the victim (“Victim”) cycled onto without stopping. The appellant’s motorcar then collided with the Victim. The appellant pleaded guilty to and was convicted of one charge under s 65(1)(b) of the Road Traffic Act 1961 (2020 Rev Ed) (“RTA”) for driving without reasonable consideration for other persons using the road. Since grievous hurt was caused to the Victim, the offence was punishable under s 65(3)(a) read with s 65(6)(d) of the RTA. The learned district judge (“DJ”) sentenced the appellant to one week’s imprisonment and a disqualification from holding or obtaining all classes of driving licences for five years: Public Prosecutor v Yeo Seong Bee Eric [2025] SGDC 201 (“GD”) at [3]. Dissatisfied with the DJ’s sentence, the appellant now appeals only in respect of the imprisonment term. For the reasons that follow, I allow the appeal and substitute his imprisonment term with a fine of $5,000 (one week’s imprisonment in default).

2 As there have since been amendments to the RTA, for the avoidance of doubt, the references to the RTA in this judgment are to the version in force at the time of each offence.

3 The appellant was a private-hire driver. On the morning of 15 April 2023, he drove his motorcar along Outram Road heading towards a single-lane slip road leading to Eu Tong Sen Street. While he was driving along the slip road, he slowed down as he observed that the Crossing was ahead. ¹

4 At around the same time, the Victim was cycling along the foot path beside Outram Road and turned right to cycle across the Crossing. The Victim did not stop prior to entering the Crossing. ²

5 As the appellant proceeded to drive along the slip road and towards the Crossing, he did not stop his vehicle and failed to keep a proper lookout. The appellant’s motorcar collided with the Victim when the latter entered the Crossing. The appellant stopped driving and called for an ambulance. ³

6 The Victim sustained a spinal fracture and underwent surgery for posterior spinal instrumentation and stabilisation. He was given a total of 72 days of hospitalisation leave. ⁴ His doctor opined that he should not suffer any permanent injuries following the accident. ⁵

7 The accident was captured on video footage from the appellant’s in-car camera and a nearby traffic camera. The in-car camera footage captured the Victim in frame for about two seconds prior to the collision. ⁶ At the time of the accident, the weather was clear, the road surface was dry, and the traffic volume was light. ⁷

8 The DJ applied the sentencing framework set out by a three-judge coram in Chen Song v Public Prosecutor [2025] 3 SLR 509 (“Chen Song”) for, inter alia, offences punishable under s 65(3)(a) of the RTA. Parties agree that the Chen Song framework is engaged. I thus begin with an outline of the same.

9 The court first identifies the number of offence-specific factors under the broad categories of “harm” and “culpability” (Chen Song at [134(a)]):

(a) The primary harm factors (relating to the victim’s bodily injury), broadly include (i) nature and location of the injury; (ii) degree of permanence of the injury; and (iii) impact of injury: Chen Song at [124].

(b) The culpability factors, concern, non-exhaustively, (i) any form of dangerous driving behaviour; (ii) flouting of traffic rules and regulations; and (iii) a high degree of carelessness: Chen Song at [131]. When assessing the offender’s culpability, it is also relevant to consider the possibility of contributory negligence and the extent to which this affects the offender’s blameworthiness: Chen Song at [133].

10 Second, based on the number of offence-specific factors present, the court deems the degree of harm and culpability. This depends on whether the situation involved (Chen Song at [134(b)]):

(a) “lesser harm” (ie, one or no harm factors) or “greater harm” (ie, two or more harm factors); and

(b) “lower culpability” (ie, one or no culpability factors) or “higher culpability” (ie, two or more culpability factors).

The foremost inquiry is a holistic assessment of the totality of the harm caused and the offender’s culpability; the general guidelines at [10(a)–(b)] above ought not to be applied mechanistically: Chen Song at [123]. The court then arrives at an indicative sentencing band that the offence falls within:

11 Third, the court assesses an indicative starting point sentence within the identified sentencing range, bearing in mind the: (a) primary harm and culpability factors identified; and (b) secondary harm factors: Chen Song at [134(c)]. The secondary harm factors (which are unrelated to the victim’s physical injury but go towards the extent of harm caused) include (a) potential harm; and (b) property damage: Chen Song at [125]. The court has regard to a secondary harm factor that presents itself in a significant manner: Chen Song at [126].

12 Finally, the court arrives at the final sentence, after adjusting the starting point in light of any offender-specific aggravating factors, and mitigating factors (eg, a plea of guilt): Chen Song at [134(d)].

13 The DJ found that the case fell within the higher end of “lesser harm”. Although two primary harm factors were engaged, they only presented to a limited degree (GD at [22] and [24]):

(a) the nature and location of the Victim’s injury (ie, a spinal fracture) was by no means minor as he suffered a fracture to a vulnerable part of the body; and

(b) the impact of the Victim’s injury was “certainly not trivial” —he was given a total of 72 days’ hospitalisation leave and his quality of life was impacted for a significant period.

Further, there were no secondary harm factors as the property damage to the appellant’s car was minor and there was no indication that other road users were put at risk by the offence: GD at [23].

14 Next, the DJ characterised the present situation as the middle end of “lower culpability”: GD at [29]–[30]. He was of the view that only one offence-specific culpability factor was engaged, namely, the flouting of traffic rules and regulations, as the appellant failed to yield to other road users and collided with the Victim at a zebra crossing: GD at [25].

15 The DJ held that the custodial threshold was crossed as two harm factors and one culpability factor presented: GD at [32]. It was noted that the facts did not fall within the lowest end of “lesser harm” or “lower culpability”: GD at [32]. Further, the DJ rejected the Defence’s argument that the Victim’s conduct, by failing to stop to look for oncoming traffic before using the Crossing, should have warranted a fine: GD at [34]–[35]. The DJ was not convinced that the Victim’s conduct had any bearing on the appellant’s culpability.

16 The indicative starting point, in the DJ’s assessment, was 10 days’ imprisonment given that, inter alia, the Victim did not suffer permanent injuries and the appellant had slowed down when approaching the Crossing: GD at [33].

