Chuan Hoe Engineering Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 October 1996
• Neutral Citation: [1996] SGHC 225
• Docket Number: Magistrate's Appeal No 113 of 1996
• Date: 03 October 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Looi Kwok Peng (Tan Chye Chia & Looi)
• Citation: [1996] SGHC 225
• Defendant Counsel: Bala Reddy (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether defect curable,Charge alleging contravention of both ss 10(1) and 16(8) of the Planning Act (Cap 232, 1990 Ed),Change made before 1 February 1960,Words and Phrases,Building control,ss 10(1) & 12 Planning Act (Cap 232, 1990 Ed),Building and Construction Law,'Development',Statutes and regulations,Enforcement notice,ss 168 & 396 Criminal Procedure Code (Cap 68),ss 10(1), 16(1) Planning Act (Cap 232, 1990 Ed),Whether competent authority could come to opinion that development of land was in contravention of s 10(1) of Planning Act (Cap 232, 1990 Ed),Whether enforcement notice valid,Charge,Making material change in use of land,Administrative Law,Developing land without authority,Whether competent authority addressed its mind to relevant issue,Criminal Procedure and Sentencing,Continued use as store,Material change in use of land made before 1 February 1960,Duplicity,Public authority,ss 10 & 16(1) Planning Act (Cap 232, 1990 Ed),Using part of dwelling as store,Whether an offence

Cur Adv Vult

The appellants were convicted on the following charge in themagistrate`s court:

You, Chuan Hoe Engineering Pte Ltd É

are charged that you, on or about 25 October 1995 inSingapore, diddevelop the premises at 37A Tyrwhitt Rd without the written permission of thecompetent authority in contravention of s 10(1) of the Planning Act (Cap 232),in that you fail to comply with the directions in the Enforcement Notice No250/95 issued under s 16(1) of the said Act, to:

icease the unauthorised use of the said premises as a store for machinery andequipment and

iiremove all paraphernalia pertaining to the said unauthorised use from thepremises,

after the said enforcement notice had been served on youon 11 May1995, which is an offence punishable under s 16(8) of the PlanningAct.

The undisputed facts were that in December 1951, approval wasgiven todevelop six shophouses on Tyrwhitt Road. One of the shophouses erected was 37ATyrwhitt Road (37A TR), which was the appellants` premises. AccordingtoChiang Kok Him, a senior technical officer from the Urban RedevelopmentAuthority (URA), the second storey of 37A TR was only approved for residentialpurposes. 37A TR was in a location zoned for Olocal shopping`under theMaster Plan. This Master Plan was consistent with the land use plan of thecolonial government before 1960. No other planning approval has since beengiven for 37A TR.

On 2 May 1995, Ho Kie Hock, a technician from the URA, inspected37A TRand found that the second storey was used to store machinery and equipment. Anenforcement notice, purportedly issued under s 16(1) of the Planning Act (Cap232, 1990 Ed) (the Act) was served on the appellants on 11 May 1995.

The notice states, inter alia:

The Competent Authority HEREBY GIVES YOU NOTICE that inthe opinion ofthe Competent Authority:

aDevelopment has been carried out on [37A TR] without the written permission ofthe Competent Authority required in respect thereof under Section 10(1) of thePlanning Act (Cap 232, 1990 Ed) to wit:

Use of the said premises as a store for storage ofmachinery

bThe said development was carried out on or about May 1995.

É

AND HEREBY DIRECTS, pursuant to Section 16(1) of thePlanning Act (Cap232, 1990 Ed), that within twenty-eight (28) days from the date of service ofthis Notice you shall:

iCease the unauthorised use of the said premises as a store.

iiRemove all paraphernalia pertaining to the unauthorised use from the saidpremises.

No prosecution witness was able to tell the court, and they quitecandidly admitted that they did not know, whether the second storey of 37A TRhad been used as a store before 1 February 1960. The significance of this datewas that this was when the Act came into effect as the PlanningOrdinance.

That was the sum total of the prosecution evidence. It is notnecessaryto delve into details of the defence evidence, save to say that it was claimedthat the second storey of 37A TR had been used as a store since before 1February 1960. In view of the fact that the prosecution was in no position tochallenge the testimony of the appellants` witness on this issue, thedefence claim was accepted by the magistrate.

I shall first deal with the charge. The magistrate indicated thatthecharge was Ounusual`. The prosecuting officer submitted that theonuswas on the prosecution to prove unauthorised development of the land. That waswhy the appellants were charged for developing the land. The magistrate heldthat, in view of the prosecuting officer`s explanation, it was clearthatthe prosecution was proceeding under s 16(8) and not s 10(8) of theAct.

The magistrate understated the problem with the charge. Thecharge wasnot merely Ounusual`, it was plainly bad. It was duplicitous. Asit was,the charge accused the appellants of developing the premises without writtenpermission, contrary to s 10(1) of the Act; and for failing to comply with thedirections in the enforcement notice, contrary to s 16(8) of the Act.

Section 168 of the Criminal Procedure Code (Cap 68) (CPC) states:

For every distinct offence of which any person is accused there shallbe a separate charge and every such charge shall be tried separately except inthe cases mentioned in sections 169, 170, 172 and 176.

A charge alleging that the accused committed two or more offencesisduplicitous and contravenes s 168. Reference need only be made to Ramachandran v PP [1972] 2 MLJ 183; [1972D1974] SLR 383; See YewPoo v PP [1949] MLJ 131 (CA, Kuala Lumpur); and PP vNorzilan bin Yacoob [1989] 1 MLJ 442 (HC, Kuala Lumpur). As can beseen from these cases,the exceptions refer to joinder of charges and not duplicity.

However, the same cases decide that this form of duplicity isonly anirregularity which can be cured by s 396 of the CPC, provided that eachoffence could have been the subject of a separate charge and could be triedtogether, that the accused was not prejudiced, and no failure of justice wasoccasioned by the duplicity. A failure of justice is considered to haveoccurred where the duplicity caused confusion in the mind of the trial judgeso that he did not consider the evidence in respect of each alleged offenceseparately; see See Yew Poo v PP and PP v Mohamed Fathi bin Haji Ahmad [1979] 2 MLJ 75.

In the present case, I am of the view that the defect in thecharge canbe cured. Section 10(1) of the Act provides:

No person shall, without the written permission of thecompetentauthority, develop any land.

Section 12 defines what is meant by Odevelop`. Therelevant partof s 12(1) states:

In this Part, except where the context otherwise requires,Odevelop` means to carry out any building, engineering, mining orotheroperations in, on, over or under land, or the making of any material change inthe use of any building or land É

Section 12(2)(d) provides additionally:

the use for other purposes of a building or part of abuildingoriginally constructed as a dwelling house involves a material change in theuse of the building[.]

On the facts of this case, the prosecution was able to produce noevidence, and in fact simply had no basis to allege that there had been anymaterial change in the use of 37A TR (or the second storey of it, assumingthat falls under s 12(2)(d)), since 1 February 1960. The appellants obviouslycould not breach s 10(1) before 1 February 1960 as that provision only cameinto effect on that day. There was therefore no ground for alleging that theappellants contravened s 10(1) of the Act by Odeveloping` 37ATR.

In the circumstances, there could not have been any conviction ons10(1) of the Act. There was none in this case, because the magistrate took theview that the prosecution was not accusing the appellants of an offence underthis section. The s 10(1) charge within the charge as framed can therefore beignored.

This left only the second charge, that of failing to comply withtheenforcement notice. On this, there was evidently some confusion of the issues.At p 5 of his grounds the magistrate stated:

It was not

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