Public Prosecutor v Nandha Sharm Nair

• Jurisdiction: Singapore
• Judge: Soh Tze Bian
• Judgment Date: 30 May 2023
• Neutral Citation: [2023] SGMC 40
• Court: District Court (Singapore)
• Docket Number: LTA-2022-000249-1 and LTA-2022-000249-2
• Hearing Date: 13 April 2023
• Citation: [2023] SGMC 40
• Year: 2023
• Plaintiff Counsel: LTA Prosecutors Amanda Tay, Hoi Min Fah & Chan Arne
• Defendant Counsel: Accused in Person
• Published date: 08 June 2023

District Judge Soh Tze Bian:CHARGES

The accused person, Nandha Sharm Nair, female/45 years of age (“AP”) claimed trial to the following charges:(a)LTA-2022-000249-1 (as amended in bold below as per both parties’ submissions at close of trial)

“…you, on 27 January 2022, at about 11.15pm, from Macpherson Road Esso Upper Aljunied (373 Upper Aljunied Road)¹ to Beatty Lane, did use a chauffeured private hire car bearing vehicle registration number SMZ 4122P, as a taxi public service vehicle, without there being in force, in respect of the said chauffeured private hire car, a valid licence issued under Part V of the Road Traffic Act 1961 authorising such use as a taxi, and you have thereby committed an offence under Section 101(1) punishable under Section 101(2) of the said Act².

(b)LTA-2022-000249-2(as amended in bold below as per both parties’ submissions at close of trial)

“…you, on 27 January 2()22, at about 11.15pm, from Macpherson Road Esso Upper Aljunied (373 Upper Aljunied Road)³ to Beatty Lane, did use a chauffeured private hire car bearing vehicle registration number SMZ 4122P, for gain or for reward as a taxi public service vehicle, 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 1960, and you have thereby contravened Section 3(1) of the said Act, which is an offence punishable under Section 3(2) and Section 3(3) of the said Act⁴.

PROSECUTION’S CASE

To prove its case against the AP, the prosecution called 5 witnesses and tendered a list of exhibits as follows:

S/NO	NAME	ROLE	LANGUAGE	MARKING
1	THOMAS LIM GE HUI	PASSENGER	ENGLISH	PW1
2	MICHAEL TOH LYE THIAM	PASSENGER	CHINESE	PW2
3	TAN KOK HENG	REPRESENTATIVE, CRAFT LEASING PTE LTD	ENGLISH	PW3
4	JONNALAGADDA SRI SOUMYA	REPRESENTATIVE, INDIA INTERNATIONAL INSURANCE PTE LTD	ENGLISH	PW4
5	AUYONG GUI LAN ISABELLE	INVESTIGATION OFFICER, LTA	ENGLISH	PW5

S/N	Exhibits	Marked as	Date
1	Date of Offence: 27 January 2022Charge – s 101(1) Road Traffic Act 1961	CC1	13.4.2023
2	Date of Offence: 27 January 2022Charge – s 3(1) Motor Vehicles (Third-Party Risks and Compensation) Act 1960	CC2	13.4.2023
3	Statement of Mr Toh Lye Thiam (PW2) dated 10 June 2022	PP1	13.4.2023
4	Vehicle Rental Agreement (Dated 30 April 2021)	PP2	13.4.2023
5	Certificate of Insurance (India International Insurance Pte Ltd) Policy No: D21MFL0005172	PP3	13.4.2023

CLOSE OF THE PROSECUTION’S CASE

At the close of the prosecution’s case, I was satisfied that there was some evidence not inherently incredible which satisfied each and every element of the charges preferred against the AP. Accordingly, I administered the standard allocution to the AP who elected to give evidence in her own defence.

UNDISPUTED FACTS

The incident in question took place on 27 January 2022, at around 11.15 pm. The AP was driving the Vehicle (which only had a public service vehicle licence to operate as a private hire vehicle and not as a taxi) at the material time and had picked up one Thomas Lim Ge Hui (“PW1”) and one Michael Toh Lye Thiam (“PW2”) in the vicinity of MacPherson Road. The Vehicle made a stop at an UOB ATM at Geylang before arriving at the destination of Beatty Lane, where PW1 and PW2 alighted. The Vehicle was registered under Craft Leasing Pte Ltd and was insured under India International Insurance. The AP had rented the Vehicle to use as a private hire car.

DISPUTED FACTS

The disputed facts relate to what had transpired at the end of the ride. When the Vehicle arrived at Beatty Lane, PW1 and PW2’s version of events recounted that there was a $50 note being offered to the AP,⁵ followed by some discussion on the change to be returned.⁶ However, the AP alleged that there was no such offer made, nor was there any discussion relating to a fare.⁷ The AP also disputed that she was using the Vehicle as a public service vehicle with an invalid insurance at the material time.