17 Overall, the DJ sentenced the appellant to one week’s imprisonment and a 5-year disqualification period after considering the following (GD at [37]–[42] and [50]):

(a) The appellant had multiple traffic-related offences that were compounded. The DJ found a careless driving offence in 2019 and an offence for a failure to conform to a red-light signal in 2024 to be relevant.

(b) The appellant was cooperative with the authorities, and he stopped his car to assist in conveying the Victim to the hospital.

(c) A 30% sentencing discount was applicable as the appellant had pleaded guilty.

(d) There were no special reasons to impose a disqualification period below the mandatory minimum of 5 years.

(e) The one-week custodial sentence was in line with precedents.

18 The appellant’s main submission is that the custodial threshold has not been crossed and a fine of $5,000 should be imposed. ⁸

19 First, the appellant asserts that the degree of harm should be at the middle of “lesser harm”. ⁹

20 Second, the appellant contends that the DJ erred in holding that one offence-specific culpability factor was engaged. On the contrary, the appellant argues that there are no culpability factors such that his culpability should be at the lower end of “lower culpability”. ¹⁰ To this end, he advances the following arguments:

(a) The DJ wrongly held that the offence-specific culpability of flouting traffic rules and regulations was engaged. ¹¹

(b) The DJ should have found that the Victim’s contributory negligence had a bearing on the appellant’s culpability. ¹²

(c) The imposition of a fine would be consistent with several precedents where the victim was contributorily negligent. Namely, the cases of Public Prosecutor v Ian Tai Zhi Jian SC-908810-2024 (20 January 2025) (“Ian Tai”) and Public Prosecutor v Lua Li Xuan Pearl SC-905608-2025 (15 October 2025) (“Pearl Lua”). ¹³

21 Taken together, the appellant says that the indicative starting point sentence under Band 1 of the Chen Song framework should be a fine. ¹⁴ After accounting for the offender-specific aggravating and mitigating factors, the appropriate sentence remains a fine. ¹⁵

22 The respondent’s broad position is that the DJ’s imposition of a one-week imprisonment term is not manifestly excessive. ¹⁶

23 According to the respondent, the custodial threshold is crossed as there are at least three harm and culpability factors. ¹⁷

24 Regarding the offence-specific culpability factor, the respondent submits the following:

(a) The DJ was correct to consider the appellant’s violation of traffic rules and regulations as an offence-specific culpability factor. ¹⁸

(b) The DJ did not err in assessing that the Victim’s conduct had no bearing on the appellant’s culpability. ¹⁹

25 Overall, the respondent takes the view that the one-week imprisonment term is in line with the Chen Song framework and other precedents. ²⁰ The respondent further distinguishes Ian Tai and Pearl Lua from the present facts. ²¹

26 The issue for my consideration is whether the one-week imprisonment term imposed on the appellant is manifestly excessive. This boils down to whether the custodial threshold is crossed. Two sub-issues are engaged.

27 First, whether the DJ erred in finding that the present case fell within the higher end of “lesser harm”.

28 Second, whether the DJ correctly assessed the appellant’s culpability. This turns on whether the appellant flouted traffic rules and regulations such that this should constitute a culpability factor. The crux of the appeal, however, lies in whether the Victim’s contributory negligence should be considered in determining the appellant’s culpability.

29 It is trite that an appellate court will not ordinarily disturb the sentence imposed by a trial court except where (ADF v Public Prosecutor [2010] 1 SLR 874 at [17]–[18]):

(a) the trial judge erred in relation to the proper factual basis for sentencing;

(b) the trial judge failed to appreciate the materials placed before him;

(c) the sentence was wrong in principle; or

(d) the sentence was manifestly excessive or inadequate, ie, it requires a “substantial alteration rather than an insignificant correction to remedy the injustice”.

30 With this in mind, I turn to analyse the grounds of appeal raised by the appellant.

31 The DJ classified the present facts as falling on the higher end of “lesser harm” after finding that two primary harm factors and no secondary harm factor featured: GD at [22]–[24]. The appellant does not contest that two primary harm factors are present, ie, the nature and location of the injury, and the impact of injury. Rather, he asserts that based on a “holistic assessment of the harm factors”, the degree of harm should be pegged to the middle of “lesser harm”. ²² The appellant does not elaborate further on this submission. The respondent does not directly address this issue in its submissions, merely stating that the DJ found the case to be on the higher end of “lesser harm” and maintaining that the DJ was correct to find that two harm factors were established. ²³

32 To recapitulate, the three broad primary harm factors are (Chen Song at [127]):

33 On the present facts, the Victim’s doctor opined the following in his medical report: ²⁴

34 I am mindful that the available evidence describing the impact of the accident on the Victim is limited to the statement of facts (“SOF”) and the medical reports annexed therein (see, for example, [33] above). Based on the evidence before me, it is evident that there are two primary harm factors:

(a) First, with regards to the nature and location of the injury, it is clear that injury was caused to a vulnerable part of the Victim’s body, ie, his spine: Ling Zhao Bin v Public Prosecutor [2026] 3 SLR 1383 (“Ling Zhao Bin”) at [26]. Although only one fracture was sustained, the Victim required surgical intervention.

(b) Second, on the impact of the injuries, the Victim was granted a total of 72 days’ hospitalisation leave. Nonetheless, he was observed to have “recovered well post-operative[ly]” without suffering from any permanent injuries. There is nothing to indicate that his livelihood was affected in any way.

I am also in agreement with the DJ that the said factors present to a limited degree such that “lesser harm” was occasioned notwithstanding that two primary harm factors were engaged (GD at [24]).

35 The area of contention instead lies in whether the DJ correctly construed the case as involving the higher end of “lesser harm”. It may be helpful to examine cases where the court reached the same conclusion.

