The Singapore Law Gazette

Special Reasons and Driving Disqualification Relating to Third-Party Motor Insurance

This article looks at driving disqualification orders, which are mandatory under section 3 of the Motor Vehicles (Third-Party Risks and Compensation) Act, unless the offender shows that there are “special reasons”. First, the article unpicks the sentencing objectives of driving disqualification orders. Next, it outlines the two-stage framework for special reasons. Finally, it unpacks the special reasons for not imposing a driving disqualification order.

Introduction

By way of background, it is unlawful to use, cause or permit any other person to use a motor vehicle in Singapore without third-party motor insurance: section 3(1) of the Motor Vehicles (Third-Party Risks and Compensation) Act (Cap 189, 2000 Rev Ed) (the Act).¹Subject to the provisions of this Act, it shall not be lawful for any person to use or to cause or permit any other person to use – (a) a motor vehicle in Singapore; or (b) a motor vehicle which is registered in Singapore in any territory specified in the Schedule, unless there is in force in relation to the use of the motor vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Act: section 3(1) of the Act.

The raison d’etre of the Act is to protect third-party road users, not the insured driver: Public Prosecutor v Lee Hong Hwee [2004] 1 SLR(R) 39 at [31]. Section 3 of the Act seeks to achieve the dual aims of ensuring that victims of traffic accidents are not left without any compensation, and also to deter irresponsible motorists from driving without the appropriate insurance coverage: Er Kee Jeng v Public Prosecutor [2006] 2 SLR(R) 485 at [39].²Bringing this to sharper focus is the fact that Parliament has deemed it fit to make the offence one of strict liability with only a limited defence in section 3(4): Muhammad Faizal bin Rahim v Public Prosecutor (2012) 1 SLR 116 at (39).For the background behind section 3(4) of the Act, see the comments of the Minister for Labour and Law, Mr K.M. Byrne, during the second reading of the Motor Vehicles (Third-Party Risks and Compensation) Bill (Singapore Parliamentary Debates, Official Report (13 January 1960) vol. 12 at col 19). Contravening section 3(1) is a serious offence: Stewart Ashley James v Public Prosecutor [1996] 3 SLR(R) 106 at [17].³The gravity of section 3 of the Act is underscored by the mandatory imprisonment for such offences in England in the past: Wilkinson’s Road Traffic Offences (Thomson Reuters, 28^th Ed, 2017) at (21-11): “Prior to 1965, disqualification or, at one time, imprisonment was obligatory for using a motor vehicle without insurance, or causing or permitting such use” (emphasis added). It would be repugnant to the Act’s legislative intention if motorists do not face the criminal consequences of driving without appropriate insurance coverage: Saimonn Teo Rong Zhi v Public Prosecutor (2013) SGHC 185 at (27).

Under section 3(3) of the Act, an offender would be disqualified from driving for at least 12 months.⁴A person convicted of an offence under section 3 of the Act shall, unless the Court for special reasons thinks fit to order otherwise and without prejudice to the Court’s power to order a longer disqualification period, be disqualified for holding or obtaining a driving licence for 12 months from the conviction date: s 3(3) of the Act. See also Muhammad Faizal bin Rahim v Public Prosecutor (2012) 1 SLR 116 at (40). This driving disqualification order is mandatory unless the offender shows that there are “special reasons”.⁵For the driving disqualification order, the Court has no discretion with respect to limiting the classes of vehicles: Prathib s/o M Balan v Public Prosecutor (2017) SGHC 303 at (9), citing Stewart Ashley James v Public Prosecutor (1996) 3 SLR(R) 106 at (11).

This article seeks to:

1. Unpick the sentencing objectives of driving disqualification orders;
2. Outline the two-stage framework for special reasons; and
3. Unpack the special reasons for not imposing a driving disqualification order.

(A) Sentencing Objectives of Driving Disqualification Orders

Driving disqualification orders meld the three sentencing objectives of punishment, protection of the public and deterrence: Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 at [13]-[14] and Public Prosecutor v Koh Thiam Huat [2017] SGHC 123 at [64].⁶For completeness, if the conviction for an offence entails mandatory disqualification, and an offender is convicted of several counts of that offence, the Court has to impose a separate term of disqualification for each conviction: Public Prosecutor v Mohammad Rohaizad bin Rosni (1998) 3 SLR(R) 180 at (6), (10) and (11).

