Aw Bock Eng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 24 August 2007
• Neutral Citation: [2007] SGHC 136
• Court: High Court (Singapore)
• Year: 2007
• Published date: 27 August 2007
• Plaintiff Counsel: S K Kumar and Udeh Chandran (S K Kumar & Associates)
• Defendant Counsel: David Khoo Deputy Public Prosecutor (Attorney-General's Chambers)
• Citation: [2007] SGHC 136

24 August 2007

Tay Yong Kwang J:

Introduction

1 This is an appeal against the decision of District Judge Terence Chua (“the DJ”) in PP v Aw Bock Eng [2007] SGDC 88 (hereafter referred to as the “GD”). The appellant was convicted and sentenced on the following two charges:

The First Charge

You, Aw Bock Eng, Male, 45 yrs

NRIC No S 1425258D

are charged that you on 28th March 2006, at about 03.21 pm, at the Woodlands Checkpoint, Singapore, did use motor car SBZ 8581K as a public service vehicle without there being in force in respect of the said motor car, a valid public service licence granted under the provision of Part V of the Road Traffic Act, Chapter 276, authorising the use of the said motor car as a public service vehicle, and you have thereby committed an offence under Section 101(1) and punishable under Section 101(2) of the said Road Traffic Act, Chapter 276.

The Second Charge

You, Aw Bock Eng, Male 45 years

NRIC No S1425258D

are charged that you on the 28^th March 2006, at about 03.21 pm along Woodlands Checkpoint, Singapore, did use motor car SBZ 8581K whilst there was not in force in relation to the use of the said vehicle a policy of insurance in respect to third party risks which complies with the requirements of the Motor Vehicles (Third Party Risks and Compensation) Act, and you have thereby committed an offence under Section 3(1) and punishable under Section 3(2) of the said Act, Chapter 189.

2 The punishment provided for the first charge (by s 101(2) of the Road Traffic Act)(“RTA”) is a fine of up to $3,000 or imprisonment of up to 6 months or both while the punishment for the second charge provided by s 3(2) of the Motor Vehicles (Third Party Risks and Compensation) Act (“MVA”) is a fine not exceeding $1,000 or imprisonment not exceeding 3 months or both. In addition, s 3(3) of the MVA states that a person convicted of an offence under that section shall be disqualified for holding or obtaining a licence under the RTA for a period of 12 months from the date of the conviction (unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification). The DJ sentenced the appellant to a $2,500 fine in respect of the first charge and a $800 fine in respect of the second charge and disqualified him from holding or obtaining a driving licence for all classes of vehicles for 12 months. The vehicle was also ordered to be forfeited pursuant to section 101(7) of the RTA.

3 The appellant indicated in his petition of appeal that he was challenging both the conviction and sentence imposed by the DJ but focused solely on the appeal against conviction in the written submissions and at the hearing before me. I dismissed the appeal and now give my reasons.

Factual background

4 On 27 March 2006, the appellant drove two ladies from China, Lu Huihua (“Lu”) and Xu Fu Er, (“Xu”) in the said motor car, a black Mercedes Benz E200, from Singapore to Malaysia. It was established that the ladies handed $150 to the appellant before they entered Malaysia but the parties disagreed as to the purpose of the payment. The prosecution contended that the appellant asked for this sum as a fee to ferry the ladies to Malaysia and back while counsel for the appellant argued that the money was given to the appellant for Lu’s and Xu’s expenses in Malaysia. That night, Lu and Xu stayed in a hotel in Malaysia while the accused returned to Singapore. The next day, the appellant drove to Malaysia again in order to bring the ladies back to Singapore. During their re-entry at Woodlands Checkpoint, the Immigration and Checkpoints Authority (“ICA”) discovered that Lu had previously entered Singapore using another name “Xu Huihua”.

5 When interviewed by the ICA officers, Lu admitted that she had previously been arrested for immigration offences in Singapore. In addition, she allegedly told them that the purpose of her leaving and re-entering Singapore was to extend her social visit pass in Singapore and that the appellant had provided transport for that purpose. These were recorded in the statement given voluntarily by Lu to the ICA officers on 29 March 2006 (exhibit “P5”). Xu was also interviewed at the checkpoint but was not charged eventually.