36 I begin with Ling Zhao Bin, where Kannan Ramesh JAD deemed the harm caused to be on the “upper end of the lesser harm continuum” because two primary harm factors were engaged and the presence of potential harm (at [47]):

(a) Two primary harm factors applied. Regarding the nature of the injuries, there were multiple serious injuries caused to the victim (ie, a displaced left lateral tibial plateau fracture and a complete anterior cruciate ligament tear at the left knee) (Ling Zhao Bin at [42(a)] and [54(b)]). The location of the injuries was not at a vulnerable body part but nonetheless a part of the body that was critical for the victim’s mobility: Ling Zhao Bin at [42(a)]. Further, in terms of the impact of the injuries, the victim had a lengthy 131 days of hospitalisation leave: Ling Zhao Bin at [42(b)] and [54(a)]. He was unable to work during this recovery period. Even after he resumed work (about six months after the accident), he could only be placed on light duties: Ling Zhao Bin at [42(b)] and [54(a)].

(b) The secondary harm factor of potential harm was engaged as there was a real possibility that another motorcyclist would have been injured but for his alertness to swerve and avoid a collision with the victim: Ling Zhao Bin at [46].

37 Similarly, the district judge in Public Prosecutor v Hee Kwee Choy [2024] SGDC 230 (“Hee Kwee Choy”) pegged the case at the higher end of “lesser harm”. This was after finding that two primary harm factors were relevant (Hee Kwee Choy at [41]):

(a) In respect of the nature and location of the injuries, the victim sustained multiple fractures (ie, right acetabular fractures and an undisplaced right inferior pubic ramus fracture) concentrated at the pelvic area, a “critical part of the body for overall movement”: Hee Kwee Choy at [8] and [35]–[36].

(b) Examining the impact of the injuries, the victim was given a total of 45 days of hospitalisation leave and underwent physiotherapy which was expected to continue for at least the next three months: Hee Kwee Choy at [38]. His post-operation recovery was also complicated by “possible hospital acquired pneumonia”: Hee Kwee Choy at [57].

38 It bears emphasis that the overarching inquiry requires a determination of the extent of physical harm caused to the victim based on a holistic consideration of all three primary harm factors: Ling Zhao Bin at [30]. The case of Erh Zhi Huang, Alvan v Public Prosecutor HC/MA 9204/2022/01 (14 May 2024) (“Alvan Erh”) is illustrative of this principle. Alvan Erh was one of the appeals that was decided in Chen Song. Although the previous sentencing framework under Sue Chang (Xu Zheng) v Public Prosecutor [2023] 3 SLR 440 (“Sue Chang”) applied in Alvan Erh, it was envisaged that the Chen Song framework would likely result in the same or similar outcomes as the Sue Chang framework: Chen Song at [120]. The victim in Alvan Erh suffered from a traumatic amputation of the right little finger and a right-sided clavicle fracture: Chen Song at [165]. He was given 58 days of hospitalisation leave. While permanent injury was caused to the victim, the court recognised, inter alia, that he was unlikely to suffer from any permanent hand disability and likely to be able to return to work: Chen Song at [165]. It seems to me that the court’s focus in Alvan Erh was on the overall harm that was occasioned and was not solely on the permanence of the injury that was caused. After determining that the harm caused was in the higher end of the “low” category and the appellant’s culpability was low, the court imposed a fine of $4,000 and a 5-year disqualification period: Chen Song at [165], [166] and [169].

39 Returning to the present case, I do not think that the two relevant primary harm factors, when viewed in tandem, result in an overall extent of harm analogous to the cases of Ling Zhao Bin and Hee Kwee Choy where the higher end of “lesser harm” was respectively found to apply. This is for the reasons that follow:

(a) Although the present facts involve an injury to a vulnerable body part (as contrasted to Ling Zhao Bin), this is but one consideration to be weighed in the overall inquiry. As observed in Ling Zhao Bin, the location of the injury is only an aspect that the court may take into account in assessing harm: at [30]. This is apparent from Public Prosecutor v Johnson Tan Wee Kiat [2026] SGHC 59 (“Johnson Tan”). There, the injury was caused to the victim’s rib which the court recognised to be a vulnerable part of his body. The court, however, concluded that the case fell under the lower end of “lesser harm” in light of the relatively low impact of the injuries as they were treated conservatively with minimal outpatient medical leave: Johnson Tan at [11] and [21].

(b) The Victim only suffered one fracture while the victims in Ling Zhao Bin and Hee Kwee Choy sustained multiple injuries.

(c) The impact of the injuries in Ling Zhao Bin and Hee Kwee Choy, in my view, was more serious than the present facts. The victim in Ling Zhao Bin had almost twice the length of hospitalisation leave as compared to the present case. His livelihood was further impacted for a lengthy period of time, even after he returned to work post-hospitalisation leave as he could only carry out light duties. The recovery period in Hee Kwee Choy, taking into account the period of hospitalisation leave and the duration of physiotherapy (for at least three months), was substantial and met with further health complications. By contrast, the Victim was reported to have recovered well. Beyond the duration of hospitalisation leave, there is no indication of any long-term impact on the Victim’s quality of life, such as any permanent injuries or impairment to the Victim’s ability to carry out daily tasks and maintain his livelihood.

(d) Ling Zhao Bin is further distinguishable in that the overall harm was enhanced because a secondary harm factor of potential harm applied. No secondary harm factor features presently.

40 Overall, while I recognise that the nature of the present injury is serious, the impact of the injury was relatively not as pronounced as that in Ling Zhao Bin and Hee Kwee Choy. The presence of a secondary harm factor in Ling Zhao Bin is also a significant distinguishing factor. I am thus not persuaded that akin to those cases, the present facts should be pegged at the higher end of “lesser harm”.

41 For completeness, I am unable to agree with the respondent’s argument that the harm caused presently is “comparable [to] or slightly higher [than]” Hee Kwee Choy. ²⁵ Apart from what I have indicated at [39(b)–(c)] above, I also consider that the respondent unduly focuses on a quantitative comparison of the duration of hospitalisation leave in both cases. However, the impact of injury factor contemplates the impact on the victim’s quality of life and is not restricted to only the duration of hospitalisation leave (see [32] above). The respondent thus fails to account for the duration of rehabilitation in Hee Kwee Choy, which included the victim’s substantial period of physiotherapy, and the fact that the victim’s post-operation recovery was complicated by pneumonia.