APPLICABLE LEGISLATON & CASELAWLegislative provisions

Section 101(1) of the Road Traffic Act 1961 (“RTA”) prohibits the usage of a vehicle as a public service vehicle (“PSV”) unless there is in force a valid PSV licence authorising such usage. The classifications for public service vehicles can be found in the Second Schedule of the RTA. Section 101(1) RTA indicates that an offence would be made out if a motor vehicle was shown to (a) “search for or be available to customers for hire”; (b) is hired under a contract; and (c) does not have a taxi public service licence.

The classification of a taxi as a PSV is found in the Second Schedule of the RTA which states:

“Motor cars having a seating capacity for not more than 8 persons (including the driver), which ply for hire on any road and are hired under a contract, express or implied, for the use of each such vehicle as a whole or for the use of 2 or more persons who pay separate fares.”

The classification of a private hire car as a PSV in the Second Schedule of the RTA is:

“Motor cars that do not ply for hire on any road but are hired, or made available for hire, under a contract (express or implied) for use as a whole —(i)with a driver for the purpose of conveying one or more passengers in that car; or (ii) by a hirer, or any other person authorised by the hirer in the contract, to drive the motor car personally.”

From the above classifications, the main distinction between a private hire car and a taxi is that a taxi can “ply for hire” in respect of the first charge under the RTA. A private hire car does not ply for hire and a private hire car PSV licence does not authorise such use.

The second charge under section 3(1) MVA is made out if there is no insurance coverage in force in respect of the usage of the vehicle. For this case, the second charge follows the first charge in that, if it is proven that the motor car was used as a taxi, the issue is whether there is insurance coverage for the said use as a taxi.

Caselaw on the test to be applied on when a vehicle is plying for hire

In Sulaiman bin Mohd Hassan v PP [2021] SGHC 122 (“Sulaiman”), the offender was convicted of the same offences as the AP in the present case He was fined $1,000, in default four days' imprisonment for the RTA charge, and fined $700, in default three days' imprisonment for the MVA charge and in addition for the MVA charge, he was disqualified from holding or obtaining all classes of driving licences for 12 months ("the DQ Order"). The High Court laid down the test to be applied on when a vehicle is plying for hire at [64] to [73] as follows:“64In my opinion, the test of when a vehicle is plying for hire enunciated in Cogley is really an application of common sense to a particular set of facts. The inquiry has to be fact-sensitive because there can be many variations as to how a driver sources for passengers, particularly in the context of modern-day technology. While the notion of private hire cars existed then (Cogley was decided in 1959), online ride hailing apps have become the norm today. Technological advances will become an increasingly important factor in the determination of when a vehicle is plying for hire. Similarly, human ingenuity in circumventing regulatory controls will always have a part in the equation.65Generally, when a vehicle on the road is on view to members of the public and there are indications that it is available for hire to anyone who is willing to pay a fare, then logically it can be said that the vehicle is plying for hire on the road.A vehicle moving along the roads looking for fares and stopping whenever it is hailed would clearly be plying for hire. However, the vehicle does not need to be on the move. It can be parked at the roadside or even in a carpark lot. The indications that it is available for hire may be express or implied. Express indications could be markings or notices on the vehicle or near it (where the vehicle is stationary) stating that the vehicle is for hire, for instance, by the display of “For Hire” signs. Implied indications could be the fact that the vehicle is waiting at a taxi stand or a drop-off and pick-up point for passengers.66There may also be situations where the vehicle is not within sight of members of the public (because it is parked at another location nearby) but the driver is away from the vehicle asking potential passengers whether they need transport and when they say they do, the driver then brings them to the vehicle or drives the vehicle to meet them. In all these situations, it would be fair and logical to say that the vehicle was in truth plying for hire.67On the facts of this case, another useful consideration is to enquire whether there was a booking made before the trip, whether through a ride hailing app or equivalent booking platform. If such a prior booking existed before the driver had any interaction with the prospective passenger, the vehicle would not be said to be plying for hire.68In the absence of a prior booking before the trip, the question that arises is how the driver came to offer his/her transport service to the prospective passenger. An agreement between the driver and the passenger: (a)may be arrived at expressly through conversation or impliedly by conduct such as the passenger boarding the vehicle and the driver then driving the vehicle away (an express or implied agreement is envisaged in the definitions of “Private hire cars” and “Taxis” in the Second Schedule of the RTA); and(b)must involve the expectation of or the giving...