The most important sentencing principles engaged in driving disqualification orders are (a) the protection of society, because the objective of disqualification orders is to prevent future harm that the offender may cause to the public, and (b) deterrence, because such orders deprive offenders of the freedom to drive: Public Prosecutor v Ong Heng Chua [2018] SGHC 95 at [61].

As stated in Public Prosecutor v Mohd Isa [1963] MLJ 135, the most satisfactory penalty for most motoring offences is disqualification because a fine is paid once and then forgotten. A 12-month disqualification order would mean that for the entire year in which the order is in effect, the offender is reminded every day of his offence and the unwarranted risks in which he had placed ordinary members of the public: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [28].

Where a person is disqualified for a period of 12 months or longer, that person’s driving licence shall be “of no effect” and the person is further prevented from driving a motor vehicle after the disqualification period unless he passes the prescribed test of competence to drive: s 43(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed).

In Edwin s/o Suse Nathen v Public Prosecutor [2013] SGHC 194 at [13], the High Court stated that due to the limited range of fines from $1,000 to $5,000 for a first-time offender, the mandatory driving disqualification order was in fact the principal punitive element of an offence under section 67(1) of the Road Traffic Act, and the impact of a driving disqualification order was likely to be felt much more acutely than any marginal increase in the quantum of the fine.⁷Any person who, when driving or attempting to drive a motor vehicle on a road or other public place – (a) is unfit to drive in that he is under the influence of drink or of a drug or an intoxicating substance to such an extent as to be incapable of having proper control of such vehicle; or (b) has so much alcohol in his body that the proportion of it in his breath or blood exceeds the prescribed limit, shall be guilty of an offence and shall be liable on conviction to a fine of not less than $2,000 and not more than $10,000 or to imprisonmentfor a term not exceeding 12 months or to both and, in the case of a second or subsequent conviction, to a fine of not less than $5,000 and not more than $20,000 and to imprisonment for a term not exceeding two years: section 67(1) of the Road Traffic Act.

In this regard, the High Court’s views in Edwin s/o Suse Nathen apply with greater force to the Motor Vehicles (Third-Party Risks and Compensation) Act as the maximum fine for an offence under section 3 of the Act is $1000.⁸See section 3(2) of the Act.

(B) Two-Stage Framework for Special Reasons

As aforementioned, under section 3(3) of the Act, an offender would be disqualified from driving for at least 12 months unless he shows that there are “special reasons”.

In this connection, the two-stage framework for “special reasons” is as follows:

1. First Stage: Show special reasons, viz. reasons relating to the facts or circumstances of an offence and not to the offender himself; and
2. Second Stage: Even if special reasons are established, the court will consider whether the discretion not to disqualify must be exercised in favour of the offender.

Under the two-stage framework, the first stage is offence-specific (not offender-specific). When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the Court’s satisfaction.⁹Toh Yong Soon v Public Prosecutor (2011) 3 SLR 147 at (5). Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the Court’s discretion not to disqualify can only be made in very exceptional circumstances.¹⁰Sivakumar s/o Rajoo v Public Prosecutor (2002) 1 SLR(R) 265 at (25). See also Prathib s/o M Balan v Public Prosecutor (2017) SGHC 303 at (9)-(11).

(C) Special Reasons for Not Imposing a Driving Disqualification

First stage

What are “special reasons” not to impose a driving disqualification? The special reasons have to be reasons relating to the facts or circumstances of an offence and not to the offender himself – this would be the clearest means of giving effect to Parliament’s intention: M V Balakrishnan v Public Prosecutor [1998] 2 SLR(R) 846 at [9], and Muhammad Faizal bin Rahim v Public Prosecutor [2012] 1 SLR 116 at [41].

In other words, a special reason is a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the court ought properly to take into consideration when imposing punishment: Whittall v Kirby [1947] 1 KB 194 at 201, as endorsed by Muhammad Faizal bin Rahim at [30].

Offender-specific factors, such as the fact that the defendant is of a good character or has a good driving record, cannot be accepted as special reasons: Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (28^th Ed, 2017, General Editor: Kevin McCormac) at [21-10]. Circumstances peculiar to the offender do not go towards reducing his moral culpability; they are essentially extrinsic facts about the offender which are unrelated to the offence but are produced to elicit sympathy from the Court. These circumstances are morally distinguishable from circumstances peculiar to the offence: Muhammad Faizal bin Rahim at [43].

