Supreme Court
Action No. 16 of 1978
5th January, 1979
Sir Denis Malone, CJ.

Mr. G.C. Gandhi for the Appellant
Mr. B.Q.A Pitts for the Respondent

Appeal - Discretionary power of magistrate - Forfeiture - Section 19A of the Dangerous Drugs Ordinance, Chapter 85 - Magistrate misled himself - Court has power to reverse decision of Magistrate - Section 139 of Supreme Court Judicature Ordinance, Chapter 5.

J U D G M E N T

This appeal concerns the discretionary power of a magistrate to order a forfeiture under section 19A of the Dangerous Drugs Ordinance, Chapter 85 (hereinafter referred to as "the Ordinance") of any aircraft, vessel or vehicle used or employed by a person convicted of an offence under that Ordinance.

The Respondent was on the 12th July, 1978, convicted of being in possession of about 1,500 lbs. of cannabis. In a judgment which, if I may say so, is worthy of commendation for the obvious care and consideration given to it, the Acting Chief Magistrate stated that before deciding whether to exercise his discretion to forfeit or not, he had to be satisfied that:

"1. the aircraft was being used in the commission of the offence;

2. the owner, his agent or servant was unaware of such use, or, if aware,

3. the owner, his servant or agent used all reasonable diligence to prevent the aircraft being so used."

The criteria the Acting Chief Magistrate spelled out of the relevant provisions of section 19A of the Ordinance are as follows:-

"19A(1).- Where any person is convicted of an offence ………. under this Ordinance, and the court by which such person is convicted finds that any aircraft………..was used or employed by such person in the commission or to facilitate the commission of the offence of which he is convicted, such aircraft, vessel or vehicle may be forfeited.
(2) …………………..

Provided that no forfeiture of any such aircraft ………………shall take place if, on the trial of any person mentioned in subsection (1) of this section …………the court finds that neither the owner nor any of his agents or servants was aware that such aircraft …………….was being so used or employed, or, if it was that he used all reasonable diligence to prevent it being so used or employed."

There was no evidence as regards the third of the criteria I have mentioned. As regards the first and second, the Acting Chief Magistrate respectively found that the aircraft had been used in the commission of the offence charged and that the Respondent was not its owner, or the agent or servant of the owner, nor was it known who was the owner of the aircraft, or the agent or servant of the owner. On the ground that he:

"considered it unsafe to order forfeiture of an aircraft of which the ownership was not established",

the Acting Chief Magistrate rejected the prosecutor's application for forfeiture. This appeal is against that rejection.

In deciding against a forfeiture, the Acting Chief Magistrate posed to himself two questions in relation to the second of the criteria. These he expressed as follows:

"1. Is the defendant the owner of the aircraft or the owner's servant or agent?

2. If neither, was such servant or agent aware of the use to which the aircraft was being put?"

As the Acting Chief Magistrate found that the aircraft had been used in the commission of the offence and did not think it necessary to consider the third of this criteria. It thus follows that he gave to the second of this criteria a meaning which is the converse of what it expresses, namely, that he could not order a forfeiture without being satisfied that either the owner of the aircraft, his agent or servant was aware of the use to which the aircraft had been put. The decision of the Acting Chief Magistrate is thus based on the premise that a prima facie case must be made out which shows that the owner, his agent or servant was aware of the use made of the aircraft. To that interpretation of section 19A, Counsel for the Appellant objected upon two grounds. The first being that the decision puts upon the prosecution the burden of proof and the second that the exercise of the discretion to order a forfeiture is not dependent upon it first having to be shown that the owner, his agent or servant was aware of the use made of the aircraft. For the Respondent, it was submitted that if the Acting Chief Magistrate's interpretation of the section was not followed, a hardship could result in a case where the owner, his agent or servant was not present at the proceedings and the aircraft had, without it being disclosed at the trial, been stolen. I appreciate that there could be such hardship and will admit that on first considering the section, it appeared to me that in the absence of the owner, his agent or servant, to order a forfeiture would be contrary to natural justice. On the other hand, there could also be an injustice if, though the owner, his agent or servant was well aware that the aircraft was used for the illegal purpose, he chose not to attend the proceedings or, if present, was allowed to say that until a prima facie case had been made out that he was so aware, a forfeiture could not be ordered. I do not think that section 19A of the Ordinance permits an owner, his agent or servant to adopt that position. In that regard, I think its effect is similar to that of section 27 of the English Misuse of Drugs Act, 1971, which was drawn to my attention by Counsel for the Appellant although the language of the two sections is not the same. That is to say that if the evidence shows it to be a proper case for forfeiture, a forfeiture should be ordered save only where the magistrate finds that the owner, his agent or servant was not aware that the aircraft had been used for illegal purpose or, if so aware, used all reasonable diligence to prevent it being so used. In applying that interpretation, I think that the following three considerations should be borne in mind. The first is that if at the close of the prosecution's case for the offence charged, the magistrate finds that the evidence establishes either of the conditions specified in the proviso, as for example it is shown that because the aircraft was stolen the owner, his agent or servant was not aware of the use made of it, the magistrate should not entertain forfeiture proceedings whether or not the owner, his agent or servant is present. The second is that if the owner, his agent or servant is present at the proceedings, then whether or not the prosecution has made out a prima facie case that the owner, his agent or servant was aware that the aircraft was being used for the illegal purposes, the magistrate should give to the owner, his agent or servant an opportunity to be heard where an application for forfeiture is made in order that he may show the greater probability to be that he comes within the proviso. Thirdly, because either an owner, his agent or servant on the hearing of an application fails to bring himself within the proviso to section 19A or because the prosecution proves that an owner, his agent or servant was aware of the use of the aircraft is not in itself a reason for ordering a forfeiture as in every instance the fundamental question is whether the circumstances warrant a forfeiture. The prime circumstance would, I think, be the gravity of the offence. Facts that would effect the gravity of the offence being the quantity of drugs involved or the value of the drugs involved. Another circumstance might be the fact that the aircraft to be forfeited is proved to have been engaged previously in a similar enterprise or that the particular enterprise is a part of an extensive network. The factors listed are not meant to be exhaustive but as indicative of the factors which a magistrate should take into account in deciding whether or not to order a forfeiture.

In this case the quantity and value involved was considerable as the charge was in respect of 1,500 lbs. of cannabis which the Acting Chief Magistrate considered to be worth between $100,000 and $750,000. But for the fact that the Acting Chief Magistrate misled himself into thinking that a forfeiture should not be ordered because there was no evidence that the owner, his agent or servant was aware that the aircraft was being used for the illegal purpose it is, I think, clear that he would have ordered a forfeiture, as in the reason for his decision he stated:

"If ever there was a case for forfeiture, this would seem to be such a case……….."

By paragraph (a) of subsection (1) of section 139 of the Supreme Court of Judicature Ordinance, Chapter 5, this Court may, on appeal, reverse a decision of a magistrate. I think this is a proper case for doing so. I therefore order that the aircraft be forfeited. There was a second ground of appeal against the sentence imposed but as that was withdrawn, I have not to consider it.

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