Magnum Finance Bhd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 May 1996
• Neutral Citation: [1996] SGHC 107
• Date: 14 May 1996
• Subject Matter: Forfeiture of vehicle used in commission of offence,Relevant considerations,s 386(2) Criminal Procedure Code (Cap 68),No specific provision in legislation under which offence was committed,s 140(1)(d) Women's Charter (Cap 353),Innocent owner,Difficulty of detection,Criminal Procedure and Sentencing,Whether s 386(2) Criminal Procedure Code contained general power for any situation -Vehicle used in commission of offence under s 140(1)(d) of the Women's Charter,Serious injustice to be corrected through High Court's revisionary jurisdiction,Power to forfeit,Availability of legal recourse elsewhere,Seriousness of crime,Disposal of property,No right of appeal,Discretionary forfeiture,Deterrence,Forfeiture,Disposal inquiry
• Docket Number: Magistrate's Appeal No 340 of 1995 (Criminal Motion No 13 of 1996)
• Published date: 19 September 2003
• Defendant Counsel: Jaswant Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Robert Yoong (Yoong & Co)

Cur Adv Vult

Background

This appeal concerns the district court`s order for forfeiture of a motor vehicle bearing Malaysian registration No JDJ 5881 (the vehicle). The driver of the vehicle was one Law Song (the accused). The appellant, Magnum Finance Bhd (MFB), was the owner of the vehicle pursuant to a hire-purchase agreement. The hirer was one Chong May Weeka, from whom the accused had borrowed the vehicle.

On 3 August 1995, the accused pleaded guilty to one charge in DAC 8480/95 under s 140(1)(d) of the Women`s Charter (Cap 353) (the Charter) of bringing a Thai prostitute into Singapore, knowing that she had been procured for the purpose of prostitution within Singapore. A second charge of a similar nature was taken into consideration. An offence under s 140(1)(d) of the Charter carries a maximum punishment of five years` imprisonment or fine not exceeding $10,000. The district judge imposed a fine of $8,000, in default six months` imprisonment.

There was no dispute that the vehicle had been used in the commission of the offence, to ferry the Thai females across the Causeway from Johore Bahru. After the accused had been convicted and sentenced, the prosecution applied to forfeit the vehicle. MFB claimed to be rightfully entitled to possession of the vehicle and disputed the application for forfeiture. A disposal inquiry was thus convened pursuant to s 386 of the Criminal Procedure Code (Cap 68) (CPC). The district judge forfeited the vehicle at the conclusion of the inquiry. MFB has appealed against this order.

A preliminary point

I should point out that there is no right of appeal against an order made pursuant to a disposal inquiry. This must be regarded as settled law in view of the decision of the Court of Appeal in Sofjan & Anor v PP [1970] 2 MLJ 272 , as adopted by this Court in Thai Chong Pawnshop Pte Ltd & Ors v Vankrisappan & Ors [1994] 2 SLR 414 (at p 419). The appropriate course of action was for MFB to petition for revision. Notwithstanding that it has not done so, I was of the opinion that this would not preclude me from exercising the High Court`s powers of revision. I have observed, obiter, in the Thai Chong Pawnshop case (at p 419), that the court will be slow to exercise its revisionary jurisdiction in cases involving disposal inquiries. Nonetheless, if there is a fundamental error occasioning a clear failure of justice, the court may act on its own motion to set things right. I saw no difficulty in proceeding to hear the appeal.

The motion

Counsel for MFB filed a criminal motion on 16 April 1996 seeking liberty to file a supplementary petition of appeal. Counsel sought to include the following further grounds of appeal:

(a) whether a forfeiture order under s 386(2) of the CPC amounts to additional punishment for an offence under s 140 of the Charter;

(b) as the Charter does not provide for forfeiture as a means of punishment, whether the court can resort to the CPC as an avenue to impose such punishment;

(c) Section 386(2) of the CPC comes under the general heading `Disposal of Property`. What are the criteria or guidelines for the court when exercising its powers to order disposal of case properties?

(d) Whether such power includes forfeiture of property belonging to an innocent third party.

I was of the view that the motion was unnecessary as no new grounds of appeal were raised. The issues had been alluded to in the submissions of counsel and the DPP. As such, I dismissed the motion, but I indicated that counsel would be at liberty to proceed with submissions on the points raised.

The appeal

(a) The scope of s 386(2) CPC

The relevant provisions relating to the court`s power to dispose of property are contained in ss 386(1) and (2), which state:

(1) During or at the conclusion of any inquiry or trial in any criminal court the court may make such order as it thinks fit for the disposal of any document, livestock or other property produced before it.

