Tanglin Cars Pte Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 25 November 1996
• Neutral Citation: [1996] SGHC 273
• Docket Number: Criminal Revision No 8 of 1996
• Date: 25 November 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Mark Han Meng Kuan and Victor Mah (Yeo, Leong & Peh)
• Citation: [1996] SGHC 273
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Statutory offences,s 386 Criminal Procedure Code (Cap 68),Whether jurisdiction of subordinate courts to convene disposal inquiry excluded,Disposal of property,Accused authorised driver of vehicle subject to hire purchase agreement,Whether vehicle unlawfully in possession of accused,Criminal Law,s 28(b) Misuse of Drugs Act (Cap 185),Conduct of disposal inquiry,Forfeiture of vehicle,ss 28 & 34 Misuse of Drugs Act (Cap 185),Misuse of Drugs Act,Whether statutory exemption from forfeiture applicable,Conviction in High Court -Source of jurisdiction,Forfeiture of vehicle used in commission of capital offence of drug trafficking

The petitioners sought revision of an order forfeiting a vehicle bearing registration number SCE 6015G (the vehicle) pursuant to s 28 of the Misuse of Drugs Act (Cap 185) (MDA). The relevant portions of s 28 state:

Where a person has been convicted of an offence under this Act, the court may order to be forfeited to the Government any ship, hovercraft, aircraft or vehicle which has been proved to have been used in any manner in connection with the offence except that -

...

(b) no ... vehicle shall be forfeited under this section, if it is established by the owner thereof that the ... vehicle ... was unlawfully in the possession of another person without the owner`s consent.

The vehicle in question was registered in the name of one Ms Ramlah bte Reduan (the hirer). A hire-purchase agreement was executed on 12 August 1994 between the hirer and Citibank NA to finance the purchase of the vehicle. The petitioners were guarantors of the hire-purchase agreement pursuant to a motor dealer agreement with Citibank NA. The hirer`s sister, one Rahmah bte Reduan, was the other guarantor. Upon making full payment of all moneys due to Citibank NA under the hire-purchase agreement, the petitioners acquired all rights and interests of Citibank NA by way of subrogation.

On 4 September 1994, the vehicle was used by one Atan bin Joki (the accused) in the commission of a capital offence of drug trafficking. The accused was the husband of the hirer and he was the sole authorised driver of the vehicle. He was arrested and the vehicle was subsequently seized by the Central Narcotics Bureau (CNB). The accused was eventually found guilty and convicted of a charge of drug trafficking and sentenced to death. On 7 August 1995, his appeal was dismissed by the Court of Appeal (Crim App 23/95) (unreported). It was only after these proceedings were concluded that the CNB gave notice of their intention to forfeit the vehicle. The Registrar of the subordinate courts was notified that there were claimants to the vehicle. A magistrate was directed to convene a disposal inquiry at Changi Prison as the accused was already on death row.

At the conclusion of the disposal inquiry, held on 27 October 1995, the magistrate ordered the vehicle to be forfeited. The petitioners originally filed an appeal against the magistrate`s decision (MA 351/95). The appeal was permitted to lapse and deemed to be withdrawn, as the petitioners later conceded that there was no right of appeal from a disposal inquiry. The petitioners then commenced the present proceedings for criminal revision.

The preliminary question - jurisdiction to convene a disposal inquiry

The question of forfeiture of the vehicle was not addressed at either the High Court or the Court of Appeal. It eventually arose for consideration before a magistrate. According to the CNB, the disposal inquiry was convened pursuant to s 386 of the Criminal Procedure Code (Cap 68) (CPC).

The DPP raised a preliminary objection, contending that the magistrate had no jurisdiction to convene a disposal inquiry, since there was no room for s 386 CPC to operate. This argument was premised on the following comments from the decision of this court in Long Foo Jin v PP [1996] 1 SLR 663 (at p 666):

There was no scope, contrary to the arguments of the appellant, for the holding of a disposal inquiry. ... Section 386 is clearly intended to apply only in a residual role, that is when the offence-creating provisions do not deal with the issue of the disposal of property used or concerned in any offence.

In addition, the DPP also referred to Magnum Finance Bhd v PP [1996] 2 SLR 523 , in which this court held (at p 529):

Where forfeiture is discretionary, special provisions governing forfeiture may be contained in the relevant legislation (eg s 20(4) Environmental Public Health Act (Cap 95, 1988 Ed) or s 28 Misuse of Drugs Act (Cap 185)) . ... In these cases, there is no room for s 386 CPC to operate. As I have stated in Chandra Kumar and Long Foo Jin, s 386 CPC operates only in a residual role, that is when the offence creating provisions do not deal with the issue of the disposal of property used or concerned in any offence. [DPP`s emphasis.]

