1. TILAGAVATHY A/P PARAMASIVAM 2. NAVANITHAN A/L RAJAN

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CRIMINAL APPEAL NO. WA – 42(ORS) – 1 – 02/2020 BETWEEN 1. TILAGAVATHY A/P PARAMASIVAM 2. NAVANITHAN A/L RAJAN … APPELLANTS AND PUBLIC PROSECUTOR … RESPONDENT (In the matter of Sessions Court Kuala Lumpur In the Federal Territory, Malaysia. Criminal Application No. WA – 64FOP – 5 – 03/2019 BETWEEN 1 1. TILAGAVATHY A/P PARAMASIVAM 2. NAVANITHAN A/L RAJAN … CLAIMANTS AND PUBLIC PROSECUTOR … RESPONDENT) JUDGMENT Introduction [1] This is an appeal against the decision of the learned Sessions Court Judge in ordering the forfeiture of certain properties pursuant to section 32(3) of the Dangerous Drugs (Forfeiture of Property) Act 1988. In this judgment, the parties are referred to as they were at the lower court. Brief matrix of facts [2] Pursuant to a drug bust on 12.11.2018 at the parking lot of the Platinum Lake Condominium, Setapak, certain jewelleries 2 were seized. A police report was lodged vide Setapak Report No. 17754/18 (Exhibit R29). In consequence of the drug bust, one Loganathan a/l Nethieyanandan (“Loganathan”) was arrested at the LA Corner Restaurant at Chow Kit Road, Kuala Lumpur. A BMW motorcar bearing registration number WQR 2218, a Yamaha LC motorcycle bearing registration number VBL 9029, cash of RM5,865.00 and more jewelleries (“seized properties”) were also seized at Loganathan’s house in Semenyih. Chow Kit Report No. 8136/18 (Exhibit R28) was lodged for the arrest and Semenyih Report No. 7101/18 (Exhibit R27) was lodged for the seizure at Loganathan’s house in Semenyih. Loganathan is the husband of the 1st claimant. [3] The investigating officer, Inspector Mohd Fauzee bin Mohd Yusoff (SR1) issued 3 notices of seizure to Loganathan, the 1st claimant and the 2nd claimant in respect of the seized properties. The 1st claimant and the 2nd claimant, respectively, made written claims for the seized properties. On 01.03.2019, the Public Prosecutor referred the claims to the Sessions Court. 3 The written claims made by the 1st and 2nd claimants are as follows: 1st claimant Date of seizure 13.11.2018 Date of written claim (Exhibit EP8) 05.12.2018 Date of reference to Sessions Court 01.03.2019 No. Property claimed (“seized properties”) Exhibit 1. BMW motorcar No. WQR 2218 E10 2. Yamaha LC motorcycle No. VBL 9029 E12 3. A yellowish necklace E13 4. A yellowish bracelet E14 5. A yellowish ring with a “21” signet E15 6. A yellowish diamond ring E16 7. An incomplete piece of yellowish earring E17 8. An incomplete piece of yellowish earring E18 4 9. A pair of yellowish three umbrella-shaped earrings E19 10. A pair of yellowish leaf-shaped earrings E20 11. A pair of yellowish bell-shaped earrings E21 12. A pair of yellowish four ringed-shaped earrings E22 13. A pair of yellowish diamond-shaped earrings E23 14. A piece of yellowish stud earring E24 15. A red yellowish leaf-shaped pendant E25 16. A red yellowish leaf-shaped pendant E26 17. A yellowish pea-shaped pendant E27 18. A yellowish pea-shaped pendant E28 19. A yellowish rounded statuette pendant E29 20. A yellowish rounded statuette pendant E30 5 21. A yellowish rounded statuette pendant E31 22. A yellowish rounded statuette pendant E32 23. A yellowish lantern-shaped pendant E33 24. A yellowish lantern-shaped pendant E34 25. A yellowish water barrel-shaped pendant E35 26. A yellowish water barrel-shaped pendant E36 27. A yellowish drum-shaped pendant E37 28. A yellowish drum-shaped pendant E38 29. A yellowish drum-shaped pendant E39 30. A yellowish drum-shaped pendant E40 31. Cash of RM5,865.00 E41 6 2nd claimant Date of seizure 12.11.2018 Date of written claim (Exhibit ER4) 29.01.2019 Date of reference to Sessions Court 01.03.2019 No. Property claimed (“seized properties”) Exhibit 1. A yellowish necklace E3 2. A yellowish necklace E4 3. A yellowish bracelet E5 4. A yellowish horse-shaped ring E6 Decision of the Sessions Court [4] After considering the application, the learned Sessions Court Judge dismissed the claims made by the 1st and 2nd claimants and made an order to forfeit all the seized properties. The learned Sessions Court Judge found that both the claimants have failed to prove, on the balance of probabilities, that they are lawfully entitled to the seized properties, respectively. In her 7 grounds of