Credit Corporation (M) Bhd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 16 August 2000
• Neutral Citation: [2000] SGHC 170
• Docket Number: Criminal Revision No 15 of 2000
• Date: 16 August 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Yoga Sharmini Yogarajah and Subashini Narayanasamy (Haridass Ho & Partners)
• Citation: [2000] SGHC 170
• Defendant Counsel: Hee Mee Lin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Mandatory forfeiture once conditions met,s 49(6) Immigration Act (Cap 133, 1997 Rev Ed),Forfeiture of vehicle used in commission of immigration offence,Statutory Interpretation,Purposive approach,s 9A(1) Interpretation Act (Cap 1, 1999 Ed),Whether provision of written notice on grounds of seizure required,Criminal offences,High court,Whether hardship caused by forfeiture attracts criminal revision,Criminal Procedure and Sentencing,Applicable principles,Immigration,Construction of statute,Powers of revision,Whether innocence of vehicle owner irrelevant

:This is a petition by a Malaysian finance company, Credit Corporation (M) Bhd (`the petitioner`), for a revision of a vehicle forfeiture order by the district court. The petitioner was the owner of the vehicle and had financed its purchase made by Hapsah bte Rahmat (a Malaysian) (`the hirer`), through a hire purchase agreement. As in a typical human smuggling syndicate`s modus operandi , the vehicle was stolen, had its engine illegally substituted and a false licence plate placed. The vehicle was used in the illegal smuggling of two Indian immigrants. The three immigration offenders have been dealt with.

The statutory provision under s 49(6) Immigration Act is unambiguous and mandatory. Forfeiture must be ordered if the vehicle has been used to commit an immigration offence. The district court rightly gave a forfeiture order of the vehicle. I dismissed the petition.

Although the court empathises with the innocent parties, whose vehicles are stolen and illegally used, the law is clear on its mandatory provision. I have taken the opportunity to substantiate this mandatory legislative provision, from judicial support from England and an institutional perspective, putting the statutory provision as part of a whole mechanism for reducing illegal immigration and particularly, for `drying up` the easy supply of vehicles for human smuggling syndicates.

The facts

Pang Siew Peng (`the offender`) was arrested at the Woodlands Checkpoint for using a vehicle, a Proton car, to smuggle two Indian nationals (`illegal immigrants`) into Singapore. The vehicle was seized on the same day pursuant to s 49(1) Immigration Act.

He was convicted of two charges of human smuggling, under s 57(1)(c) Immigration Act, and was sentenced to 30 months` imprisonment and eight strokes of the cane. The two illegal immigrants were each sentenced to one month`s imprisonment and four strokes of the cane.

The petitioner had financed the purchase of the vehicle, by Hapsah bte Rahmat (`the hirer`) in Malaysia, through a hire purchase agreement. It was insured by PanGlobal Insurance Bhd (`the insurer`). The vehicle was stolen in Malaysia on 18 August 1999. Its original licence plate was No JFB 3774. The original engine, a key component of the vehicle, was substituted with another engine without authorisation. Its licence plate was also illegally replaced with a false one, No JEM 3765. Based on the chassis number of the vehicle, the hirer and the insurer were contacted and informed of the seizure of the vehicle, and later its forfeiture.

However, for some inexplicable reason, the petitioner was not so informed, although its identity was made known to Singapore Immigration and Registration by the hirer, prior to the forfeiture application by the prosecution to the district court. The petitioner applied for the forfeiture order to be reversed.

Mandatory forfeiture under s 49(6) Immigration Act when two conditions are met

The petition resembled closely the case of Public Finance Bhd v PP [1997] 3 SLR 354 . In Public Finance Bhd , in interpreting s 49(6) Immigration Act, I pointed out that once the two conditions under s 49(6) are met, forfeiture of the vehicle is mandatory. The two conditions are:

(a) commission of the offence; and

(b) use of the vehicle in the commission of the offence.

This stipulation is clear, unmistakable and exhaustive. There are no other factors to be considered. It precludes reliance by the court on any other factors that might be raised by the offender or, indeed by any other party such as the owner of the vehicle.

The fact that the vehicle was stolen, illegally altered and used for human smuggling, and the fact that the vehicle was used by the offender, a person not in lawful possession of it, for human trafficking, are irrelevant.

Indeed, it is within the relevant authorities` discretion to make a forfeiture application to the district court. Finance and car rental companies can make representations to them. However, once the authorities make a forfeiture application, the court will only be concerned whether the two conditions have been met. And if they have been, a forfeiture order must be made.

Absence of criminal involvement by the petitioner is irrelevant

The petitioner claimed that as an innocent party it was unjustifiable that they be penalised. However, I made clear in Public Finance Bhd v PP [1997] 3 SLR 354 , PP v Mayban Finance (Singapore) Ltd [1998] 1 SLR 462 and PP v M/s Serve You Motor Services [1996] 1 SLR 669 that, even though the court sympathised with the owners, forfeiture must be ordered once it has been used in the commission of the offence, regardless of whether the petitioner had participated in the criminal offence. The provision is clear and mandatory. The owners would have to be left to their remedies against the offenders.

Counsel for the petitioner submitted that s 49(6) Immigration Act should be given an interpretation that would promote the purpose or objective underlying it, rather than a literal interpretation that would not promote the purpose or objective.

Section 9A of the Interpretation Act stipulates that an interpretation that would promote the purpose underlying the written law shall be preferred to one that would not so promote the purpose. The court may refer to the Hansard. A purposive approach to statutory interpretation could be taken even if a provision was not ambiguous or inconsistent: Planmarine AG v Maritime and Port Authority of Singapore [1999] 2 SLR 1 (CA).

However, a purposive interpretation of s 49(6) Immigration Act would still yield a similar mandatory result.

During the Parliamentary debate on 2 May 1996, the Minister for Law, Professor Jayakumar made clear that forfeiture acts as a strong deterrent. If vehicles were returned to innocent owners, human smuggling syndicates would find it easier to obtain vehicles to carry out human smuggling, without the risk of confiscation. All they need to do is to hire or borrow the vehicles. Doing away with the mandatory provisions would only increase the pool of easy resources available...