Sulaiman bin Mohd Hassan v PP

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 02 June 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9693 of 2020

Sulaiman bin Mohd Hassan

and

Public Prosecutor

[2021] SGHC 132

Tay Yong Kwang JCA

Magistrate's Appeal No 9693 of 2020

General Division of the High Court

Criminal Law — Statutory offences — Motor Vehicles (Third-Party Risks and Compensation) Act — User of motor vehicle to be insured against third-party risks — Nature of offence — Whether offence was one of strict liability — Whether accused knew of scope of insurance coverage — Whether insurance policy covered use of vehicle as taxi — Section 3(1)(a) Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed)

Criminal Law — Statutory offences — Road Traffic Act — Use of unlicensed public service vehicle — Use of private hire car as taxi — Definition of taxi — Plying for hire — Definition of plying for hire — Whether accused was plying for hire — Section 101(1) and Second Schedule, Road Traffic Act (Cap 276, 2004 Rev Ed)

Held, dismissing the appeal:

(1) The DJ's factual findings could not be challenged. The appellant did pick up the passengers on 2 February 2018 and conveyed them in the vehicle from MBS to FSH for a fare. The vehicle was not permitted to be used as a taxi. The existence of the Insurance Policy and its terms were also not in dispute; the sole contention was in relation to its interpretation: at [46].

(2) The test to be applied for “plying for hire” was that enunciated in Cogley v Sherwood[1959] 2 QB 311, namely that the vehicle in question should be on view, the owner or driver should expressly or impliedly invite the public to use it and the member of the public should be able to use that vehicle if he wanted to. This test was an application of common sense to a particular set of facts, and the inquiry had to be fact-sensitive to account for the modern variations as to how a driver sourced for passengers: at [52] and [64].

(3) A driver would not be plying for hire if a prior booking was made before the trip, whether through a ride hailing app or equivalent booking platform. Where a prior booking before the trip did not exist, but an agreement had taken place between the driver and the passenger, this constituted plying for hire. Such an agreement between the driver and the passenger could be arrived at impliedly or expressly, and had to involve the expectation or the giving of consideration by payment of money or its equivalent in exchange for being ferried: at [67] to [69].

(4) A vehicle would be plying for hire where it was on the road on view to members of the public and there were indications that it was available for hire to anyone who was willing to pay a fare. A vehicle moving along the roads looking for fares and stopping whenever it was hailed would also clearly be plying for hire. Similarly, a driver was plying for hire where the vehicle was parked, but there were express indications (such as markings or notices) stating that the vehicle was for hire; or implied indications, for instance, where the vehicle was waiting at a taxi stand or a drop-off and pick-up point for passengers. If the vehicle was not within sight of members of the public (because it was parked at another location nearby) but the driver was away from the vehicle asking potential passengers whether they needed transport, the driver was plying for hire: at [65] and [66].

(5) A driver accused of plying for hire might be able to show the contrary in a number of ways. He could prove that he was actually waiting to pick up his family or his friend and that there would be no payment at all. Similarly, if the driver could show that he stopped at that location merely for a toilet break or to buy something, then clearly, he was not exhibiting his vehicle with a view to picking up passengers for fares. In weighing the truth in such matters, one would have to consider factors such as the particular location that the vehicle was at and the length of time taken for the professed purpose: at [71].

(6) An intention to ply for hire could be made on the spot. If a driver was waiting inside or near his vehicle or returning to it and a passenger came up to him and asked whether the vehicle was available for a trip, a driver who was not plying for hire would obviously inform the passenger that his vehicle was not for hire or perhaps even inform the passenger about the proper way of booking the vehicle for a trip if the vehicle was a private hire car. Similarly, if a passenger opened the vehicle's door and got into the vehicle without invitation, such a driver would tell the passenger that his vehicle was not for hire. If the driver did not do so and instead started driving and asked the passenger for the destination, the vehicle would be plying for hire even if the driver's original intention of stopping his vehicle was not to ply for hire: at [72].

(7) The appellant was fully aware of the different operating modes for private hire cars and taxis. There was an express agreement for hire, specifically in relation to the price and the destination, before he conveyed the passengers. The appellant could have refused to drive because he had a good legal reason to decline the trip. Instead, the appellant had agreed on the spot to ferry the four passengers from MBS to FSH without a prior booking. This amounted to plying for hire within the meaning of the second schedule of the RTA: at [74], [75], [77] and [79].

