Bright Impex v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 July 1998
• Neutral Citation: [1998] SGHC 244
• Date: 16 July 1998
• Subject Matter: Whether revisionary jurisdiction extended to decision of subordinate court upheld on appeal by High Court,Whether forfeiture mandatory,District judge's failure to exercise discretion not to order forfeiture,Criminal Procedure and Sentencing,Revision of proceedings,Whether valid ground for revision,s 123 Customs Act (Cap 70, 1995 Ed),Jurisdiction,High Court's power of criminal revision,Courts and Jurisdiction,Grounds for revision,Whether dependent upon locus standi of applicants,s 266 Criminal Procedure Code (Cap 68)
• Docket Number: Criminal Revision No 15 of 1998
• Published date: 19 September 2003
• Defendant Counsel: Foo Cheow Ming (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: B Vijayan Peter and Lee Yih Gia (Ramdas & Wong)

Judgment:

YONG PUNG HOW CJ

This petition arose out of an offence committed by Thameem Rajah bin Thusleem (Thameem) under s 130(1)(c) of the Customs Act (Cap 70, 1997 Ed) (the Act) for having in his possession uncustomed goods. He was convicted and fined, and the goods were forfeited. The petitioner claimed to be the owner of the forfeited goods and asked the court to exercise its powers of criminal revision to reverse the forfeiture order. At the end of the hearing I dismissed the petition for the following reasons.

2. The facts

Thameem is a Malaysian citizen and an employee of First Galaxy Enterprise (First Galaxy), a Malaysian registered business. The petitioner is a sole proprietorship registered in Hong Kong. Shaik Kamal, holder of a Hong Kong identity card, is the sole proprietor of the petitioner. On 3 December 1997, the petitioner signed an agreement to sell First Galaxy 143 pieces of gold jewellery (valued at $32,560) and 64 packets of about 0.5kg of diamonds (valued at $447,700) (the goods). Thameem collected the goods from the petitioner in Hong Kong sometime between 15 to 18 December.

3.On 18 December 1997 at about 1.20am Thameem arrived at Terminal 1 Changi Airport, via a flight from Hong Kong. As he went though the `Green` customs channel he was stopped by a customs officer. He was asked if he had anything to declare. He replied in the negative. Thameem was asked to produce his bag for examination, whereupon 143 pieces of gold jewellery were found in the bag. Another 0.5kg of diamonds were discovered in his jacket pocket. Thameem was then arrested.

4.Thameem was charged as follows:

You, Thameen Rajah bin Thusleem, male 42 years old, Malaysian, Passport No A 8763574 are charged that you on or about 18 December 1997 at about 1.50am, at West Wing, Arrival Hall, Terminal 1, Changi Airport, Singapore, did have in your possession uncustomed goods, to wit 143 pcs gold jewellery (valued at $32,560) and one lot of diamonds (weighing aprox. 0.5kg, valued at $447,700), and you have thereby committed an offence under s 130(1)C of the Customs Act (Cap 70, 1995 Ed) punishable under s 130 the same Act, read with the Goods and Services Tax (Application of Legislation Relating to Customs and Excise Duties) Order 1994 and the Goods and Services Tax (Application of Customs Act) (Provision of Trials, Proceedings, Offences and Penalties) Order 1994 and ss 26 and 27 of the Goods and Services Tax Act (Cap 117A, 1997 Ed).

5.Thameem was convicted and fined $72,039. The district judge also ordered that the goods seized valued at $479,560 be forfeited. Thameem appealed against the order for forfeiture. The magistrate`s appeal was heard on 5 March 1998 and dismissed. The petitioner claimed ownership of the forfeited goods and asked the court to exercise its powers of revision under s 266 of the Criminal Procedure Code (Cap 68) (CPC) to reverse the order to forfeit the goods.

6. Locus standi of petitioner

The prosecution raised a preliminary objection to the petitioner`s case on the ground that the petitioner was no longer the owner of the goods and as a result did not have locus standi to invoke the court`s revisionary jurisdiction. There were two problems with the prosecution`s submission on this point.

7.The first problem was that it was not clear whether title in the goods had passed to First Galaxy or had remained with the petitioner. While the sales agreement stated that title was to pass on delivery of the goods, it did not make clear when delivery was deemed to have taken place. Paragraph 4 of the sales agreement stated that delivery of the goods was to be made to the purchaser at the purchaser`s address, which was stated in the sale agreement as being in Kuala Lumpur. On this basis, although Thameem as the purchaser`s employee had collected the goods in Hong Kong, the title arguably remained with the petitioner until Thameem had brought it to First Galaxy in Kuala Lumpur. However, while para 4 stated that delivery was to be made to Kuala Lumpur, it also stated that the purchaser was to make the arrangements to take delivery of the goods whenever they were tended for delivery. It was arguable then that the purchaser had made arrangement to take delivery of the goods in Hong Kong when they sent their employee to collect it in Hong Kong. Delivery in this case would therefore have taken place in Hong Kong and title would have passed to the purchaser. It was therefore not clear whether the petitioner was no longer the owner of the goods as the prosecution claimed.

8.While the uncertainty of ownership weakened the prosecution`s preliminary objection on the basis of lack of locus standi, the fact that the ownership of the goods was unresolved was a reason for the court to exercise caution in reversing the forfeiture order and restoring possession of the goods to the petitioner.

9.The second problem with the prosecution`s preliminary objection on the basis of locus standi was that previous cases did not indicate that a person who did not have locus standi in the matter could not invoke the court`s revisionary jurisdiction. In R v Abu Kassim bin Babu [1940] MLJ 243 , Aitken J said:

My attention was drawn to the matter by a petition which appeared to emanate either from the complainant himself or a member of his family. I have since been informed by learned Crown Counsel and Mr Lim Kheng Kooi that both the complainant and the accused disclaimed all knowledge of this petition, but on that point the view I take is this: that it is my duty to examine the record of any proceedings in an inferior criminal court which may have come to my knowledge and, if necessary, exercise my revisionary powers in reference thereto. I do not know who sent me the petition for revision in this particular case, but it seems to me that anyone might properly have drawn my attention to this matter, and it cannot be contended that the proceedings now before me do not require careful consideration and investigation on my part.

The wording of s 266(1) of the CPC also makes it clear that the power to call for and examine the record of any criminal proceedings before the subordinate courts is a power that is vested in the High Court and is not dependent on the locus standi of applicants.

10.The prosecution relied on the judgment of AV Winslow J in Ee Yee Hua v PP [1969] 2 MLJ 123 [1969-1971] SLR 238 , where the learned judge quoted with approval from Sulaiman CJ`s judgment in the case of Srimati Sailabala Devi v Emperor [1933] 34 Cr LJ 1117:

My answer to the first question, therefore, is that an application filed by a third party, who is a total stranger to the proceedings and had no locus standi to invoke the jurisdiction of the court is merely one for bringing the matter to the knowledge of the court; and that in such a proceeding, his counsel should not expect to be heard.

AV Winslow J went on to hold that the private complainant in respect of an offence under the Penal Code was not a complete stranger. The above passage however does not say that a person without locus standi cannot invoke the court`s revisionary...