CUSTOMS ACT (Amendment of provisions on forfeiture of vehicles)

Dr Ker Sin Tze asked the Minister for Law whether the Government intends to introduce legislation to amend the provisions on forfeiture of vehicles in the Customs Act in view of the views expressed by the Chief Justice in the case of Public Prosecutor v M/s Serve You Motor Service that the legislature should consider making the necessary amendments.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, the Government has carefully considered the views expressed by the Chief Justice in the case of Public Prosecutor v M/s Serve You Motor Service but has decided not to amend the Customs Act.

Sir, in that case it concerned the effect of section 124(4) of the Customs Act which provides that the District Judge shall order the goods to be forfeited on proof that an offence under this Act has been committed and that the goods were used in the commission of the offence. The District Judge decided that the court had the discretion not to order the forfeiture of a motor-lorry which was used in carrying 4,350 uncustomed cartons of cigarettes worth $137,246. The Public Prosecutor appealed as a matter of principle and the appeal was allowed by the Chief Justice who held that the forfeiture was mandatory under the clear words of the section. The Chief Justice expressed sympathy for the owners as they were not involved or implicated in the commission of the offence, nor did they know that the vehicle would be used for an unlawful purpose.

Sir, we have studied the comments of the Chief Justice in this case very carefully. Indeed, even before this case, Government had begun a review in March last year of the issue of forfeiture of vehicles used in the commission of certain offences. This was because the issue first arose in another case of Toh Teong Seng. And in that case the Chief Justice (in the context of the Environmental Public Health Act), recognising that forfeiture would act as a deterrent to illegal dumping, commented, however, that forfeiture of vehicle was a disproportionate "substitute" punishment when the offence itself carried a fine not exceeding $1,000.

The Chief Justice then had separately expressed his concerns to the Attorney-General and made some suggestions on how the Environmental Public Health Act could be improved to reflect its legislative goals. When the Attorney-General conveyed the Chief Justice's views to me as Minister for Law, I immediately wrote to the other Ministers in charge of similar legislation. The AG's Chambers agreed with my proposal for the Chambers to chair an Inter-Ministry Committee to review the different legislation containing forfeiture provisions. They are the Customs Act, Environmental Public Health Act, Immigration Act, Misuse of Drugs Act, National Parks Act and the Road Traffic Act. Meanwhile, the Ministry of the Environment had reviewed the Environmental Public Health Act and it decided that after enhancing the various penalties it did not need the forfeiture provisions which were then deleted.

After a comprehensive and in-depth review of these various Acts, all the Ministries concerned concluded that we should retain these forfeiture provisions because the public interest rationale for their original enactment remained valid. Cabinet deliberated on the matter and agreed with the Ministries' recommendations. Forfeiture acts as a strong deterrence. However, the Committee recommended that the existing guidelines for forfeiture be refined to ensure greater consistency and fairness in the exercise of the power to apply for forfeiture. This has been done by the relevant Ministries in consultation with the Attorney-General's Chambers.

Sir, the decision to retain forfeiture provisions has not been done hastily, but with due deliberation. Forfeiture of vehicles is only invoked where the circumstances require it. I should add, Sir, that this form of penalty is not unique to Singapore. The United Kingdom and some other Commonwealth countries have had such laws for a long time and they have found them to be a strong deterrent. For example, in 1990, in England, the Court of Appeal held that an Air Canada commercial aircraft which landed at Heathrow Airport was liable to forfeiture under the Customs and Excise Management Act when it was found to have a cargo of cannabis resin on board on a scheduled flight from Bombay and the court so held, even though Air Canada did not know about the cannabis and was not reckless in failing to discover it. Eventually, the plane was released on payment of œ50,000 to customs.