judgment, the learned Sessions Court Judge attributed her reasons on grounds which may be summarized as follows: Exhibits E10 and E12 (a) although the 1st claimant produced the Registration Certificate for the BMW motorcar No. WQR 2218 issued by the Road Transport Department showing the registration date as 02.11.2007 and Registration Certificate for the Yamaha LC motorcycle No. VBL 9029 issued by the Road Transport Department showing the registration date as 09.04.2018, the 1st claimant did not produce any title (“Geran”) for it to enable the court to closely examine the current ownership of both vehicles; (b) the 1st claimant gave contradictory evidence as to how she paid the purchase price for the vehicles, 8 Exhibits E13 to E40 (c) there were contradictions between the 1st claimant’s testimony in court, her written claim and her statement to the investigating officer (SR1) as to how the jewelleries came into her possession. The 1st claimant produced a total of four receipts purporting to evidence the purchase of the jewelleries but in cross- examination, she failed to properly account for the exact jewelleries stated in the receipts by reference to the photographs of the jewelleries. The 1st claimant’s excuse that other receipts were lost was unacceptable and the 1st claimant did not call any of her family members as a witness to corroborate her claim that part of the jewelleries were her dowry, Exhibit E41 (d) although the court agreed with the 1st claimant that the sum of RM5,865.00 is her savings, the cash did not form part of the 1st claimant’s claim. 9 Brief deliberations Contention of the claimants [5] The submissions of the learned counsel for the claimants may be summarized as follows: In respect of the 1st claimant (a) in referring the claim to the Sessions Court pursuant to section 32(2) of the of the Dangerous Drugs (Forfeiture of Property) Act 1988, the Public Prosecutor has failed to comply with the mandatory requirement to refer the claim within 14 days after expiry of the period of 3 months from the date of seizure, (b) the records of the Road Transport Department which showed that the 1st claimant is the registered owner of both vehicles are sufficient to show, on the balance of probabilities, that the 1st claimant is legally entitled to the BMW motorcar No. WQR 2218 and Yamaha LC motorcycle No. VBL 9029, 10 (c) in the course of the proceedings in the lower court, the 1st claimant testified through a Tamil interpreter whereas there was no interpreter when the investigating officer (SR1) recorded her statement. The perceived discrepancies between the testimony of the 1st claimant and her statement to the investigating officer (SR1) were attributed to the issue of language barrier and did not detract from the crux of the explanation, namely that part of the jewelleries was purchased by her and the rest was her wedding dowry. This is evident from the fact that the many pendants are part of a wedding Thali, commonly worn by women to symbolise a Hindu marriage, (d) the lack of receipts for the jewelleries should not be a ground to make a finding against the 1st claimant as receipts could not show that the purchases were made using lawful funds anyway, 11 (e) it is conceded that no written claim was made for the RM5,865.00 cash, In respect of the 2nd claimant (f) in her testimony, SP2 said that she received the sum of RM111,000.00 being proceeds out of the disposal of a house she obtained as one of the beneficiaries in the estate of one Kanagalingam a/l Yogalingam, her late husband, (g) SP2 confirmed that she used part of the proceeds from the disposal of that house to buy the jewelleries for her younger brother, the 2nd claimant, but SP2 did not keep the receipts, Generally (h) there was no evidence to show the commission of an offence in respect of the seized properties, either under 12 the Dangerous Drugs (Forfeiture of Property) Act 1988 or the Dangerous Drugs Act 1952, (i) there was no evidence to show that the seized properties fall within the definition of “illegal property” under the Dangerous Drugs (Forfeiture of Property) Act 1988. Contention of the Public Prosecutor [6] The submissions of the learned DPP may be briefly stated as follows: (a) in the petition of appeal, the claimants did not raise the issue of the reference to the Sessions Court being made