KETUA POLIS NEGERI SEMBILAN & ANOR v. MANOHARAN DORASAMY

KETUA POLIS NEGERI SEMBILAN & ANOR v. MANOHARAN DORASAMY
FEDERAL COURT, KUALA LUMPUR
HAIDAR MOHD NOOR, CJ (MALAYA); ABDUL MALEK AHMAD, FCJ; ABDUL HAMID MOHAMAD, JCA
CIVIL APPEAL NO: 01-3-2003(N)
13 NOVEMBER 2003
[2004] 1 CLJ 101

CRIMINAL PROCEDURE: Disposal of Property – Detention of motor vehicle by police – Seizure not immediately reported to Magistrate – Detention for more than 48 hours without any proceedings being commenced – Whether detention illegal – Whether respondent deprived of Property not in accordance with law – Whether legal procedures not followed – Criminal Procedure Code s. 413 – Police Act 1967 s. 24(4) – Road Transport Act 1987 ss. 8, 10, 11, 12

POLICE: Powers – Seizure of Property – Seizure of motor vehicle – Failure to report seizure to Magistrate – Failure to institute proceedings within 48 hours – Whether wrongful exercise of powers – Criminal Procedure Code s. 413 – Police Act 1967 s. 24(4)

ROAD TRAFFIC: Registration – Registrar of Vehicles – Whether duty bound to inspect vehicle before registration – Road Transport Act 1987 ss. 8, 10, 11, 12

In February 1994, the respondent purchased a car which was brought in from Kota Kinabalu, Sabah. Before purchasing the car the respondent had checked the engine and chassis numbers thereof and found the same to be in order. This apart, the Road Transport Department (‘the second appellant’) had also more than once inspected the engine and chassis numbers of the car and, having found no irregularity thereon, re-registered the car to its present number NAJ 1912 and endorsed the respondent as its registered owner.

Subsequently, however, the second appellant blacklisted the car upon discovering that its documents might have been forged by a syndicate in Sabah. Following that, on 28 April 1994, the first appellant detained the car on suspicion that it was a stolen property, and it was not until 23 January 1995 that the car was released on bond to the respondent pursuant to s. 413 Criminal Procedure Code (‘CPC’). Apparently, the release was triggered by a chemist report that although the car’s engine number had been tampered with, there was no way of knowing its original number or the car’s original owner.

The respondent alleged that the detention of the car by the first appellant was illegal, and in the circumstances claimed for declaration that he was the beneficial owner of the vehicle and also for damages. The learned trial judge took the view that the detention was lawful and therefore dismissed the summons. On appeal, however, the Court of Appeal allowed the claim and ordered for damages to be assessed ruling that the detention, upon a proper reading of s. 413 of the CPC ands. 24(4) of the Police Act 1967 (‘PA’), was beyond the period permissible under the law. It was also held that although the police had every opportunity to extend the detention under s. 413 CPC, they failed to make use of that opportunity. Dissatisfied, the appellants appealed and posed the following questions of law to the apex court, namely:
(i) whether a motor vehicle which is suspected to be stolen, whose engine and chassis numbers have been tampered with and whose ownership and other details are being investigated by the police can be summarily returned to the respondent (who is not the original (true) owner of the vehicle) without an enquiry being conducted under s. 413 of the CPC;
(ii) whether s. 24(4) of the PA applies to a stolen motor vehicle but which is not a vehicle used in the commission of an offence; and
(iii) whether ss. 8, 10, 11 and 12 of the Road Transport Act 1987 (‘RTA’) impose a duty on the second appellant as the Registrar of Motor Vehicles to inspect every vehicle submitted for registration or transfer of registration.