42 Therefore, while two primary harm factors are engaged (as the DJ correctly identified), I do not perceive the overall extent of harm to be so serious such that it can be deemed as falling under the higher end of “lesser harm” akin to Ling Zhao Bin and Hee Kwee Choy. This is in light of the distinguishing factors I have pointed out at [39(b)–(d)] above. The DJ thus erroneously situated the present facts at the higher end of “lesser harm”. Instead, in my judgment, the present facts are more appropriately classified, holistically, as falling under the middle of “lesser harm”.

43 The appellant submits that his culpability should be at the lower end of “lower culpability”, contrary to DJ’s holding. ²⁶ In this connection, he raises the following points which, he says, reduce his culpability:

(a) He did not flout traffic rules and regulations. ²⁷

(b) His culpability was affected by the Victim’s conduct. ²⁸

I consider each in turn.

44 The DJ held that the appellant had flouted the following traffic rules and regulations as he failed to yield to other road users and collided with the Victim at a zebra crossing (GD at [25]). Various traffic rules and regulations were cited by the DJ (GD at [26]–[27]):

(a) Rule 6 of the Road Traffic (Pedestrian Crossing) Rules (Cap 276, R 24, 1990 Rev Ed) (“RTR”), which states:

(b) Paragraphs 77 and 79 of the Highway Code (Cap 276, R 11, 1990 Rev Ed) (“Highway Code”) which say that:

45 The appellant’s position is that the DJ misdirected himself in finding that the flouting of traffic rules and regulations was a culpability factor. He argues that the case merely concerns a failure to keep a proper lookout for the Victim, which was simply a manifestation of the basic elements of the careless driving offence. ²⁹ According to the appellant, it was not the case that he proceeded through the Crossing despite having seen the Victim. ³⁰ While he did slow down before approaching the Crossing, he says that he was unable to see the Victim as the Victim was “obscured by the [surrounding] tall grass”. ³¹

46 The respondent relies on the same traffic rules that the DJ cited (see [44] above), and further draws my attention to r 5 of the RTR:

The respondent argues that the aforesaid rules mean that a driver must: (a) allow free and uninterrupted passage to a cyclist who is starting to cross a pedestrian crossing (r 6 of the RTR); (b) give way to a cyclist at a pedestrian crossing (para 77 of the Highway Code); and (c) be ready to slow down or stop to give way to road users at a pedestrian crossing (r 5 of the RTR and para 79 of the Highway Code). ³² The respondent thus alleges that it is insufficient for the appellant to have merely slowed down as he approached the Crossing. ³³ He should have stopped and given way to the Victim as the latter had “clear precedence over him”. ³⁴

47 I pause here to address the appellant’s submission that both the appellant and the Victim could not see each other due to the “tall grass along the side of the slip road”. ³⁵ This is not a fact contained in the agreed SOF. Moreover, the respondent avers that it is “factually inaccurate” for the appellant to state that his view was obscured by the surrounding trees and shrubbery as, according to the respondent, the in-car camera footage shows that the Victim was visible. ³⁶ The parties thus disagree on whether the appellant and the Victim were visible to each other on account of the surrounding shrubbery.

48 I am mindful that where a material factor that either aggravates or mitigates the offence is put forward by the Prosecution or Defence, it is incumbent on them to either have it agreed in the SOF, or to prove it: K Saravanan Kuppusamy v Public Prosecutor [2016] 5 SLR 88 (“Kuppusamy”) at [27]. Such proof may be by way of: (a) a Newton hearing; or (b) based on submissions, with the burden on the party to prove beyond a reasonable doubt that the fact it wishes to rely on is supported by the SOF or that the relevant inferences should be drawn: Kuppusamy at [27]. The SOF, however, does not even reference the presence of the “tall grass” that the appellant now highlights. I am thus not satisfied that it can reasonably be inferred that both the appellant and the Victim respectively could not see the other party. To the extent that the appellant contends that he did not flout traffic rules and regulations because it was not the case that he proceeded through the Crossing despite having seen the Victim, ³⁷ I am not in a position to make any such finding.

49 In the circumstances, I am not persuaded by the appellant that the DJ fell into error in opining that the appellant flouted traffic rules and regulations. The plain wording of r 6 of the RTR requires a driver at a pedestrian crossing to allow free and uninterrupted passage to, inter alia, any cyclist who is crossing or is starting to cross a pedestrian crossing. The appellant was in breach of this rule by failing to stop his vehicle at the Crossing which would have allowed free and uninterrupted passage to the Victim.

50 Apart from the non-exhaustive offence-specific culpability factors listed in Chen Song at [131] (summarised at [9(b)] above), the court may also factor in the possibility of contributory negligence in assessing the offender’s culpability: Chen Song at [133].

51 In this respect, the DJ opined that the Victim’s violation of the RTR, as he did not stop to look for oncoming traffic before using the Crossing, should not affect the sentence to be imposed on the appellant as it had no bearing on the latter’s culpability: GD at [34(a)]. Per the DJ, the Victim had precedence at the Crossing and the appellant should have exercised “[e]xtra care” before proceeding across it regardless of whether the Victim had stopped: GD at [34(b)].

