Pendakwa Raya v MSIM ENTERPRISE (BD-89-63-02/2023)

BD-89-61-02/2023 (“Case 61”) – Lorry Rigid Dumper / Tipper (WCJ 6961); and

BD-89-63-02/2023 (“Case 63”) - Lorry Rigid Dumper / Tipper (WFJ 4901), (both the lorries in Cases 61 and 63 are hereinafter referred to as the “vehicles”). [2] Parties filed their respective written submissions in Encl(s). 5, 6 and 9 for both Cases 61 and 63. S/N 2NIFooUdB04dycth7rFGg [3] The hearing(s) of the forfeiture applications for both Cases 61 dan 63 were heard together and dismissed by this Court on 8.2.2024. The applicant sought for a stay of execution of the Court’s order(s) for both cases pending the disposal of the appeal(s) at the High Court, were allowed. Brief facts [4] Both respondents in Cases 61 and 63 were charged in this Court on 12.1.2023 under section 57(1)(a) &(b)(vi) of the Act 715 vide case(s) no. BD- 87-14-01/2023 and BD-87-16-01/2023. [5] The charges framed under section 57(1)(a) &(b)(vi) of the Act 715 read as follow: “57 Conditions which may be attached to operator's licence

Subject to this Act, the Director General of Land Public Transport may attach to an operator's licence issued under this Chapter such conditions as it may think fit, and in particular–

that the licensed operator shall, in connection with his operator's licence, only use the goods vehicles of the class of goods vehicles specified in the operator's licence to operate or provide the goods vehicle service specified in the operator's licence; and

that the licensed operator shall have such duties, rights, obligations or restrictions as may be imposed by the Director General of Land Public Transport, including-

(vi) that the laden weight of any goods vehicle shall not exceed a specified maximum;” [6] Both the respondent pleaded guilty to the charges framed against them and subsequent to that, the respondent in Case 61 was convicted and sentenced to a fine of RM25,500.00 in default, 6 months’ imprisonment on 12.1.2023 whereas the respondent in Case 63 was sentenced to a fine of RM18,000.00 in default, 3 months’ imprisonment on 23.2.2023. [7] There were no application(s) by the applicant to forfeit the vehicles during which the prosecution proceedings were conducted in the Court, and the fines were fully paid by the respondents respectively the same day on which they were convicted and sentenced accordingly. [8] The present applications in Encl(s). 1 were later filed at this Court on 2.3.2023 and both the respondents were represented by the same counsel, and prayed for both cases to be heard together. [9] For various reasons and upon the mutual agreement by the parties, several case management dates were been fixed for both Cases 61 and 63 from 3.5.2023 to 6.12.2023, pending the filing of affidavits, written submissions, pending the decisions of the High Court, Shah Alam pertaining S/N 2NIFooUdB04dycth7rFGg to similar cases to which the decisions were relevant to the present cases vide case(s) no. BA-41(ORS)-7-03/2023 and BA-41(ORS)-8-03/2023. [10] Hearing(s) for both applications were later fixed on 8.2.2024 and after which, the decision(s) of the Court were delivered on the same day in favour of the respondents. [11] The respondents had also put in (2) cross-applications seeking for order(s) of release of the vehicles in Encl(s). 10 for both Cases 61 and 63, however, these applications were struck out by this Court due to non-presence of the parties in the Court on 20.2.2024, understandably due to the dismissals of Encl(s). 1 by this Court on 8.2.2024 which rendered the applications in Encl(s). 10 redundant. [12] Dissatisfied with the decisions of this Court in Encl(s). 1 for both Cases 61 and 63, the notices of appeal were later lodged with the High Court of Shah Alam on 21.2.2024 in Encl(s). 13. Applicant’s Submissions - Cases 61 & 63 [13] Briefly, the applicant submitted that–

considering that the respondents were found guilty and convicted for the charge(s) framed against them under sections 57(1)(a) and

