Star Gravity Enterprise (NE-87-169-11/2025)

This case concerns an offence involving an overloaded goods vehicle.

The current prosecutorial trend is to invoke section 80(4) of the Land Public Transport Act 2010 (the Act) during sentencing where an accused person is charged under section 57(1)(b)(vi) and punishable under section 57(3) of the Act, as in the present case.

In the present case, the representative on behalf of the person summoned (‘the person summoned’) pleaded guilty to the charge and was sentenced to a fine of RM5,000.00, in default five (5) months’ imprisonment. The fine has been paid in full. The prosecution was satisfied with the sentence imposed.

The only aspect of the decision with which the prosecution is dissatisfied is the order made by this Court for the release of the seized vehicle.

These are my grounds for granting the order of release. Brief Background 6. On 21.1.2026, the person summoned appeared before me on a charge under section 57(1)(b)(vi) of the Land Public Transport Act 2010.

The charge, which was read and explained to the person summoned, is replicated here:- i. Bahawa kamu pada 03.11.2025 lebih kurang jam 08.55 AM di KM2 Jalan Serting Tengah Batu Kikir dalam daerah Jempol di dalam Negeri Sembilan sebagai Pengendali Berlesen kenderaan barangan bernombor pendaftaran SD9896N yang telah dilesenkan dibawah Lesen Pengendali SPAD: 200503029363 , No Rujukan Permit : 2N0209690-6/18 telah didapati membenarkan pemandu PANNERSELVAM A/L MUNIANDY No K/P : 790617055415 memandu kenderaan tersebut di atas jalanraya dengan membawa muatan tanah sebanyak 45140KG iaitu lebihan muatan sebanyak 21140KG(88.08 %) dari berat dengan muatan sepertimana yang dibenarkan di dalam lesen atau Permit sebanyak 24000KG. Oleh yang demikian, kamu telah didapati melanggar peruntukan dibawah Seksyen 57(1)(b)(vi) Akta Pengangkutan Awam Darat 2010 dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum dibawah Seksyen 57(3) Akta yang sama dan boleh dilucuthakan di bawah Seksyen 80(4) Akta Pengangkutan Awam Darat 2010. ii. Hukuman:- Seksyen 57(3) Akta Pengangkutan Awam Darat 2010 (Akta 715) Denda tidak kurang daripada RM 1,000.00 tetapi tidak melebihi RM 500,000.00 atau dipenjarakan selama tempoh tidak melebihi 2 tahun atau kedua-duanya. Dan, Seksyen 80(4) Akta Pengangkutan Awam Darat 2010 Jika dibuktikan sehingga memuaskan hati mahkamah kenderaan yang berkaitan hendaklah dilucuthakkan.

The person summoned understood the charge, the nature of the offence and the legal consequences of pleading guilty, and voluntarily pleaded guilty without any condition.

This Court accepted the guilty plea and convicted the person summoned.

During mitigation, as reflected in the notes of evidence, the person summoned stated that the seized lorry is his only vehicle and sole source of livelihood. This is his first offence. He has had no job and income since the seizure of lorry on 3.11.2025. He urgently requires the return of the seized lorry in order to earn a living.

On the other hand, the prosecuting officer submitted that section 80(4) of the Act warrants a mandatory forfeiture of the vehicle upon conviction and urged the Court to grant an order of forfeiture for the seized lorry. The prosecuting officer relied on the case of Reza Kianmehr v Pendakwa Raya [2013] 7 CLJ 265 to fortify his argument that Section 80 (4) is a mandatory provision due to the word ‘shall’ and hence the Court has no option but to forfeit the seized vehicle once a conviction is secured.

After considering the oral statements made by both parties, this Court granted an order for release pursuant to section 80(3) of the Act.

Section 80(3) of the Act clearly confers discretion upon the Court to order either forfeiture or release of the vehicle where a prosecution has been held. Section 80 (3) provides:-

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.

Section 80(4) reads together with section 80 (3), limits the Court’s power to order forfeiture by confining such forfeiture to specific circumstance. Section 80(4) provides-

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 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

There is no provision in the Act that exhaustively sets out the circumstances under which an order for release shall be granted where a prosecution has been held.

Section 80(5) isolates from the section 80(3) and deals specifically with situation where no prosecution is instituted and mandates release after one month. Section 80(5) provides:-

If there is no prosecution with regard to any relevant vehicle seized under subsection (1), such vehicle shall be released at the expiration of one calendar month from the date of seizure unless it has sooner been released.

Reading sections 80(3) and 80(4) together, the Court retains discretion in cases where a prosecution has been held.

I do not agree that the word ‘shall’ in section 80(4) of the Act renders forfeiture automatically mandatory. The word “shall” also appears in section 80(3), which clearly contemplates two alternative orders — forfeiture or release.

In the Supreme Court case of Hee Hyuk Fook v Public Prosecutor [1988] 1 LNS 15 the Court held that:- “…In our view, the word “shall” appearing therein, though generally taken as mandatory, does not mean to be so in every case. No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other (see Interpretation of Statutes by Bindra, 7th Ed., p. 662)…” (emphasis added)

The word ‘shall’ does not mean to be mandatory in every case. Thus, the Court retains the discretion to order release of seized vehicle based on the following considerations:- a. Facts and circumstances of each case; b. The purpose,object and intention of the legislature in making the provision; c. The serious inconvenience or injustice which may result in treating the provision one way or the other. Facts and circumstances of each case 21. In the present case, the person summoned is a sole proprietor who personally operates the business and drives the lorry. It is his only business asset and sole source of income.

