Toh Teong Seng v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 13 April 1995
• Date: 13 April 1995
• Docket Number: Magistrate's Appeal No 318 of 1994
• Court: High Court (Singapore)

Toh Teong Seng

Plaintiff

and

Public Prosecutor

Defendant

[1995] SGHC 100

Yong Pung How CJ

Magistrate's Appeal No 318 of 1994

High Court

Criminal Law–Offences–Public health–Illegal dumping–Order of forfeiture against vehicle–Written application by Public Prosecutor for forfeiture of vehicle–Court's discretion whether or not to order forfeiture–Sections 20 (4) and 20 (5) Environmental Public Health Act (Cap 95, 1988 Rev Ed)–Criminal Law–Offences–Public health–Illegal dumping–Whether site was “public place”–Section 20 Environmental Public Health Act (Cap 95, 1988 Rev Ed)–Words and Phrases–“Public place”–Sections 2 and 20 (1) Environmental Public Health Act (Cap 95, 1988 Rev Ed)–Words and Phrases–“Shall”–Sections 20 (4) and 20 (5) Environmental Public Health Act (Cap 95, 1988 Rev Ed)

Environment officers apprehended the appellant for tipping refuse from a lorry (“the vehicle”) on a plot of land off Lorong Buangkok (“the site”). The vehicle was owned by a company of which the appellant was a director. Engaged by the Housing and Development Board to, among other things, clear and level the site, the company was permitted by the Land Office to maintain the site. When apprehended, the environment officers saw a heap of refuse amounting to some 17m³ behind it. A notice to attend court was issued to the appellant and the vehicle was seized.

The district judge had to consider whether the site in question was a public place. He held that although a gate and limited but damaged fencing around the site had been constructed, they were not constructed with the intention of restricting people from entering it. Accordingly, he found that the site was a public place. He held that instead of maintaining the site, the appellant had dumped refuse on it and he therefore convicted the appellant on a charge of illegal dumping. The appellant appealed. The issues were: (a) whether the site was a public place; (b) whether the ingredients of dumping had been made out; and (c) whether the court could order the forfeiture of a vehicle used in the commission of the offence notwithstanding that no person may have been convicted of that offence.

Held, allowing the appeal in part:

(1) Whether the site was being maintained by the company was irrelevant to the question of whether it was a public place. While the meaning of “public place” was not always clear, it was pretty well settled that the question revolved around whether the public had access to the place, whether in fact or in right. Whether the land was owned by the State or some other public authority was not conclusive. On the evidence, parts of the site were not fenced off so that any member of the public could enter upon the site on foot if they were so minded. That being the case, the district judge was entitled to find that the site was a place which the public had access to and was a public place: at [24], [33] and [35].

(2) Whether the company was under an obligation to remove the refuse or not was irrelevant. The district judge was justified in finding that the refuse had been disposed of at the site instead of the authorised dumping ground, under the ruse of maintaining the site: at [36].

(3) Notwithstanding the word “shall” in s 20 (4) of the Environmental Public Health Act (Cap 95, 1988 Rev Ed), the court retained a discretion whether to make a forfeiture order. In the circumstances, forfeiture of the vehicle which was not owned by the appellant would be out of all proportion to the offence committed and amounted to imposing an additional fine. Thus, the forfeiture order was set aside: at [40] and [42].

Bethune v Hefferman [1986] VR 417 (refd)

Brannan v Peek [1948] 1 KB 68; [1947] 2 All ER 572 (refd)

Freestone, Re (1856) 1 H & N 93; 156 ER 1131 (refd)

Heydon's Case (1584) 3 Co Rep 7a; 76 ER 637 (folld)

Knox v Anderton (1983) 76 Cr App R 156 (refd)

Langrish v Archer (1882) 10 QBD 44 (refd)

Melser v Police [1967] NZLR 437 (refd)

PP v Chen Geok Len [1967] 1 MLJ 59 (refd)

PP v Gue Song Yam [1993] 2 SLR (R) 60; [1993] 2 SLR 732 (folld)

Pugh v Knipe [1972] RTR 286 (refd)

R v Burgess [1941] MLJ 123 (refd)

R v Kane [1965] 1 All ER 705 (refd)

R v Thallman (1863) Le & Ca 326; 169 ER 1416 (refd)

R v Waters (1963) 47 Cr App R 149 (refd)

R v Wellard (1884) 14 QBD 63 (refd)

Tulshi Das v King-EmperorAIR 1924 All 768 (not folld)

Ward v Marsh [1959] VR 26 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 386

Environmental Public Health Act (Cap 95, 1988 Rev Ed)ss 2, 20 (consd);s 42

Interpretation Act (Cap 1, 1985 Rev Ed)s 9A

Road Safety Act1967 (c 30) (UK)

Foo Soon Yien (Tommy Lee & Pnrs) for the appellant

Shaiffudin Saruwan (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

1 This is an appeal by the appellant, Toh Teong Seng, against his conviction on a charge of illegal dumping, contrary to s 20 (1) of the Environmental Public Health Act (Cap 95, 1988 Rev Ed) (“the Act”). The appellant was fined $800 and the lorry YH 9235 S (“the vehicle”), which was used in the dumping, was ordered to be forfeited under s 20 (4) of the Act.

2 The appellant is a director of Sung Teong Constructions Pte Ltd (“the company”). The company is the owner of the vehicle. On 6 July 1993, the company was engaged by the Housing and Development Board (“HDB”) to demolish pig farms, fill up ponds and level the sites on four parcels of land. One of the parcels was at Lorong Buangkok (“the site”). On 3 February 1994, the Land Office agreed to allow the company to maintain the site for 12 months. The company then entered into a contract with the Public Works Department to demolish Queenstown Secondary Technical School between 23 May and 31 May 1994.

3 On 31 May 1994, two environment health officers, Koh Chee Meng (“Koh”) and Lim Chui San (“Lim”), were in the vicinity of Buangkok South Farmway 2. They were mounting a watch against illegal dumping of refuse. They saw the vehicle driven by the appellant in a tipping position. Upon rushing to the vehicle, the officers saw a heap of refuse amounting to some 17m³ behind it. A notice to attend court was issued to the appellant and the vehicle was seized.

4 The relevant parts of s 20 state:

1. (1) Any person who drops, scatters, spills or throws any dirt, sand, earth, gravel, clay, loam, manure, refuse, sawdust, shavings, stone, straw or any other matter or thing in any public place, whether from a moving or stationary vehicle or in any other manner shall be guilty of an offence.

2. (2) …

3. (3) Where any vehicle is used in disposing or dumping of refuse, waste or any other article in any public place, other than a public disposal facility … the vehicle may be seized … and removed to and detained in any police station or Government depot or other place as approved by the Commissioner at the risk of the owner for the purposes of proceedings under this Act.

4. (4) A court on convicting any person of an offence under subsection (1) shall, on the written application of the Public Prosecutor, make an order for the forfeiture of the vehicle which has been used in the commission of the offence notwithstanding that no person may...