(b)(vi) of the Act 715, therefore the application(s) for forfeiture of S/N 2NIFooUdB04dycth7rFGg the vehicles shall be made to the Court taking into account the fact that the commission of the offence had been proven;

the cases of Reza Kianmehr v PP [2012] MLJU 1514; Nor Azman bin Ghadzali v PP [2012] 1 MLJ 486 and Guan Hin Enterprise

(M) Sdn Bhd & Ors v PP [2015] MLJU 2199 were referred to by the applicant to support its applications for forfeiture of the vehicle in particular, emphasizing that the Court has the jurisdiction to hear and shall grant the forfeiture orders even after the prosecution proceedings of the offences for which the respondents were charged had completed, convicted and sentences passed against them;

the legal principle of functus officio has no application in the present cases citing the decisions of SQA Builders Sdn Bhd v Luxor Holdings Sdn Bhd & Anor [2023] 1 LNS 369; and Palautah Sinnappayan & Anor v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2010] 2 CLJ 133;

referring to cases of Keng Soon Finance v Pegawai Kanan Kastam, Johore Bahru [1981] 2 MLJ 249 and Zainuddin Mohamad Ali & Anor v PP [2021] 1 LNS 1992, and submitted that, no prejudice to the respondents, no unjust enrichment as the provisions of law / offences under section 57(1)(a) and (b)(vi) of the Act 715 were enacted to ensure that vehicle operators / owners do not misuse their vehicles thereby endangering other S/N 2NIFooUdB04dycth7rFGg users and the public and also to serve as deterrent against committing offences;

the respondents had numerous previous records under sections 57(1)(a) and (b)(vi) of the Act 715;

the applications for forfeiture were made in compliance with the provisions of law under Act 715, and the fundamental elements in proving the commission of the offence had been satisfied by virtue of sections 80(3) and (4) of the Act 715, therefore prayed for order(s) of forfeiture of the vehicles be granted by this Court; and

in the appeal cases of BA-41(ORS)-7-03/2023 and BA-42(ORS)- 7-03/2023, the High Court of Shah Alam had affirmed the Kajang Magistrate’s decisions in allowing the forfeiture applications by the applicant. Respondent(s)’ Submissions – Cases 61 & 63 [14] In brief, the respondents submitted as follows:

referring to the cases of Dato’ Dr Mahmud bin Mohd Nor & Anor v Dr Mohd Ismial bin Abdul Hamid [2023] 4 MLJ 668, Sudarajan a/l Sokalingam v Fredrick Indran a/l XA Nicholas Perak Bar Committee, the word ‘may’ as provided in section 80(1) of the Act S/N 2NIFooUdB04dycth7rFGg 715 shows that the Court has the power to dismiss the applicant’s applications for forfeiture of the vehicles;

the charges framed against the respondents in case(s) no. BD- 87-14-01/2023 and BD-87-16-01/2023 were defective as the charges failed to mention the power to seize the vehicles under section 80 of the Act 715;

therefore, the applicant is not allowed to make the present applications for forfeiture of the vehicles on the ground that the application had failed to mention the forfeiture provisions under section 80 of the Act 715 in the charges;

the respondents had pleaded guilty and sentenced by the Court including the fines which were fully paid and no forfeiture of the vehicles being prayed by the applicant during the course of the prosecution proceedings, therefore, the Court is functus officio citing the case of PP v Nasrun Effendi [2008] 4 MLJ 272; Tan Guek Tian & Anor v Tan Kim Kiat [2007] 6 MLJ 260; Kanada Chandler v Alberta Associations of Architects [1989] 2 SCR 848;

the fines imposed by the Court were excessively high, placing a heavy burden on the respondents. Furthermore, this situation constitutes double jeopardy for the respondents, as they had already paid fines; and

no grounds of judgment in respect of cases of BA-41(ORS)-7- 03/2023 and BA-42(ORS)-7-03/2023, and also these cases are presently pending appeals in the Court of Appeal. Issues [15] Upon careful scrutiny and consideration of the applications in Encl(s). 1 for Cases 61 and 63, supporting documents, legal authorities and written submissions, this Court finds that the following two (2) issues are most pertinent for this Court’s determination:

