Public Prosecutor v Kum Chee Cheong

JurisdictionSingapore
JudgeK S Rajah JC
Judgment Date15 November 1991
Neutral Citation[1991] SGHC 166
Date15 November 1991
Subject MatterWhether fact especially within accused's knowledge,Burden of proof,Driving without valid insurance policy,Failure to ask for policy of insurance,s 108 Evidence Act (Cap 97, 1990 Ed),Whether fact especially within knowledge of accused,Presumption of offence,Whether onus on accused to produce insurance policy,Whether prosecution had made out prima facie case,Offences,ss 3 & 16 Motor Vehicles (Third-Party Risks And Compensation) Act (Cap 189),Whether accused must prove insurance policy in force,Road Traffic,Evidence,Whether prima facie case made out,Whether prosecution could rely on s 108 of the Evidence Act (Cap 97, 1990 Ed),Standard of proof
Docket NumberMagistrate's Appeal No 437/90/01
Published date19 September 2003
Defendant CounselRichard Ang (Ang JW & Partners)
CourtHigh Court (Singapore)
Plaintiff CounselYang Ing Loong (Deputy Public Prosecutor)

Cur Adv Vult

This is an appeal by the public prosecutor against the decision of the learned magistrate to acquit the respondent on the second charge after he had called for the defence. The respondent was charged as follows:

First charge

You,

Kum Chee Cheong (SNRIC 1676842/A)

are charged that you, on 11 April 1987, at about 10.50am at Thomson Road, did use motor car No QEJ7371X for which a vehicle licence was not in force (declared as non-user from 28 February 1987 to 31 January 1988) and you have thereby committed an offence under s 15 and punishable under s 15(a) of the Road Traffic Act (Cap 276).

Second charge

You,

Kum Chee Cheong (SNRIC 1676842/A)

are charged that you, on 11 April 1987, at about 10.50am at Thomson Road, did use motor car No QEJ7371X whilst there was not in force in relation to the use of the said vehicle such a policy of insurance in respect of the third party risks as complies with the requirements of the Motor Vehicles (Third-Party Risks And Compensation) Act (Cap 189), and you have thereby committed an offence under s 3(1) and punishable under s 3(2) of the aforesaid Act.



The respondent pleaded guilty to the first charge.
He was convicted and ordered to pay a fine of $500 on the first charge. The respondent claimed trial on the second charge.

At the end of the trial, the learned magistrate found that the essential ingredients of the second charge had not been proved at the close of the prosecution`s case.
Saying he should not have called for the defence, he acquitted and discharged the respondent on the second charge. The public prosecutor is appealing against the order of acquittal.

The prosecution`s case

The prosecution`s case was that on 11 April 1987, Toh Sew Lan, W/Cpl 3919, attached to the Registry of Vehicles, checked motor car No QEJ7371X which was then being driven by the respondent. She found an expired road tax disc being displayed. She booked him for the offence of not displaying `a valid road tax disc`. She did not give evidence saying that she requested the respondent to produce his certificate of insurance. She filed her report for the offence of `non-display of valid road tax disc`.

The investigator with the Registry of Vehicles, Najir Ahmad, testified that the vehicle had been declared by its previous registered owner to be a non-user for the period from 28 February 1987 to 31 January 1988.
Messrs Seng Lee Impex Pte Ltd were the registered owners of car No QEJ7371X from 30 March 1987. On being given the report, the investigator assumed that because the vehicle had been declared a non-user, there was no valid insurance policy. The investigator sent two letters to the respondent. On 6 May 1987, he sent a letter to the respondent`s address at Joan Road asking the respondent to see him in connection with the report. The report refers to road tax. On 25 May 1987, a further letter was sent to the same address. The respondent was again asked to see the investigator over his failure to display a valid vehicle licence. The letters do not make any request for a certificate of insurance or refer to an insurance policy. The respondent did not respond to the letters. The investigator admitted that he would not be aware if a cover note had been issued for the car.

It was part of the prosecution`s case that a cheque was paid to the Registry of Vehicles on 11 April 1987 to renew the road tax.
The reverse side of the cheque carries the number of motor vehicle No QEJ7371X and the rubber stamp of the Registry of Vehicles. When the cheque was dishonoured, cash was paid. A certificate of insurance must have been produced under the Road Traffic (Third-Party Insurance) Rules 1946. This inference was not drawn by the learned magistrate but it is open to this court to do so. Whether a certificate of insurance was produced to the Registrar under r 10 of the Road Traffic (Third-Party Insurance) Rules 1946 when the application was made to renew the road tax was a fact `especially` within the knowledge of the Registrar.

