MALAYAN BANKING BERHAD … APPLICANT v Penasihat Undang-Undang Jabatan Jabatan Perlindungan Hidupan Liar Dan Taman Negara (43-17-09 of 2017)

This is an application to revise the order of the Learned Sessions Court Judge (“SCJ”) given on 31.5.2017. The said order involved the forfeiture of a Toyota Hilux D/Cab 3.0 AT TRD, vehicle registration no. WC 6304 (“vehicle”), in the possession of one Ahmad Shah Bin Sarkon at the time of his arrest.

The said Ahmad Shah Bin Sarkon (“hereinafter, the accused”) was convicted and sentenced for 2 charges under section 60(2) of the Wildlife Conservation Act 2010 (Act 716) (“the Act”). 2

In addition, the said vehicle which was used in the commission of the crime, was ordered to be forfeited. The said vehicle was let by the Applicant as owner to the accused as hirer under a Hire Purchase Agreement at the material time. However, no notice was given to the Applicant prior to the forfeiture of the vehicle. The Applicant submitted that the act of forfeiting the vehicle without giving notice to them was unfair. Hence this application.

At the outset, it is necessary to be reminded that what is sought to be invoked are the revisionary powers of this court pursuant to section 323 of the Criminal Procedure Code (“CPC”). The powers of a judge upon revision are contained in section 325 of the CPC which reads :

Powers of judge on revision

A Judge may, in any case the record of the proceedings of which has been called for by himself or which otherwise comes to his knowledge, in his discretion, exercise any of the powers conferred by sections 311, 315, 316 and 317 of this Code.

No order under this section shall be made to the prejudice of the accused unless he has had on opportunity of being heard, either personally or by advocate, in his own defence.

Nothing in this section shall be deemed to authorise a Judge to convert a finding of acquittal into one of conviction [5] These powers were also explained by Hashim Yeop Sani J (as he then was) in Public Prosecutor v. Kulasingam [1972] 2 MLJ 26 as follows : “The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to sub-sections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction in order to correct or prevent a miscarriage of justice. In a revision the main question 3 to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice.” [6] Mallal’s Criminal Procedure, 7th Edition at pg 581 in explaining the difference between appellate and revisional jurisdiction stated : “In an appeal it is the duty of the appellate court to examine the evidence and come to an independent finding on each issue of fact but a court sitting in revision deals with questions of evidence or disturbs the finding of fact by the lower court only in very exceptional cases, to prevent a miscarriage of justice.” [7] The principle objective then of the revisionary powers of the court is to correct or prevent a miscarriage of justice. C) ANALYSIS OF ARGUMENTS AND DECISION [8] Section 110(1) of the Act provides as follows :

Any wildlife, part or derivative of any wildlife, snare, trap, bait, poisoned bait, arms, conveyance, book, record, document or thing seized in the exercise of any powers under this Act shall be liable to forfeiture. (Emphasis added) [9] Section 110 (2) mandates an order for the forfeiture of inter alia, any conveyance seized in the event of a prosecution if it is proved to the satisfaction of the court that an offence under the Act has been committed and the conveyance inter alia, was used in the commission of the offence even though no person has been convicted of such offence. [10] Section 110(3) stipulates that if there is no prosecution under the Act the conveyance inter alia shall be taken and deemed to be forfeited at the expiration of a period of one calendar month from the date of service of a notice to the last-known address of the person 4 from whom the conveyance inter alia was seized indicating that there is no prosecution in respect of such conveyance unless before the expiration of that period a claim to it is made in the manner set out in subsections (4), (5), (6) and (7). [11] Section 110(4) stipulates :