whether the applicant has proven to the satisfaction of this Court that the respondents in the present Cases 61 and 63 have committed an offence under section 57(3) of the Act 715 and reading the same together with sections 80(1), (3) and (4) of the

by virtue of sections 80(3) and (4) of the Act 715, whether this Court has the power/discretion to grant an order for the forfeiture the vehicles seized under section 80(1) of the Act 715. Analysis and Findings [16] Section 80(1) of the Act 715 reads as follows: S/N 2NIFooUdB04dycth7rFGg 80 Power to seize relevant vehicle for certain offences

Any relevant vehicle in respect of which there has been or there is reasonable cause to suspect that there has been committed any offence against section 16, 28, 36, 46, 51 or 63, subsection 22(3), 41(3) or 57(3), or paragraph 23(1)(b), 42(1)(b) or 58(1)(b) may be seized by any police officer not below the rank of Inspector, road transport officer or land public transport officer, at any place. [17] In short, this provision grants the authority to seize a relevant vehicle if there is reasonable cause to suspect that it has committed certain offences under sections 16, 28, 36, 46, 51, or 63, as well as subsections 22(3), 41(3), or 57(3), or paragraphs 23(1)(b), 42(1)(b), or 58(1)(b). The seizure can be carried out by a police officer of at least the rank of Inspector, a road transport officer, or a land public transport officer, at any location. [18] Whereas, the provisions in sections 80(3) and 80(4) of the Act 715 stipulate that–

An order for the forfeiture or for the release of any relevant vehicle seized under subsection (1) shall be made by the court before which the prosecution with regard thereto has been held.

An order for the forfeiture of a relevant vehicle under subsection (3) shall be made if it is proved to the satisfaction of the court that an offence against any of the provisions referred to S/N 2NIFooUdB04dycth7rFGg under subsection (1) 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. [19] In other words, sections 80(3) and (4) of the Act 715 provide that the Court shall grant an order for forfeiture if the Court is satisfied that an offence as stipulated in section 80(1) has been committed. This Court opines that this is a four-pronged test (fundamental elements) as established and to be satisfied under sections 80(1), (3) and (4) of the Act 715, wherein–

firstly, there has to be reasonable cause to suspect that there has been committed any offence against section 16, 28, 36, 46, 51 or 63, subsection 22(3), 41(3) or 57(3), or paragraph 23(1)(b), 42(1)(b) or 58(1)(b);

secondly, by virtue of section 80(3), an order for the forfeiture for any relevant vehicle seized under section 80(1) shall be made by the court at which the prosecution has been held;

thirdly, by virtue of section 80(4), it has to be proven to the satisfaction of the court that an offence referred to in section 80(1) has been committed; and

the vehicle was the subject matter of the offence, even when no one may have been convicted of the offence. S/N 2NIFooUdB04dycth7rFGg [20] It is an undisputed fact that the relevant offence at present is section 57(3) of the Act 715. Section 57(3) of the Act 715 provides– 57 Conditions which may be attached to operator's licence