52 It is apparent to me that the DJ was alluding to the Victim’s breach of r 14 of the RTR, which was referenced by the parties in the court below and on appeal. The said rule states that:

53 The appellant’s case is that the DJ erred in failing to consider the Victim’s conduct when ascertaining the appellant’s culpability. ³⁸ The appellant submits that the Victim’s breach of r 14 of the RTR, in failing to slow down or stop to look out for any oncoming vehicles before entering the Crossing, affects the appellant’s moral culpability. ³⁹ Additionally, the appellant relies on the cases of Ian Tai and Pearl Lua to support his position that the victim’s contributory negligence should be considered on the present facts. ⁴⁰

54 On the contrary, the respondent agrees with the DJ’s assessment that the Victim’s conduct had no bearing on the appellant’s culpability. ⁴¹ The respondent points out that the “fact of the matter” is that the appellant drove without keeping a proper lookout for the Victim; the appellant’s failure to spot and give way to the Victim amounted to a clear breach of the standard of care expected of all drivers. ⁴² In response to the appellant’s reliance on Ian Tai and Pearl Lua, the respondent says that these cases do not support the consideration of the Victim’s behaviour in the present case. ⁴³

55 As there is a dearth of published cases detailing the relevance of a victim’s contributory negligence in relation to an offender’s culpability under the Chen Song framework, I believe it is prudent to first lay out the applicable law.

56 In Chen Song, the court recognised that a victim’s contributory negligence may affect the offender’s culpability (at [133]). In so holding, the court in Chen Song cited the holdings in the earlier case of Guay Seng Tiong Nickson v Public Prosecutor [2016] 3 SLR 1079 (“Nickson Guay”).

57 I underscore the important principles in so far as the significance of contributory negligence in careless driving offences is concerned:

(a) Where the conduct of the victim or a third party has a direct bearing on the offender’s culpability, it should be taken into account when determining the sentence to be meted out: Nickson Guay at [65]; Chen Song at [133].

(b) The fact that the negligence (or otherwise) of the victim or a third party was a contributory cause of the outcome for which the offender is being charged (eg, the victim’s death) should not, without more, be taken into account as a mitigating factor: Nickson Guay at [68] and [70]; Chen Song at [133].

(c) Where the victim’s or, I would add, a third party’s conduct does not in any way impact the assessment of whether the offender is more or less negligent in failing to meet the standard of care expected of all drivers, such conduct is irrelevant to the offender’s culpability: Nickson Guay at [72].

58 Drawing from other jurisdictions, Sundaresh Menon CJ, in Nickson Guay, highlighted the example of R v Smith [2011] EWCA Crim 2844 (“R v Smith”) where the victim’s conduct affected the offender’s culpability. In R v Smith, the offender collided with the victim who was walking, some distance away from the kerb, along an unlit road dressed in dark clothing: R v Smith at [2]–[3]; Nickson Guay at [50]–[51]. Menon CJ opined that it appeared that the victim’s conduct had “significantly increased the likelihood of an accident occurring” which was relevant to the offender’s negligence and thereby diminished the latter’s culpability: Nickson Guay at [51], [66] and [72]; R v Smith at [9].

59 Conversely, in Nickson Guay, the conduct of the third party did not have any bearing on the offender-appellant’s culpability. There, the appellant failed to keep a proper lookout whilst making a right turn at a traffic-light controlled junction. He encroached into the path of another car (ferrying the victim) that was travelling in the opposite direction and had the right of way, resulting in a collision and the victim’s death: Nickson Guay at [1]. The victim, an infant, was being cradled in the arms of his mother who was seated in the left rear seat: Nickson Guay at [4]. The court found that the victim’s father’s failure to properly secure him in an approved child restraint had no bearing on the appellant’s culpability: Nickson Guay at [72]. This was because the fact remained that the appellant drove into a cross-junction without keeping a proper lookout; his negligence was in no way impacted by the fact that the victim was not secured in an approved child restraint: Nickson Guay at [72]. It appears to me that the failure to secure the victim contributed to the outcome for which the appellant was being charged for (ie, the victim’s death) but did not affect whether the appellant was negligent: Nickson Guay at [68] and [70].

60 The issue of contributory negligence was also considered in Public Prosecutor v Ong Heng Chua [2018] 5 SLR 388 (“Ong Heng Chua”), albeit in the context of an offence under s 338(b) of the Penal Code (Cap 224, 2008 Rev Ed) for causing grievous hurt by negligent driving, an act which endangered human life. The appellant made a wide left turn into the lane leading into a car park and the right side of his car encroached into at least half of the opposite lane meant for oncoming traffic: Ong Heng Chua at [4] and [28]. At the same time, the victim was exiting from the said car park on her motorcycle. She failed to stop at the stop line before she made a left turn: Ong Heng Chua at [6]. Subsequently, the right side of the appellant’s car collided into her motorcycle.

61 Ong Heng Chua was decided under a different sentencing framework. Nonetheless, the said framework similarly required an analysis of the level of harm and the offender’s culpability. In relation to the appellant’s culpability, the court made observations regarding the victim’s negligence in failing to stop at the stop line. See Kee Oon J (as he then was) applied the holdings in Nickson Guay (Ong Heng Chua at [30]). It was held that the victim’s negligence did not affect the appellant’s negligence in encroaching into the lane of oncoming traffic and driving in the middle of two lanes: Ong Heng Chua at [33]. The victim’s negligence was thus not relevant to the appellant’s culpability. It is worth noting that the court pointed out that the victim’s headlight could be seen to the right of the appellant before the victim made the left turn: Ong Heng Chua at [29]. In the circumstances, it seems to me that, drawing from the court’s pronouncements in Nickson Guay at [72], the victim’s conduct did not affect whether the appellant was more or less negligent in failing to meet the standard of care expected of drivers.

62 I move to a case where, post-Chen Song, a victim’s contributory negligence was taken to have a direct bearing on the accused’s culpability: Public Prosecutor v Mark Robert Cox [2024] SGDC 265 (“Mark Robert Cox”). The accused and the victim, a motorcyclist, were initially on lane two of a two-lane road on an expressway (ie, the left lane) in their respective vehicles: Mark Robert Cox at [6]. The victim had his right signal indicator on for more than 22 seconds: at [6]. Both parties subsequently made a lane change from lane two to lane one: Mark Robert Cox at [7]–[8]. The victim, whose right indicator light was still on, veered his motorcycle towards the right side of lane one, towards the exit of the expressway on the right: Mark Robert Cox at [9]–[10]. At the same time, the accused began to overtake the victim from the victim’s right side, using the same lane: Mark Robert Cox at [9]. The accused then swerved right to avoid colliding with the victim; thereafter, the accused cut across the chevron marking which resulted in a sideswipe with the victim’s motorcycle: Mark Robert Cox at [10]. The accused pleaded guilty to a charge under s 65(1)(b) of the RTA, punishable under s 65(3)(a) read with s 65(6)(d) of the RTA, for driving without reasonable consideration by using the same lane to overtake the victim’s motorcycle, resulting in a collision: Mark Robert Cox at [1].