Any person asserting that he is the owner of the wildlife, part or derivative of any wildlife, snare, trap, bait, poisoned bait, arms, conveyance, book, record, document or thing referred to in subsection (3) and that the wildlife, part or derivative of any wildlife, snare, trap, bait, poisoned bait, arms, conveyance, book, record, document or thing is not liable to forfeiture may personally or by his agent authorized in writing, give written notice to the enforcement officer in whose possession such wildlife, part or derivative of any wildlife, snare, trap, bait, poisoned bait, arms, conveyance, book, record, document or thing is held that he claims the wildlife, part or derivative of any wildlife, snare, trap, bait, poisoned bait, arms, conveyance, book, record, document or thing. (Emphasis added) [12] Section 110 (4) of the Act therefore prescribes the manner in which a person who asserts his ownership of the conveyance inter alia may exercise his right to claim such conveyance in cases under sub section 3 where there was no prosecution. The “conveyance” refers to the said vehicle. [13] Where however there is a prosecution initiated under the Act, as occurred in this case (see section 110(2)), the sub section is silent on whether an owner affected by forfeiture has any recourse to assert ownership or be given any notice of forfeiture. [14] Pursuant to a Hire Purchase Agreement (“HPA”) dated 17.3.2016, the said conveyance or vehicle was hired out to the accused by the Applicant. The vehicle was proven to be involved in a contravention of the Act and as a result was subjected to forfeiture 5 under the Act pursuant to the prosecution and conviction of the accused. [15] Learned counsel for the Applicant submitted that pursuant to section 37 of the Hire Purchase Act 1967, the hirer is obliged to give notice in writing to the owner as Applicant where the goods comprised in the HPA is removed out of the hirers possession, the hirer here being the said accused. Therefore, using this as a guide, notice should have been given to the Applicant as owner of the vehicle before forfeiture took place. The failure to do this resulted in a breach of natural justice. [16] Adopting this argument however would involve the court reading words into the statute that are simply not there. [17] There is a plethora of authorities that state that the courts should not read words into the statute that are not there. It is to be taken therefore that if Parliament had intended that the court must notify an owner of a conveyance or vehicle and require him to show cause why such conveyance should not be forfeited in the event of a prosecution, it would have expressly said so. [18] In the absence of this, it is not for this court to indulge in effectively what would be legislation that such notice or right to claim ought to be given. See PP v Chu Beow Hin [1982] 1 MLJ 135. [19] The words employed in section 110 were clear and unambiguous and therefore left no room for reading words into the Act. In the case of United Overseas Bank (Malaysia) Sdn Bhd v UJA Sdn Bhd & Another Appeal [2010] 6 CLJ 204, the Court of Appeal held : “[6] With respect I am unable to agree. It is true that courts have sometimes to read words into provisions in an Act of Parliament to prevent an absurdity from resulting. But where the language employed is clear and unambiguous, it is not the function of the court to re-write the statute in a 6 way in which it considers reasonable. As Seah SCJ said in NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1986] 1 LNS 79: It must always be borne in mind that we are judges, not legislators. The constitutional function of the courts is not only to interpret but also to enforce the laws enacted by Parliament. In enforcing the law we must be the first to obey it. It should be noted that the power of a court to proceed in a particular course of administering justice, was one of substance and not merely of form. The duty of the court, and its only duty, is to expound the language of Act in accordance with the settled rules of construction. The court has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. It seems to us to be unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature (see Lord Chelmsford in R v Hughes [1866] LR 1 PC 81, 91 and Lord Macnaghten in Vacher & Sons v London Society of Compositors [1913] AC 107). [7] In Vickers, Sons and Maxim, Limited v Evans [1910] AC 444, Lord Loreburn, LC, said (at p. 445): My Lords, this appeal may serve to remind us of a truth sometimes forgotten, that this House sitting judicially does not sit for the purpose of hearing appeals against Acts of Parliament, or of providing by judicial construction what ought to be in an Act, but simply of construing what the Act says. We are considering here not what the Act ought to have said, but what it does say; … The appellants’ contention involves reading words into this clause. The clause does not contain them; and we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” (Emphasis added) 7 [20] Although the Applicant as owner of the goods have lost possession of the conveyance, their remedy lies in the enforcement of their contractual rights under the HPA. So, they are not altogether without recourse. [21] The court or the Wildlife Enforcement authority are not privy to the HPA between the Applicant and the accused. Any attempt to impose or impute such knowledge or responsibility on them would be contrary to the contractual principle of privity of contract and would be imposing on them a burden which the Legislature had not seen fit to do. [22] Furthermore, the hirer of goods, by virtue of section 37 of the HPA 1967 commits an offence where he fails to inform the owner that the said goods are removed from are taken out of the hirer’s possession within a certain specified period. The Applicant is at liberty to lodge a police report and leave it to the appropriate authorities to pursue whatever action they see fit. The remedies available to the Applicant therefore lie within the four corners of the HPA which they are contractually entitled to pursue. [23] Under the circumstances therefore, there was no contravention of Article 13 of the Federal Constitution, as contended by learned counsel for the Applicant. The deprivation of the conveyance or vehicle of the Applicant was done in accordance with the law, namely, the provisions of section 110 of the Act. [24] Section 413 of the Criminal Procedure Code cited by the Applicant which empowers a Magistrate to cause a notice to be served in cases where property seized may have been used in the commission of an offence is a general provision and in accordance with the maxim “generalia specialibus non derogant” cannot override a specific statute or provision, namely, the said Act. 8 [25] In the premises, the Applicant’s application for revision is dismissed. Dated : 4th December 2017 ~ SIGNED ~ (COLLIN LAWRENCE SEQUERAH) Judge High Court of Malaya Johor Bahru COUNSELS : Counsel for the Applicant : Puan Azlinda Binti Zainal Abidin Messrs.K. Sila Dass & Partners Advocates & Solicitors No. 24 & 26, Jalan Lambak P.O. Box. 86007 Kluang Johro Darul Takzim T : 07-7721467 F : 07-7724096 Counsel for the Respondents : TPR Puan Nur Ainaa Ridzwan Penasihat Undang-Undang Jabatan Jabatan Perlindungan Hidupan Liar Dan Taman Negara (PERHILITAN) Negeri Johor Tingkat 9, Blok B Wisma Persekutuan Jalan Air Molek 80000 Johor Bahru