Smuggling of dutiable goods into Singapore, Sir, is a serious offence. In the case of Serve You Motor Service, the offence was doubly serious because the dutiable goods were cigarettes. Forfeiture of vehicles puts the onus on vehicle owners to exercise care and responsibility when lending or hiring out their vehicles. It strongly encourages them to take precautions against their illegal use, which they are able to do so. We do not agree that owners should be entitled to have their vehicles released to them. Such a principle will surely make it easier for smuggling syndicates to obtain vehicles to carry out illegal activities, without the risk of confiscation. All they need to do is to hire or borrow the vehicles. Therefore, doing away with mandatory forfeiture provisions will only increase the pool of resources available to would-be criminals to commit illegal acts.

It is sound public policy to hold owners responsible for ensuring that their vehicles are not used for illegal purposes. Some finance companies say that the law is unfair because they are completely unable to prevent vehicles financed by them from being used for illegal purposes. But the law is unfair if they have no means of protecting themselves from potential loss. But this is not so. For example, they can verify the backgrounds of their customers, especially individuals. Further, they can require customers to present or furnish guarantees, and look to the guarantors to recover their loss.

Indeed, some vehicle rental companies are already taking such precautions. For example, in The Straits Times of 27th March 1996 which reported on the comments of the Chief Justice in the Serve You Motor Service case it had another article on the same page which shows how prudent owners are protecting themselves from financial loss. That proprietor who was interviewed said that after his vehicle had been forfeited, he became more careful and he required guarantees to be furnished to safeguard against illegal use. Sir, this shows that car hire firms and finance companies can, and indeed should, adapt their business practices to meet such contingencies without incurring excessive costs.

Dr Ker Sin Tze (Aljunied GRC): Sir, since the Minister has decided not to amend the law, would he explain to the House why the legislature could not allow more discretion to the court in dealing with similar cases in future?

Prof. Jayakumar: Sir, the Government also considered very carefully the suggestion that the court should be given discretion to decide when a vehicle should be forfeited. But the Government has decided that the discretion should be with the Ministry which administers the relevant legislation in accordance with the new guidelines, but subject to review by the Attorney-General. And there are sound operational reasons why discretion should be made by enforcement agencies. For example, forfeiture is most appropriate in cases where no offender is caught. This happens, for example, when a vehicle containing illegal drugs or contraband is abandoned. Since no offender has been caught, it is not possible to prosecute anyone for the offence. In other cases, the mastermind, who is the most culpable person, remains behind the scene and is out of reach of the law enforcement agencies. Tracing his identity often depends on intelligence reports which cannot be disclosed in the courts without compromising sources.

These are two examples of circumstances where forfeiting the vehicle at the discretion of the Ministry is the best way to prevent the wrongdoers from escaping punishment. Let me give the assurance that forfeiture is not done randomly and routinely. There is a committee, and the Attorney-General's case is not just dependent on one public prosecutor, nor are all seized vehicles automatically forfeited. For example, in the five years from 1991 to 1995, 816 vehicles were seized by the law enforcement authorities and almost 380 vehicles were returned to the owners.

Mr Low Thia Khiang: Sir, why should the discretion lie with the Ministry when the identity cannot be disclosed publicly? Would it not be better for the court to decide and for the other party to show to the court that he is not involved at all and that his vehicle should not be forfeited?

Prof. Jayakumar: Sir, I thought I have given the answer, both in my main answer and in the answer to the supplementary question. I have already explained it. If discretion is given to the courts, the finance companies particularly will plead innocence and, most likely, the courts will have to find that they are innocent. When that happens, how does it aid the public interest? Public interest must surely require effective enforcement of the basic laws in the areas which I have described: customs, immigration, drugs, and so on. And if they are found "innocent" and the vehicles are returned, it must encourage all those involved in the syndicates to take this route to have easy access to the vehicles concerned. So it does not aid the overall public interest which must be in allowing the agencies to tackle the problem effectively; because that means the offenders and syndicates can have easy access and there is no deterrent at all. The finance companies would be very happy to just provide the vehicles.