(8) The offence under s 3(1) of the MVA was one of strict liability. It was irrelevant that the appellant claimed that he did not know of the scope of the coverage of the Insurance Policy. As a matter of common sense and commercial reality, specific insurance coverage had to be used for a particular use of a vehicle: at [81].

(9) The appellant's usage of the vehicle would be governed by different legal regimes, depending on whether the vehicle was used in Singapore or in Malaysia. As the trip in question took place in Singapore, s 95(k) of the Road Transport Act 1987 (No 333 of 1987) (M'sia) did not apply: at [87].

(10) The civil liability owed by an insurer to third parties such as passengers did not affect the criminal liability of a driver in not having proper insurance cover: at [88].

(11) The appellant limited his appeal against sentence to the DQ Order. The appellant accepted that his appeal against the DQ Order would stand or fall with his appeal against conviction on the MVA charge as there were no special circumstances justifying non-imposition of the statutory disqualification. Any special circumstances had to relate to the offence and not the offender. In this case, there was clearly no justification for the appellant providing the taxi service to the four passengers on 2 February 2018. There were no medical exigencies or other emergencies necessitating the trip by the appellant from MBS to FSH: at [89].

Case(s) referred to

Cogley v Sherwood [1959] 2 QB 311 (refd)

Gilbert v McKay [1946] 1 All ER 458 (refd)

Lim Cheng Wai v PP [1988] 2 SLR(R) 123; [1988] SLR 731 (refd)

Muhammad Faizal bin Rahim v PP [2012] 1 SLR 116 (refd)

Nottingham City Council v Woodings [1994] RTR 72 (refd)

PP v Loh Kum San [2019] SGDC 79 (refd)

Prathib s/o M Balan v PP [2018] 3 SLR 1066 (refd)

Reading Borough Council v Ali [2019] 1 WLR 2635 (refd)

Rose v Welbeck Motors Ltd [1962] 2 All ER 801 (refd)

Teo Rong Zhi Saimonn v PP [2013] 4 SLR 962 (folld)

Facts

The appellant, Sulaiman bin Mohd Hassan, faced two charges for offences related to driving. First, a charge for using a chauffeured private hire car as a public service vehicle, namely a taxi, otherwise than in accordance with the licence issued for the vehicle, an offence under s 101(1) punishable under s 101(2) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“RTA”). Second, a charge for using a motor vehicle in Singapore as a taxi whilst there was not in force in relation to the said use of the vehicle a policy of insurance in respect of third-party risks, an offence under s 3(1)(a) punishable under s 3(2) read with s 3(3) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (“MVA”).

The appellant had hired a Toyota Alphard (“the vehicle”) from Section Limousine Services Pte Ltd (“Section Limousine”). Section Limousine was the registered owner of the vehicle and was issued a licence under Pt V of the RTA, which permitted the use of the vehicle as a chauffeured private hire car. The vehicle did not have a licence for use as a taxi. A contract of insurance had been entered into between Section Limousine and Tokio Marine Insurance Singapore Ltd (“Tokio Marine”) in respect of the vehicle (“the Insurance Policy”). The Insurance Policy contained an endorsement that stated that “Rental for use as taxi service is not covered by the policy” (“Endorsement B”).

On 2 February 2018, at about 1.53am, the complainant, Ms Gabrielova Petra (“Ms Petra”), and her three friends were walking along the driveway at Marina Bay Sands Hotel (“MBS”) Tower 1. They approached the appellant, who was in the stationary vehicle at the waiting/pick-up area. Ms Petra and the appellant had a brief discussion during which they agreed that the appellant would drive Ms Petra and her friends from MBS to the Four Seasons Hotel Singapore (“FSH”). Ms Petra and her friends then boarded the vehicle and the appellant drove them to FSH. Upon arrival at FSH, Ms Petra paid some money to the appellant as the fare for the ride. The trip was not booked through the Grab application and there was no prior agreement before Ms Petra met the appellant at MBS.

Later, Ms Petra discovered that she had left her designer jacket in the vehicle. She contacted MBS, FSH and Grab, hoping to retrieve her jacket. On Grab's advice, Ms Petra lodged a police report. The appellant's offences thus came to light.

The appellant was tried in the State Courts. The district judge (“the DJ”) identified the key issue for the charge under the RTA as whether the appellant was “plying for hire” when he was waiting at the MBS waiting/pick-up area, within the...