Tan Cheng Kwee v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 30 May 2002
• Neutral Citation: [2002] SGHC 118
• Date: 30 May 2002
• Subject Matter: Whether to take into account fact of appellant claiming trial instead of pleading guilty,Criminal Law,Statutory offences,Whether appellant causes vehicle to be driven,Road Traffic,Road Traffic Act (Cap 276),Offences,Whether sentence manifestly excessive,Requirement of mens rea,Relevance of severity of penal sanction in determining whether provision creates strict liability offence,s 79(4) Road Traffic Act (Cap 276, 1997 Ed),Causing heavy motor vehicle exceeding four metres in overall height to be driven without requisite permit,Disqualification order,Statutory provision creating an offence,Whether mandatory sentence of disqualification from holding all classes of driving licences applicable to charge of 'causing' unlawful user,Legal presumption that mens rea necessary,Whether actus reus of offence proven,Whether offence of 'causing' unlawful user one of strict liability,s 79(1) Road Traffic Act (Cap 276, 1997 Ed),Criminal Procedure and Sentencing,Whether appellant exercising reasonable care,Circumstances where presumption can be displaced,Sentencing
• Docket Number: Magistrate's Appeal No 332 of 2001
• Published date: 19 September 2003
• Defendant Counsel: Bala Reddy and Francis Ng (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Plaintiff Counsel: Michael Khoo SC and Dominic Nagulendran (Michael Khoo & Partners)

Judgment

GROUNDS OF DECISION

The facts

The appellant, Tan Cheng Kwee (‘Tan’), was the director in charge of Henry Transport & General Agency Company Pte Ltd (‘the company’), and was the sole person running the operations of the company. The company transported goods in containers from warehouses to the Port of Singapore Authority (‘PSA’) Container Terminal, and vice-versa.

2 The company owned two prime movers, one of which bore the licence plate number XA 6305 S (‘the prime mover’). At the material time, it had two drivers under its employ – Selamat bin Sa’man (‘Selamat’) and Yahya bin Noordin (‘Yahya’).

3 On 13 May 2000, Tan instructed Selamat to drive the prime mover to Admiralty Road West in order to transport a container to the PSA Container Terminal. At approximately 12:12 p.m. that day, after loading up the container onto his trailer, Selamat was driving the prime mover along Hillview Road in the direction of Hillview Avenue when the top of the container hit a height restriction gantry. The vehicle proceeded on, but, due to its height, subsequently found itself wedged beneath the railway bridge that passed over the road. Selamat managed to free the vehicle. Whilst attempting to continue along its journey, the top of the container struck and damaged a second height restriction gantry, causing it to tilt precariously to one side.

4 The police arrived shortly and detained Selamat. Tan was called to the scene. It was quickly discovered that the company did not possess the licence to operate a heavy motor vehicle that had an overall height exceeding four metres. The height of the prime mover with trailer and container was 4.465 metres. Tan appeared to be unaware that such a permit was necessary and promptly applied for one on behalf of the company. Height restriction permits are valid for one year and are issued free of charge.

The charge

5 Selamat was indicted on a number of charges. Unfortunately, he absconded whilst on bail. Tan was later charged for the following offence:

You,

TAN CHENG KWEE, M/47 YRS
NRIC NO. S0126513Z

are charged that you on the 13^th day of May 2000 in Singapore, did cause to be driven on public roads, a heavy motor vehicle XA 6305 S that has an overall height which exceeds 4 metres, without there being in force a permit from Deputy Commissioner of Police and you have thereby committed an offence punishable under section 79(1) of the Road Traffic Act, Cap. 276

6 Section 79 of the Road Traffic Act (‘the Act’) read as follows:

79. – (1) Where the overall height of a heavy motor vehicle exceeds 4 metres, any person who, without a permit from the Deputy Commissioner of Police, is in charge of or drives or causes to be driven the vehicle on a road shall be guilty of an offence and shall be liable on conviction –

(a) for a first offence, to imprisonment for a term of not less than one year and not more than 3 years and, in addition, to a fine not exceeding $2,000; and

(b) for a second or subsequent offence, to imprisonment for a term of not less than 2 years and not more than 5 years and, in addition, to a fine not exceeding $5,000.

Decision of the district court

7 The district judge held that s 79 of the Act was intended to create a strict liability offence. He was of the view that the presumption of law that mens rea was a requirement of criminal liability was displaced by the fact that the provision was concerned with an issue of social concern and public safety. It was important for vehicles beyond a certain height to be restricted to travelling on certain roads due to height restrictions on others. Strict liability was thus essential for the protection of the public.

