Public Prosecutor v Kum Chee Cheong

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 04 December 1993
• Neutral Citation: [1993] SGCA 95
• Docket Number: Criminal Reference No 2 of
• Date: 04 December 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Seng Kwang Boon (Deputy Public Prosecutor)
• Citation: [1993] SGCA 95
• Defendant Counsel: Richard Ang (Ang JW & Pnrs) as amicus curiae
• Court: Court of Appeal (Singapore)
• Subject Matter: Using a vehicle while a policy of insurance in respect of third-party risks was not in force,Proof of evidence,Sufficient for prosecution to prove accused used or caused or permitted the motor vehicle to be used whilst there was not in force a policy of insurance in respect of third-party risks,Road Traffic,Matter of construction whether burden of proving specified circumstances shifts to accused,Offences,Driving without valid insurance policy,Accused bears legal burden of proving existence of requisite certificate of insurance,Enactment prohibits the doing of an act save in specified circumstances,Where burden shifts to accused, it is a legal and not evidential burden,Relevant factors,s 3(1) Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189),No necessity for prosecution to adduce prima facie evidence of non-existence of requisite certificate,Evidence,Onus of proof

Cur Adv Vult

In the magistrate court, two charges were brought against the respondent, namely: (i) a charge that on 11 April 1987 he did use the motor car No QEJ 7371X (`the vehicle`) for which a vehicle licence was not in force, and (ii) a charge that he did use the vehicle whilst there was not in force in relation to the use thereof a policy of insurance in respect of third-party risks as complies with the requirements of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189) (`the Act`). He pleaded guilty to the first charge and was accordingly convicted; he was fined $500. However, he claimed trial on the second charge.

At the trial, the prosecution adduced evidence that on 11 April 1987, Toh Sew Lan, W/Cpl 3919, attached to the Registry of Vehicles (`ROV`), checked the vehicle which was then being driven by the respondent. She found an expired road tax disc being displayed. She filed her report for the offence of `Non-Display of Valid Road Tax Disc`. No evidence was given by her that she requested the respondent to produce the certificate of insurance relating to the use of the vehicle.

Najir Ahmad, the investigator at the ROV, testified that upon receipt of the report he investigated who was the registered owner of the vehicle and found that Seng Lee Impex Pte Ltd became the registered owner of the vehicle on 30 March 1987 and that it had been declared by its previous registered owner to be a non-user for the period from 28 February 1987 to 31 January 1988. He said that there was no insurance in force but that was based on his own assumption because the vehicle had been declared a non-user. He sent two letters to the respondent asking the latter to see him regarding the failure to display a valid vehicle licence but these letters did not make any request for a certificate of insurance or refer to an insurance policy. The respondents did not reply to these letters. The investigator admitted that he would not be aware if a cover note had been issued for the vehicle.

Evidence was also adduced that on 11 April 1987, the registered owner went to the ROV to apply to renew the road tax for the vehicle for the period 11 April 1987 to 30 September 1987. The person paid the road tax by a cheque which was dishonoured.

The defence was called and the respondent gave evidence. He testified that in April 1987 he was employed by Accent Properties Pte Ltd and had his own car. Seng Lee Impex Pte Ltd, which was managed by his brother, was the owner of the vehicle. On 11 April 1987 he was driving the vehicle on an errand for his brother. That was the first time he drove the vehicle and he did not know whether it had a valid road tax disc or a valid policy of insurance. He did not receive the two letters sent to him by the ROV investigator as he had sold his house to which the two letters had been sent. He told his brother of the invalid road tax disc. His brother went to the ROV and paid the road tax. He gave a cheque for it and upon being notified that it was dishonoured, he paid cash. The vehicle was subsequently sold. If the road tax was paid, he thought that the insurance must also have been paid. In cross-examination, he said he could show that the car was covered by insurance but he needed time. He confirmed that he had the cover note, but no cover note was produced.

At the conclusion of the trial, the learned magistrate found that the essential ingredients of the charge had not been proved, and he discharged and acquitted the respondent. In his grounds of judgment, he said that with the benefit of hindsight, he should not have called for the defence. Against his decision, the public prosecutor appealed. The appeal was heard before KS Rajah JC.

