Oon Heng Lye v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 September 2017
• Neutral Citation: [2017] SGHC 236
• Plaintiff Counsel: Ong Ying Ping, Tan Soon Meng and Chew Zijie (Ong Ying Ping Esq)
• Docket Number: Criminal Revision No 4 of 2017
• Date: 27 September 2017
• Hearing Date: 20 July 2017
• Subject Matter: Revision of proceedings,Criminal Procedure and Sentencing,Disposal of property
• Published date: 03 October 2017
• Defendant Counsel: Leong Weng Tat and Victoria Ting (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 236
• Year: 2017

Sundaresh Menon CJ: Introduction

This was a criminal revision filed by the petitioner, Oon Heng Lye, to quash an order of the Magistrate’s Court (“the forfeiture order”) directing that monies which had been seized from him, amounting to $266,589.69 (“the seized funds”), be forfeited to the State. In addition, he sought an order that the respondent, the Public Prosecutor, restore the seized funds to him. The funds in question had been seized from him by the police after he had been arrested on suspicion of committing an unlicensed moneylending offence.

After hearing the submissions of the parties, I dismissed the petition. In the oral judgment I gave, I observed that it was settled law that the court’s revisionary jurisdiction is to be exercised sparingly, in circumstances where there is not only some error in the proceedings of the court below but one that is shown to occasion substantial injustice. On the assumption that there had been some error in the making of the forfeiture order, I found that there was nevertheless no evidence of substantial injustice. This was because Oon had admitted in several signed statements made to the police – which he had never effectively challenged until the time of the hearing of the petition – that the seized funds were the proceeds of unlicensed moneylending.

I now furnish my detailed grounds of decision, as I said I would when I gave my judgment.

Background

On 18 October 2007, the police arrested Oon on suspicion of operating a business of unlicensed moneylending, an offence under s 8(1)(b) of the Moneylenders Act (Cap 188, 1985 Rev Ed). They seized a number of items from Oon. These included $123,020 in cash, a bank book for a POSB Bank account, and a bank transaction slip for a UOB account. Both the POSB account and the UOB account were in Oon’s sole name.

The investigating officer, Assistant Superintendent Norlinda binte Ismail (“ASP Norlinda”), ascertained that the POSB account had a balance of $62,996.80 as of 2 November 2007 and that the UOB account had a balance of $80,572.89 as of 12 November 2007. She applied, while investigations were pending, for both accounts to be frozen pursuant to s 68 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC 1985”). Section 68 confers upon the police the power to “seize any property which is alleged or suspected to have been stolen or which is found under circumstances which create suspicion of the commission of any offence.”

Thereafter, Oon made a number of statements to the police. In a statement recorded by Station Inspector Clayton Tan (“SI Tan”) on 18 October 2007, Oon admitted that he had worked as an unlicensed moneylender since 2005.

In two subsequent statements recorded by ASP Norlinda, both on 24 October 2007, Oon gave a fairly detailed history of his involvement in unlicensed moneylending. In the first of these statements, he admitted also that the said sum of $123,020 in cash and the money in the aforementioned POSB and UOB accounts were proceeds from unlicensed moneylending.

On 5 November 2007, a detention order under the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) (“CLTPA”) was issued against Oon.

While Oon was under detention and upon the police completing their investigations, SI Tan applied for and obtained on 20 May 2008 the forfeiture order from a Magistrate’s Court pursuant to s 392 of the CPC 1985. Section 392(1), which obliges the police to report seized property to a Magistrate’s Court, and further obliges the Magistrate to make either an order respecting the delivery of the seized property to the person entitled to the possession of it, or an order respecting its custody and production, is as follows:

Procedure by police on seizure of property

392.—(1) The seizure by any police officer of property taken under section 29 or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate’s Court which shall make such order as it thinks fit respecting the delivery of the property to the person entitled to the possession of it or, if that person cannot be ascertained, respecting the custody and production of the property.

…

I should mention that s 392 of the CPC 1985 has been re-enacted, with some amendments, as ss 370 to 372 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC 2012”).

The Magistrate ordered the said sum of $123,020 in cash and the sums in the POSB and UOB accounts to be forfeited to the State. As for the other items that had been seized, the Magistrate ordered items which were said to be related to Oon’s unlicensed moneylending activities (such as handphones, note books, and ATM cards) to be disposed of, and bank books for accounts held by Oon’s wife (either solely or jointly with Oon) to be returned to her.