Proceedings below

6 Lu took the stand as the prosecution’s first witness and seemed reluctant, right from the start, to answer the questions posed. She claimed that her mind was a blank and that she could not remember the material events. In the premises, the prosecution applied to treat her as a hostile witness and to impeach her credit under s 157 of the Criminal Procedure Code (Cap 68). The DJ noted that there were material discrepancies between the statement (“P5”) and her testimony in court and allowed the impeachment proceedings. In that statement, Lu stated that when the trip to Malaysia was arranged to enable her to obtain a fresh social visit pass, the appellant told her that she would have to pay him $150 when they returned to Singapore. On the outward journey, the appellant asked her for the money and she “paid to him S$150” in three $50 notes.

7 Lu was unable to explain these discrepancies and continued to maintain that she did not remember the details and/or did not understand what she had said earlier. During cross-examination, Lu was equally un-cooperative and hence the prosecution was allowed to substitute the statement made to the ICA officers in place of her testimony in court, by virtue of s. 147(3) of the Evidence Act (Cap 97). The prosecution also called the ICA investigating officer involved to testify as to the recording process of this statement, although the appellant did not take issue with the voluntariness of the statement.

8 The appellant elected to testify when his defence was called upon. The crux of the appellant’s case below was that he had driven the two ladies to Malaysia on the night of 27 March 2006 as a means to getting to know them better (particularly Xu whom he was interested in). He disagreed with the prosecution’s version that he asked for the money as a “fee” and maintained that, in any event, it was for the ladies’ expenses on the trip which was suggested by them. Before they embarked on their journey, the issue of expenses was discussed and he told Lu that the ladies would have to bear their own expenses for the visa into Malaysia and for their meals there. The two ladies gave him the $150 to exchange for Malaysian ringgit (“RM”) which he did, utilising $136.98 to exchange for RM300 since the money changer only dealt in RM50 notes. He alleged that half of the amount was handed over to the Malaysian immigration officers although he paid only RM60 for the ladies’ visas. Another RM40 was spent on a late dinner which ended at about midnight.

9 As the ladies wanted to spend the night in a hotel, he brought them to one. They invited him to stay but he declined as he had a meeting in Singapore the next day. However, he promised them that he would return to join them the next day if he had the time.

10 The next day, the appellant drove back to Malaysia at around noon, joined the ladies for a meal, went sightseeing and shopping with them and then headed back for Singapore with them at about 3pm. They were apprehended when they reached the Woodlands Checkpoint.

11 In cross-examination, the appellant admitted that he had driven female Chinese nationals to Malaysia before but only as a means to know them with the hope of starting a sexual relationship with them. However, he added that in doing so, he would not put himself in a position where he would be liable for an offence.

The DJ’s decision

12 In his GD, the DJ began his analysis by discussing the presumption spelt out in s 130(a) of the RTA (see [16] below). He noted that there was sufficient groundwork on the facts to invoke the presumption. Specifically, the DJ relied on Lu’s prior statement to the ICA (“P5”). This evidence, the DJ found, provided the foundation for the defence to be called as well as the groundwork for the presumption under s 130(a) of the RTA to be invoked. Having invoked the presumption, the DJ went on to consider if the appellant was able to rebut the presumption on a balance of probabilities. The DJ found that his testimony (in which he generally denied that he had asked for and had been given any payment for ferrying the ladies across Malaysia) was riddled with material contradictions and inconsistencies, particularly in relation to amounts of money exchanged and spent.

13 On the totality of the evidence therefore, the DJ found that the appellant had not succeeded in rebutting the presumption under s 130(a) on a balance of probabilities and found him guilty on the first charge (under s. 101 of the RTA). It necessarily followed from this, that at the time of the offence, the vehicle was not covered by insurance (since using the vehicle for “hire or reward” was prohibited by the insurance policy), leading to a conviction on the second charge under the MVA. The DJ imposed the fines (with default imprisonment terms) and made the disqualification and forfeiture orders accordingly. At the appeal before me, the fines had already been paid.

Issues raised at this appeal

14 The crux of the appellant’s case, as distilled from the petition of appeal and written submissions was as follows. First, whether the necessary groundwork was present to justify invoking the presumption in s 130(a) of the RTA, and if so, whether the accused could satisfactorily rebut the said presumption. The second issue was whether a conviction on the second charge (driving without a valid insurance policy) follows as a necessary consequence from a conviction on the first charge.

15 In respect of the sentences meted out by the DJ, the appellant did not address the points raised in the petition of appeal in either his written submissions/further submissions or at the hearing itself. However, for the sake of...