Er Kee Jeng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] SGHC 45
• Date: 15 March 2006
• Subject Matter: Road Traffic,Principal,Whether "registered agent" making payment on behalf of insurer or insured,Cancellation of insurance policy by insurer,Whether policy deemed to be in force where insurer statutorily liable,Non-surrender of certificate of insurance,Identity,Payment of premium for insurance policy made by "registered agent" of insurer,Insurer liable in respect of third-party risks even after cancellation of policy,Whether surrender of certificate of insurance precondition to valid cancellation of third-party insurance,Agency,Section 9 Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed),Third party liability,Statutory liability of insurer under s 9 Motor Vehicles (Third-Party Risks and Compensation) Act
• Docket Number: Magistrate's Appeal No 109 of 2005
• Published date: 15 March 2006
• Defendant Counsel: Nor' Ashikin Samdin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Peter Ong Lip Cheng (Peter Ong & Raymond Tan)

15 March 2006

Yong Pung How CJ:

1 The appellant was convicted under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (“the MVA”) on the following charge:

That you, on 25/3/2004 at about 8:05pm along Bencoolen Street did permit one Eric Tan Cher Peng to use a motor car no. SFB 8761 C whilst there was not in force in relation to the user of the said vehicle such a policy of insurance in respect of third party risks as complies with the requirement of the Motor Vehicles (Third Party Risks and Compensation) Act, Chapter 189 and you have thereby committed an offence under section 3(1) and punishable under section 3(2) of the said Act, Chapter 189.

The district judge imposed a fine of $700 and disqualification from driving all classes of vehicles for a period of 14 months on the above charge.

2 The appellant appealed against both his conviction and sentence on the ground that there was a valid insurance policy in force in relation to the said motor car (“the car”) at about 8.05pm on 25 March 2004 (“the material time”). After examining the evidence before me, I dismissed the appeal and now give my reasons.

The facts

3 The appellant was the registered owner of the car, a Toyota Wish 1.8, at all material times. He had purchased the car from Teck Wei Auto Trading (“Teck Wei”) on 17 September 2003, taking a loan of $96,000 from Oversea-Chinese Banking Corporation Limited (“OCBC Bank”) for this purpose. As reflected in the sales agreement with Teck Wei, the loan of $96,000 was intended to go towards the purchase price of $93,800, initial payment of $1,008 as well as the insurance fee of $1,773. However, the sum of these three figures, being $96,581, exceeded the loan quantum by $581.

4 While a third-party risks insurance policy for the period of 17 September 2003 to 16 September 2004 (“the Policy”) had initially been taken out prior to the registration of the car, the Policy had subsequently been cancelled on 24 December 2003 for non-payment of the premium. Accordingly, the car was not covered under the Policy at the material time.

5 In his testimony, Mr Ong Hong Woon (“Ong”), a partner of Teck Wei, admitted that it was Teck Wei’s responsibility to take out a third-party risks insurance policy over the car with NTUC Income Insurance Cooperative Limited (“NTUC”) through Jin-Shi (Holdings) Pte Limited (“Jin-Shi”). Teck Wei had therefore faxed an application for insurance coverage to Jin-Shi before registering the car, and the Policy was accordingly issued by NTUC to the appellant. However, it was Teck Wei’s position that it would not make payment for the insurance premium until the additional sum of $581 was received because this additional sum was intended for the insurance premium.

6 The appellant gave evidence that he did not pay this remaining sum of $581 to Teck Wei. He admitted that he never made any payment for the car, but relied on his friend, one Teo Chye Lin (“Teo”), to make all the payments in relation to the car. In fact, the appellant had purchased the car for Teo’s use, and did not even collect the car from Teck Wei personally on 17 September 2003, but had sent Teo on his behalf. Further, the sales agreement with Teck Wei was signed not by the appellant, but by Teo. Teo had also tendered a cheque of $1,000 to Teck Wei as payment for the shortfall of $581, as well as for some installation work which had been done on the car. However, this cheque subsequently bounced, in consequence of which Teck Wei refused to pay the insurance premium. Despite being informed that the cheque had bounced, Teo did not make any further payment to Teck Wei.

7 However, since full payment for the insurance premium of $1,773 had not been received as a result of the cheque failing to clear, Teck Wei refused to make payment of the insurance premium to Jin-Shi. Although Ong admitted that it was not stated in the sales agreement that the sum of $581 was meant for the insurance premium, he also asserted that he had informed both the appellant and Teo of this fact. He also acknowledged that the sales agreement did not state that Teck Wei would not pay the insurance premium to NTUC unless full payment was received.