63 When assessing the accused’s culpability, the district judge noted the victim’s manner of riding, in that he had not attempted to make a lane change for a significant period of time despite ample opportunities for him to do so and his right indicator light being switched on: Mark Robert Cox at [56]. The district judge opined that such manner of riding would have confused other road users on the same road whether the victim was “serious about making a lane change, let alone whether he was even planning to exit the expressway”: Mark Robert Cox at [56]. The district judge found that the victim’s “indecision or even inattention … likely contributed to the [accused’s] error of judgment”: Mark Robert Cox at [59]. This was because the accused could have wrongly presumed, based on the victim’s prior riding behaviour, that the victim was going to stay in lane one and not veer further right to the exit: Mark Robert Cox at [59]. The victim’s conduct was thus construed by the district judge as contributing to the accused’s wrongful assessment of the victim’s intention, which had a bearing on the accused’s “misguided attempt of overtaking the [v]ictim without due care and attention”: Mark Robert Cox at [59].

64 In the premises, the district judge deemed the accused’s culpability as falling under the lower end of “lower culpability”, instead of the initial assessment that it was pegged at the moderate end: Mark Robert Cox at [49] and [61]. The Prosecution’s appeal on sentence was dismissed by the High Court with brief oral grounds issued. The High Court agreed that the victim’s manner of riding and signalling had some bearing on the accused’s culpability. ⁴⁴ It thus appears to me that the High Court may have had the point on contributory negligence in mind.

65 From a survey of the aforesaid cases, I am of the view that the inquiry is whether the conduct of the victim or the third party can be said to affect the degree of the offender’s negligence which thereby has a direct bearing on the offender’s culpability. In R v Smith and Mark Robert Cox, the offender’s culpability was affected as the victim’s conduct contributed to the likelihood of the accident occurring. The same cannot be said on the facts of Nickson Guay where the third party’s conduct merely contributed to the outcome of the accident; or Ong Heng Chua where the victim’s negligence did nothing to affect the accused’s culpability. This thus appears to me to be the crucial distinction between the said cases.

66 Against the aforementioned context, I consider the unreported cases that the appellant relies on heavily, ie, Ian Tai and Pearl Lua. In particular, the appellant draws parallels between Ian Tai and the present case, in terms of the type of injury suffered (ie, a spinal fracture) and its impact on the victim. ⁴⁵ I pause to observe that the DJ regarded Ian Tai to be of limited assistance because it was an unreported decision (GD at [44]). Notwithstanding that, I note that the oral grounds by the respective district judges in the said unreported cases may provide insight to the extent that they reveal the judge’s weighing of the facts and evidence and their reasoning for the sentences imposed (see Public Prosecutor v Lin Pengli Barrie [2025] 4 SLR 524 at [29]).

67 In Ian Tai, the accused failed to conform to a red-light signal and collided into the victim, who was cycling across the designated pedestrian crossing when the pedestrian crossing signal light was not in the victim’s favour. The victim suffered from a spinal fracture and was given 68 days of hospitalisation leave. The accused pleaded guilty to the offence under s 65(1)(a) of the RTA for driving without due care and attention causing grievous hurt, punishable under s 65(3)(a) read with s 65(6)(d) of the RTA. The Prosecution did not seek a custodial sentence as it acknowledged the victim’s conduct of cycling across the pedestrian crossing despite the red light. ⁴⁶ In the round, the district judge imposed a $4,800 fine and a five-year disqualification period. The district judge opined that the “victim was also negligent”, though the accused’s culpability was “also not that low” given that the traffic light had been red for almost four seconds. ⁴⁷

68 I accept the respondent’s point that the district judge in Ian Tai did not make a finding on “whether and to what degree the victim’s negligence reduced the offender’s culpability” and correspondingly, the weight that the district judge placed on this factor in his decision is unclear. ⁴⁸ I nonetheless make three observations on the case. First, it appears to me that the Prosecution in Ian Tai accepted that the victim’s contributory negligence featured and therefore did not submit for a custodial sentence. Second, the victim’s conduct there was of relevance to the district judge in the overall assessment of the sentence. Third, however, it does not appear to me entirely clear that the conduct of the victim contributed to the accused’s negligence.

69 Turning to the case of Pearl Lua, the accused was driving her car on lane two of a five-lane carriageway while the victim was cycling diagonally across the road from left to right. The in-car camera footage showed that the victim’s back was turned against the flow of traffic, and he did not look back as he cycled across the lanes. There was moderate traffic volume at the material time. The accused’s view of the victim was initially obstructed by a minibus that was on lane three. When the victim crossed the chevron marking and continued to cut across lane three to lane two, thereby encroaching on the accused’s car, the accused swung right and applied the brakes but was unable to stop in time to avoid a collision. The victim later passed away. The accused pleaded guilty to the offence under s 65(1)(a) of the RTA for driving without due care and attention causing death, punishable under s 65(2)(a) read with s 65(6)(a) of the RTA.

70 The Prosecution submitted for a non-custodial sentence as, inter alia, the accused’s culpability was on the lower end, recognising that “in all fairness, the [victim] had ridden across the road in such a manner”. ⁴⁹ The district judge agreed with the Prosecution’s submissions. He imposed a fine of $6,000 and an eight-year disqualification period. ⁵⁰ As the district judge did not explain in detail the relevance of the victim’s conduct in his assessment of the sentence, I consider that Pearl Lua provides limited utility to the present analysis. Though, I would add that it is evident to me that the victim’s conduct had a direct bearing on the accused’s culpability, in that his manner of cycling increased the likelihood of the accident occurring.

