Public Prosecutor v M/s Serve You Motor Services

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 March 1996
• Neutral Citation: [1996] SGHC 37
• Docket Number: Magistrate's Appeal No 252/95/01
• Date: 04 March 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Wong Choon Ning (Deputy Public Prosecutor)
• Citation: [1996] SGHC 37
• Defendant Counsel: Phua Siow Choon (Michael Khoo & BB Ong)
• Court: High Court (Singapore)
• Subject Matter: Customs and excise,ss 110 & 124(4) Customs Act (Cap 70, 1995 Ed),Owner of vehicle innocent,Whether forfeiture of vehicle mandatory,Forfeiture,Revenue Law,Offender not prosecuted

A motor-lorry, GL 21T, belonging to the respondents was sought to be forfeited by the appellant under s 124(4) of the Customs Act (Cap 70, 1995 Ed). The district judge declined to so order, and the appellant appealed. After arguments were heard, the appeal was allowed and the reasons are now given.

The agreed facts

Below, it was agreed between the prosecution, Hong Leong Finance Ltd (the finance company), M/S Service Express Trading (the vehicle rental company) and the respondents (the registered owners), that the motor-lorry, which had been rented out by the rental company as agents for the respondents, had been stopped and found to carry 4350 cartons of cigarettes worth $137,246.19. No duty had been paid on these cigarettes. The customs duty leviable was $93,746.16, while the Goods and Services Tax due was $4,117.39. The cigarettes and the lorry were seized under s 110(1) of the Customs Act. The driver of the lorry was not located, nor was he prosecuted.

The prosecution`s case below

In support of the forfeiture, it was argued below that if the court was satisfied that the vehicle was used in the commission of an offence forfeiture would have to be ordered under s 123(2) of the Customs Act, which deals with the situation where there is a prosecution, or s 124(4), which applies where there is no such prosecution. Reliance was placed on a number of cases dealing with s 123(2). In these cases, no discretion was found to exist. The case of Toh Teong Seng v PP [1995] 2 SLR 273 , in which forfeiture was overturned, was distinguished as dealing with different legislation.

The defence

Only the finance company was represented below. Counsel argued that a discretion to release the vehicle existed as the provisions applicable were in pari materia with the sections considered in Toh Teong Seng . In support of this, it was argued that forfeiture of the vehicle would result in punishing an innocent party, which would not serve the purpose of the provision for all possible reasonable precautions had been taken by the finance company.

The decision

In his decision the district judge referred to both Toh Teong Seng and a case following it, Chandra Kumar v PP [1995] 3 SLR 123 . He was of the view that though these cases dealt with a different provision, they were authority for a general approach applicable to forfeiture cases. In contrast, the cases cited by prosecution dealing with s 123(2) could be distinguished in that unlike s 123(2), the word `shall` was used ambiguously in s 124(4).

In both Toh Teong Seng and Chandra Kumar , it was considered material that the owner of a vehicle subject to forfeiture under the Environmental Public Health Act (Cap 95, 1988 Ed) could be innocent of any wrongdoing. The implication drawn by the district judge was that these cases were support for the proposition that Parliament could not have intended to punish the innocent, and that, therefore, a discretion had been conferred upon the courts. It was also thought unacceptable that the court would be restricted to deciding whether the vehicle was used in the commission or was the subject matter of an offence where, in marked contrast, on the prosecution`s submissions, the Director-General of Customs would have the power to release vehicles in situations unavailable to a court.

In view of these, it was concluded that the court ought to have a discretion on the ordering of forfeiture. In exercising that discretion a number of factors, culled from Chandra Kumar , were considered. In the event, these factors indicated to the judge that the discretion ought to be exercised in favour of the respondents and he so ordered.

The appeal

The appellant`s case

The appellant reiterated the argument that the use of the word `shall` in s 123(2) indicated the use of the same word in s 124(4). It was pointed out that the only difference between the two sections lies in whether a prosecution has in fact been instituted. The district judge had erred in declining to follow various cases interpreting s 123(2). His interpretation of s 124 was in error for no inconsistency such as arises with respect to s 20 Environmental Public Health Act (Cap 95, 1988 Ed) (EPHA) is present in the Customs Act provisions.

The respondent`s case

The respondents maintained that they were entitled to the possession of the motor-lorry. It was argued that the provisions in question use the term `shall` in merely a directory sense, for s 123(1) states that the court may make an order for the forfeiture or for the release of items seized. Since the court has an option available, a discretion exists. It was argued that the provisions are in pari materia with those of the EPHA and the same approach as adopted in Toh Teong Seng and Chandra Kumar ought to apply here. If Parliament had indeed intended to deprive offenders of all property regardless of the seriousness of the offence, it would have done so in the clearest language. Since the intention of Parliament was to deter the commission of such offences and the forfeiture of the vehicle in the instant appeal would not achieve that effect, there had to be a discretion not to forfeit. It was emphasized that the respondents had taken all possible reasonable precautions and were innocent of any wrong doing.

The discussion

Whether a discretion exists

The only issue in this appeal is whether the district judge had the discretion not to forfeit the vehicle. To determine that, it was necessary first of all to examine the relevant provisions of the Customs Act.

Section 110 states basically that goods the subject of an offence may be seized. Section 122 then reads:

(1) All goods liable to seizure under the provisions of this Act shall be liable to forfeiture.

...

Section 123 states:

(1) An order for the forfeiture or for the release of anything liable to forfeiture under the provisions of this Act shall be made by the court before which the prosecution with regard thereto has been held.

(2) An order for the forfeiture of goods shall be made if it is proved to the satisfaction of the court that an offence under this Act or any order or regulations made thereunder has been committed and that the goods were the subject matter of, or were used in the commission of, the offence notwithstanding that no person may have been convicted of the offence.

(3) All goods forfeited shall be delivered to a proper officer of customs and shall be disposed of in accordance with the directions of the Director-General.

And s 124:

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