Oon was not thereafter charged with any offence relating to unlicensed moneylending. He was released from detention under the CLTPA on 1 November 2013.

Grounds for revision

Oon brought the present criminal revision pursuant to the court’s revisionary jurisdiction under s 400 of the CPC 2012. Section 400(1) provides that the High Court may call for and examine the record of any criminal proceeding before any State Court to satisfy itself as to the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings. Section 401 sets out the powers of the High Court on revision. These would include, when s 401(2) is read with s 390(1)(d) of the CPC 2012, the power to alter or reverse any order made by the court below.

It is settled law that the revisionary jurisdiction of the court is to be sparingly exercised. Typically, this will require a demonstration not only that there has been some error but also that material and serious injustice has been occasioned as a result. In Knight Glenn Jeyasingam v Public Prosecutor [1998] 3 SLR(R) 196, the High Court said as follows (at [19]):

… The court’s immediate duty is to satisfy itself as to the correctness, legality or propriety of any order passed and as to the regularity of any proceedings of that subordinate court. However, this is not sufficient to require the intervention of the courts on revision. The irregularity or otherwise noted from the record of proceedings must have resulted in grave and serious injustice.

It has also been observed that the threshold of “serious injustice” will only be crossed if there is “something palpably wrong in the decision that strikes at its basis as an exercise of judicial power” by the court below (Rajendar Prasad Rai and another v Public Prosecutor and another matter [2017] 4 SLR 333 (“Rajendar”) at [24], citing Ang Poh Chuan v Public Prosecutor [1995] 3 SLR(R) 929 at [17]).

In his petition of revision, Oon alleged that the forfeiture order issued by the Magistrate’s Court was “wrong at law” for a number of reasons. In his written submissions, and in the hearing before me, these were narrowed to three main grounds of challenge.

First, Oon claimed that he had not been notified of the application for forfeiture of the seized funds nor had he been allowed to be present at the hearing before the Magistrate. This, he argued, violated his right to be heard at such proceedings, as was held to exist by the Court of Appeal in Mustafa Ahunbay v Public Prosecutor [2015] 2 SLR 903 at [45] (“Mustafa Ahunbay”), albeit under s 370 of the Criminal Procedure Code 2010 (Act 15 of 2010) (“CPC 2010”), which is identical to s 370 of the CPC 2012. He claimed that he had been deprived of his property contrary to the rules of natural justice because he had not been given the opportunity to prove his entitlement to the seized funds.

Second, Oon argued that s 392(1) of the CPC 1985 did not empower the Magistrate’s Court to forfeit the seized funds.

Third, Oon submitted that he was the person “entitled to the possession” of the seized funds within the meaning of s 392(1) of the CPC 1985; therefore, the Magistrate was wrong to have ordered the seized funds to be forfeited to the State instead of being returned to him.

My decision

In summary, I accepted the first and second of these points. I accepted Oon’s submission that he had a right to be heard under s 392 of the CPC 1985 and that he had been denied that right. I also found that under s 392(1) of the CPC 1985, the Magistrate had no power to order that the seized funds be forfeited to the State.

However – and this was the dispositive point in this petition – I did not think that Oon was the person “entitled to the possession” of the seized funds. In this regard, I was in agreement with the Prosecution, which submitted that a person who claims to be “entitled to the possession” of seized property must demonstrate a lawful entitlement to it. Given Oon’s unequivocal admissions in his statements to the police that the seized funds were the proceeds of unlicensed moneylending, it could not be said that he was lawfully entitled to it. This was not affected by the fact that he was not subsequently charged for any offence relating to unlicensed moneylending. Hence, despite the errors in the making of the forfeiture order, there was no substantial injustice which would warrant the exercise of the court’s powers of revision under s 401 of the CPC 2012.

I elaborate on each of these points in turn.

Right to be heard

Oon argued that the principles established by Mustafa Ahunbay in relation to s 370 of the CPC 2010 were equally applicable to s 392 of the CPC 1985. The Prosecution’s position on this was that under the CPC 1985, there was no legal requirement for an accused person, from whom property has been seized, to be formally notified of proceedings under s 392.

Mustafa Ahunbay was a decision of the Court of Appeal on a criminal reference brought by an applicant who claimed an interest...