M V Balakrishnan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 18 May 1998
• Neutral Citation: [1998] SGHC 416
• Published date: 23 December 2003
• Court: High Court (Singapore)
• Plaintiff Counsel: J B Jeyaretnam (J B Jeyaretnam and Co)
• Defendant Counsel: Kow Keng Siong (Deputy Public Prosecutor)

1 The appellant was convicted before the district court on a charge of permitting his employee Vellaiyappan Thamiselvam to use lorry no. YB 3045 U when Thamiselvam was not a holder of a Class 4 driving licence, an offence under s 35(1) Road Traffic Act (Cap 276) (hereinafter "the s 35(1) offence"). In the same hearing, the appellant was convicted of the Magistrate's Appeal No 198 of 1997 2 Grounds of Judgment consequent charge of permitting Thamiselvam to use the said vehicle without proper insurance coverage against third-party risks in contravention of s 3(1) Motor Vehicles (Third Party Risks Compensation) Act (Cap 189) (hereinafter "the s 3(1) offence"). The district judge fined the appellant $1000 for the s 35(1) offence and $800 for the s 3(1) offence. The appellant was disqualified from holding all classes of licence for 12 months. I dismissed the appeal. I now give my reasons.

Hearing below

2 The agreed statement of facts revealed that the appellant was the sole proprietor of a company who employed Thamiselvam. The company owned lorry No. YB 3045 ('the lorry'). At about 6 p.m. on 17 August 1996, along the 12 kilometre mark of the Ayer Rajah Expressway, Thamiselvam was found to possess only a Class 3 driving licence when the unladen weight of the lorry he drove was 2860 kg. Under r 16(f) Road Traffic (Motor Vehicles, Driving Licences) Rules, the lorry fell under the Class 4 category of vehicles. At the material time, the lorry was under a valid policy of insurance which covered any driver licensed to drive a Class 4 lorry.

3 Although the appellant admitted being aware that Thamiselvam only had a Class 3 driving licence, his defence was that he did not know that the lorry was a Class 4 vehicle. His evidence was that he had been careful to buy Class 3 lorry so that Thamiselvam or any of his workers, all of whom had Class 3 driving licenses, would be qualified to drive the vehicle. He had specifically asked the sales representative, Lee Ke Da ("Lee"), whether the lorry was a Class 3 vehicle. Lee's evidence was that he told the appellant that the lorry was probably a Class 3 vehicle. The appellant said he relied on Lee's representations and therefore did not check the vehicle logbook, leaving his staff to take care of the final arrangements to purchase the lorry.

Decision of the court below

4 In his judgment, the district judge relied on the Canadian Supreme Court case of R v City of Sault Ste Maria (1978) 85 DLR (3d) 161 as authority that proof of mens rea was required for the s 35(1) offence. He observed that this requirement of knowledge was qualified by the concept of wilful blindness. The district judge was of the view that the evidence showed the appellant had doubts about the vehicle class of the lorry and he found that the appellant had intentionally refrained from making proper enquiries so that in the event of a prosecution he would be able to deny knowledge. The district judge was satisfied that -the appellant was wilfully blind to the fact that the lorry was a Class 4 vehicle and in the circumstances, found that the s 35(1) charge had been proven beyond reasonable doubt.

5 As for the s 3(1) charge, the district judge observed that all three limbs of the proviso found in s 3(2) of the MVA had to be satisfied to qualify as a defence for the appellant. At the material time, the appellant was the owner of the lorry which he was not using in the course of his employment and which he knew or had reason to believe there was no policy of insurance in respect of third party risks. Therefore the appellant did not have a defence under the proviso and the district judge found him guilty of the s 3(1) charge.

The appeal

6 Before me there were several grounds of appeal. I shall deal first with the issue of mens rea in proving the s 35(1) offence. The appellant argued that the district judge erred in finding that he was wilfully blind to the fact that the lorry was a Class 4 vehicle. On appeal, it was necessary to construe the relevant provision carefully.

