Public Finance Bhd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 July 1997
• Neutral Citation: [1997] SGHC 182
• Date: 07 July 1997
• Subject Matter: Confiscation and forfeiture,Forfeiture of vehicle ordered,s 49 Immigration Act (Cap 133),Forfeiture of vehicle,Petitioner let vehicle on hire-purchase,Criminal Procedure and Sentencing,Application for criminal revision for return of vehicle to petitioner or if vehicle had been sold, that sale proceeds be paid to petitioner,Vehicle used by hirer's brother to commit offence under Immigration Act
• Docket Number: Criminal Revision No 7 of 1997
• Published date: 19 September 2003
• Defendant Counsel: Lionel Tan (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Chau Yee (Tan Cheng Yew & Partners)

This case arose out of an offence committed by one Chong Wee Kiong under s 57(1)(b) of the Immigration Act (Cap 133). Chong Wee Kiong pleaded guilty in the district court to a charge of abetting a Chinese national, who had contravened the provisions of s 15(3)(b) of the Immigration Act, to leave Singapore. He was sentenced to six months` imprisonment. At the same time, the prosecution applied for the forfeiture of the vehicle (Malaysian registration number JBY 5451) used in conveying the Chinese national. The prosecution`s application was granted by the district judge and the vehicle was duly forfeited.

The petitioner in this criminal revision is a Malaysian finance company which, at all material times, was the legal owner of the forfeited vehicle JBY 5451. The vehicle was let on hire-purchase by the petitioner to one Chong Wee Min, the brother of Chong Wee Kiong. The cash price of the vehicle was RM$32,000, with payments to be made by Chong Wee Min in 60 monthly instalments of RM$508. At the time when the vehicle was seized by the immigration authorities, Chong Wee Min had paid only ten of these 60 instalments. The manager of the petitioner`s Taman Johor Jaya branch affirmed an affidavit in support of the criminal revision, stating that the petitioner had no knowledge of Chong Wee Kiong`s intention to use the vehicle in the commission of an offence; that the petitioner was never notified of the seizure of the vehicle; and that in any event, Chong Wee Kiong was not in lawful possession of the vehicle at the point of committing the offence. In making this last statement, the manager relied on cl 6.2.5 of the hire-purchase agreement between the petitioner and Chong Wee Min which stipulated:

(t)he Hirer shall NOT use or permit the vehicle to be used contrary to law or in any manner which may cause or result in the vehicle being seized, confiscated or forfeited. In the event of such use the hiring hereunder shall automatically terminate and the Hirer shall no longer be in lawful possession of the vehicle with the Owners` consent.

This criminal revision prayed, therefore, for the High Court to exercise its revisionary powers and to order that the vehicle be returned to the petitioner; alternatively, in the event that the vehicle had been sold, that the sale proceeds be paid over to the petitioner.

Grounds relied on by the petitioner

The petitioner relied, essentially, on the following grounds: (a). that Chong Wee Kiong was not in lawful possession of the vehicle at the time he used it in the commission of his offence;

(b). that s 49(2) of the Immigration Act, which provides for notice of seizure of the vehicle to be given to its `owner, charterer or agent`, was not complied with;

(c). that no disposal inquiry was held prior to the forfeiture of the vehicle;

(d). that the petitioner, as the rightful owner of the vehicle, should have been given an opportunity to be heard before the forfeiture of the vehicle; and

(e). that s 49 of the Immigration Act should be accorded a construction similar to that given to s 20 of the Environmental Public Health Act (Cap 95), such that the court is given a discretion to order the release of the vehicle even if it is `proved to the satisfaction of the court that an offence under the [Immigration] Act or the regulations has been committed and that the vehicle ... was used in the commission of the offence`.

Grounds of revision listed at (a), (b), (c) and (d) above

In respect of the first ground relied on, attention must be paid to the strict wording of s 49(5) of the Immigration Act. This subsection reads as follows:

An order for the forfeiture of a vehicle or vessel shall be made if it is proved to the satisfaction of the court that an offence under this Act or the regulations has been committed and that the vehicle or vessel was used in the commission of the offence, notwithstanding that no person may have been convicted of the offence.

In enacting the above subsection, it seems to me that Parliament has taken care to set beyond any doubt the factors to be considered by any court contemplating forfeiture of a vehicle. The list of these factors is short: only two factors - commission of the offence and use of the vehicle in the offence - are relevant. Clearly, Parliament`s intention was to preclude reliance by the court on any other factors which might be raised by the offender or, indeed, by any other party. Certainly, no provision is made in s 49(5) for the court to consider the legality of the offender`s possession of the vehicle. The absence of any such provision is conspicuous and must also militate against one of the other grounds of revision raised by the petitioner, namely, the contention that the petitioner was entitled to make representations to the district court for the return of the vehicle.

As to the question of the notice of seizure to be given to a vehicle`s rightful owner, I noted that three immigration officers had filed affidavits which made clear that the vehicle JBY 5451 was seized with the knowledge of the offender Ong Chee Kiong; and, this being the case, s 49(2) obviated the need for any further notice of seizure to be given to the petitioner:

The seizing officer shall forthwith give notice in writing of the seizure and the grounds thereof to the owner, charterer or agent of the vehicle or vessel so seized or detained, either by delivering the notice to him in person or by post at his place of officer or abode, if known except that the notice shall not be required to be given where the seizure or detention is made in the presence of or with the knowledge of the offender or the owner or his agent, as the case may be. [Emphasis added.]

As to the question of a disposal inquiry, I was not quite certain what counsel for the petitioner meant when he asserted that no disposal inquiry had been held by the district judge. As the DPP pointed out, when the prosecution applied for forfeiture of the vehicle...