Hong Leong Finance Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 September 2004
• Neutral Citation: [2004] SGHC 199
• Docket Number: Criminal Revision No 16 of 2004
• Date: 07 September 2004
• Year: 2004
• Published date: 10 September 2004
• Plaintiff Counsel: Phua Siow Choon (Michael BB Ong and Co)
• Citation: [2004] SGHC 199
• Defendant Counsel: Kan Shuk Weng (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether failure to inform owner sufficient to attract criminal revision,Sections 12, 23, 32(1) Wholesome Meat and Fish Act (Cap 349A, 2000 Rev Ed),Whether owner ought to be informed before forfeiture order made,Whether court could order forfeiture due to seriousness of offence,Criminal Procedure and Sentencing,Confiscation and forfeiture,Effect of delay in bringing petition for criminal revision

7 September 2004

Yong Pung How CJ:

1 This was a petition by Hong Leong Finance Limited (“HLF”) seeking criminal revision of the order for forfeiture of a vehicle made on 23 June 2003 under s 32(1) of the Wholesome Meat and Fish Act (Cap 349A, 2000 Rev Ed) (“WMFA”). I dismissed the petition and now give my reasons.

The facts

2 The petitioner, HLF, was the owner of a reefer truck bearing registration number YJ955K (“the vehicle”) by virtue of a hire purchase agreement entered into on 2 April 2002 with one Tan Kian Chye (“Tan”).

3 On 1 April 2003 at about 9.30am, officers from the Agri-food and Veterinary Authority (“the AVA”) attended to a complaint regarding the importation of meat products from Malaysia. The meat products were purportedly being stored at No 34 Jalan Siglap Singapore 678563 (“the premises”).

4 Upon arrival at the premises, the AVA officers spotted Tan, who was about to drive off in the vehicle. The AVA officers immediately stopped Tan from leaving the premises and proceeded to check the vehicle. They found 2,340kg of pig intestines in the vehicle and another 1,960kg of pig intestines in the freezers at the premises.

5 Tan admitted to having imported the pig intestines from Malaysia. He also informed the AVA officers that the premises were used for the storage and processing of the pig intestines. Tan was subsequently charged with having in his possession meat products, which were imported from Malaysia without a permit, for the purpose of selling, an offence under s 23(1)(a) of the WMFA (“the first charge”). In addition, he was also charged with operating a processing establishment without a licence from the Director-General of the AVA, an offence under s 12(1) of the WMFA (“the second charge”).

6 On 17 June 2003, Tan pleaded guilty to both charges and was sentenced on 23 June 2003 to a total of 14 months’ imprisonment and ordered to pay a fine of $30,000.

7 Consequent to Tan’s conviction, the court ordered that the vehicle be forfeited under s 32 of the WMFA by the AVA (“the forfeiture order”). HLF was only informed of the vehicle’s forfeiture on 23 June 2003, after the order was made. Tan did not appeal against conviction, and no grounds were given for the judge’s decision.

8 On 1 July 2003, counsel for HLF wrote to inform the AVA that HLF would be applying to the High Court for a criminal revision to set aside the forfeiture order. On 16 July 2003, counsel also wrote to the Attorney‑General’s Chambers (“the AGC”) requesting them to take up an application for criminal revision of the forfeiture order.

9 By their reply dated 4 August 2003, the AGC declined to take up the application. However, HLF took no further action for a year. On 12 June 2004, the Deputy Public Prosecutor (“DPP”) wrote to counsel to ask if HLF still intended to file a petition for criminal revision, without confirmation of which the AVA would dispose of the vehicle.

10 On 21 June 2004, a year after the forfeiture order was made, counsel for HLF filed the present petition for criminal revision.

The petition

11 HLF submitted that it suffered hardship and serious injustice and that the trial court was wrong in ordering forfeiture of the vehicle as HLF was deprived of the opportunity to be heard before the order was made. The court therefore did not have regard to all the circumstances of the case in ordering the forfeiture. HLF also relied on the fact that it was an innocent party and had acted in a reasonably prudent manner in granting the hire purchase facilities to Tan.

12 HLF therefore sought to have the forfeiture order set aside and the matter remitted to the subordinate court for the holding of a disposal inquiry with regard to the vehicle, where HLF would be given an opportunity to make representations to the court as to why the vehicle should not be forfeited.

The respondent’s case

13 The DPP submitted that the forfeiture order should not be set aside as the order of forfeiture was justified due to the gravity of the offence. Morever, even if HLF had suffered injustice, which was not conceded, the force of such injustice was greatly diminished by the delay of one year before HLF filed the present petition.

Principles of revision

14 The High Court’s revisionary powers are conferred by s 23 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”) and s 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). It is established law that such powers of revision are discretionary and must be exercised sparingly. The test laid down by the courts is whether the failure to exercise revisionary powers will result in serious injustice being done. No precise definition of what constitutes serious injustice is possible. However, it must generally be shown that there was something palpably wrong in the decision by the court below, which strikes at its basis as an exercise of judicial power: see Ang Poh Chuan v PP [1996] 1 SLR 326, followed in Magnum Finance Bhd v PP [1996] 2 SLR 523 and Credit Corporation (M) Bhd v PP [2000] 3 SLR 762.

Whether the trial court should have exercised its discretion to forfeit

15 The vehicle was forfeited under s 32 of the WMFA, which provides that:

(1) The court … may make an order for the forfeiture of any item which has been seized under the provisions of this Act if —

(a) the court is satisfied that —

an offence under this Act or the rules has been committed; and

the item seized was the subject-matter, or was used in the commission, of the offence; and

(b) having regard to the circumstances of the case, the court thinks it fit to order the forfeiture of the item.

16 There is no doubt that the elements of s 32(1)(a)(i) and (ii) were satisfied and that the vehicle was used in the commission of an offence under the Act.

17 The issue before me, therefore, was whether, in the circumstances before the court, the forfeiture order was justified.

18 I have stated that owners of vehicles ought to be charged to enable them to defend themselves: Chandra Kumar v PP [1995] 3 SLR 123 and Ang Poh Chuan (at [14] supra). On the other hand, the courts have no duty to conduct an investigation into the ownership of the vehicle before ordering its forfeiture. Furthermore, HLF itself admitted that the Prosecution had no positive statutory duty to inform it of the intended forfeiture.

19 In a case such as this where the offence is serious, the courts’ concern is to prevent the vehicle from being used in the commission of further offences. Moreover, the lack of opportunity to be heard only amounts to hardship on the part of finance companies: Ang Poh Chuan (at [14] supra). Such hardship does not by itself lead to a finding of injustice upon which a criminal revision must be premised. To show injustice, it would have to be further shown that the trial court had erred in ordering forfeiture. It is to this issue that I now turn.

20 HLF relied on the case of Chandra Kumar v PP,...