Drink driver who claimed Bonjela oral gel affected his breathalyser test reading fails in appeal

SINGAPORE: A man who claimed that Bonjela oral gel affected his breathalyser test had his appeal against his drink driving conviction dismissed by the High Court on Thursday (May 11). 

Simon Tham Saik Mun, 52, had been sentenced to three weeks' jail, a fine of S$6,000 and a four-year driving ban on Feb 7, after having claimed trial and found guilty by a District Judge. 

After hearing both the prosecution and defence, Justice Vincent Hoong dismissed the appeal against conviction and sentence, adding that he would give his reasons in due course. 

During Tham's trial, the prosecution said that Tham had consumed beer in a pub on the night of Jun 13, 2019.

He then drove his van home in the early hours of the next day and nearly knocked down a passer-by, who later called the police. 

He failed a mobile breathalyser test and was arrested.

Tham was then given a breath test at Woodlands Police Division HQ and the machine recorded a failed blow with the message "alcohol concentration not stable".

The second blow showed a test result of 75 micrograms of alcohol per 100ml of breath, above the prescribed limit of 35 micrograms.

Tham said during the trial that he had been using Bonjela gel, which contains ethanol, for pain relief for a cracked tooth and ulcers.  

ARGUMENTS DURING APPEAL 

During the appeal, Tham's lawyer Adrian Tan argued that his client's test result was affected as Tham had belched, and because Tham had applied Bonjela gel to the crack lines in a damaged tooth. 

On the burping, Mr Tan said that an experiment conducted by the defence showed that after Tham had applied Bonjela gel to his mouth - and there was "some ingestion" - the alcohol reading decreased to zero. However shortly after, when Tham burped, there was a spike in the reading. 

Tham would have been applying Bonjela gel throughout the day of the offence, said Mr Tan. Any burping or belching would then lead to a positive mild alcohol reading, he argued. 

The District Judge from the lower courts had described the burping argument as an "afterthought" as Tham had not mentioned it during his testimony. 

But Mr Tan said that the point should not be discounted simply because his client did not mention it. Tham had not been asked about the point, or challenged on if he had burped, but he had mentioned applying Bonjela gel, said Mr Tan. 

Rebutting this argument, Deputy Public Prosecutor Gregory Gan said the District Judge was justified to infer the claim as an afterthought. The prosecution had nothing to challenge if Tham never testified about burping, Mr Gan pointed out. 

Mr Gan submitted that Tham had failed to adduce any evidence on the alcohol content in his body at different times. The deputy public prosecutor noted that Tham had given an inconsistent account of how much beer he consumed. In his police statement, Tham alleged he drank half a jug of beer, but in court, he testified that he consumed less than half a jug of beer.  

There was also a lack of evidence to show that Bonjela gel could have elevated the alcohol in his breath such that it was more than double the prescribed limit, Mr Gan said. 

As to Tham's claim that there could have been Bonjela gel in his cracked tooth that contributed to the reading, Tham could not say how much of the gel he had applied to his mouth, or how much was trapped in his tooth, said the prosecution. 

Mr Tan also argued that even though there was a "highly unusual" error message that showed after his client was given his first breath test, his client was given the second test immediately after without a "control time", which had been specified by the manual of the machine used for the test. 

He said it was clear that prosecution witnesses - including the officer who administered the test - had never encountered this error message which was a "highly anomalous" one. He noted that according to evidence given in court, the test machine's operating manual stated that there had to be a lapse of 15 minutes before the test was re-attempted. 

Based on this, it was not safe to convict his client, Mr Tan said. 

Arguing against this point, Mr Gan said that the fact that the test machine generated an error message did not undermine the result of the second test. In fact, the expert witness who was part of the team that designed the machine gave evidence on what the message meant, he said. 

The expert witness testified that an error message is generated when a person stops breathing before emptying air from his or her lungs.

To say that the procedure was not followed is hence "misplaced", said Mr Gan. 

Tham will begin serving his jail term on May 26.