7 Section 35(1) Road Traffic Act (Cap. 276) reads :

Except as otherwise provided in this Act, no person shall drive a motor vehicle of any class or description on a road unless he is the holder of a driving licence authorising him to drive a motor vehicle of that class or description, and no person shall employ or permit another person to drive a motor vehicle on a road unless the person so employed or permitted to drive is the holder of such a driving licence, and any person who acts in contravention of this subsection shall be guilty of an offence.

8 The rule of construction is that where a statutory provision creates an offence there is a presumption that mens rea is an ingredient. This presumption of mens rea was discussed by Thean J (as he then was) in PP v Phua Keng Tong [1986] 2 MLJ 279; [1986] SLR 168. He observed from the approach of the Privy Council in Lim Chin Aik v R (1963) 29 MLJ 50 and the House of Lords in Sweet v Parsley [1970] AC 132 that this presumption could be displaced expressly or by necessary implication by the language of the statute or by the subject matter with which the statute deals.

9 Returning to the charge in the appeal before me, despite the absence of words such as "knowingly" in s 35(1), words which would expressly confer a requirement of proving intention on the part of the offender, I was mindful of Lord Pearce's remarks in Sweet v Parsley where at p 156, he commented that the mere absence of the word 'knowingly' was not enough. Other considerations included that nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which the crime occurred. These arose together with the usual attention to wording of the particular section and its context to yield some suggestion as to whether it was Parliament's intention that the act should be prevented by punishment regardless of intent or knowledge.

10 These authorities were useful in deciding whether the presumption of mens rea could be rebutted and strict liability imposed for an offence under s 35(1), an offence which could be construed as belonging to the breed of offences commonly referred to as "public welfare offences". In his book, "Public Welfare Offences", at p 78, Professor Sayre suggested that if the penalty is slight involving, for instance, a fine, particularly if adequate enforcement depends upon wholesale prosecution, or if the social danger arising from violation is serious, the doctrine of basing liability upon mere activity rather than fault, is sound. The present offence under s 35(1) was, in my view, such an offence. Further guidance on construing the standard of liability for s 35(1) was to be found in Lord Evershed's decision in Lim Chin Aik where at p 52 he said:

Where the subject matter of the statute is the regulation for the public welfare of a particular activity ... it frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea.

11 One such instance where the presumption of mens rea was to some extent rebutted was the Privy Council's decision in Gammon Ltd v AG of Hong Kong [1984] 3 WLR 437. In that case builders were charged with an offence of diverging or deviating in a material way from any work shown in a plan approved by the building authority, offences under s 40(2A) and (2B) of the Building Ordinance of Hong Kong. Lord Scarman stated the law most succinctly at p 443 of the Board's judgment:-

(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is "truly criminal" in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where a statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. (emphasis is mine)

12 The case of Gammon was followed in Singapore in PP v Tea Kwang Kiang [1992] 1 SLR 9 where Rajendran J held that the imposition of strict liability for the protection of the public was necessary in some offences. I had no doubt that an offence under s 35(1) was one such offence. The prohibited act was not one which the public could easily protect by its own vigilance but one that Parliament had legislated in the interests of public safety to prevent untrained hands from controlling classes of vehicles to which they held no valid driving licence. As was the approach toward punishing butchers who sold meat unfit for human consumption in the early cases of Baker v Tillstone [1894] 1 QB 345 and Hobbs v Winchester Corp [1910] 2 KB 471 or toward pharmaceutical companies in a position to place illicit drugs on the market in Pharmaceutical Society of Great Britain v Storkwain Ltd (1986) 83 Cr.App.R 359 and as in Gammon where the knowledge of the employer was not a matter which affected the public; on the present facts, it was the fact that persons unqualified to drive certain classes of vehicles were employed to do so. It was clear to me that a construction of...