A licensed operator who fails to comply with any of the conditions attached to the operator's licence under this section commits an offence and shall, on conviction, be liable to a fine of not less than one thousand ringgit but not more than five hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both. [21] This provision essentially provides for the penalty for licensed operators who fail to comply with the conditions attached to their operator's license. Despite the language stating that failure to comply is an offence, it is important to note that the purpose of this provision is to establish and / or prescribes the consequences for violating certain conditions, rather than establishing a criminal offense in and of itself. [22] By examining and reading the provisions in sections 80(1), 80(3), 80(4) and 57(3) of the Act 715 closely and applying the same to the present cases, this Court is of the view that the four-pronged test as established above has not been satisfied and / or proven by the applicant. [23] This is because it is apparent while section 80(1) allows for the seizure of a vehicle if there is reasonable cause to suspect the licensed operators commit an offence under section 57(3), and likewise, while sections 80(3) S/N 2NIFooUdB04dycth7rFGg and (4) provide that the Court shall grant an order for forfeiture if the Court is satisfied that an offence under section 57(3) has been committed, be that as it may, it is evident that section 57(3) does not constitute an offence but rather a penalty provision. [24] The emphasis is that, section 57(3) of the Act 715 pertains not to an offence but rather to the imposition of penalty as the said section discloses no offence but a punishment for violating the offences in sections 57(1) of the same Act. [25] In the present Cases 61 and 63, the respondents were charged and pleaded guilty before this Court in respect of the cases no. BD-87-14- 01/2023 and BD-87-16-01/2023 for the offences committed under sections 57(1)(a) and (b)(vi) of the Act 715 and the respondents had not at any material time committed any offence under section 57(3) of the Act 715 nor did the respondent plead guilty to the same, which is essentially a penalty provision. [26] The rule of construction of penal law is that acts imposing criminal or other penalties should be clear and unambiguous and should be construed narrowly in favour of the person proceeded against. Maxwell on Interpretation of Statutes, 12th Edition at page 239 states as follows: "The principle applied in construing a penal Act is that if, in construing the relevant provisions, 'there appears any reasonable doubt or ambiguity,' it will be resolved in favour of the person who would be S/N 2NIFooUdB04dycth7rFGg liable to the penalty. 'If there is a reasonable interpretation which will avoid the penalty in any particular case,' said Lord Esher M.R., 'we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections'." "The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction." [27] The case of PP v Samsul Zariman Zulkapli [2019] 10 CLJ 651 is instructive wherein the High Court in allowing the appeal held that – “[16] Section 39C (just as in the case of s. 39A ) is not a criminalisation provision. It is a punishment provision. No person can be charged and found guilty under that section. Section 39C is an extension of s. 10(2)(b), s. 15(1)(a) and s. 31A. A person must be charged and found guilty under s. 10(2)(b), s. 15(1)(a) or s. 31A, and one of the criteria sets out in s. 39C(1)(a)-(e) shall have been fulfilled before s. 39C can be triggered. This is unequivocally clear when the provision states: S/N 2NIFooUdB04dycth7rFGg Where a person who has not less than... is found guilty of an offence under paragraph 10(2)(b), paragraph 15(1)(a) or section 31A, he shall, instead of being liable to the punishment provided... be punished with... [17] Thus, the prosecution was correct when they drafted the charge against the respondent that read: ... Oleh yang demikian kamu telah melakukan suatu kesalahan di bawah s. 15(1)(a) ADB 1952... yang boleh dihukum di bawah s. 39C(1) Akta yang sama. [18] The charge also correctly enumerated the two previous convictions against the respondent under s. 15(1)(a) DDA, as evidenced by exh. P7, that enabled the prosecution to invoke the increased penalty provision under s. 39C(1) as the criteria enumerated in the second limb of s. 39C(1)(b), viz. "two previous convictions under s. 15(1)(a) ", had been fulfilled. [19] The language used under s. 38B(1) DDA is "Where a person is found guilty of an offence under s. 15, he shall, immediately after having undergone the punishment imposed upon him in respect thereof,...". [20] It is my finding that the said phrase "punishment imposed upon him in respect thereof" was drafted with the intent to cover the following two situations: S/N 2NIFooUdB04dycth7rFGg

