Beruflich Dokumente
Kultur Dokumente
PP 265
A REZA KIANMEHR
v.
PP
B HIGH COURT MALAYA, KUALA LUMPUR
KAMARDIN HASHIM J
[CRIMINAL APPEAL NO: 41H-86-07-2012]
23 JANUARY 2012
(3) Pursuant to s. 80(4) of the Act, the Magistrate shall order the H
forfeiture if it is proved to the satisfaction of the court that
an offence specified under subsection (1) had been committed
and that the vehicle was the subject matter of the offence.
There is no ambiguity in the said provision. The appellant
herein had pleaded guilty to the charge for an offence under I
[2013] 7 CLJ Reza Kianmehr v. PP 267
A s. 16, and was convicted for the same offence. The facts
presented by the prosecution and admitted by the appellant
showed that the said vehicle had been used by the appellant
in the commission of the same offence. The said vehicle had
been proven to be the subject matter of the offence. The
B conditions provided under s. 80(4) had been fulfilled. The
forfeiture thus became mandatory. There was no discretion
given to the Magistrate due to the words “shall be made” in
s. 80(4) of the Act. In the circumstances, Magistrate was
correct in making an order for the forfeiture of the said vehicle.
C (para 21)
Case(s) referred to:
Duning Jubin v. PP [1997] 5 CLJ 170 HC (refd)
Kerajaan Malaysia v. Ambank (M) Bhd [2010] 2 CLJ 91 HC (refd)
Ngeranter Ripai v. PP [1990] 2 CLJ 273; [1990] 2 CLJ (Rep) 530 HC
D
(refd)
PP v. Leonard [1959] 1 LNS 75 HC (refd)
R v. Kenneth John Ball 35 Cr App R 164 (refd)
For the appellant - Idris Seydalavi; M/s Wan Ewe Chong & Khoo
For the respondent - Jean Syarmila; DPP
F
Reported by Suhainah Wahiduddin
JUDGMENT
G
Kamardin Hashim J:
Introduction
The Facts F
I
[2013] 7 CLJ Reza Kianmehr v. PP 269
A Grounds Of Appeal
[9] The appellant was charged for an offence under s. 16(1) and
F punishable under s. 16(5) of the said Act 715. The relevant
provisions are as follows:
16. Requirement for operator’s licence
(2) …
H (3) …
(4) …
(3) 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. E
[14] Learned counsel in his reply said that the complaint was
never served to the appellant. The case against the appellant is
H
classified as a summons case under Code 87 registered in a
Magistrate’s Court. Under s. 128(1)(a) of the Criminal Procedure
Code (“CPC”), a Magistrate may take cognizance of an offence
upon receiving a complaint as defined by this Code. The complaint
in this case was made to the Magistrate by an officer authorised
I
by SPAD under oath and at the same time the officer applied for
272 Current Law Journal [2013] 7 CLJ
A [17] Learned DPP submitted that the consent in writing from the
PP to prosecute the appellant under s. 241 of Act 715 (p. 16
Record of Appeal) was issued on 6 April 2012 and the summons
was issued by the Magistrates’ Court on 17 April 2012. Therefore
there was prosecution initiated within one month against the
B appellant. The question arose when the prosecution commenced
against the appellant in the present case.
[18] Under Chapter XVI and ss. 136 and 137 of the CPC
provides provisions regarding commencement of proceedings before
C a Magistrate Court. In respect of proceedings by summons,
under s. 136(1) of the CPC the proceedings for indictment of the
person summoned of starts after the Magistrate take cognizance
of the offence complained of and there is sufficient ground for
summons to be issued to the person and thereby summons issued
D for the appearance of the person named in the summons. When
the summons is issued and if it is so required, the sanction,
consent or requisition of the PP is issued, then the proceedings
for the prosecution of the person so summoned starts to
commence (see PP v. Leonard [1959] 1 LNS 75). In the present
E case, the consent dated 6 April 2012 shows serious intention by
the prosecution to prosecute the appellant. The summons was
issued by the Magistrates’ Court on 17 April 2012 which is well
within one month after the said vehicle had been seized.
Therefore the Magistrate has the power to order for the forfeiture
F of the said vehicle. I hold that the issue raised by learned counsel
for the appellant is without merits.
A Act 715. When the provision of the statute is clear without any
ambiguity, then the court must give effect to the clear and explicit
language of the enacting words of the statute. The learned
Magistrate was correct in making an order for the forfeiture of the
said vehicle.
B
[22] In Duning Jubin v. PP [1997] 5 CLJ 170 involving forfeiture
of vehicle under s. 51(3) of the Commercial Vehicles Licensing
Board Act 1987 which is in pari materia with s. 80(4) of Act 715,
Tee Ah Sing J (as His Lordship then was) decided that:
C
Section 51(3) of the Act does not impose upon the court a
discretion to call the owner and anyone else who may have
legitimate interest in the vehicle, an opportunity to show cause
why it shall not be forfeited. If Parliament had intended to give
an opportunity to show cause why the vehicle shall not be
D forfeited then it would have enacted relevant provisions to provide
for the same…the words of s. 51(3) of the Act are so clear that
an order for forfeiture shall be made if it is proved to the
satisfaction of the court that an offence against s. 33 or 34 has
been committed and that the motor vehicle was the subject matter
of the offence.
E
[23] On perusal of the record of proceedings, the charge proffered
against the appellant and the facts presented by the prosecution,
it is noted that the charge had been read and explained to the
appellant and he understood it and pleaded guilty. In the charge
F and underneath it, there are words to the effect that the said
vehicle is liable to be forfeited. The effect of pleading guilty was
explained to the appellant and he maintained his guilty plea even
though effect and consequences of his plea of guilty had been
explained and understood by him. The appellant also admitted to
G the facts of the case. Therefore, in the present case there was no
miscarriage of justice occurred to the appellant. The order of
forfeiture of the said vehicle by the Magistrate is perfectly in order
and safe. There is no ground to differ from the decision made by
the Magistrate and no grounds to disturb the order of the
H Magistrate. Therefore, there was no merit in the appellant’s appeal
herein.
I
276 Current Law Journal [2013] 7 CLJ
Conclusion A
[24] Based on the above reasons, this court finds that the order
of forfeiture of the said vehicle by the Magistrate is in order.
Accordingly, the appellant’s appeal against that order is dismissed.
B