Long Foo Jin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 March 1996
• Neutral Citation: [1996] SGHC 36
• Docket Number: Magistrate's Appeal No 302 of 1995
• Date: 04 March 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: SR Shanmugam (Sambandan & Co)
• Citation: [1996] SGHC 36
• Defendant Counsel: Wong Choon Ning (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether beneficial ownership relevant,Second conviction,Offences,s 43(3B) Road Traffic Act (Cap 276, 1994 Ed),Forfeiture of vehicle,Whether disposal inquiry should have been held,Driving under disqualification,Whether forfeiture mandatory,s 43(3B) Road Traffic Act (Cap 276, 1994 Ed)- s 386 Criminal Procedure Code (Cap 68),Dispute as to ownership of vehicle,Road Traffic

The appellant was charged with driving while disqualified, contrary to s 43(3A) of the Road Traffic Act (Cap 276, 1994 Ed) (the Act) as well as driving without insurance, contrary to s 3(2) of the Motor Vehicles (Third Party Risks and Compensation) Act (Cap 189). The appellant was convicted on both charges, and was sentenced to a total of three months` imprisonment and six years` disqualification. The Public Prosecutor made an application for the forfeiture of the vehicle concerned under s 43(3B) of the Act, and this was granted by the judge. The appellant appealed only against the forfeiture. After hearing the submissions of both counsel for the appellant and the Deputy Public Prosecutor, I dismissed the appeal. I now set out my reasons for doing so.

The judge found that the present conviction was a second conviction under s 43(3A), and that therefore s 43(3B) applied. Additionally none of the exceptions to s 43(3B) were relevant. In the judge`s view, the appellant was, for the purposes of the Act, the owner of the vehicle even if it was subject to a hire-purchase agreement. No discretion existed as to forfeiture, unlike the situation under the Environmental Public Health Act (Cap 95, 1988 Ed). The position if there was such a discretion was also examined. A number of factors governing the exercise of the discretion to forfeit a vehicle involved in illegal dumping, as listed in Chandra Kumar v PP [1995] 3 SLR 123 , were examined and applied; the conclusion reached was that forfeiture should be ordered even if a discretion did exist.

The appeal

The appellant argued that he was only the nominal owner of the car. The judge thus erred in not applying the exception in s 43(3B) to the appellant. As the judge was aware that ownership of the vehicle was questionable - he had considered the possibility that it could have been owned by the finance company - a disposal inquiry ought to have been held. If it had been, the judge would have discovered that the car was bought by Prime Systems, a partnership involving the appellant, upon a loan from the finance company, which was secured by the deposit of the logbook with the company. It was said that the vehicle was the property of Prime Systems. The failure to hold a disposal inquiry was thus an error. It was further said that the order of the judge resulted in making an innocent owner liable for the action of others.

The respondent`s case

It was contended that the judge did not err in considering the appellant as the owner of the vehicle. No disposal inquiry could have been held as the relevant provision is subject to special provisions in any Act, and s 43(3B) is such a provision. There was no failure to observe the rules of natural justice as the finance company had the opportunity to be heard but chose not to argue. No arguments were directed to the point that the vehicle was in fact owned by the partnership.

The issues

The following issues arose:

(i) the interpretation of the section;

(ii) whether a disposal inquiry ought to have been held;

(iii) whether the evidence concerning the ownership by the partnership is further evidence; and

(iv) whether the appellant was the owner for the purposes of the Act.

The interpretation of the section

Section 43(3B) of the Act reads:

Where any person has been convicted of an offence under subsection (3A) and such conviction is a second or subsequent conviction and it is proved to the satisfaction of a court that a motor vehicle has been used in the commission of the offence, the court shall, on the application of the Public Prosecutor, make an order for the forfeiture of the motor vehicle except that the court shall not make an order for the forfeiture of the vehicle if the court is satisfied that -

(a) the person who has committed the offence is not the owner of the vehicle; and

(b) the person who has committed the offence had used the vehicle without the consent of the owner or where he had used the vehicle with the consent of the owner, that the owner had no knowledge of his disqualification under this Act from holding or obtaining a driving licence.

The section is clearly mandatory both as to forfeiture and non-forfeiture in the stipulated circumstances.

This provision is very much unlike s 20 of the Environmental Public Health Act, which was the subject of discussion in Toh Teong Seng v PP [1995] 2 SLR 273 . There it was found because of the peculiarities of the wording of the operative subsections of s 20, a discretion was available to the judge. Section 20(4) reads:

A court on convicting any person of an offence

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