SALAHUDDIN BIN SHAMSUDDIN v Pendakwa Raya

Case Significance

A clear statement that the show-cause requirement in the proviso to section 74(2) of the Animals Act 1953 is a mandatory precondition to forfeiting a conveyance, and that a forfeiture ordered without calling on the owner to show cause will be set aside.

This decision of the High Court of Malaya at Kota Bharu concerns an appeal against a Magistrate's order forfeiting a lorry that had been used in the commission of an offence under the Animals Act 1953. The appellant, who was unrepresented below, had been dealt with in connection with the transport of 20,000 live chicks along a highway without the written permission and veterinary health certificate required under a poultry-movement prohibition order made under the Act, an offence carrying a fine under section 36(7). The Magistrate ordered the forfeiture of the lorry used to carry the chicks, and the appellant appealed against that forfeiture.

The central question was whether, under the proviso to section 74(2) of the Animals Act 1953, it is mandatory for the court to call upon the owner of the conveyance to show cause before ordering its forfeiture. The court distinguished the forfeiture regime in the Animals Act from other statutory schemes in which confiscation of seized goods on conviction is expressed as discretionary ("may confiscate"). Under section 74 of the Animals Act, a conviction is not a precondition to forfeiture; but the proviso to section 74(2) imposes a mandatory step — before exercising the power to forfeit the conveyance, the court must call upon the owner to show cause why it should not be forfeited. Because that obligatory show-cause procedure had not been followed before the lorry was forfeited, the Magistrate had erred. The court allowed the appeal, set aside the order forfeiting the lorry, and directed that the vehicle be returned to its registered owner. The court's reasoning highlights that forfeiture of property affects proprietary rights that may belong to a person other than the offender — here the registered owner of the lorry — and that the mandatory show-cause step exists precisely to give such a person the opportunity to be heard before being deprived of the property. The judgment is a clear statement that the show-cause requirement in the proviso to section 74(2) of the Animals Act 1953 is a mandatory precondition to forfeiture of a conveyance.