Sim Cheng Ho and Another v Lee Eng Soon

• Judge: Yong Pung How CJ
• Judgment Date: 13 October 1997
• Neutral Citation: [1997] SGHC 254
• Court: High Court (Singapore)
• Citation: [1997] SGHC 254
• Subject Matter: Criminal Procedure and Sentencing,Revision of proceedings,Relevant provisions applicable,ss 386 & 392 Criminal Procedure Code (Cap 68),Inconsistent and conflicting evidence adduced at inquiry,Courses of action open to petitioners,Whether magistrate's decision resulted in clear failure of justice,Disposal inquiry
• Published date: 19 September 2003
• Year: 1997
• Defendant Counsel: Philip Fong (Harry Elias & Partners)
• 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...