A person is charged for an offence under s. 15 and punished under s. 15; or

(ii) A person is charged for an offence under s. 15(1)(a) and punished under s. 39C. [21] Had Parliament intended that s. 38B only covers a situation when a person is charged under s. 15 and also punished under the same s. 15, as decided by the learned HMS, it is my finding that Parliament would have worded s. 38B differently, such as: Where a person is found guilty of an offence under section 15, he shall, immediately after having undergone the punishment imposed upon him under that section... (emphasis added)” [28] Applying the case of PP v Samsul Zariman Zulkapli (ibid) and the rule of construction of penal law to the present Cases 61 and 63, it is plain and clear that the offences committed by the respondents under sections 57(1)(a) and (b)(vi) of the Act 715 for which the respondents were charged and pleaded guilty, are clearly not stipulated in sections 80(1), (3) and (4) of the Act 715. [29] The relevant provision of law which empowers the invocation of sections 80(1), (3) and (4) of the Act 715 in the present cases is none other than section 57(3), a penalty provision in which the respondents cannot be S/N 2NIFooUdB04dycth7rFGg held liable for the commission of the same as section 57(3) is definitely not an offence but a penalty provision for the offences under section 57(1) of the Act 715. [30] Therefore, in the absence of sections 57(1)(a) and (b)(vi) of Act 715 being explicitly specified as the criminalization provision in section 80(1), (3) and (4) of the same Act, the applicant cannot invoke and / or rely on section 80(3) of Act 715 to apply to this Court for orders of forfeiture of the vehicles as the there can be no offence committed under section 57(3) of the Act 715 by the respondents and hence, the four-pronged test under sections 80(3) and (4) has not been satisfied and / or proven by the applicant. [31] The wordings in the Act 715, in particular, sections 80(1), (3) and (4) are unambiguous and must be adhered to by this Court religiously, regardless of any perceived undesirability. It is incumbent upon the Parliament and the Attorney General’s Chambers to address any issues that may arise from such provisions and remedy the same in order to reflect the intention of the Parliament. [32] This Court further opines that the cornerstone of sections 80(1), (3) and

of the Act 715 lies in the criminal legality of the criminalization provisions therein, which dictates the acts and / or an action which should be deemed the offences and such offences shall be punishable with clear legal provisions under the Act, in the present case, the relevant provision is section 57(3). Sections 80(1), (3) and (4) of the Act 715 therefore confine itself to the scope of criminalization exclusively to what is drafted in the same Act in S/N 2NIFooUdB04dycth7rFGg ensuring that the order of forfeiture or release of an vehicle can only be enforced unless the four-pronged test has been met and satisfied. [33] Therefore, sections 80(1), (3) and (4) of the Act 715 must incorporate specific criminalization provisions for the precise punitive measures, (intentionally drafted) to clarify the illegal acts and ensure that the criminalization provisions align with the law's intent. This aims not to ensnare individuals but rather to establish clear a punitive measures consistent with the law and hence, this Court holds the opinion that it is not permissible to apply the punitive measures under sections 80(3) and (4) of the Act 715 that clearly do not match with the respondents' offences under sections 57(1)(a) and (b)(vi) of Act 715 or to interpret the same in a manner exceeding the parliament's intended scope of provisions of criminalization as stipulated in sections 80(1), (3) dan (4) of the same Act. [34] It is elementary that penalty provisions focus on the consequences or sanctions imposed upon individuals who are found guilty of committing offences. Unlike criminalization provisions, penalty provisions do not define the prohibited conduct itself but rather specify the consequences or penalties that may be imposed upon those found guilty of committing offences. [35] In the premises, this Court holds that the applicant has failed to prove to the satisfaction of this Court that an offence of section 57(3) of the Act 715 has been committed by the respondents and therefore, by virtue of sections 80(3) and (4) of the Act 715, this Court shall not exercise its discretion to grant an order for the forfeiture the vehicles. S/N 2NIFooUdB04dycth7rFGg Conclusion [36] Based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all supporting documents and written submissions of the parties, the applications in Encl(s). 1 in Cases 61 and 63 are dismissed with no costs. Dated: 18.3.2024 t.t (CHAI GUAN HOCK) Magistrate Selayang (2) Selangor Counsel/Solicitors For the Applicant: Tuan Saharudin bin Haji Safirol; dan Tuan Mohd Syaiful Sanusi Bin Salleh (Jabatan Pengangkutan Negeri Selangor) For the Respondents: Mr. Gobinath A/L Mohanna The Law Office of Mohanna & Co. S/N 2NIFooUdB04dycth7rFGg 2A, Jalan 2/8, Baru Selayang 68100 Batu Caves, Selangor S/N 2NIFooUdB04dycth7rFGg