Respondent`s case

The respondent`s case was that he was a marketing executive. 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 QEJ7371X. To satisfy the requirements of the Companies Act, his name was used, but he did not concern himself with the affairs of the company. On 11 April 1987, he was driving QEJ7371X on an errand for his brother. That was the first time he was driving the car and he did not know whether it had a valid road tax disc or a valid policy of insurance. He did not receive the letters sent by the investigator. He had sold his house to which the two letters had been sent in June 1987.

The respondent had told his brother about the invalid road tax disc.
As far as he was aware, the road tax was paid and the car was subsequently sold. If the road tax was paid, he thought the insurance must also have been paid. In cross-examination he was asked:

Q: Can you show that the car was covered?

A: Yes, but I need the time.

Q: (Put) That there was no insurance coverage?

A: Yes, I believe there was insurance coverage. We had the cover note.



It may well be that a cover note was obtained on 11 April 1987 after the respondent had told his brother about the invalid licence.
On the other hand, a cover note may already have been in existence and the application for the vehicle licence made on the afternoon when the failure to renew the road tax was discovered.

At the end of the trial, the learned magistrate found that the prosecution had not adduced any evidence to establish the ingredients of the charge against the respondent.
With commendable courage, he has admitted in his grounds of decision that `On hindsight, I should not have called for the defence.` He then acquitted and discharged the respondent.

The appeal

The appeal is on the ground that the learned magistrate erred in law and in fact in finding that the burden of proving the non-existence of a policy of insurance rests on the prosecution when in fact the burden of proof lay not with the prosecution but with the respondent, as s 108 of the Evidence Act (Cap 97, 1990 Ed) (`the Act`) provides that: `When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.` The other grounds were not seriously pursued by the prosecution, although the finding of the learned magistrate that an ingredient of the charge had not been established was also challenged.

Two questions have to be decided:

(a) whether the prosecution had made out a prima facie case; and

(b) whether mere proof of driving (that not being an unlawful act) is enough for the prosecution to rely on s 108 of the Act.



The appellant relied on the English cases of R v Oliver [1944] KB 68 and John v Humphreys [1955] 1 WLR 325 and the case of PP v Koh Chin Mong [1962] MLJ 104 where Adams J took the magistrate and counsel to task and said:

I was under the impression that this matter had been settled once and for all by the case of PP v Chin Yoke [1940] MLJ 47 which was followed in Khoo Teck Yam v PP [1955]MLJ 112. If any more support were needed for the proposition that in a prosecution for an offence of doing something for which a licence is required under the Road Traffic Ordinance, it is unnecessary to call a licensing officer to prove the non-issue of the licence and that the burden is on the accused to negative the averment of being unlicensed by producing in this case (a) the vehicle licence, and (b) the certificate of insurance, there are the two further cases of R v Oliver and John v Humphreys. All the above cases apply in practice the proposition of law laid down by s 106 of the Evidence Ordinance of which both the learned magistrate and Mr Paramjothy must be well aware.



It is useful to examine the cases cited by Adams J.
In PP v Chin Yoke [1940] MLJ 47 the prosecution had, inter alia, adduced evidence:

(a) that the respondent was driving a motor cycle;

(b) that the respondent failed to produce his licence when called upon to do so; and

(c) that the motor cycle was driven by the respondent without the consent of the owner after the owner had left his motor cycle outside his house.



The question of whether there was a necessity to call a licensing officer to prove the non-issue of a licence was considered in the above matrix of facts.
The court, construing s 106 of the Evidence Enactment (Cap 10) which provides, `When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him`, said [at p 48]:

This section and others of a similar nature codify what is and has been for years the English law in this respect. ... The burden is, of course, on the accused to negative the averment of being unlicensed, by producing his licence.



It is important to note that the prosecution had made out a prima facie case to shift the onus of proof.


In Khoo Teck Yam v PP [1955] MLJ 112 there was a third-party insurance policy but the policy did not cover the carriage of goods in connection with any trade or business.
The prosecution had adduced prima facie evidence that the policy did not cover the use of vehicles. We are therefore left with the English cases.

On much the same kind of facts as in John v Humphreys [1955] 1 WLR 325 on which the appellant
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  • THE BURDEN OF PROOF IN CRIMINAL JUSTICE1
    • Singapore
    • Singapore Academy of Law Journal No. 1992, December 1992
    • 1 December 1992
    ...68 (1952) 18 M.L.J. 140. 69 pp. 282—283. 70 [1970] A.C. 618, at p. 627. 71 (1948—49) M.L.J. Supp. 158. 72 (1962) 28 M.L.J. 310. 73 [1992] 2 S.L.R. 126, at p. 135. It has been brought to my attention that leave has been given to reserve this point of low for the decision of the Court of Crim......

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