Held:

Per Abdul Hamid Mohamad JCA

[1]On the facts, the motor vehicle falls under the provision of s. 413(1) of the CPC as property “alleged or suspected to have been stolen” or “found under the circumstances which create suspicion of the commission of any offence”. However, the section requires that the seizure “be immediately reported to a Magistrate” who may make an order respecting the delivery of the property. Under that section, it is only the Magistrate who has power to order delivery of the property after holding an inquiry. So, the answer to the first question is in the negative.
[2]The second question turns on the interpretation of s. 24(4) of the PA. Clearly, the two limbs therein i.e. “which he has reasonable ground to suspect has been used in the commission of an offence against any law in force” and “to be evidence of the commission of any such offence” are disjunctive. On the facts it will be stretching the words “used in the commission of any offence” too far to say that the vehicle in question falls under that limb. There is no doubt however that the vehicle is “to be evidence in the commission of any offence”. So, the answer to the second question is in the affirmative, namely s. 24(4) applies.
[2a]Clearly, a police officer is empowered by that subsection to detain the vehicle, pending enquiry, for a period of forty eight hours or, if, within that period proceedings are commenced in respect of such offence and the vehicle may be produced in evidence, then the vehicle may be detained until the final determination of those proceedings. However the proviso empowers the police officer in charge of a police district to direct the release of such vehicles on terms provided by the proviso. So, on the facts, the vehicle was lawfully detained initially, whether under s. 413 of the CPC or s. 24 of the Police Act. However, under s. 24 the vehicle could only be lawfully detained for 48 hours as no proceedings were commenced. The detention after the 48 hours until it was released was clearly unlawful. The continued detention was also unlawful under s. 413 of the CPC as no report was made to a Magistrate and no order was made by a Magistrate giving the custody of the car to the police.
[3]The law does not say that every vehicle must be inspected before registration. But, how is the registrar going to satisfy himself that the vehicle bears a clear, distinct and untampered engine and chassis number unless he inspects it. So, reading ss. 10 and 12 of the RTA together, it is clear that the sections impose a duty on the registrar to inspect every vehicle before registration or transfer of registration. So, the answer to the third question is in the affirmative.
[4]Even though the original engine and chassis numbers and therefore the original owner could not be ascertained, but, considering that it was never proved that the vehicle was a stolen vehicle, that it was not disputed that the respondent is abona fide purchaser, that the vehicle had been registered in the respondent’s name and was seized from and later returned to the respondent, the orders as made by the Court of Appeal are fair and appropriate.

[Bahasa Malaysia Translation of the Headnotes

Pada Februari 1994, responden membeli sebuah kereta yang dibawa masuk dari Kota Kinabalu, Sabah. Sebelum membeli kereta tersebut responden telah memeriksa nombor enjin dan chasisnya dan mendapati semuanya dalam keadaan teratur. Selain itu, pihak Jabatan Pengangkutan Jalan (‘perayu kedua’) juga telah beberapa kali membuat pemeriksaan ke atas nombor enjin dan chasis berkenaan dan, setelah mendapati tidak ada apa-apa yang meragukan padanya, telah mendaftar semula kereta tersebut kepada nombor pendaftarannya sekarang, iaitu NAJ 1912 sekaligus mengesahkan responden sebagai tuan punya berdaftar kereta.

Perayu kedua bagaimanapun kemudiannya telah menyenarai-hitamkan kereta setelah mendapati bahawa dokumen-dokumennya berkemungkinan dipalsukan oleh satu sindiket di Sabah. Berikutnya, pada 28 April 1994, perayu pertama menahan kereta atas syak bahawa ia mungkin kereta curi dan kereta hanya dipulangkan kepada responden atas satu jaminan di bawah s. 413 Kanun Acara Jenayah (‘KAJ’) pada 23 Januari 1995. Pemulangan tersebut, kelihatannya, adalah berpunca dari laporan ahli kimia yang menyatakan bahawa walaupun nombor enjin kereta memang diubah, nombor asal atau tuanpunya asal kereta adalah tidak diketahui.