(2) The power conferred upon the court by this section includes power to make an order for the forfeiture or confiscation or for the destruction or for the delivery of any property regarding which any offence is or was alleged to have been committed or which appears to have been used for the commission of any offence but shall be exercised subject to any special provisions regarding forfeiture, confiscation, destruction or delivery contained in the Act under which the conviction was had or in any other Act applicable to the case.

Counsel first submitted that the prosecution could not rely on s 386(2) CPC where the Charter did not expressly provide for any punishment of forfeiture. Counsel brought to my attention the case of Lim Poon Pok v PP [1947] MLJ 172 . In that case, the question on reference to the Court of Appeal of the Federated Malay States (FMS) was whether s 407(ii) of the FMS Criminal Procedure Code (FMS CPC) conferred a general power of forfeiture. Section 407(ii) of the FMS CPC is substantially similar to our s 386(1) and (2) CPC. Willan CJ, delivering the judgment of the court, opined that it was `clear beyond doubt` that it did. Nonetheless, counsel suggested, relying on the judgment of Syed Othman J in Yeo Siow Yee v PP [1974] 1 MLJ 54 , that the power of forfeiture conferred under s 407(ii) of the FMS CPC was merely incidental or a mere attachment to the primary power of disposal. Finally, referring to the district court judgment in PP v Boon Peng Keong & Anor [1985] 1 MLJ clxviii(n), counsel argued that forfeiture under s 386(2) CPC was not intended to be a form of enhanced punishment. If this had been Parliament`s intention, the existence of specific forfeiture provisions in legislation such as the Penal Code would have been duplicitous or superfluous.

I see no real difference in principle between the judgments of Willan CJ and Syed Othman J in Lim Poon Pok and Yeo Siow Yee respectively. Both judges essentially opined that the primary power is one of disposal, which includes the power of forfeiture. Should Willan CJ`s views be adopted, the effect is that s 386(2) CPC casts a wide net rendering liable to forfeiture all seized property `regarding which any offence is or was alleged to have been committed or which appears to have been used for the commission of any offence`. In other words, s 386(2) CPC operates as an omnibus provision, complementing those specific instances where Parliament may have chosen to expressly provide for the power of forfeiture.

The district judge in Boon Peng Keong chose not to follow Willan CJ`s ruling and declined to conclude that s 386(2) CPC necessarily confers a general power of forfeiture. It may be convenient to set out the relevant portions of the district judge`s reasons as follows:

In my opinion, [s 386] of the Criminal Procedure Code, although vesting the court with a power of forfeiture, is not intended and should not be used as a section to enhance punishment. It is merely to enable a criminal court to dispose of case properties where it would not be in the interests of justice to allow an offender his continued possession. This would arise in instances where the case property can be shown to be unlawfully or improperly obtained and where ownership cannot be ascertained. To return it to the offender would be allowing him to benefit from his crime and therefore, in such circumstances, a deprivative order such as forfeiture can be made.

With respect, I am unable to agree with certain fundamental aspects of the district judge`s reasoning in Boon Peng Keong `s case. First, the district judge held that s 385 of the CPC (now s 386) `is not intended and should not be used as a section to enhance punishment`. It appears that in coming to this conclusion, the district judge was influenced by his perception that provisions for forfeiture had been specifically enacted in other legislation, such as the Penal Code (ss 126, 127, 243A and 489E) and also the existence of the Road Vehicles (Special Powers) Act (Cap 120).

Black`s Law Dictionary (6th Ed), at p 650 defines `forfeiture` as `loss of some right or property as a penalty for some illegal act`. Forfeiture is primarily a punishment (per Evans J in Chee Ng v PP [1947] MLJ 112 , at p 113). If ordered, it serves little purpose other than being an additional penalty. What s 386(2) CPC provides for is the power of disposal of seized properties. This covers a very broad range of items which have been seized during arrest or in the course of police investigations. The power of disposal is expressly stated to include the power of forfeiture. The power of disposal `shall be exercised subject to any special provisions regarding forfeiture, confiscation, destruction or delivery contained in the Act under which the conviction was had or in any other Act applicable to the case` [Emphasis added].

In Boon Peng Keong `s case, the district judge opined that it would be `strange, if not superfluous` to specifically enact legislation dealing with forfeiture, if s 386(2) was intended to provide a general power of punishment by way of forfeiture. In doing so, the district judge did not adequately consider the provisions of s 386(2). It is apparent from the express reference in s 386(2) to `any special provisions` that the section contemplates specific provision being made in other pieces of legislation in relation to the imposition of forfeiture. In order to give effect to s 386(2), the express power of forfeiture contained therein must refer to a general power. Correspondingly, if exercised, it would serve as an enhancement of punishment. The only qualification is that it must be exercised subject to `special provisions` which exist in other legislation.

Secondly, there is nothing in the language of s 386(2) to indicate that forfeiture should be limited to cases where the case property was unlawfully or improperly obtained or where ownership cannot be ascertained....