The accused was convicted on his own guilty pleas to the following charges:-

1. Pertuduhan Pertama:-

Bahawa kamu pada 15 Mac 1995 jam 8.45 pagi, di Jalan Tun Hj. Abdul Rahman Yaakub Kuching dalam Negeri Sarawak sebagai Pemandu Motor Van No. KS 1987Q telah memandu kenderaan tersebut diatas jalanraya dengan tidak diliputi oleh Insuren Polisi yang dikehendaki dibawah Bahagian IV Akta Pengangkutan Jalan 1987 dan oleh yang demikian kamu telah melakukan kesalahan dibawah Seksyen 90(1) dan boleh dihukum dibawah Seksyen 90(2) Akta Pengangkutan Jalan No. 333/87. [2]

2. Pertuduhan Kedua:-

Bahawa kamu pada 15 Mac 1995 jam 8.45 pagi, di Jalan Tun Hj. Abdul Rahman Yaakub Kuching dalam Negeri Sarawak sebagai Pemandu Motor Van No. KS 1987Q telah memandu kenderaan tersebut diatas jalanraya sebagai Kenderaan Awam tanpa mempunyai sebarang Lesen Kenderaan Awam yang dibenarkan dan oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum dibawah Seksyen 33 Akta Lembaga Pelesenan Kenderaan Perdagangan No. 334/87 (Commercial Vehicles Licensing Board Act 1987).

Pursuant to the orders of conviction and sentence, the learned Magistrate also ordered that in respect of second offence, the said vehicle No. KS 1987Q (the said vehicle) used in the commission of the offence, be forfeited under Section 51 of the Act. Apparently there had been no inquiry held by the court to ascertain who the real owner of the said vehicle was, before the order for forfeiture was made. From the evidence, the registration card of the said vehicle showed that the registered owner was Hong Leong Finance Bhd. and the said vehicle was let out to one Abu Seman Bin Lepong under a hire-purchase agreement. There was no evidence adduced that the accused, Alizan Bin Abu Seman, who presumably was the hirer's (Seman) son, had obtained the permission of the original owner to use the said vehicle on the day in question.

Section 33 of the Commercial Vehicles Licensing Board Act 1987 (hereinafter called the Act) states:-

"Subject to this Act, no person shall use a motor vehicle or cause or permit a motor vehicle to be used as a public service vehicle unless there is in force in respect of such vehicle a licence granted under this Act authorising such use, or otherwise than in accordance with such licence and any conditions attached [3] thereto; and if he does so, he shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding one year or to both:

Provided that a person shall not be convicted of an offence against this section if he proves to the satisfaction of the court that he used the motor vehicle, the subject of the charge, as a taxi cab or hire car in a emergency for the purpose of conveying a sick, or injured person to hospital or to bring medical aid to such person or for the purpose of making a police report to a police station and that he made all reasonable efforts to hire a taxi cab or hire car for the purpose of the journey."

Suffice to say that an offence under section 33 of the Act had been committed, and that the vehicle which was the subject matter of the offence was seized by a police officer. The seizure of the vehicle in this case, was effected by L/Kpl. 60605 Baslie Bin Sulaiman, which was clearly in contravention of the provision of subsection (1) of Section 51 of the Act. Subsection (1) of Section 51 of the Act reads as follows:-

"Any motor vehicle in respect of which there has been or there is reasonable cause to suspect that there has been committed any offence against section 33 or 34 may be seized by any road transport officer or any police officer not below the rank of Inspector at any place."

Therefore the seizure of the said vehicle was bad in law, and the vehicle should have been ordered to be released.

Section 51(3) of the Act states: [4]

"An order for the forfeiture or for the release of any motor vehicle seized under subsection (1) shall be made by