Responden mengatakan bahawa penahanan kereta oleh perayu pertama adalah tak sah, dan dengan itu telah menuntut gantirugi baginya serta perisytiharan bahawa beliau adalah tuanpunya benefisial kereta. Yang arif hakim bicara berpendapat bahawa penahanan adalah sah dan oleh itu menolak tuntutan. Walaupun begitu, semasa rayuan, Mahkamah Rayuan telah membenarkan tuntutan sekaligus memerintahkan supaya gantirugi ditaksir dengan alasan bahawa penahanan, di atas pembacaan s. 413 KAJ dan s. 24(4) Akta Polis 1967 (‘AP’), adalah melampaui tempoh yang dibenarkan oleh undang-undang. Mahkamah seterusnya berkata bahawa walaupun polis mempunyai segala peluang untuk melanjutkan penahanan, peluang tersebut tidak dimanfaatkan oleh mereka. Berasa tidak puas hati perayu-perayu merayu dan membangkitkan persoalan-persoalan undang-undang berikut kepada mahkamah tertinggi, iaitu:
(i) sama ada satu kenderaan bermotor yang disyaki dicuri, yang mana nombor enjin dan chasisnya telah dipalsukan dan di mana kepemilikan serta hal-hal lain yang berkaitan dengannya masih di dalam penyiasatan polis boleh secara terus dipulangkan kepada responden (yang bukannya pemilik asal atau sebenar kenderaan) tanpa membuat apa-apa penyiasatan di bawah s. 413 KAJ;
(ii) sama ada s. 24(4) AP terpakai kepada sebuah kenderaan bermotor curi yang tidak digunakan di dalam melakukan sesuatu jenayah; dan
(iii) sama ada ss. 8, 10, 11 dan 12 Akta Pengangkutan Jalan 1987 (‘APJ’) mewajibkan perayu kedua selaku Pendaftar Kereta-Kereta Bermotor untuk memeriksa setiap kereta yang dihantar untuk pendaftaran atau pemindahan pendaftaran.

Diputuskan:

Oleh Abdul Hamid Mohamad HMR

[1]Berdasarkan fakta, kenderaan bermotor di sini terangkum di bawah s. 413 KAJ sebagai “alleged or suspected to be stolen” ataupun “found under circumstances which create suspicion of the commission of any offence”. Bagaimanapun, seksyen ini mengkehendaki bahawa perampasan hendaklah “dilaporkan dengan segera kepada Majisteret” yang akan membuat perintah berkaitan penyerahan harta berkenaan. Di bawah seksyen tersebut, hanya Majisteret yang mempunyai kuasa untuk memerintahkan penyerahan harta itu selepas mengadakan siasatan. Oleh yang demikian, jawapan kepada soalan pertama adalah negatif.
[2]Soalan kedua menyangkuti pentafsiran s. 24(4) AP. Adalah jelas bahawa kedua-dua cabang di dalamnya, yakni “which he has reasonable ground to suspect has been used in the commission of an offence against any law in force” dan “to be evidence of the commission of any such offence” adalah bersifat disjunktif. Di atas fakta, adalah tidak munasabah untuk mengatakan bahawa kenderaan tersebut dirangkum oleh phrasa “used in the commission of any offence”. Walaupun begitu, ianya jelas bahawa kenderaan itu adalah “to be evidence in the commission of any offence”. Jadi, jawapan kepada soalan kedua adalah secara afirmatif, iaitu s. 24(4) terpakai.
[3]Undang-undang tidak menyatakan bahawa setiap kenderaan mesti diperiksa sebelum pendaftaran. Namun, bagaimana pendaftar mampu memuaskan hatinya bahawa kenderaan tersebut mempunyai nombor-nombor enjin dan chasis yang betul, jelas dan tidak diubah jika pemeriksaan tidak dibuat. Oleh itu, membaca kedua-dua ss. 10 dan 12, ianya jelas bahawa seksyen-seksyen tersebut telah mewajibkan pendaftar untuk memeriksa setiap kenderaan sebelum melakukan apa-apa pendaftaran atau pemindahan pendaftaran. Oleh itu, jawapan kepada soalan ketiga adalah dalam bentuk afirmatif.
[4]Walaupun nombor enjin dan chasis asal, dan kerana itu pemilik asal, tidak dapat dipastikan, tetapi, mengambilkira bahawa kenderaan tidak dibuktikan sebagai harta curi, bahawa tidak dipertikai bahawa responden adalah seorang pembeli bona fide, bahawa kenderaan tersebut telah didaftarkan atas nama responden dan telah dirampas dari dan kemudian dipulangkan kepada responden, maka perintah-perintah seperti yang dibuat oleh Mahkamah Rayuan adalah adil dan teratur.
Rayuan ditolak. Perintah-perintah Mahkamah Rayuan disahkan]
[Appeal from Court of Appeal, Civil Appeal No: 1-302-1996]