Even if an offender requires his driving licence for his livelihood, this would not constitute a special reason.¹¹See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at (3751). This is because in the Malaysian Criminal Appeal Court case of Public Prosecutor v Hiew Chin Fong [1988] 1 MLJ 467¹²For completeness, see Mohamed Faizal Mohamed Abdul Kadir, Why do Singapore Courts refer to English and Malaysian cases, Criminal Law: It’s a Not-So-Autochthonous-World After All?, (Singapore Law: 50 Years in the Making, Academy Publishing, 2015), pages 481-486. – which was endorsed in Chua Chye Tiong v Public Prosecutor [2004] 1 SLR(R) 22 at [61] and [62] – a 12-month disqualification period was imposed on the offender despite the fact that his livelihood depended on him having a driving licence.

The Criminal Appeal Court in Public Prosecutor v Hiew Chin Fong laid down several statements of law on what should not be considered special reasons:

1. Financial hardship to the offender;
2. The offender knew no other means of earning his livelihood;
3. That the effect of the disqualification must necessarily and consequently deprive the offender of his livelihood or occupation; and
4. That the offender was a poor man and would have difficulty to get to his work.

Before an emergency is capable of amounting to a special reason under law, a crucial prerequisite is for the offender to show that there was no alternative but for him to drive, and that he had explored every reasonable alternative before driving: Sivakumar s/o Rajoo v Public Prosecutor [2002] 1 SLR(R) 265 at [17].¹³Affirmed in Siti Hajar bte Abdullah v Public Prosecutor (2006) 2 SLR(R) 248 at (13).

When an offender seeks to come within the special reasons exception, the facts to back up such circumstances must be proved to the Court’s satisfaction: Toh Yong Soon v Public Prosecutor [2011] 3 SLR 147 at [5]. The onus lies on an accused to raise special reasons for the Court’s consideration, if such reasons exist: Chue Woon Wai v Public Prosecutor [1996] 1 SLR(R) 725 at [13].¹⁴See Prathib s/o M Balan v Public Prosecutor (2017) SGHC 303 at (12) and Siti Hajar bte Abdullah v Public Prosecutor (2006) 2 SLR(R) 248 at (12). See also Wilkinson’s Road Traffic Offences, Sweet & Maxwell, (28^th Ed, 2017, General Editor: Kevin McCormac) at (21-62).

Second stage

Even if special reasons are established, it does not automatically follow that the offender would not be disqualified. In this regard, there must be a separate process of considering whether the discretion must be exercised in favour of the offender: Sivakumar s/o Rajoo at [22]. The limited discretion not to disqualify can only be made in very exceptional circumstances, having regard to the special circumstances as well as to the whole of the circumstances surrounding the commission of the offence, including the manner in which the offender drove¹⁵The High Court in Sivakumar s/o Rajoo v Public Prosecutor (2002) 1 SLR(R) 265 at (25) endorsed the English case of Taylor v Rajan at (9): “in considering the whole of the circumstances of the case, a sentencing court was required to: … have regard to the manner in which the defendant drove, because if he committed traffic offences, such as excessive speed or driving without due care and attention, this again is a consideration which tells against his having the discretion exercised in his favour, and they should generally have regard to whether the defendant acted responsibly or otherwise … Last, but by no means least, if the alcohol content in the defendant’s body is very high, that is a very powerful reason for saying that the discretion should not be exercised in his favour …”. and the alcohol content in the offender’s body: Sivakumar s/o Rajoo at [25].

Pulling the various strands together, the test for special reasons is stringent and is only satisfied in very exceptional circumstances.¹⁶See also Prathib s/o M Balan v Public Prosecutor (2017) SGHC 303 at (9)-(11). The Act is construed strictly in order to preserve its policy of protecting road users: Chua Chye Tiong v Public Prosecutor [2004] 1 SLR (R) 22 at [53]. A less restrictive approach would negate the legislative stipulation of mandatory disqualification and defeat its underlying objectives: Siti Hajar bte Abdullah v Public Prosecutor [2006] 2 SLR(R) 248 at [8]. Widening the special reasons exception would encourage frivolous defences: Muhammad Faizal bin Rahim at [41].

(See also Tan Yock Lin and S. Chandra Mohan, Criminal Procedure (LexisNexis: March 2019; Binder 3, Loose-leaf, Chapter XVII: Sentencing) at [3702], [3751] and [3752])

Conclusion

In sum, a driving disqualification order is mandatory under section 3(3) of the Act unless the offender shows that there are “special reasons”, which involves a two-stage framework. The first stage is offence-specific. Even if special reasons are established, it does not automatically follow that the offender would not be disqualified from driving. For the second stage, the Court’s discretion not to disqualify can only be made in very exceptional circumstances.