71 After reviewing Ian Tai and Pearl Lua, I am not persuaded by the appellant’s contention that these cases establish the general proposition that “where there is contributory negligence on the part of the injured party, a non-custodial sentence would be appropriate”. ⁵¹ The most that can be gleaned from the said cases is that the victim’s conduct appeared to factor in the determination of the accused’s sentence. However, the extent to which it weighed in the reduction of the accused’s culpability was not articulated in the oral grounds in Ian Tai and Pearl Lua. This is because the Prosecution and Defence in both cases had proceeded on the basis of a non-custodial sentence.

72 In any event, each case necessarily turns on its own facts. For whilst an offender’s culpability may be attenuated by contributory negligence to the extent that the principles I have summarised at [57] above apply, there is no general rule that this would ipso facto indicate that a non-custodial sentence is warranted. In the final analysis, the accused’s culpability will have to be considered in tandem with the extent of harm in accordance with the Chen Song framework to determine whether the custodial threshold is crossed (see [10]–[12] above).

73 In my judgment, the present situation is precisely one where the appellant’s moral culpability can be said to be affected by the Victim’s behaviour: Nickson Guay at [65]. I consider it material that cyclists are subject to r 14 of the RTR which imposes two duties: (a) to proceed at such a speed that enables him to stop his bicycle before reaching a zebra crossing; and (b) to stop and look for oncoming traffic before using that crossing (see [52] above). Both the appellant and respondent confirm that there is no such similar rule imposed on pedestrians. ⁵² This is eminently logical. It is not difficult to appreciate that a cyclist generally travels at a much faster speed than a pedestrian who is walking. A cyclist that fails to proceed at a speed that will enable him to stop prior to reaching a pedestrian crossing and/or stop to check for oncoming traffic before entering a pedestrian crossing, contrary to r 14 of the RTR, would reduce the window of time for a driver approaching the same crossing to react and hence increase the likelihood of an accident happening.

74 The SOF states that the Victim did not stop prior to entering the Crossing. ⁵³ The appellant further points out that the Victim “did not even slow down or stop to look out for the [a]ppellant” prior to entering the Crossing. ⁵⁴ The respondent does not specifically contest this. Its position merely is that the Victim’s failure to comply with r 14 of the RTR did not absolve the appellant from giving way to him. ⁵⁵ In any event, based on a review of the in-car camera footage, I am satisfied that the Victim was not proceeding at a speed that enabled him to stop before approaching the Crossing, and he did not stop or look out for oncoming traffic prior to entering the Crossing.

75 It is thus clear that the Victim was in breach of both obligations imposed under r 14 of the RTR (see [52] above). First, as the Victim cycled along the foot path beside Outram Road and turned right to approach the Crossing, he was not proceeding at a speed that would have enabled him to stop cycling before reaching the Crossing. Second, when he was at the Crossing, the Victim continued to cycle onto the Crossing without stopping. He also failed to look out for any oncoming traffic before entering the Crossing. ⁵⁶ The Victim was in fact issued a stern warning for his conduct. ⁵⁷

76 It is not in dispute that the appellant did in fact slow down when approaching the Crossing, but his negligence lay in his failure to keep a proper lookout for the Victim and come to a stop at the Crossing. It is, however, apparent to me that because the Victim did not proceed at a speed that would have enabled him to stop cycling before approaching the Crossing, this reduced the window of reaction time available to the appellant. The additional failure of the Victim to stop to check for oncoming traffic at the Crossing further lowered the likelihood of the appellant noticing that the Victim was there. From that perspective, the Victim’s conduct can be said to reduce the appellant’s culpability. That the appellant slowed down initially before entering the Crossing is of significance because it indicates that had the Victim stopped at the Crossing, it would not be inconceivable that the appellant would have likewise come to a stop at the Crossing. In the premises, the Victim’s conduct, in failing to: (a) proceed at a speed that would have enabled him to stop before approaching the Crossing; and (b) stop to look out for any oncoming vehicles prior to entering the Crossing, should be a relevant consideration in determining the appellant’s culpability.

77 The present facts appear to me to be more akin to R v Smith in the sense that the Victim’s conduct had “significantly increased the likelihood of an accident occurring” which diminished the appellant’s culpability (Nickson Guay at [51]; see [58] above). This is not simply the case where the Victim’s conduct merely contributed to the outcome for which the appellant was charged, ie, the grievous hurt that was caused to the Victim. Instead, the Victim’s behaviour affected the degree of the appellant’s negligence and hence his culpability. This can be contrasted to the facts of Nickson Guay (see [59] above).

78 Therefore, to my mind, the DJ erred by failing to consider the Victim’s contributory negligence in calibrating the appellant’s culpability.

79 On a proper consideration of the Victim’s culpability, I disagree with the DJ’s holding that this was not a case concerning the lowest end of “lower culpability” (GD at [29]). Despite one culpability factor being engaged (ie, the flouting of traffic rules and regulations), I am satisfied that the Victim’s contributory negligence significantly diminishes the appellant’s culpability such that, overall, the present case is placed at the lowest end of “lower culpability”.

80 In determining whether the custodial threshold is crossed, the court in Chen Song provided the following guidance (at [137]):

81 In my respectful view, I do not read the aforesaid remarks in Chen Song as only reserving the imposition of fines to cases where one or no harm and/or culpability factor is present. Indeed, in Ling Zhao Bin at [51], Ramesh JAD remarked that the said rule is “not absolute”. When opining on the principles regarding the number of offence-specific factors which would give rise respectively to “lesser” or “greater” harm, and “lower” or “higher” culpability (see [10] above), the court stressed that this was a general guideline which should not be applied mechanistically in every case: Chen Song at [123]. Equally, the guidelines in Chen Song at [137] (see [80] above), to my mind, should not be rigidly applied.

