Sim Cheng Ho and Another v Lee Eng Soon

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 October 1997
• Neutral Citation: [1997] SGHC 254
• Date: 13 October 1997
• Subject Matter: Criminal Procedure and Sentencing,Revision of proceedings,Inconsistent and conflicting evidence adduced at inquiry,ss 386 & 392 Criminal Procedure Code (Cap 68),Whether magistrate's decision resulted in clear failure of justice,Relevant provisions applicable,Courses of action open to petitioners,Disposal inquiry
• Docket Number: Criminal Revision No 14 of 1997
• Published date: 19 September 2003
• Defendant Counsel: Philip Fong (Harry Elias & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Palaniappan Sundararaj (Derrick, Ravi & Partners)

Judgment:

YONG PUNG HOW CJ

This case concerned a disposal inquiry in respect of three vehicles seized in the course of police investigations. During the inquiry, both the petitioners and the respondent claimed entitlement to possession of the vehicles. The district judge ordered that the vehicles be delivered to the respondent. The petitioners filed a petition for the revision of the order made below. I dismissed the petition and now give my reasons.

2. A preliminary point

There seemed no agreement in the court below between the parties involved on the question whether the inquiry was held pursuant to s 386 of the Criminal Procedure Code (Cap 68) (the CPC) or s 392 of the CPC. In their submissions, the petitioners assumed s 386 of the CPC to be the applicable section. The respondent relied upon s 386 of the CPC on the first page of his written submissions but, later, in the same set of submissions, cited s 392 of the CPC as the applicable section. From the notes of evidence, the investigating officer appears to have thought the relevant section to be s `382` of the CPC. The district judge did not comment on which section he applied nor whether he acted in his capacity as a magistrate, as required by s 392 of the CPC, or as a district judge. During the hearing of the petition, counsel for the respondent cited s 392 of the CPC as the relevant section while counsel for the petitioner did not mention which section of the CPC the case involved.

3.The relevant section is s 392 of the CPC. This is because no prosecution was commenced after the police investigations. Accordingly, there has been no `inquiry or trial in any criminal court` within the meaning of s 386 of the CPC. Previously, in Magnum Finance Bhd v PP [1996] 2 SLR 523 , I stated, for the same reason, that this is the disposal provision to apply in cases where there has been no prosecution. No prejudice, however, has been occasioned by the confusion in the court below, as the inquiry only concerned the disposal of property between rival claimants and this discretion is similarly exercised under both sections. No power peculiar to s 386 of the CPC was involved. I therefore proceeded to deal with the petition on the footing that the inquiry had been held pursuant to s 392 of the CPC.

4. The law in respect of disposal inquiries held pursuant to s 392(1) of the CPC

Section 392(1) of the CPC is as follows:

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 possession of it or, if that person cannot be ascertained, respecting the custody and production of the property.

5. Thai Chong Pawnshop Pte Ltd v Vankrisappan Magnum Finance Bhd v PP f Somewhat surprisingly, there is scant local precedent on the exercise of a magistrate`s discretion pursuant to s 392 of the CPC. Magnum Finance Bhd v PP , which I mentioned earlier, is a case which really concerned s 386 and dealt only with the question of when s 392 of the CPC is to apply. Nevertheless, some of the precedents on s 386(1) of the CPC, insofar as they deal purely with the distribution of property between rival claimants, would seem applicable to disposal inquiries held pursuant to s 392(1) of the CPC. Using this approach, the following principles appear to be relevant to a disposal inquiry conducted under s 392 of the CPC: (i). A disposal inquiry is intended to be an inexpensive and expeditious manner of distributing items produced in the course of investigations or at trial: Thai Chong Pawnshop Pte Ltd v Vankrisappan [1994] 2 SLR 414 .

(ii). Such an inquiry is not conclusive as to title. The rightful owner can and should assert his rights in a separate civil suit: .

(iii). There is no right of appeal against an order made pursuant to a disposal inquiry: Sofjan & Anor v PP [1970] 2 MLJ 272 .

(iv). Where there is a fundamental error occasioning a clear failure of justice, the court may exercise its revisionary jurisdiction: .

6.From the preceding paragraph, it is clear that while the perimeters of a magistrate`s discretion and the High Court`s powers have been delineated with precision, no rules have been set out in respect of situations where entitlement to possession is disputed. In this connection, counsel for the petitioners advocated the approach found in the Indian case of Purshottam Das v State [1952] Cr LJ 856. In dealing with a provision of the Indian Criminal Procedure Code similar to the section under discussion, Desai J stated at p 860:

A magistrate is not a civil court and has no power to decide disputes about title. There was nothing in s 523 to authorise a magistrate to decide which party is the rightful owner of the property. His enquiry is limited to finding which person is entitled to possession. Once he ascertains the person from whose possession the property is seized, he must hold him to be entitled to its possession unless his possession was unlawful. [Emphasis added.]

7.The first part of the extract is unremarkable and I have no quarrel with it. It is clear from the local precedents and indeed, s 392 itself, that the magistrate may not make binding decisions about title to property. Counsel for the petitioners, however, relied on the portion highlighted in italics to set out a simple three-point test: first, the magistrate should ascertain the possessor at the time of seizure; secondly, he should ascertain if such possession was unlawful; and thirdly, in the absence of unlawful possession, the property should be returned as a matter of course to the person in whose possession it was immediately prior to seizure by the police.

8.I cannot agree that a magistrate must be constrained to such a simplistic approach. Suppose, for example, that X, who holds title, loans his property to Y for a day, who would then be in possession as a lawful licensee. At the end of the day, the property is seized from Y during police investigations, through no fault of X or Y. Although Y would be the party in possession at the time of seizure, Y could not possibly dispute that it is X who is entitled to possession. Although Desai J`s observation that the magistrate is unable to decide questions of title is a correct one, the mere inability to decide questions as to title does not and cannot lead to an inability to have regard to the party who holds title. Title and possession are related concepts. In many cases, the right to possession arises from the fact of having title. In other cases, although a party holds title, he may not, for various reasons, be the party entitled to possession: for instance, if he has leased his property to another for a period which has not expired.

9.In my view, a magistrate having charge of a disposal inquiry cannot abdicate his responsibilities by applying the three-step Purshottam Das test. He must look to the facts of each case to ascertain the party who is entitled to possession. In some cases, entitlement to possession will be plain from the facts presented. In other cases, he may not be so fortunate. But even where such entitlement is not clear from the evidence, the magistrate still ought to deliver possession to the party to whom, after a consideration of the evidence, appears to him to be entitled to possession. In such cases, the magistrate is severely handicapped by the lack of pre-inquiry disclosure of documents and evidence. As a result, his judgment must, in a sense, be exercised in a somewhat `rough and ready` fashion. This may be justified by the object of disposal inquiries, which is to achieve an expeditious method of distributing items no longer relevant to police investigations or court proceedings. It should be noted, in this context, as it was in Thai Chong Pawnshop Pte Ltd v Vankrisappan , that the magistrate`s ruling has no effect on a civil court, which is the correct forum in which to test complex issues of fact and law. In such cases, any party aggrieved ought to commence civil proceedings. A petition for revision is not the appropriate route. As I said in Magnum Finance Bhd v PP , the High Court`s power of revision is only exercised where there has been a fundamental error occasioning a clear failure of justice. It was with these principles in mind that I considered the petition for revision.

10. The disposal inquiry in the court below

This disposal inquiry concerned a car with registration number...