8 As such, four elements had to be established in order for the prosecution to prove its case. These were:

(a) That the prime mover was a ‘heavy motor vehicle’ within the meaning of s 79 (1) of the Act;

(b) That the overall height of the prime mover exceeded 4 metres;

(c) That no permit was issued in respect of the prime mover;

(d) That Tan had caused this prime mover to be driven on public roads without such a permit.

9 The judge found that all four elements were established. In his opinion, Tan had failed to make out a defence that he had taken reasonable care, since no attempt had been made by Tan to check the height of the container.

10 The district judge found Tan guilty of the charge and sentenced him to 14 months’ imprisonment. He was also disqualified from holding or obtaining all classes of driving licences for a period of one year with effect from Tan’s date of release from prison. Tan appealed against conviction and sentence but after hearing counsel’s arguments I dismissed the appeal. The district judge, in his grounds of decision, realised that he had omitted to impose a fine made mandatory by s 79(1)(a) of the Road Traffic Act (RTA), and asked this Court to exercise its powers of revision in order to correct the error. I therefore imposed a fine of $1,000 on Tan. However, I revoked that part of the district judge’s order relating to the disqualification from holding all classes of driving licences. The grounds for my decision are set out below.

The appeal

11 There were three key thrusts in the appeal against conviction. The first was that s 79(1) of the Act did not create a strict liability offence. The second was that, in any event, there was no evidence that suggested that Tan knew that the prime mover exceeded four metres in height and therefore he did not ‘cause’ the vehicle to be unlawfully driven. The final point was that, even if s 79(1) of the Act did create a strict liability offence, Tan’s failure to know the facts that constituted unlawful user did not amount to negligence and that therefore the defence of reasonable care was available to him.

12 As for the appeal against sentence, the submission was that the term of 14 months’ imprisonment was manifestly excessive, and furthermore the judge seemed to have placed undue weight on the fact that Tan had chosen to claim trial.

Did s 79(1) create a strict liability offence?

13 There is a presumption of law that mens rea is a necessary ingredient of any statutory provision that creates an offence: Sweet v Parsley [1970] AC 132; Lim Chin Aik v R [1963] MLJ 50; PP v Phua Keng Tong [1986] 2 MLJ 279. This presumption, however, can be rebutted by the clear language of the statute, or by necessary implication, although it is not sufficient if the provision merely lacks terms that are commonly associated with mens rea. Where an examination of the language of the statute does not assist, the Court will have to look at all the relevant circumstances to determine the true intention of Parliament. Such considerations include the nature of the crime, the punishment prescribed, the absence of social obloquy, the particular mischief and the field of activity in which the crime occurred.

14 It is well known that the presumption of mens rea is often displaced in situations where the statutory offence in question pertains to issues of social concern. This is especially so in cases of public safety where the prohibited act is not one which the public can easily protect itself against through its own vigilance. In Lim Chin Aik v R [1963] MLJ 50 at 52, Lord Evershed made the following observation:

Where the subject matter of the statute is the regulation for the public welfare of a particular activity … it frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea.

15 Even then, it must be shown that the creation of strict liability will be effective in promoting the objects of the statute by encouraging greater care to prevent the commission of the prohibited act: Gammon Ltd v AG of Hong Kong [1984] 3 WLR 437.

16 The question as to whether s 79(1) of the Act was one that imposed strict liability had been previously dealt with by the Magistrate’s Court in the case of PP v Yeo Gim Lam TAC No. 844 of 1987 (unreported). In that case, the accused was charged with driving a cargo crane, with an overall height exceeding four metres, without the relevant licence. The boom of the loader had struck the underside of the Change Alley aerial plaza that spanned Collyer Quay from Clifford Pier to the Singapore Rubber House. The judge held that s 79(1) did create a strict liability offence. He said:

It is easy to discern the legislative intent on placing upon a person driving on the road a heavy motor vehicle which exceeds 4.00 metres, the duty of ensuring that there is a permit from the Deputy Commissioner of Police. Under subsection 2 of section 79 of the Act, in granting such a permit, the Deputy Commissioner of Police may impose such conditions as he thinks fit including conditions relating to the overall height of the vehicle, the lateral projection of any load carried by the vehicle, the maximum speed of the vehicle, the requirement for police or other escort; and of particular relevance to the present case, the route the vehicle is permitted to travel. In land scarce Singapore, it is to be expected that there will be, and as a matter of fact there are, numerous flyovers, pedestrian overhead bridges, aerial plazas and other similar overhanging structures above the roads which the public uses frequently. It is very clear promotion of safety. It performs the social utility of ensuring that drivers of heavy motor vehicles above a certain height are in possession of and, more importantly, are cognisant of the conditions imposed therein so that their vehicles would not pose a potential hazard to these overhanging structures and endanger the lives of those using them.

...