Chandra Kumar v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 July 1995
• Neutral Citation: [1995] SGHC 164
• Date: 12 July 1995
• Subject Matter: Public health,Forfeiture of vehicle,Offences,Appropriateness of remission,Proper procedure to be followed,When not available,Disposal of property,Illegal dumping,Trials,s 386 Criminal Procedure Code (Cap 68),Factors considered in retrial, calling further evidence, and revision,Criminal Procedure and Sentencing,Remission of case,Whether necessary that owners be charged first,Criminal Law,ss 257(1), 266(1) & 268(1) Criminal Procedure Code,s 20(4) & (5) Environmental Public Health Act (Cap 95, 1988 Ed),Disposal inquiry
• Docket Number: Magistrate's Appeal No 28/95/01
• Published date: 19 September 2003
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Leslie Phua (AC Fergusson)

This is an appeal against the forfeiture of a vehicle, No YE6954K, ordered under s 20(4) of the Environmental Public Health Act (Cap 95, 1988 Ed) following the conviction of the appellant for an offence under s 20(1) of the same Act.

Brief facts

The brief facts are that on 28 April 1994, at about 1.45pm, the appellant, who was driving the vehicle, was tailed from the junction of Woodlands Ave 5 and Ave 2 by some Ministry of Environment officers in a car, as they suspected that he would be dumping refuse illegally. His vehicle was seen to be carrying some wood waste.

The appellant travelled to Lorong Gambas, along which he turned into a dirt track some 100m in. The officers waited at the junction between the track and Lorong Gambas. While doing so, they heard the sound of rubbish being unloaded. A few minutes later, the appellant came out in his vehicle. They stopped him, and found that the vehicles` skip was empty. A heap of waste wood was found in an area reached by the track. The vehicle was seized and the appellant was eventually charged that he:

... on 28 April 1994 between 1400 and 1410hrs, did drop a lorry load of refuse from the stationary vehicle No. YE 6954K at a vacant land off Lorong Gambas which is a public place and [he had] thereby contravened s 20(1) of the Environmental Public Health Act (Cap 95) and committed an offence punishable under s 21(1) of the aforesaid Act.

At the trial, the appellant was found guilty, fined $2,000 and the vehicle was forfeited under s 20(4) pursuant to the written application of the Public Prosecutor. The district judge held that he had no discretion to make any other order besides forfeiture once it was proven that the vehicle had been used to commit an offence, and the Public Prosecutor had made a written application. That decision was handed down before judgment was given in the case of Toh Teong Seng v PP .

The appellant has in the end only appealed against the forfeiture. The Prosecution seeks to remit the case back to the district judge for him to determine whether the discretion should be exercised in the light of further evidence which the prosecution seeks to adduce.

Forfeiture

The offence itself is set out in s 20(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.

The provisions governing forfeiture are set out in sub-ss (4) and (5):

(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 of the forfeiture of the vehicle which has been used in the commission of the offence notwithstanding that no person may have been convicted of that offence.

(5) An order for the forfeiture or for the release of a vehicle liable to forfeiture under subsection (4) may be made by the court before which the prosecution with regard to an offence under subsection (1) has been or will be held.

Construction of sub-ss (4) and (5)

It was held in Toh Teong Seng that the court has a discretion under s 20(4) to determine whether forfeiture of vehicles should be ordered. The prosecution has rightly declined to challenge the correctness of that decision. The reasoning behind that decision bears re-examination.

It was pointed out by this court in that case that s 20 is not well-drafted, for it is self-contradictory. Section 20(4) makes forfeiture conditional on a conviction under s 20(1) and the written application of the Public Prosecutor. It also states, however, that forfeiture shall be made notwithstanding that no one has in fact been convicted.

Section 20(5) on the other hand allows the court, before which the prosecution to an offence under s 20(1) is held, to order either the forfeiture or release of a vehicle liable to forfeiture under s 20(4). Forfeiture is only possible under s 20(4) if there has been a written application by the Public Prosecutor. Thus, it would follow that, to reconcile the two sub-ss, s 20(4) must be read in such a way that a discretion is conferred upon the court whether or not to order forfeiture. In Toh Teong Seng , it was therefore held that the word `shall` as used in s 20(4) must be directory rather than mandatory in its effect.

As noted in Toh Teong Seng , this discretion is also necessary in the light of the other provisions of s 20. A claim for the vehicle may be made by the owner of the vehicle under s 20(8) (read with sub-ss (6) and (7)) if no prosecution has been made. But, if a prosecution has been made, not resulting in a conviction, there is apparently no provision for the release of the vehicle. Given that the owner may not be involved at all in the offence, as his vehicle may have been stolen perhaps, the court should have the discretion to decide whether or not to release the vehicle concerned.

Factors governing the discretion

As stated, the prosecution does not seek to challenge the correctness of Toh Teong Seng . Rather, a number of grounds have been put forward which, it has been submitted, should be considered in the exercise of the discretion. It has also been argued that the case should be remitted back to the district judge, and that further evidence be adduced to establish that this is a case in which the discretion should be exercised in favour of forfeiture. These two propositions will be considered.

Grounds for the exercise of discretion

The prosecution has put forward a number of grounds which are supposed to be considered in determining the discretion as to forfeiture, namely:

(1) whether the vehicle is owned by the offender, and if not whether the owner had connived, participated in, or had nelsonian knowledge of the commission of the offence, taking into account the control by the owner of the use of the vehicle and the knowledge or suspicion that the offence was going to be committed;

(2) whether the owner had benefited from the commission of the offence;

(3) the value of the vehicle;

(4) the rampant use of vehicles in general in illegal dumping, and the consequent need for deterrence;

(5) the extent of the use of the vehicle in the commission of the offence; and

(6) steps taken by the owner to prevent the use of the vehicle in the commission of offences.

Both grounds (1) and...