Chu

- vs -

Public Prosecutor

Judgment

Mohamed Zahir J

1. The appellant appeals against the sentence of the learned President who fined the appellant in the sum of $5,000 in default eight months’ imprisonment and ordered cloths seized to be confiscated. The appellant was charged for committing an offence under s 22(1) of the Price Control Act, 1946 (Revised 1973) for failing to affix tags on the cloths. He pleaded guilty to the charge.

2. The only ground of appeal is that the sentence is excessive. The value of the cloths was, as claimed by the appellant in his petition of appeal, $20,000 although this was not disclosed in the record of appeal.

3. In mitigation, the appellant who appeared in person prayed for a lenient sentence and stated that the price of the cloths had not been paid in full and prayed that the cloths be returned to him. He further stated that only a few of the goods in his shop were not tagged, whereas the rest were.

4. It is noted from the record that the prosecution made no submission about the sentence before the imposition of the sentence by the learned President. The President justified his sentence on setting out circumstances which he himself came to know such as the retailer could sweet-talk a customer into buying if there was no price tag and on the inflation and he also gave the reasons for the Government imposing the price tag laws. But the main thing to be considered is whether in law the President possesses a discretionary power to forfeit the cloths under the Act and if he has such power he has exercised it judicially.

5. It is to be noted that there is no separate provision for forfeiture or confiscation in the Price Control Act. Section 22 is the penal section and it is silent on the forfeiture. The only section that mentions forfeiture is s 14(2) which reads as follows:—

   (a)	if, within thirty days of the seizure, no proceedings are instituted against any person for an offence alleged to have been committed in relation to those goods, the goods and accompanying appliances shall be restored to the person from whom they were seized if he can be found and, if not, shall be disposed of as may be directed by a Magistrate; or
   (b)	if, within thirty days of the seizure, proceedings are instituted against any person, the goods and accompanying appliances may be forfeited or otherwise disposed of in such manner as the court may direct.

6. But it should be noted that s 14(2) comes under the sub-heading of “General powers of Price Controller and other officers”. It is not a penal provision clearly and unequivocally to be meted out to an offender.

7. Contrast this with Control of Supplies Act, 1961 (Revised 1973) with its s 26(1):—

   (1)

   Where any person is convicted of an offence against this Act the court may order the confiscation in whole or in part of — (a) any controlled article in respect of which the offence has been committed which has been seized by, or has otherwise come into the possession of the Controller or any person acting under his authority or any vehicle, vessel or other article, the property of the accused, by means of which the offence has been committed or which is intended to be used for the commission of an offence against this Act; or (b) the proceeds of sale of any such controlled article if it has been sold under s 12.

   (2)

   Where confiscation is ordered under sub-s (1), the court shall deliver the controlled article, proceeds of sale, vehicle, vessel or other article confiscated (if not already in possession of the Controller) to the Controller or to any person designated by him, and shall give directions as to their disposal.

8. Contrast it also with Fisheries Act, 1963 with its s 14(1):—

   An order for the forfeiture or for the release of anything liable to forfeiture under this Act shall be made by the court before which the prosecution with regard thereto has been had and an order for the forfeiture of such thing shall be made if it is proved to the satisfaction of the court that — (a) the offence committed is for — (i) using any net, instrument, fishing material or appliance which is prohibited by or under this Act or any regulations or rules made thereunder; or (ii) doing or carrying on an act without a licence or permit required under this Act or any regulations or rules made thereunder; and (b) that thing was the subject matter of, or was used in the commission of, the offence, notwithstanding that no person may have been convicted of such offence.

9. Section 92(4) of the Road Traffic Ordinance provides as follows: —

   An order for the forfeiture or for the release of any motor vehicle seized under the provisions of sub-s (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.

10. Section 126 of the Customs Act, 1967 provides as follows:—

    All goods liable to seizure under the provisions of this Act, shall be liable to forfeiture.

    and s 127(1) of the same Act reads as follows:—

    An order for the forfeiture or for the release of anything liable to forfeiture under the provisions of this Act shall be made by the court before which the prosecution with regard thereto has been held, and an order for the forfeiture of goods shall be made if it is proved to the satisfaction of the court that an offence against this Act or any regulation made thereunder has been committed and that the goods were the subject matter of or were used in the commission of the offence notwithstanding that no person may have been convicted of such offence.

11. Section 30(2) of the Dangerous Drugs Ordinance, 1952 provides as follows:—

    All things liable to seizure under this section, shall be liable to forfeiture.

    and s 30(6) of the same Ordinance reads as follows: —

    An order for the forfeiture or for the release of anything liable to forfeiture under the provisions of this section shall be made by the court before which the prosecution with regard thereto has been held, and an order for the forfeiture of the thing shall be made if it is proved to the satisfaction of the court that an offence under this Ordinance or any breach of the restrictions or conditions subject to or upon which any license, permit or authorization has been granted has been committed and that the thing was the subject matter of or was used in the commission of the offence notwithstanding that no person may have been convicted of such offence or breach.

12. Subsections 8, 9, 10 and 11 of s 30 of the Dangerous Drugs Ordinance provide the procedures to be taken by the court if the goods are claimed by a person alleging himself to be the owner. Section 128 of the Customs Act also provides a similar procedure where a person alleges himself to be the owner.

13. Section 426C(1) of the National Land Code reads as follows:

    All things seized in exercise of the powers conferred by para (b) of sub-s (1) of s 426A shall be liable to forfeiture.

    and thereafter the Code provides the procedure for seizure including summons to prove ownership.