out of the prescribed time and the same issue was also never raised before the Sessions Court. As such, the claimants are not at liberty to raise this issue before this Court, 13 (b) in respect of the purchase of the BMW motorcar No. WQR 2218 and Yamaha LC motorcycle No. VBL 9029, there were no receipts produced to evidence the purchase of the vehicles and the 1st claimant did not produce any title to prove ownership. [7] It must be mentioned here that other than these, the learned DPP practically did not even properly deal with her submissions. In her written submissions, the learned DPP merely “agree” with the reasons advanced by the learned Sessions Court Judge in the grounds of judgment instead of articulating her own legal arguments to support her case. Enough said. Analysis [8] Pursuant to Section 32(3) of the Dangerous Drugs (Forfeiture of Property) Act 1988, where a written claim is made within the period of 3 months from the date the property is seized under the Dangerous Drugs (Forfeiture of Property) Act 1988, it 14 is mandatory for the Sessions Court to examine the matter and decide whether to release or forfeit the seized property. [9] Section 32(3) of the Act allows for the release of the seized property if all the following conjunctive conditions are satisfied: (a) if the seized property is not the subject of the commission of any offence under this Act or the Dangerous Drugs Act 1952; (b) the seized property is not illegal property; and (c) there is evidence that the claimant is lawfully entitled to the seized property. [10] On the other hand, if the claimant fails to prove that he is lawfully entitled to the seized property, the Sessions Court shall order the property to be forfeited. 15 [11] Section 32(3) of the Dangerous Drugs (Forfeiture of Property) Act 1988 reads as follows: “Forfeiture of property seized under this Act where there is no prosecution, or no proceedings under Part III or no claim thereto 32. (3) The Sessions Court to which a claim is referred under subsection (2) shall issue a summons requiring the person claiming that he is lawfully entitled to the property, and the person from whom it was seized, if he and his whereabouts are known, to appear before the court and upon such appearance or in default of such appearance, upon due service of such summons being proved, the Sessions Court shall proceed to the examination of the matter and if satisfied that no offence under this Act or under the Dangerous Drugs Act 1952 has been committed in respect of the property claimed and that such property is not illegal property, shall order the same to be released to the person claiming the same 16 upon proof that he is lawfully entitled thereto, and shall, in any other case, order the property to be forfeited.”. [12] But before one even ventures to consider the conditions which must be satisfied to get the seized property released or forfeited, as the case may be, one must not lose sight of the qualifying prerequisite which confers the Sessions Court with the jurisdiction to issue a summons to the claimant and thereafter to proceed in examining the matter. It is clearly provided for under section 32(3) of the Act that the claim which is referred to the Sessions Court must be one which is made pursuant to section 32(2) of the Act. [13] Section 32(2) of the Act essentially sets the statutory deadline within which the written claim must be referred by the Public Prosecutor to the Sessions Court, namely, within 14 days after expiry of the period of 3 months from the date the property was seized. A failure to adhere to this statutory deadline renders 17 the claim referred to the Sessions Court to be one which is not properly and validly referred under subsection (2). [14] Section 32(2) of the Dangerous Drugs (Forfeiture of Property) Act 1988 reads as follows: “Forfeiture of property seized under this Act where there is no prosecution, or no proceedings under Part III or no claim thereto 32. (2) Where within three months from the date of the seizure of any property under this Act, a claim in writing is made thereto by any person in the terms mentioned in paragraph (1)(c), the Public Prosecutor shall within fourteen days after the expiry of the said period of three months, refer such claim to a Sessions Court for its decision.”