The court has discretion to confiscate property used in offences under the Control of Supplies Act 1961, requiring the respondent to prove entitlement against such confiscation.

Narkunavathy Sundareson J:

(Forfeiture)

Background Facts

[1] The following background facts are undisputed. Lim Soon Ping (Accused) was charged in Sessions Court on 29 May 2023 in Criminal Case No: KB-62-9-04/2023 for being in possession of 4,000 litres of diesel, a controlled article, which is an offence under s 21 of the Control of Supplies Act 1961 [Act 122],

[2] The Accused, who was unpresented, pleaded guilty on the same day and was sentenced to fine of RM 120,000.00. The learned Sessions Court Judge (SCJ) also directed that lorry bearing registration number PFS 622 (Lorry) used in the commission of the crime and the proceeds from the sale of the diesel amounting to RM60,200.00 be confiscated.

[3] Liang Sheng Wing Trading (Liang Sheng) and Jip Sheng Trading & Transport Sdn, Bhd (Jip Sheng) asked for revision of the order dated 29 May 2023 vis-a-vis the confiscation of the Lorry.

[4] This High Court allowed the application for revision on 28 November 2023 and remitted the matter back to the sessions Court for rehearing of the prosecution's application for the confiscation of the Lorry. Prosecution filed an appeal against that order.

[5] Vide order dated 26 September 2024, the Court of Appeal remitted prosecution's application for the confiscation of the Lorry for this Court 's consideration.

Submissions

[6] Prosecution referred to s 26 Act 122 and submitted that the provision was to be read disjunctively (Malaysia Building Society Bhd v. Univein Sdn Bhd (No 2); at 356). The provision allowed for the confiscation of 4 categories namely:

(i) the property of the accused;

(ii) vehicle;

(iii) vessel; or

(iv) other article.

( Pendakwa Raya lwn. Chang Siew Fah ; Agus v. PP ; ; [2015] 3 AMR 471 )

[7] Prosecution reminded the Court that it had the full discretionary power to confiscate any property used in the commission of an offence under the Act and need not undertake any further inquiry in making such order.

[8] Prosecution asked this Court to take cognisance of the following facts:

(i) despite the sale of the Lorry on 31 March 2023, the legal ownership was not registered in Liang Sheng's name and there was no explanation for the failure to affect the transfer; and

(ii) there were no documents to show that Nicole Lee Ai Yiin (Lee) was indeed authorised to affirm the affidavit for Jip Sheng.

[9] Prosecution stressed the public interest aspect of confiscation orders and referred to the judgment in Toyota Capital v. KPDNKSH Tawau High Court Criminal Revision No: TWU-3-11-11/2023 wherein the Court held:

"The rationale for this provision is to give discretion to the Court to confiscate the property, even if it is not directly owned by the accused, which can deter and prevent them from benefiting from illegal activities under this act. Any individual may be dissuaded from engaging in the same offence if they know that assets associated with illegal activities under this Act, regardless of ownership, could be confiscated."

[10] In response, Liang Sheng submitted that the exercise of discretion by the learned SCJ was erroneous because he failed to consider that the Lorry did not belong to the Accused.

[11] Liang Sheng argued that the confiscation order was not a judicious exercise of discretion because the SCJ failed to make proper inquiry before making the order.

Analysis And Findings

[12] Section 26 (1) of Act 122 confers the power to confiscate and reads:

"Where any person is convicted of an offence against this Act the Court may order the confiscation in whole or in part of:

(a) any controlled article in respect of which the offence has been committed which has been seized by, or has otherwise come into the