Public Prosecutor v Lee Hong Hwee

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 29 October 2003
• Neutral Citation: [2003] SGHC 266
• Docket Number: Magistrate's Appeal No 59 of 2003
• Date: 29 October 2003
• Published date: 07 November 2003
• Year: 2003
• Plaintiff Counsel: David Chew Siong Tai (Deputy Public Prosecutor)
• Citation: [2003] SGHC 266
• Defendant Counsel: Gordon Oh (Ari, Goh & Partners)
• Court: High Court (Singapore)
• Subject Matter: Whether proviso in insurance policy excludes insurance coverage because accused was driving de-registered vehicle and without valid vehicle licence,Offences,Using vehicle without insurance policy in respect of third-party risks,Section 3(1) Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed),Road Traffic

1 The respondent, Lee Hong Hwee, was acquitted in the district court on a charge of using a vehicle without an insurance policy in respect of third party risks, an offence under s 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189) (‘MVA’). The prosecution appealed. I dismissed the appeal, and now give my reasons.

Background

Facts

2 In the district court, evidence was led by way of a statement of agreed facts. The respondent was the registered owner of a motor van bearing the registration number GL 1372 Z (‘the van’). On 8 June 2000, the Land Transport Authority notified the respondent that the Certificate of Entitlement (‘COE’) for the van was due to expire on 31 July 2000. He did not revalidate the COE. On 1 August 2000, the van was automatically de-registered.

3 On 2 August 2000, the ERP facility along Queen Street detected the van entering the ERP zone. The respondent did not dispute that he had been driving the van at the material time. Three different charges were subsequently brought against him in the district court.

The two charges under the Road Traffic Act

4 The first charge alleged that the respondent had used a de-registered vehicle, and had thereby committed an offence under s 10(1) of the Road Traffic Act (Cap 276) (‘RTA’). The second charge alleged that the respondent had used a vehicle for which no valid vehicle licence was in force, and had thereby committed an offence under s 29(1) of the RTA.

5 The respondent pleaded guilty to the first two charges. He was convicted, and fined $400 in respect of each charge. I refer to these two charges herein as ‘the RTA convictions.’

The charge under the MVA

6 The respondent claimed trial to the third charge. This charge alleged that he had used a vehicle without a policy of insurance in respect of third-party risks, and had thereby committed an offence under s 3(1) of the MVA (‘the MVA offence’).

7 There was no dispute that the van was insured in respect of third-party risks with The Hartford Insurance Company (Singapore) Limited (‘Hartford’) for the period 4 December 1999 to 3 December 2000. This policy is referred to herein as ‘the Hartford policy.’

8 Clause 5 of the Certificate of Insurance forming part of the Hartford policy was headed ‘Persons or Classes of Persons entitled to drive.’ The respondent, as the policy-holder, was clearly one such person. However, clause 5 contained a proviso, which read:

Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the Motor Vehicle or has been so permitted and is not disqualified by order of a Court of Law or by reason of any enactment or regulation in that behalf from driving the Motor Vehicle.

Clause 5 and its proviso are standard terms in many motor vehicle insurance policies.

9 The issue before the district judge was whether, because the respondent had been driving a vehicle that was de-registered, and for which there was no valid vehicle licence, the proviso excluded insurance coverage so that he had also committed the MVA offence.

10 It was not disputed that the respondent held a valid Class 3 driving licence at the material time. The district judge therefore had to decide what effect the RTA convictions had on the operation of the Hartford policy.

The decision below

11 The district judge found that the RTA convictions did not affect the operation of the Hartford policy. He was of the view that clause 5 and the proviso referred to a person’s legal ability to drive, as distinct from the manner in which the motor vehicle driven may or may not be used. The district judge determined that the word ‘disqualification’ as used in the proviso had to mean express disqualification from, or the loss of, the right to drive. In his view, the RTA convictions did not have this effect.

12 That being the case, the district judge acquitted the respondent of the MVA offence. In the course of his reasoning, the district judge relied on the Malaysian case of Public Prosecutor v Lim Ching Chuan [1972] 1 MLJ 27. He declined to follow a passage cited to him by the prosecution from Public Prosecutor v See Albert [1969-1971] SLR 419 at 422A-B, a decision of the Singapore High Court, on the ground that it was obiter dicta.

The appeal

13 The crux of this appeal was essentially whether the proviso’s reference to permission to drive the motor vehicle encompassed licensing requirements for the van as well as the driver, or whether it was limited only to licensing requirements for the driver. If it was the former, the respondent would have committed the MVA offence. If the latter, he would not.

14 Before me, the DPP advanced two main arguments in support of his contention that the district judge, in not adopting the former conclusion, had erred in law. First, he had failed to give the proviso its plain and ordinary meaning. Second, he had departed from Public Prosecutor v See Albert, a decision that was binding on him by virtue of the rules of stare decisis.

Construction of the proviso in the Hartford policy

15 I should state at the outset that Hartford’s position, as documented in the Record of Proceedings, was that the Hartford policy remained in force on 2 August 2000 despite the respondent’s RTA convictions. However, that was not ipso facto conclusive of the matter. In Public Prosecutor v See Albert, Wee Chong Jin CJ said at 422F-G:

the question to be decided in every case before a court under s 3 of the Motor Vehicles (Third-Party Risks and Compensation) Ordinance 1960 [in pari materia with s 3 of the MVA] is whether or not, as a matter of construction, a particular policy covers the defendant at the time he was driving the motor vehicle described in the policy and not whether the insurance co [sic] would regard itself as being on risk if an accident occurs. [Emphasis added.]

My duty, therefore, was to determine the true meaning of the proviso according to the rules of construction ordinarily applicable to commercial contracts.

16 On the other hand, it was not correct to say that Hartford’s position was entirely irrelevant to the question before me. The learned editors of MacGillivray on Insurance Law (10 ed, 2003) set out the appropriate balance to be struck thus at paragraph 29-8, p 875:

Where there is a doubt as to whether a particular use is covered by the policy owing to an ambiguous exceptions clause or other term, it appears that the court may accept evidence from the insurers, that they regard themselves on risk, as establishing that cover was in force. But such evidence will be of no account if the construction of the relevant clause is clear, or if the question is whether or not an enforceable contract of insurance has been concluded, or if the relevant user is forbidden by law. [Emphasis added.]

I noted that this reflected the position of the English Court of Appeal in Cargill v Rowland [1953] 1 All ER 486, which was cited to me by counsel for the respondent.

17 I was not persuaded by the DPP’s argument that the plain and ordinary reading of the proviso led incontrovertibly to only one meaning. In my view, the words of the proviso, without more, were perfectly compatible with either interpretation set out above. I was guided, too, by the learned editors of MacGillivray on Insurance Law who state further,...