The DPP contended that s 386 of the CPC could not have operated to confer jurisdiction on the subordinate courts to hold a disposal inquiry, since s 28 of the MDA already deals specifically with the question of forfeiture in the case of drug offences. He pointed out that there was no time limit specified within s 28 MDA for an application for forfeiture to be made. Unlike s 386 CPC which states that the order must be made `during or at the conclusion of any inquiry or trial`, there were no similar restrictions in the MDA. He also submitted that as s 28 MDA was the only governing provision, the application to forfeit the vehicle would have to be made before the trial court, which would be the proper forum to consider the application.

In addressing these arguments, two issues had to be considered:

(a) Does s 28 MDA operate to exclude the convening of a disposal inquiry under s 386 CPC?

(b) Do the subordinate courts have jurisdiction to hold a disposal inquiry where the conviction was obtained in the High Court?

Issue (a)

In Long Foo Jin , I made the point that s 386 CPC would operate only in a `residual role` in response to the appellant`s argument in that case that a disposal inquiry pursuant to s 386 CPC ought to have been held. There was no scope for holding a disposal inquiry, since s 43(3B) of the Road Traffic Act (Cap 276, 1994 Ed) was the `special provision` which governed forfeiture in that case.

I went on to state (at p 667) that where there is any objection to forfeiture, `[s]uch issues could and should have been raised upon the hearing of the application of the Public Prosecutor to forfeit the vehicle`. It is at that stage that all the relevant issues pertaining to the disposal of the vehicle have to be addressed. Assuming that a statute provides for discretionary forfeiture (eg s 28 MDA), it must contemplate the release of the property in the exercise of the court`s discretion. If forfeiture is not appropriate, the court will have to determine who is immediately entitled to possession. An order for delivery to that person will then have to be made. The proceedings culminating in the issuance of this order may be properly termed `disposal` proceedings.

Similarly, a statute may specify mandatory forfeiture upon the fulfilment of certain preconditions. If, however, the court determines that the preconditions have not been met, it must follow that the property has to be released to the person entitled to possession. Alternatively, the application to forfeit may have been entirely misconceived in law. Once again, the appropriate order would be to release the property to the person entitled to possession. These proceedings would be properly termed `disposal` proceedings as well.

The DPP rightly argued that applying the reasoning in Long Foo Jin and Magnum Finance , there would be no room for holding a disposal inquiry under s 386 CPC in the present case. However, as I have sought to clarify above, it would not follow that a disposal inquiry can never be held. It does not mean that a potential claimant to the property will be shut out altogether. After all, the power of forfeiture contained in s 28 MDA is a discretionary one, and the release of the property is clearly contemplated by s 28(b). A claimant will still have a right to be heard. The proceedings in which the court adjudicates on the claim to the vehicle would be properly characterised as a `disposal inquiry`. The question is where the source of jurisdiction to convene such an inquiry is found, if it cannot arise from s 386 CPC.

While there is specific provision in s 28 MDA governing forfeiture, it is silent on the holding of an inquiry where there are claimants to the property. It must be noted that there are at least three cases ( Sing Hoe Motor Co Ltd v PP [1968] 2 MLJ 54 ; Chung Khiaw Bank Ltd v PP [1968] 2 MLJ 196 ; PP v Ong Ah Kau [1976] 2 MLJ 31 ) in which the Malaysian courts have ruled that where the specific forfeiture provision is silent on the holding of an inquiry, an inquiry under s 407(ii) CPC (the Malaysian equivalent of our s 386(2) CPC) should be held.

The leading authority is the Chung Khiaw Bank case, a decision of the Federal Court on a criminal reference from Kota Bahru. The criminal reference arose from an application for forfeiture of a vehicle seized under s 92 of the Road Traffic Ordinance No 49 of 1958. Section 92(4) reads:

An order for the forfeiture or for the release of any motor vehicle seized under the provisions of sub-section (2) shall be made by the court before which the prosecution with regard thereto has been held, and an order for the forfeiture of such vehicle may be made if it is proved to the satisfaction of the court that an offence against this section has been committed and that the vehicle was the subject matter of the offence, notwithstanding that no person may have been convicted of such an offence.

The first question on reference was whether the power of forfeiture contained in s 92 was mandatory. The second was whether the true legal owner of the vehicle had a right to be heard before any order of forfeiture was made. The court ruled that s 92 provided for discretionary forfeiture. McIntyre FJ went on to address the second question as follows (at p 199):

It must follow therefore that the right to hold an enquiry for the purpose of exercising that discretion is implicit in that very power itself. We are of the opinion that the court has also legislative sanction to dispose of any property seized to any person by virtue of the provisions of ss 406A and 407(ii) of the Criminal Procedure Code. An order made under these provisions is a judicial order and could be made only in accordance

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