. [Emphasis added] 18 [15] The Dangerous Drugs (Forfeiture of Property) Act 1988 is a legislation made pursuant to Article 149 of the Federal Constitution for the purposes, among others, to combat activities related to the trafficking in of dangerous drugs and the acquisition of properties by trafficking in dangerous drugs. It gives wide powers in respect of seizure and forfeiture of properties related to acts, activities or conducts which constitutes certain offences under the Dangerous Drugs Act 1952. It allows an application for the forfeiture of seized properties to be made based merely on reasons to believe that the seized properties are illegal properties as defined under the Act and in the context of the present appeal, the scheme of the Act provides for forfeiture of the seized properties even in the absence of any prosecution for any offence under any law with regard to the seized property. [16] In Raqeem Rizqin Enterprise & Yang Lain v. Ketua Polis Negara & Satu Lagi [2019] 8 CLJ 41 FC; [2019] 5 MLJ 693; [2019] 5 MLRA 475; [2019] AMEJ 0693, the police issued freezing orders against the accounts of the appellants followed 19 by a notice of seizure to the respective financial institutions. Thereafter, seizure orders were also issued and the vehicles of certain appellants were seized. Both orders were issued under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA) on reasonable suspicion that they were subject matters of the offence of money laundering. [17] Since the appellants were never charged with any offence under the AMLATFPUAA within 12 months after the freezing and seizure orders, the appellants applied for the accounts and vehicles to be released. The application was turned down by the Public Prosecutor on grounds that warrants of arrest were pending for the appellants. The appellants filed a notice of motion for the same but it was dismissed by the High Court. On appeal, the decision of the High Court was affirmed by the Court of Appeal. On appeal, the Federal Court allowed the appeal and reversed both the decisions of the High Court and the Court of Appeal. 20 [18] In delivering the decision of the apex court, His Lordship Mohd Zawawi Salleh FCJ resolutely reiterates, inter alia, the need to strike a balance between the wide powers of the enforcement agencies and the need to protect the quiet enjoyment of property as constitutionally guaranteed under Article 13 of the Federal Constitution. Where the Public Prosecutor fails to act within any period as prescribed, the property seized must be released. At page 56, His Lordship Mohd Zawawi Salleh FCJ said as follows: “[37] Adalah tidak diragukan lagi bahawa peruntukan- peruntukan Akta 613 adalah bertujuan untuk dijadikan suatu alat berkesan bagi mencegah kesalahan pengubahan wang haram dan pembiayaan keganasan. Peruntukan-peruntukan Akta 613 memberikan kuasa yang luas kepada agensi penguat kuasa. Pembekuan dan penyitaan harta boleh dibuat hanya atas asas “jika agensi penguat kuasa mempunyai alasan yang munasabah untuk mengesyaki suatu kesalahan” 21 telah dilakukan atau harta itu ialah hasil daripada aktiviti haram atau peralatan kesalahan (lihat s. 44(1)(b)(i) dan (ii)). [38] Pada pandangan kami, bagi mengimbangi kuasa- kuasa agensi-agensi penguat kuasa yang luas dan keperluan untuk melindungi hak untuk memiliki dan menikmati harta secara aman seperti yang dijamin oleh Per. 13 Perlembagaan Persekutuan, Akta 613 telah memasukkan beberapa peruntukan, yang menghendaki agar tindakan susulan tertentu diambil dalam tempoh yang ditetapkan. Seksyen 52A yang menyatakan: 52A. Sesuatu perintah penyitaan yang dibuat di bawah Akta ini hendaklah terhenti berkuat kuasa selepas tamat tempoh dua belas bulan dari tarikh perintah penyitaan itu, atau jika terdapat suatu perintah pembekuan sebelum itu, dua belas bulan dari tarikh perintah pembekuan itu, jika orang yang terhadapnya perintah itu dibuat tidak dipertuduh dengan suatu kesalahan di bawah Akta ini. 22 [39] Peruntukan s. 52A adalah jelas dan mandatori: harta yang telah disita hendaklah dilepaskan kepada orang yang daripadanya harta itu disita jika: (i) ia telah melebihi tempoh 12 bulan daripada perintah penyitaan dibuat; dan (ii) orang yang terhadapnya perintah pembekuan atau penyitaan itu dibuat tidak dipertuduh dengan suatu kesalahan di bawah Akta dalam tempoh 12 bulan daripada perintah pembekuan itu dibuat. [40] Di samping itu, sub-s. 56(3) memperuntukkan bahawa apa-apa harta yang telah disita tetapi tiada pendakwaan dibuat atau sabitan bagi suatu kesalahan di bawah sub-s. 56(1) atau suatu kesalahan membiayai keganasan, Pendakwa Raya hendaklah sebelum tamat tempoh 12 bulan dari tarikh penyitaan itu, memohon kepada Mahkamah Tinggi untuk mendapatkan suatu perintah pelucuthakan harta itu. Jika Pendakwa Raya gagal untuk berbuat demikian dalam tempoh yang ditetapkan itu, harta yang disita hendaklah 23 dilepaskan kepada orang yang daripadanya harta itu telah disita.”