Volkswagen Financial Services Singapore Ltd v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 21 March 2006
• Date: 21 March 2006
• Docket Number: Criminal Revision No 2 of 2006
• Court: High Court (Singapore)

Volkswagen Financial Services Singapore Ltd

Plaintiff

and

Public Prosecutor

Defendant

[2006] SGHC 48

Yong Pung How CJ

Criminal Revision No 2 of 2006

High Court

Criminal Procedure and Sentencing–Confiscation and forfeiture–Whether court can order forfeiture due to seriousness of offence–Section 4 Road Vehicles (Special Powers) Act (Cap 277, 1985 Rev Ed)–Criminal Procedure and Sentencing–Revision of proceedings–Whether hardship caused by forfeiture attracting criminal revision–Applicable principles–Words and Phrases–“Shall”–Sections 4 (1) and 4 (3) Road Vehicles (Special Powers) Act (Cap 277, 1985 Rev Ed)

The petitioner sought criminal revision of a forfeiture order made under s 4 of the Road Vehicles (Special Powers) Act (Cap 277, 1985 Rev Ed). A motor car belonging to the petitioner under a hire-purchase agreement (“the vehicle”) was ordered to be forfeited consequent to the conviction of the hirer's husband who used the vehicle to commit robbery, theft and snatch theft. The petitioner argued that the court retained the discretion to make a forfeiture order, and that it was entirely innocent of wrongdoing. The petitioner relied on the fact that forfeiture would not have any deterrent effect since the wrongdoer was not the person who suffered loss as a result of the forfeiture.

Held, dismissing the petition:

(1) If the trial court had erred in ordering forfeiture to the extent that there was a fundamental error occasioning clear failure of justice, the High Court could exercise revisionary jurisdiction: at [11].

(2) The courts should not be too quick in indulging and condoning such pernicious acts. In the circumstances, forfeiting the vehicle would not be disproportionate to the offences committed. There was evidently no serious injustice: at [35].

(3) The absence of criminal involvement by the petitioner was irrelevant. It was incumbent on finance and hire purchase companies to take extra care when entering into hire purchase agreements for their vehicles. Mandatory forfeiture placed the onus on vehicle owners to exercise due diligence to ensure their vehicles did not serve as transportation tools to facilitate criminal activity: at [37] and [38].

(4) Once the Attorney-General had made a forfeiture application, the courts should only be concerned with whether the three conditions had been met (ie the vehicle must have been used in connection with a scheduled offence, the police had to have seized the vehicle and the Attorney-General must have applied for forfeiture). When the three conditions had been met, a forfeiture order had to be made: at [27] and [48].

[Observation: Justice ought to be administered in accordance with the law, more so if the law was clear and precise. The courts had no choice but to adopt the law in its totality. Citing parliamentary debates would be of little use if the legislation required no further explanation. Such extrinsic materials would then be rendered otiose and would result in a waste of the court's time: at [47].]

Credit Corporation (M) Bhd v PP [2000] 2 SLR (R) 938; [2000] 3 SLR 762 (folld)

Hong Leong Finance Ltd v PP [2004] 4 SLR (R) 475; [2004] 4 SLR 475 (folld)

Magnum Finance Bhd v PP [1996] 2 SLR (R) 159; [1996] 2 SLR 523 (folld)

Toh Teong Seng v PP [1995] 1 SLR (R) 757; [1995] 2 SLR 273 (distd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 268

Environmental Public Health Act (Cap 95, 1988 Rev Ed) ss 18, 19, 20, 21

Interpretation Act (Cap 1, 2002 Rev Ed) s 9A

Penal Code (Cap 224, 1985 Rev Ed) ss 34, 356, 379, 392

Road Vehicles (Special Powers) Act (Cap 277, 1985 Rev Ed) ss 4, 4 (1), 4 (2) (consd);s 6, Schedule para 1 (i)

Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) s 23

Lim Lian Kee (Chong Chia & Lim LLC) for the petitioner

Lee Lit Cheng (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was a petition by Volkswagen Financial Services Singapore Ltd (“VFS”) seeking criminal revision of the order for forfeiture of a Mazda 323 motor car (“the vehicle”) bearing registration number SDN 2364 R, on 15 February 2006, pursuant to the Prosecution's application under s 4 of the Road Vehicles (Special Powers) Act (Cap 277, 1985 Rev Ed) (“the Act”). I dismissed the petition and now give my reasons.

Background facts

2 The petitioner, VFS, was the owner of the vehicle and entered into a hire purchase agreement on 28 July 2004 with one Yogeswari d/o Thiagarajan (“Yogeswari”).

3 Between 28 July 2004 to 5 August 2004, Yogeswari's husband, one Balamurukan s/o Kuppusamy (“Balamurukan”), used the vehicle to commit the offences of robbery (s 392 of the Penal Code (Cap 224, 1985 Rev Ed)), theft (s 379 of the Penal Code) and snatch theft (s 356 read with s 34 of the Penal Code). Balamurukan subsequently faced 15 charges for these offences, as well as for driving whilst under disqualification and driving without insurance.

4 He pleaded guilty to these offences and had been sentenced on 17 August 2005 to seven years of corrective training, 18 strokes of the cane and disqualification from driving for 16 years from the date of his release from prison.

The petitioner's case

5 VFS submitted that the court retained the discretion to make a forfeiture order. The court should apply Toh Teong Seng v PP [1995] 1 SLR (R) 757 which interpreted s 20 of the Environmental Public Health Act (Cap 95, 1988 Rev Ed) (“the 1988 EPHA”) which has since been repealed, and held that the court had a discretion to forfeit or release the vehicle. It contended that Toh Teong Seng v PP was a case on all fours with the present and s 4 of the Act was materially identical to s 20 of the 1988 EPHA. In particular, VFS submitted that as s 4 (3) of the Act referred to the discretion of the “court before which the prosecution with regard to the scheduled offence has been held”, it cannot refer to the instances under ss 4 (4) and 4 (6) which were instances “without prosecution”. Therefore, s 4 (3) effectively referred to forfeiture under s 4 (1). I will have occasion to return to this point later.

6 VFS also claimed that it was entirely innocent of wrongdoing, was an innocent third party, had no knowledge of the use of the vehicle in the commission of the offence, and did not benefit from the commission of the offence.

7 Further, VFS argued that the forfeiture would not have any deterrent effect whatsoever since the wrongdoer was not the person who suffered loss as a result of the forfeiture. To allow forfeiture would amount to imposing an additional fine which was out of proportion in the circumstances.

The respondent's case

8 The Deputy Public Prosecutor (“DPP”) submitted that the trial judge was correct in holding that forfeiture under s 4 (1) of the Act was mandatory. Toh Teong Seng v PP did not apply because s 4 of the Act was not similarly worded as s 20 of the 1988 EPHA. The DPP argued that this difference in wording was significant because without specifically referring to s 4 (1) of the Act, there was no conflict between ss 4 (1) and 4 (3) of the Act.

9 Moreover, a perusal of the...