Reported by WA Sharif

Case(s) referred to:
Da Costa v. The Queen [1990] 2 AC 389 (refd)
In re C (Adoption: Notice) [1999] 1 FLR 384 (refd)
In re Siyaram Haruman Prasad [1963] 2 Cri LJ 219 (refd)
Namichand Jain v. The Superintendent of Central Excise and Land Customs (Cachar) & Anor [1963] 2 Cri LJ 288 (refd)
PP v. Chieng Yong Tiong [1996] 1 LNS 293 (refd)
R v. Secretary of State for the Home Department, ex p Weatherhead 32 BMLR 72 (refd)
Shelfield Corporation v. Luxford [1929] 2 KB 180 (refd)
Short v. Short [1960] 3 All ER 6 (refd)
Legislation referred to:
Criminal Procedure Code [India], s. 550
Counsel:
For the appellants – Mary Lim Thiam Suan (Saiful Edris Zainuddin SFC)
For the respondent – D Kalai; M/s Kalai & Partners

Case History:
Court Of Appeal : [2002] 1 CLJ 328

JUDGMENT

Abdul Hamid Mohamad JCA:

The facts of this case which are not in dispute may be summarised as follows:
On 24 January 1994 the respondent agreed to purchase a Honda Accord 2.1 Ex (I) bearing registration number NAJ 1912 from one Dewarajoo. On the following day the respondent took the vehicle to a motor workshop to have it examined. The mechanic and the respondent examined the vehicle and checked its engine and chassis numbers. They found that the engine number was MA 1A5-571289 and the chassis number was CB3-7036281. The purchase price was agreed at RM70,000.
On 27 January 1994, the respondent paid Dewarajoo RM10,000. He was given the vehicle as well as its registration card. The registration card shows that Dewarajoo had bought the vehicle from F & C Motor Sdn. Bhd. in Kota Kinabalu, Sabah. The registration number of the vehicle then was SS9554C. For the purpose of obtaining a loan from Hong Leong Finance Berhad, the vehicle was registered in the name of one Peritam Singh. However, when the loan was fully settled, the vehicle was registered in the respondent’s name.
Subsequently the Road Transport Department Seremban (“the second appellant”) discovered that there was a syndicate in Sabah that was responsible for falsifying and forging vehicle registration numbers, engine numbers and chassis numbers of vehicles brought from Sabah to Peninsular Malaysia.
On 28 April 1994 the said vehicle was detained by the police (“the first appellant”). The respondent was told that the vehicle was a stolen property. The respondent brought the police to Dewarajoo’s house. Dewarajoo was arrested.
The vehicle was sent to the Chemistry Department for examination. It was subsequently confirmed that the vehicle’s engine number had been tampered with but the original number could not be ascertained. On 23 January 1995, the vehicle was released to the respondent on a bond pursuant to s. 413 of the Criminal Procedure Code.
On 6 May 1995, the respondent filed an originating summons in the High Court praying for the following orders:
(1) A declaration that the appellant is the beneficial owner of the said vehicle and that the two respondents have no right to interfere with the right of the appellant under section 7(1)(a) Hire Purchase Act 1967 and also under Article 13(1) of the Federal Constitution and the Road Transport Act 1987 and all the regulations thereunder. Pursuant to that order, the appellant prayed for an order that the said vehicle be registered in the name of the appellant in accordance with paragraph (a) of section 8 of the Road Transport Act.
(2) Secondly, the appellant seeks a declaration that the registration of the said vehicle by the second respondent with registration number WDB 1898 with engine number Ma 1A5-571289 and chassis number CB 3-7036281 made on 10.8.1992 under section 10 of the Road Transport Act 1987 is binding on the second respondent.
(3) The appellant also prayed for an order that the second respondent issued a valid road tax with the registration number NAJ 1912.
(4) The respondents pay damages for depriving the appellant of his right under Article 13(1) of the Federal Constitution and the Senior Assistant Registrar be ordered to assess the damages.
The originating summons was dismissed by the High Court. Appeal to the Court of Appeal was allowed on 21 September 2000. The Court of Appeal made the following orders:
(a) a declaration that the appellant is the beneficial owner of vehicle number NAJ 1912.
(b) a declaration that the registration book of the said vehicle be recorded with the engine number as MA 1A5-571289 and the chassis number as CB 3-7036281;
(c) an order that the second respondent do issue the necessary road tax in respect of the said vehicle after the appellant had made the necessary payment in respect of the road tax and the insurance of the said vehicle taken;
(d) that the detention of the said vehicle by the police after the forty-eight hours was not in accordance with the law and therefore the appellant is entitled to claim damages against the first respondent which is to be assessed by the Senior Assistant Registrar. Since the said vehicle was released to the appellant on 23.1.1995 the damages to be assessed is the period between 30.4.1994 to 23.1.1995. The interest for the assessed damages will attract interest at 8% per annum.
On 27 January 2003 this court granted leave to appeal on the following questions:
1. Whether a motor vehicle which is suspected to be stolen, whose engine and chassis numbers have been tampered with and whose ownership and other details are being investigated by the police can be summarily returned to the respondent (who is not the original (true) owner of the vehicle) without an enquiry being conducted under section 413 of the CPC.
2. Whether section 24(4) of the PA applies to a stolen motor vehicle with tampered engine and chassis numbers but which is not a vehicle used in the commission of an offence.
3. Whether section 8, 10, 11 and 12 of the RTA impose a duty on the second applicant as the Registrar of Motor Vehicle to inspect every vehicle submitted for registration or transfer of registration.
Question No. 1
Section 413(1) of the CPC provides:
413. (1) the seizure or finding by any police officer of property taken under section 20 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence shall be immediately reported to a Magistrate, who shall make such order as he thinks fit respecting the delivery of the property to the person entitled to the possession of it, if that person cannot be ascertained, respecting the custody and production of the property.
On the facts of this case, I have no doubt that the motor vehicle falls under the provision of this section as being property “alleged or suspected to have been stolen” or “found under the circumstances which create suspicion of the commission of any offence.” However, the section requires that the seizure “be immediately reported to a magistrate” who may make an order respecting the delivery of the property. Under that section, it is only the magistrate who has power to order the delivery of the property after holding an inquiry. So, the answer to the first question is in the negative.
Question No. 2
The second question turns on the interpretation of s. 24(4) that reads:
24. (4) Any police officer may cause any vehicle or vessel, which he has reasonable grounds to suspect has been used in the commission of an offence against any law in force or to be evidence of the commission of any such offence, to be moved to the nearest Police District headquarters or other convenient place, and the Officer in Charge of such Police District may thereupon cause such vehicle or vessel there to be detained, pending enquiries, for a period not exceeding forty-eight hours, or if, within that period there are commenced proceedings in respect of any such offence in which the vehicle or vessel is liable to forfeiture under any law or may properly be produced in evidence, until the final determination of those proceedings:
Provided that the Officer in Charge of such Police District may, notwithstanding this subsection, direct the release of any such vehicle or vessel where he is satisfied that the owner or person in charge of such vehicle or vessel will duly produce such vehicle or vessel before the court when required, and for such purpose may require such owner or person to execute such bond or deposit such security as he may deem reasonable.
Clearly, the two limbs ie, “which he has reasonable ground to suspect has been used in the commission of an offence against any law in force” and “to be evidence of the commission of any such offence” are disjunctive. On the facts, it will be stretching the words “used in the commission of any offence” too far to say that the vehicle in question falls under that limb. But, I have no doubt that, on the facts, the vehicle is “to be evidence in the commission of any offence.”
So, the answer to the second question is, in my view, in the affirmative ie, s. 24(4) applies.
That being the case, clearly a police officer is empowered by that subsection to detain the vehicle, pending enquiry, for a period of forty eight hours or, if, within that period proceedings are commenced in respect of such offence and the vehicle may be produced in evidence, then the vehicle may be detained until the final determination of those proceedings. However, the proviso empowers the police officer in charge of a police district to direct the release of such vehicles on terms provided by the proviso.
So, on the facts, the vehicle was lawfully detained initially, whether under s. 413 of the CPC or s. 24 of the Police Act 1967. However, under s. 24 the vehicle could only be lawfully detained for 48 hours as no proceedings were commenced. The detention after the 48 hours until it was released was clearly unlawful. The continued detention was also unlawful under s. 413 of the CPC as no report was made to a magistrate and no order was made by a magistrate giving the custody of the car to the police.
Question No. 3
Coming now to the third question involving the second appellant.
The sections are too long to be reproduced in this judgment. Suffice to say that s. 8 imposes a duty on a licensed registrar to register motor vehicles under the Act.
Section 10(1) and (2) provides the manner in which an application for registration may be made. Subsection (3)(a) provides:
(3) No motor vehicles shall be registered unless
(a) such vehicle bears a clear, distinct and untampered engine and chassis number; and
Section 12 provides:
12(1) The Director General, a Director or a licensed registrar may at any time before registration of a motor vehicle require the motor vehicle to be brought to any convenient place specified by him and to be inspected and, it necessary, to be weighed and measured and after registration may at any time require a motor vehicle to be brought as aforesaid if he has reason to believe:
(a) that the motor vehicle does not comply with the requirements of this Act;
(b) that any information furnished to him in respect of the motor vehicle is false, incorrect or misleading;
(c) that the motor vehicle is not in a serviceable condition; or
(d) that the weight, dimensions, character, construction, colour, identifying particulars of seating accommodation have been altered after the registration thereof.
(2) The registered owner of a motor vehicle shall forthwith inform the licensed registrar in writing of any circumstance or event which affects the accuracy of any entry in the register relating to the motor vehicle, and shall at the same time forward or deliver to the Director the registration certificate relating to such motor vehicle.
(2A) The registered owner shall, in the case of a change of chassis of a motor vehicle, obtain the prior approval of the Director General before such change.
(3) The registered owner of a motor vehicle shall, whenever required by a licensed registrar so to do:
(a) forthwith furnish to the licensed registrar all such information as he may require for the purpose of verifying the entries relating to such motor vehicle in the register; and
(b) forthwith forward or deliver to the licensed registrar the registration certificate relating to such motor vehicle.
(4) After a motor vehicle has been inspected, weighed or measured under subsection (1), or upon receipt of any information or proof furnished in respect of a motor vehicle under subsection (2) or (3), the licensed registrar may make such amendments in the register and in the registration certificate relating to such motor vehicle as he may consider necessary, and shall return the registration certificate to the registered owner.
(5) Any person who without reasonable excuse fails to comply with any requirement of the Director General, a Director or a licensed registrar under subsection (1) or with subsection (2) or (3) shall be guilty of an offence.
We see from the provision of s. 10(3) that the registrar shall not register a vehicle unless such vehicle bears a clear distinct and untampered engine and chassis number. Section 12(1) empowers the registrar to require a motor vehicle to be brought to any convenient place to be inspected before the registration is effected. Of course, the law does not say that every vehicle must be inspected before registration. But, how is the registrar going to satisfy himself that the vehicle bears a clear, distinct and untampered engine and chassis number unless he inspects it? So, reading ss. 10 and 12 together, it is clear to me that the sections impose a duty on the registrar to inspect every vehicle before registration or transfer of registration. So, my answer to the third question is in the affirmative.
But how the inspection is to be done is another matter. Is it sufficient that a normal physical examination be done or must the examination be done by a chemist? We see that in this case, the tempering was only discovered through the examination conducted by the chemist. The tampering was not discovered by all the earlier physical examinations by the second appellant and the respondent’s own mechanic together with the respondent.
I am of the view that it is unreasonable and not practical to require every inspection of the engine and chassis numbers of every vehicle to be done by the chemist, for the purpose of registration. It involves sending every vehicle to the Chemistry Department for such examination. That clearly would delay the process of registration of motor vehicles, considering the number of vehicles being registered every day. Indeed, the public would be the first to complain about the delay. So, in my view it is unreasonable to require an examination of every vehicle to be conducted by the Chemist to ascertain the engine and chassis number before registration. Normal physical examination by officers of the second appellant would suffice. After all, s. 12(1) only empowers the second appellant to inspect the vehicle. The sub-section clearly means inspection by the second appellant. The court should not read more into the provision of the law.
So, on the third question, I would answer it in the affirmative, even though I would not go so far as to require the second appellant to have the vehicle sent to and be examined by the chemist.
Regarding the order made by the Court of Appeal, even though the original engine and chassis numbers and therefore the original owner could not be ascertained, but since it was never proved that the vehicle was a stolen vehicle (even though it was suspected to be so), since there is no dispute that the respondent is a bona fide purchaser, since the vehicle had been registered in the respondent’s name and since the vehicle was seized from and later returned to the respondent, the orders made by the Court of Appeal are fair and appropriate.
In the circumstances, I would dismiss the appeal but would order that each party pays its own costs.