. [19] I hold the considered view that the observations made the Federal Court in Raqeem Rizqin Enterprise & Yang Lain v. Ketua Polis Negara & Satu Lagi [2019] 8 CLJ 41 FC ought to apply with equal force to cases under the Dangerous Drugs (Forfeiture of Property) Act 1988 since it touches on the quiet enjoyment of property which is constitutionally guaranteed under Article 13 of the Federal Constitution. Article 13 of the Federal Constitution expressly provides that no person shall be deprived of property save in accordance with law and this Court is under a duty to ensure that has been exactly applied by the Sessions Court in the present appeal. [20] In the present appeal, the properties which are the subject matter of the appeal were seized on two respective dates, namely on 12 November 2018 and 13 November 2018. Thus, the three months period under section 32 of the Act expired on 11 24 February 2019 and 12 February 2019, respectively as submitted by the learned counsel. Since both appellants made their written claims within the three months period, section 32(2) of the Act requires the Public Prosecutor to refer the claims made by both the appellants to the Sessions Court within 14 days after the expiry of the three months period. That 14-day deadline expired on 26 February 2019 and 27 February 2019, respectively, whereas the claims were only referred to the Sessions Court on 1 Mac 2019. [21] The operative word used in section 32(2) of the Act which sets the tone for the statutory deadline begins with the word “shall”. It is trite that whether a particular provision creates a mandatory or directory obligation is a question of law. It is observed by the Federal Court in Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747 FC that generally when the Legislature uses the word “shall”, it suggests that the provision is mandatory although this is not conclusive. In the context of the present appeal, I hold the considered view that 25 the word “shall” in section 32(2) of the Act creates a mandatory duty in light of the fact that it affect the rights to property which is guaranteed under Article 13 of the Federal Constitution. [22] In the circumstances, I am of the considered view that when the summons was issued and the learned Sessions Court Judge proceeded to examine the matter, there was no valid reference by the Public Prosecutor under section 32(2) of the Act to start with. Unless there was a valid reference made under subsection (2), any attempt by the Sessions Court to purportedly exercise its powers under subsection (3) would be invalid. This 14 days deadline is a form of check and balance to guard against any abuse of the wide powers conferred by the Dangerous Drugs (Forfeiture of Property) Act 1988 and at the same time to preserve and guard against any transgression of the rights to property under Article 13 of the Federal Constitution. [23] The rights to property are constitutionally guaranteed under Article 13 of the Federal Constitution and on many 26 occasions, courts have displayed a stringent approach in protecting this constitutional rights. There can be no doubt that the same approach is subscribed by this Court in the present appeal. In Datuk Seri Khalid Abu Bakar & Ors v. N Indira P Nallathamby & Another Appeal [2014] 9 CLJ 15 CA, His Lordship David Wong Dak Wah JCA (later CJSS) said as follows: “[73] As stated earlier, this country practises Constitutional Supremacy and thus any breach of any constitutional right must be jealously guarded by the courts and protected with the severity as it justly deserves. A constitution so to speak is the heart of a country and the blood vessels of the heart are the entrenched rights of every citizen of the country. Any mutilation of those blood vessels must be attended to immediately and with the appropriate measures as any failure to do so would lead to the obvious diagnosis of a weak heart.”