14. Section 74(1) of the Animals Ordinance, 1953 provides as follows: —

    Whenever any person shall have been convicted of an offence against this Ordinance the court convicting such person may, in addition to or in lieu of imposing any other punishment, order that any animal, bird, carcase or article in respect of which such offence has been committed shall be forfeited.

15. Again, there was the usual procedure as to the claim of ownership under the Animals Ordinance.

16. All these provisions are conspicuously absent from the Price Control Act. The forfeiture clause under s 14(1)(b) is not clear whether it is intended to be a penalty against the offender. It may even be argued that the court has the power to forfeit the goods even if before the termination of the case or even if the offender is not found guilty. However, I do not think this can be the correct interpretation of the section. It could even be argued that following s 14(2)(a), in the event the owner was not found then the goods may be forfeited or if there is an owner it should be disposed of by the court in such manner as it may direct and the procedure to be followed as to the disposal should be under s 407 of the Criminal Procedure Code in view of the absence of the Act’s own provisions as to forfeiture. It can be further argued that the power to forfeit rests with the Price Controller as the sections come under the sub-heading of the general powers of the Price Controller unless otherwise disposed of in such manner as the court may direct. Whatever the true construction may turn out to be, the law on this point is vague, indirect and inconclusive. In other words, there is no express penalty provision against an offender as to forfeiture in the Price Control Act.

17. Section 407 of the Criminal Procedure Code states that the court’s power to order a forfeiture is subject to any special provisions relating to forfeiture contained in the written law under which the conviction was had. So as these provisions are absent in the Price Control Act except s 14(2)(b) which merely makes an oblique reference and not being comprehensive, s 407 of the Criminal Procedure Code should be relied by the court in disposing the goods.

18. “Forfeiture” under s 14(2)(b) is in an indirect form. It is incomprehensible if, as under s 14(2)(a), the owner is not found the goods shall be disposed of in the manner directed by the court if there are no proceedings within 30 days, whereas if there are proceedings within the period the goods may be forfeited irrespective of whether there is an owner or not. In other words, since reference for forfeiture is made whenever there are proceedings instituted within 30 days, then if this argument is correct, all those goods where proceedings are not instituted within 30 days are not subject to forfeiture.

19. I do not think this is a reasonable argument. To my mind s 14(2)(a) is merely intended to protect the public in that Price Control Officers cannot retain the goods for more than 30 days without someone being charged for an offence in relation to those goods and s 14(2)(b) gives the powers to the Price Controllers to retain the goods for the purpose of the hearing. Both limbs 14(2)(a) and 14(2)(b) are under the court’s general powers of s 407 of the Criminal Procedure Code. It cannot be argued that the court will have to exercise s 407 of the Criminal Procedure Code in dealing with circumstances under s 14(2)(a) and under s 14(2)(b) if proceedings are instituted within 30 days simply because there are no procedures under s 14(2)(b) or indeed anywhere else in the Price Control Act.

20. In what circumstances can goods under s 407 be forfeited? I think it is confined to those goods which are by themselves an offence for anyone to own or possess or to have custody e.g. drugs, dangerous weapons, smuggled goods. But I am of the opinion that the court does not have jurisdiction to order the forfeiture of a motor taxi for instance where the driver is convicted for dangerous driving as this is not provided for under the Road Traffic Ordinance.

21. The rule of construction of penal law is that acts imposing criminal or other penalties should be clear and unambiguous and should be construed narrowly in favour of the person proceeded against. Maxwellon Interpretation of Statutes, 12th Ed at page 239 states as follows:

    The principle applied in construing a penal Act is that if, in construing the relevant provisions, ‘there appears any reasonable doubt or ambiguity,” it will be resolved in favour of the person who would be liable to the penalty. ‘If there is a reasonable interpretation which will avoid the penalty in any particular case,’ said Lord Esher MR, ‘we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections’.

22. Appearing at the same page is the following passage: —

    If the language of the statute is equivocal and there are two reasonable meanings of that language, the interpretation which will avoid the penalty is to be adopted. The court must always see that the person to be penalised comes fairly and squarely within the plain words of the enactment.

    and at the bottom of the same page and on the top of page 240, it reads as follows:—

    The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.

23. In the circumstances, in the absence of any express provision of the Price Control Act, the court can only exercise the provisions of s 407 of the Criminal Procedure Code as to the disposal of properties and in the circumstances of this case the lower court has no discretionary power to forfeit the cloths seized from the appellant’s shop under the Price Control Act and such powers should be exercised under s 407 of the Criminal Procedure Code under which in this case there is no discretionary power to forfeit. As such I am of the opinion that the appeal as regards sentence be allowed and I order that the goods be returned to the appellant. As regards the fine of $5,000 I think this is quite adequate and I confirm this part of the sentence.

Legislations

Price Control Act 1946 (Revised 1973): s.14

Control of Supplies Act 1961 (Revised 1973): s.26

Fisheries Act 1963: s.14

Road Traffic Ordinance: s.92

Customs Act 1967: s.126

Dangerous Drugs Ordinance 1952: s.30

National Land Code: s.426C

Criminal Procedure Code: s.407

Animals Ordinance 1953: s.74

Authors and other references

Maxwell on Interpretation of Statutes, 12th Ed

Representations

Anthony Gomez for the appellant.

Mohamed Raus Sheriff (DPP) for the prosecution.