Nik Hashim J:

Introduction

This is an appeal against the decision of the Sessions Court judge Kuala Lumpur who ordered the forfeiture of the Honda Civic motor car No. BDC 1328 (the car) that was seized by the police under s. 25 of the Dangerous Drugs (Forfeiture of Property) Act 1988 (the Act).

The Facts

The car was seized from one Azlin whom the police suspected to be involved in dangerous drugs activities. Pursuant to the powers conferred by s. 32(3) of the Act, the Sessions Court issued out a summons to Azlin and the Public

Finance Bhd., the appellant, calling them to establish their respective claims for the release of the car. It was not in dispute that the car was owned by the appellant but it has been hired under a hire purchase agreement to one Mohd Anwar bin Amran, the hirer. The hirer did not make any claim although he was notified of the proceeding. Clause 811 of the hire purchase agreement contained the usual terms that the hirer shall not sell, transfer, dispose of or part with the possession of the car, the hirer shall also not use or suffer the car to be used contrary to law or in any manner by reason of which the car may become liable to forfeiture and in the event of any breach by the hirer, the hiring shall automatically terminate and the hirer shall no longer be in lawful possession of the car with the owner's consent.

At the proceeding held by the Sessions Court, Azlin told the court that he bought the car from the hirer for RM40,000 and he had already paid RM15,000 towards the purchase price. According to him, the car could not be transferred to him as it was seized by the police. In his testimony, he said:

Pembelian kereta itu adalah dari hasil perniagaan satay dan sedikit sebanyak dari hasil dadah.

Sessions Court's Decision

The Sessions Court Judge found that the car was illegal property and hence the order of forfeiture. In his short judgment, the judge at p. 20 of record said:

Setelah mendengar dan mempertimbangkan penghujahan semua pihak, terutamanya pihak penuntut kedua (the appellant), saya berpendapat kenderaan tersebut adalah satu "harta tidak sah" sepertimana ditakrifkan di bawah s. 2 ADD (PH) 1988 ...

Di dalam kes ini penuntut pertama (Azlin) dengan jelas mengakui bahawa kenderaan tersebut dibiayai sebahagiannya oleh wang dari sumber pengedaran dadah.

Ini sudah memadai untuk menjadikannya satu harta tidak sah sepertimana ditakrifkan di atas.

Dari sudut ini adalah tidak releven sama ada penuntut kedua (appellant) tahu atau tidak akan kedudukan di atas.

Begitu juga untuk tujuan s. 32(3) itu kedudukan pemilikan sah ke atas kenderaan itu juga tidak relevan ...

Dan itu, pelepasan harta berkenaan kepada mana-mana penuntut-penuntut (Azlin and appellant) tidak diwajarkan di bawah s. 32(3) ADD (PH) 1988 ... Dengan itu saya menolak kedua-dua permohonan dan memerintahkan harta berkenaan dirampas.

The appellant was dissatisfied with the decision and hence this appeal. Azlin did not appeal against the order.

Appellant's Contentions

Before me, learned counsel for the appellant submitted that there is no evidence linking to the car that an offence has been committed in respect of the car and that it was never illegal property from the inception. Counsel also contended that the presumption under s. 35 did not apply to the appellant as the appellant unlike Azlin, was not a person 'proceeded against' in the proceeding. Since the appellant is the owner of the car by virtue of the hire purchase agreement which forbids the sale by the hirer, the appellant is therefore lawfully entitled to the car.

Public Prosecutor's Argument

The learned Deputy Public Prosecutor, on the other hand, argued that the learned Sessions Court judge was right in his decision to forfeit the car as he was not satisfied that the car was not illegal property.

Issue

The issue before the court is whether upon the proper reading of the relevant provisions of the Act, the car is illegal property.

Judgment

In order to resol