. [24] On the same vein, I am not persuaded by the submissions of the learned DPP that this Court should not consider this issue because it was never part of the grounds of appeal relied on by 27 the appellants in their memorandum of appeal. In this regard, I hold the considered view that any encroachment into rights which are enshrined in the Federal Constitution should not be defeated on mere technical grounds. Any blatant disregard of the constitutional guarantee shall not find support in any manner, even more so when it is done before the court. [25] Having held the considered view that there was no valid reference made by the Public Prosecutor within the terms as prescribed by section 32(2) of the Dangerous Drugs (Forfeiture of Property) Act 1988, I shall not delve further into other grounds. The validity of the reference to the Sessions Court by the Public Prosecutor in itself is the pivotal point. Conclusion [26] Based on these reasons, I hereby allow the appeal in part and reverse the decision of the learned Sessions Court Judge in part. I hereby order — 28 (a) that property E10, E12 and E13 to E40 to be released to the 1st appellant, and (b) that property E3, E4, E5 and E6 to be released to the 2nd appellant. [27] In respect of property E41, I agree with the learned Sessions Court Judge that the cash amounting to RM5,865.00 which was seized on 13 November 2018, was not part of the written claim made by the 1st appellant and this is also conceded by the learned counsel. As such, property E41 had, in accordance with section 32(1)(c) of the Act, became forfeited immediately upon expiry of the period of three months from the date of the seizure without the necessity of having to refer it to the Sessions Court under section 32(3) of the Act. [28] I hereby order that property E41 shall remain forfeited. 29 Observations [29] As matter of observation, I am of the considered view that the reasons advanced by the learned Sessions Court Judge in respect of the title to the vehicles, referred in the grounds of judgment as “Geran”, is somewhat misguided. According to the learned Sessions Court Judge, without the “Geran”, the court could not closely examine the current ownership of the vehicle. [30] Registration of motor vehicles are governed under the Road Transport Act 1987. Pursuant to section 2, the “owner” of a motor vehicle registered under the Act means the registered owner of the vehicle and the “registered owner” means the person by whom the application for registration was made. Section 117 provides that a registration certificate shall be prima facie evidence of registered ownership. Section 2 also defines “registration certificate” to include registration book. 30 [31] In respect of the definition of the term “owner”, “registered owner” and “registration certificate”, section 2 of the Road Transport Act 1987 reads as follows: “Interpretation 2. In this Act, unless the context otherwise requires— “owner”— (a) in relation to a motor vehicle registered or deemed to be registered under this Act, means the registered owner of such vehicle; and”, “registered owner” means the person registered as the owner of a motor vehicle under paragraph 11(1)(b);”, “registration certificate” includes registration book;”. [32] Section 117 of the Road Transport Act 1987 provides as follows: 31 “Provisions as to evidence 117. (1) A registration certificate shall be prima facie evidence of the registration of the motor vehicle referred to therein, and of the particulars appearing in the register relating to such motor vehicle and the registered owner thereof.”. [33] As such, whenever the ownership of a motor vehicle is in question, the production of the certificate of registration must be sufficient to prove the fact of the ownership as the law provides for it to be prima facie evidence. There is no additional legal requirement for the registration book, colloquially referred to as the “Geran”, to be produced as either one is sufficient. Dated 23 January 2021. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. 32 For the appellants: Grace Nathan (Messrs. Sivananthan) For the respondent: Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor Kuala Lumpur. 33