Neal J:

The appellant was Convicted of offences against s. 92(1) of the Road Traffic Ordinance, 49 of 1958 and s. 74(1) of the same Ordinance. On the first charge he was fined $150 in default one month's imprisonment; on the second charge he was fined $75 in default two weeks' imprisonment. The appellant was also disqualified from holding a driving license for 12 months and the car was ordered to be confiscated.

Before me the appeal was limited to the question of confiscation of the motor car.

In his grounds of judgment the Circuit Magistrate, Batu Gajah, relied upon the judgment of Ong J in Gun Kim Luu v. PP. [1961] MLJ 35 at p. 36 when the learned Judge said:

I would add a few remarks in connection with this case. The learned Magistrate appears to have overlooked the provisions of s. 92(4) of the Road Traffic Ordinance. In my view, a conviction under s. 92(1) leaves no option for him but to confiscate the vehicle, and I would draw the attention of all Magistrates to this point.

On the hearing of the appeal the Deputy Public Prosecutor drew my attention to the wording of sub-section (4) of s. 92 and intimated that having regard to the wording thereof he found difficulty in supporting the order of confiscation notwithstanding the remarks of Ong J to which I have referred. The relevant sub-section reads:

An order for the forfeiture or for the release of any motor vehicle seized under the provisions of sub-section (2) shall be made by the Court before which the prosecution with regard thereto has been held, and an order for the forfeiture of such vehicle may be made if it is proved to the satisfaction of the Court that an

offence against this section 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.

After consideration I found myself in agreement with the interpretation placed upon sub-section (4) by the Deputy Public Prosecutor and I allowed the appeal to the extent of setting aside the order of confiscation. As I found myself unable, with respect, to agree with the remarks of Ong J to which I have referred, I intimated that I would give my reasons in writing.

As I interpret sub-section (4) its operation is in the first place limited to vehicles which have been seized by any Road Transport Officer as defined in the Ordinance, and there was no evidence in the record to establish the vehicle had been seized. Secondly, even if the first pt of sub-section (4), to use the words of Ong J leaves the Court with no option, it is clear from the words I have underlined,that the direction is to make either an order for forfeiture or for release. As I interpret sub-section (4) it is no more than an intimation by the legislature that once a motor vehicle has been seized by a Road Transport Officer pursuant to sub-section (2), then the Court before which the prosecution is held must make an order for forfeiture or for release. If there is a prosecution then on a proper application permission is extended to the Court to make either of those orders provided. there has been seizure even though that prosecution has not been successful. And, finally, (sub-s (5) ) if there is no prosecution within one month then the vehicle must be released by the Road Transport Officer.

Appeal allowed.

FOOT NOTE>>* See the last paragraph of One J's judgment in Gan Huat v. PP. post p. 27 at p. 28.