The learned judicial commissioner examined the English cases, R v Oliver, 1 John v Humphreys 2 and R v Edwards ,3 the Malaysian cases of PP v Koh Chin Mong ,4 PP v Chin Yoke ,5 Khoo Teck Yam v PP 6 and two Irish cases of McGowan v Carville 7 and Buchanan v Moore .8 He then referred to the Indian case of Shambhu Nath Mehra v The State of Ajmer 9 where the Supreme Court of India opined that s 108 of the Evidence Act did not generally relieve the prosecution of the burden of proof in a criminal case but is designed to meet exceptional cases where it would be impossible or disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The learned judicial commissioner next looked at s 16 of the Act which requires the person using a vehicle to produce a certificate of insurance on being requested to do so by a police officer and he observed that in the present case the respondent had not been asked to produce a certificate at any time. The learned judicial commissioner finally referred to the Malaysian case of Re Tan Kheng Cheng .10 Having reviewed and considered these authorities, the learned judicial commissioner concluded thus:

The prosecution had not made out a prima facie case because the prosecution did not require the respondent to produce his certificate which he thereafter failed to do. Mere proof of driving is not enough to shift the burden of proof. The driver must be asked to produce his certificate as required under s 16 of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189). Section 108 of the Evidence Act is not intended to relieve the prosecution of its duty to require the respondent to produce his certificate.

The failure of the prosecution to produce the evidence of facts especially within the knowledge of its officials which rested upon it under s 108 of the Evidence Act taken together with the failure to require the production of the insurance certificate resulted in a failure to establish a prima facie case.

In the result, he dismissed the appeal.

The public prosecutor then applied by way of motion under s 60 of the Supreme Court of Judicature Act (Cap 322) to reserve for decision of the Court of Appeal a question of law of public interest which had arisen in the course of the appeal and the determination of which by the judge affected the event of the appeal. The application was allowed by KS Rajah JC and the following question was reserved for the decision of this court:

In a prosecution for an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189) does the prosecution have to prove a prima facie case against the accused by adducing some evidence that the accused had used, or caused or permitted to be used, a motor vehicle without there being in force a policy of insurance in respect of third-party risks as complies with the requirements of the Act, or is it sufficient for the prosecution to prove that the accused had used, or caused or permitted to be used, the motor vehicle, without more, and leave it to the accused to prove that there was in force such a policy of insurance?

The question turns on the construction of s 3(1) of the Act under which the respondent was charged and involves a determination of the burden of proof: does the burden rest on the prosecution to prove that there was not in force at the material time in relation to the use of the vehicle a policy of insurance which complies with the requirements of the Act or does the burden rest on the respondent to prove that there was in force at the material time such a policy of insurance? It is convenient at this stage to set out the provision of this subsection which is as follows:

Subject to the provisions of this Act, it shall not be lawful for any person to use or to cause or permit any other person to use a motor vehicle unless there is in force in relation to the use of the motor vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Act.

In considering this issue, it is helpful to start with the established proposition at common law that in a criminal prosecution the burden of proving the guilt of an accused person lies with the prosecution. In Woolmington v Director of Public Prosecutions , at p 481, Viscount Sankey LC said:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner`s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

In Tan Ah Tee & Anor v PP at p 51, Wee Chong Jin CJ in delivering the judgment of this court said:

It is a fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This is a common law rule which is not embodied in any legislative enactment but is English in origin. In England the Court of Appeal in R v Edwards [1975] 1 QB 27 held that if an enactment under which a charge is laid, on its true construction, prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception to the fundamental rule of the common law of England that the prosecution must prove every element of the offence charged. The Court of Appeal so held after a thorough analysis of a long line of authorities beginning from R v Stone (1801) 1 Eust 639.

In that case, this court was dealing with the construction of the Misuse of Drugs Act 1973 and it was argued that the prosecution had failed to prove an essential element of the charge, ie that the accused were persons who were not authorized by the Act or the regulations to traffic in heroin. This was rejected by the court. The learned Chief Justice said, at p 51:

In our opinion the law here is the same as the law in England as to when the prosecution can rely on the exception. It is limited to offences arising under enactments which on their true construction, prohibit the doing

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