An order of forfeiture would effectively deprive him of his livelihood. The right to livelihood forms part of the right to life under Article 5(1) of the Federal Constitution.

In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261,the Court of Appeal adopted the reasoning in Olga Tellis v Bombay Municipal Corp that the right to livelihood is integral to the right to life:- ‘I pause to mention two other decisions of the Indian Supreme Court which are relevant to the view that I have expressed in the preceding paragraph. The first of these is Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180 at p 193, where Chandrachud CJ said: For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by art 21 [the equivalent of our art 5(1)] is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live.And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. (Emphasis added.) The second is Delhi Transport Corp v DTC Mazdoor Congress & Ors (1991) Supp1 SCC 600 at p 717, Satwant J when delivering the majority judgment of the Supreme Court said: The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them. (emphasis added)

Further, there is presumption against the legislature intending absurdity or injustice. It is a rule of statutory interpretation whereby courts assume lawmakers intend reasonable, fair, and logical outcomes. If a literal interpretation produces manifest injustice or absurdity, the court will prefer an alternative reasonable interpretation to avoid such results.

As stated in the case of Chung Khiaw Bank Ltd v PP [1968] 2 MLJ 196,the Federal Court held that:- ‘...When statutory provisions are penal and are designed to take away existing legal rights such as, for instance, the right to own property as preserved by article 13(1) of the Constitution, the court will not give effect to such provision unless the intention of the legislature is expressed in clear and unequivocal language. [1967] 3 WLR 858 867 CA...’

Therefore, due to the peculiar facts and circumstances of the present case, the court will not give effect to section 80(4) as it will take away the person summoned’s existing legal right which is the right to livelihood as preserved by article 5(1) of the Federal Constitution. The purpose/object/intention of the legislature in making the provision

In examining the purpose, object and intention of the legislature in enacting section 80(4) of the Act, I have referred to the Hansard (DR 21042010).The relevant paragraphs are replicated here below:- Page 117 Di dalam fasal 79 hingga fasal 84 pegawai SPAD, pegawai polis dan pegawai Jabatan Pengangkutan Jalan diberi kuasa untuk memberhentikan, menahan dan memeriksa kenderaan dalam menjalankan tugas di bawah rang undang-undang ini. Page 118 Langkah kerajaan mencadangkan Rang Undang-Undang Pengangkutan Awam Darat 2010 adalah bertujuan untuk memberi kuasakuasa kepada SPAD dalam usaha untuk mentransformasikan dan menyelaraskan kerangka dan landskap pengangkutan awam darat dalam memelihara kepentingan rakyat dan pada masa yang sama melahirkan pengendali dan pemegang lesen berdaya maju

The purpose of section 79 to section 84 were enacted is to empower enforcement authorities and regulate public land transport in the interest of the public, while producing viable operators and licensees.

The purpose of the Act is regulatory and protective which is to safeguard public safety and ensure responsible operators and not to destroy small operators indiscriminately.

The question is whether Parliament intended automatic forfeiture regardless of mitigating factors, even for first offenders operating small sole proprietorships?

I find that a rigid interpretation of section 80 (4) would undermine the objective of nurturing viable operators, particularly given the Hansard reference to ‘melahirkan pengendali dan pemegang lesen berdaya maju’. The serious inconvenience or injustice

I acknowledge that the policy objective of deterring overloaded goods vehicles is to protect and ensure public safety.

However, if section 80(4) were applied mechanically without regard to individual circumstances, serious injustice could result, particularly to small and medium enterprises.

I remind myself of the principles of sentencing when an order of release is granted. The Court must balance deterrence with proportionality. Principle of Sentencing 35. It is settled law that the primary consideration is the public interest as decided in the case R v. Ball [1951] 35 Criminal Appeal Report

Hilbery J dalam R v. Ball (supra) :- a. “In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. The Criminal Law is publicly enforced, not only with the object of punishing crime but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within that maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe.” (emphasis added)

The Court of Appeal in the case of PP v. Morah Chekwube Chukwudi [2017] 1 LNS 864 has outlined the principles of punishment that will be an aggravating factor or a mitigating factor. The Court stated that: "[5] It is well established that there are a number of factors that courts take into consideration before sentencing. Some of them are as follows:

the gravity or severity of the facts constituting the offence;

the circumstances in which it was committed;

the rampancy of such offence in the area;

the offender's previous record;

the offender's contribution and support to his family members;

the offenders means;

the effect of conviction and sentence on his job opportunities;

the age and health of the accused;

whether it is his first offence;

whether the accused had cooperated with the police after the commission of the offence;

whether the accused had pleaded guilty;

status of the accused;

whether there was violence during the crime;

public interest, etc.".

Based on the principles of sentencing, I take into account that the person summoned is a first offender, he pleaded guilty at the earliest opportunity, he has no previous record, the lorry is his sole source of income, I find that the fine imposed sufficiently serves as a deterrence. Forfeiture, in these peculiar circumstances, would be excessive and disproportionate. Conclusion 38. For the foregoing reasons, the prosecution’s application for an order of forfeiture is not allowed.

39.