8 Ms Ang Li Yen (“Ang”), a director and secretary of Jin-Shi, gave evidence that Jin-Shi’s role was to receive proposal forms from any person seeking to be insured. Jin-Shi would then forward these forms to NTUC for its decision on whether to accept or reject each proposal. Upon receiving notice that the proposal was accepted, Jin-Shi would issue a certificate of insurance to the insured, as well as make advance payment of the premiums to NTUC. These payments were made pursuant to a private arrangement between NTUC and Jin-Shi. While its present whereabouts is uncertain, a certificate of insurance for the period 17 September 2003 to 16 September 2004 (“the original certificate”) had indeed been handed over to Teck Wei. Under the premium warranty clause of the Policy, the insured would then have 60 days from the effective date of coverage to repay the premium to Jin-Shi.

9 Jin-Shi thus allowed NTUC to deduct the sum of $1,773 from its company account on 20 October 2003. When Jin-Shi did not receive repayment within the premium warranty period, it sent a letter dated 11 December 2003 to the appellant giving him seven days to make payment on pain of the termination of the Policy. After the expiry of this initial seven-day grace period, NTUC sent the appellant a letter dated 17 December 2003, again giving him seven days to make due payment. Upon the failure of the appellant to make any payment, NTUC cancelled the policy with effect from 24 December 2003, notifying the appellant of this cancellation through another letter dated 2 January 2004.

10 Although the appellant denied receiving any of the letters, all three letters were sent to the appellant’s address as stated in the insurance proposal form (“the address”). It should be noted that the Policy had similarly been sent to the address and had been successfully received by the appellant. Pursuant to the cancellation of the policy, NTUC refunded Jin-Shi the sum of $1,294 on 30 December 2003. The pro-rated premium for coverage from 17 September 2003 to 24 December 2004 ($479) remains due to Jin-Shi from the appellant.

11 On 25 March 2004, Teo permitted one Eric Tan Cher Peng to use the car and it was at 8.05pm on that day that the car was involved in a minor accident. The appellant was consequently charged with permitting the car to be used at the material time without there being in force either a valid motor vehicle licence or insurance against third-party risks, offences under s 29(1) of the Road Traffic Act (Cap 276, 1997 Rev Ed) and s 3(1) of the MVA respectively. The appellant pleaded guilty to the former, but claimed trial to the latter.

The Prosecution’s case

12 The Prosecution’s case was simple: No money had been paid to either NTUC or Jin-Shi in relation to the Policy and the Policy had been cancelled by NTUC from 24 December 2003 in consequence thereof. There was thus no third-party risks insurance in force for the purposes of s 3(1) of the MVA at the material time.

The Defence’s case

13 On the other hand, it was the Defence’s case that there was a valid policy of insurance against third-party risks in force at the material time. This was evidenced by the issuance of the Policy and original certificate. The fact that the original certificate was never surrendered to either NTUC or Jin-Shi was further evidence in support.

14 In addition, the Defence also contended that the Policy had been wrongfully cancelled by NTUC because the appellant was not given due notice of the cancellation. According to the Defence, the appellant never received any of the letters sent by NTUC and Jin-Shi, which ought not to have been sent to the appellant by ordinary post.

The decision below

15 The district judge found that the appellant did not make payment of the sum of $1,773 to Teck Wei, Jin-Shi or NTUC despite being aware that a further sum of $581 had to be paid to Teck Wei in satisfaction of the insurance premium. In fact, the district judge was of the following opinion (see PP v Er Kee Jeng [2005] SGDC 271 at [31]):

Having observed Ong’s demeanor in Court, I preferred and accepted Ong’s evidence relating to the cheque for $1,000 and his evidence of having informed both Teo and [the appellant] of the need for the payment of the $581, especially for purposes of securing the insurance coverage. This was essentially an exercise in choosing which of 2 versions given by 2 different Defence witnesses was the more believable version.

The district judge was therefore of the opinion that NTUC was entitled to cancel the Policy and had validly done so. Even if NTUC had not been entitled to cancel the Policy, the purported cancellation would only constitute a contractual dispute between the appellant and NTUC. According to the district judge (at [10]):

What could not be denied was that NTUC had indeed cancelled the policy on 24 December 2003, so that when the Car was used on 25 March 2004, there was no valid insurance policy in force as required by the MVA.

16 The district judge further held that, if it was necessary to make such a finding, the appellant should be taken as having received the three letters mentioned above. The letters had been sent to the same address as the Policy, and the appellant had received the Policy. In any case, the appellant “certainly knew that the insurance premium remained outstanding”. These findings of fact by the district judge were based on the assessment of the credibility and veracity of the witnesses, and were neither plainly wrong nor against the weight of the evidence before him: Syed Jafaralsadeg bin Abdul Kadir v PP [1998] 3 SLR 788 at [56]; Lim Ah Poh v PP [1992] 1 SLR 713 at 719, [31]–[32]. These findings of fact were thus upheld.

The appeal against conviction

17 Section 3(1) of the MVA provides:

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