82 I observe that the guidance in Chen Song on when the custodial threshold is crossed centres on a quantitative assessment of the number of harm and/or culpability factors that feature. In a situation where a court considers contributory negligence relevant and calibrates the offender’s culpability accordingly, a strict focus on the number of culpability factors engaged may not be appropriate when assessing whether the custodial threshold is crossed. This is because the court must consider the overall extent of the offender’s culpability by factoring in the culpability factor(s) and the extent to which the contributory negligence affected the offender’s culpability. The general guidance in Chen Song that the custodial threshold is ordinarily crossed where there is more than one harm and/or culpability factor is present is, therefore, not engaged to the same extent when contributory negligence is found to affect the degree of culpability. To be clear, as I have indicated earlier at [71]–[72] above, there is no general rule that the presence of contributory negligence warrants a non-custodial sentence. It ultimately turns on a consideration of the specific harm factor(s) and degree of culpability in each particular fact situation.

83 I consider that, ultimately, it is for the sentencing court to assess based on the totality of the evidence whether the custodial threshold is crossed, using the principles in Chen Song at [137] (see [80] above) as a guide. The Chen Song framework makes clear, nonetheless, that a non-custodial sentence is only confined to Band 1 cases, ie, circumstances involving “lesser harm” and “lower culpability” (see [10] above).

84 To illustrate, the custodial threshold was found to not be crossed in Public Prosecutor v Lau Shiao-Li Alexis (Liu Xiaoli) [2025] SGDC 25 (“Alexis Lau”). On the facts, the court characterised the case as one involving “lesser harm” with two primary harm factors engaged; and “lower culpability” since no offence-specific culpability factor was engaged: Alexis Lau at [33], [35] and [38]. The district judge imposed a $5,000 fine and a five-year disqualification period after considering that the harm factors presented to a limited degree and the weighty mitigating factors: Alexis Lau at [2] and [45].

85 By contrast, the custodial threshold was found to be crossed in Hee Kwee Choy. There, the district judge found that the case was on the higher end of “lesser harm” with two primary harm factors engaged; and “lower culpability” as no offence-specific culpability factor was applicable (Hee Kwee Choy at [41] and [43]). The accused was sentenced to three weeks’ imprisonment and a 5-year disqualification period: Hee Kwee Choy at [59]. The district judge opined that the custodial threshold was crossed due to the two primary harm factors engaged and the fact that the “degree of carelessness was by no means low”: Hee Kwee Choy at [47]. In particular, the district judge found it “remarkable” that the accused “completely failed to notice the victim” [emphasis in original omitted] as he made a discretionary right turn while the victim was crossing the road at a signalised pedestrian crossing when the light was in the victim’s favour: Hee Kwee Choy at [44].

86 The accused’s appeal in Hee Kwee Choy was dismissed by the High Court with brief oral grounds given. Notably, the High Court remarked that the accused’s carelessness, in failing to notice the victim who was crossing at a signalised crossing, exhibited carelessness of a degree which crossed the custodial threshold. ⁵⁸ I would further add that, to my mind, there was at least one culpability factor apparent on the facts of Hee Kwee Choy. The accused appears to have breached r 6 of the RTR (reproduced at [44(a)] above) by failing to provide free and uninterrupted passage to the victim, a pedestrian, at a pedestrian crossing. In addition, this case strikes me as one that involved a high degree of carelessness. In my opinion, the accused’s complete failure to notice the victim, a pedestrian entering the pedestrian crossing when the pedestrian signal was green in his favour, was highly careless. This is especially so considering that the victim eminently had the right of way. As I have mentioned above at [74], to my knowledge, pedestrians are not subject to a similar rule as r 14 of the RTR which imposes duties on (inter alia) cyclists approaching pedestrian crossings. Bearing in mind, therefore, that the facts of Hee Kwee Choy suggest possible culpability factor(s) in play, the sentence of three weeks’ imprisonment in Hee Kwee Choy seems justified.

87 What the cases of Alexis Lau and Hee Kwee Choy nonetheless demonstrate is that whether the custodial threshold is crossed is highly fact-sensitive. I thus emphasise my observations at [81] and [83] above.

88 I note for completeness that the respondent seeks to rely on the cases of Hwee Kee Choy and Public Prosecutor v Steven Halim [2025] SGDC 98, in arguing that the custodial threshold is crossed. ⁵⁹ I do not think that such broad comparisons are productive given that in both of these cases, the respective victim’s conduct did not affect the offender’s culpability, unlike the present case (see my observations on Hee Kwee Choy at [86] above). This is a significant distinguishing fact that the respondent fails to account for; whether the custodial threshold is crossed depends on the specific facts of each case.

89 In my assessment, the present case involves “lesser harm” (pegged at the middle of the spectrum) and “lower culpability” (at the lowest end of the spectrum) such that a non-custodial sentence is warranted. I am mindful that while two offence-specific harm factors are present, they are of relatively limited degree such that the overall assessment is the middle of “lesser harm”. As I have held at [79] above, the appellant’s culpability is significantly reduced on account of the Victim’s contributory negligence and the facts concern the lowest end of “lower culpability”. Overall, on the specific facts of this case, I hold that the custodial threshold has not been crossed.

90 In the round, I consider that the maximum fine ought to be imposed on the appellant (ie, $5,000). Although the offender-specific mitigating factors include the appellant’s early plea of guilt, his cooperation with the authorities and his assistance rendered to the Victim, bearing in mind his compounded traffic offences that are relevant (at [38] of the GD), the maximum fine is warranted.

91 Based on the foregoing reasons, I allow the appeal. I stress that this is a case involving the middle end of “lesser harm” and the lowest end of “lower culpability” (on account of the Victim’s significant contributory negligence), such that, overall, I am of the view that the custodial threshold is not crossed. The appellant’s one-week imprisonment term imposed by the DJ is set aside and substituted with a fine of $5,000 (one week’s imprisonment in default). For the avoidance of doubt, the appellant’s five-year disqualification period remains.