PUBLIC PROSECUTOR v GUMEDE STHEMBISO JOEL

Facts

The respondent, Gumede Sthembiso Joel, pleaded guilty to and was convicted of two offences under s 5(1)(a) of the Endangered Species (Import and Export) Act 2006 (ESA) for bringing rhinoceros horns into Singapore. He received a global sentence of 24 months' imprisonment and was repatriated to South Africa on 3 February 2024 after serving it. On 22 January 2025 a disposal inquiry was held over three items seized from him: an Apple iPhone, an Apple Macbook and its charger. The Prosecution sought forfeiture, but the District Judge ordered the items returned to him.

The District Judge found that the items were used for the offences but declined forfeiture because they were ubiquitous and relatively affordable, and because the respondent had already been severely punished with the maximum sentence. The Prosecution applied to the General Division of the High Court in Criminal Revision No 2 of 2025 to set aside the order and substitute a forfeiture order.

Issues

1. Whether the iPhone, Macbook and charger were property used for the commission of the ESA offences under s 364(2)(a) of the Criminal Procedure Code 2010.
2. Whether the District Judge's refusal to forfeit the items was so wrong as to cause serious injustice warranting revision.
3. Whether forfeiture was justified by deterrence, and whether a mutual legal assistance request from South Africa was relevant.

Holding

The High Court allowed the Prosecution's application for criminal revision, set aside the District Judge's order and ordered that the iPhone, Macbook and charger be forfeited to the State.

Reasoning

The court noted that revision is exercised sparingly and only where there is serious injustice, meaning something palpably wrong in the decision. The District Judge's reasoning that the items would help prove mens rea pointed to the evidence limb rather than the use limb, and the offence was one of strict liability. Even so, applying the test in Public Prosecutor v Mayban Finance (Singapore) Ltd [1997] 3 SLR(R) 216, the items were directly related and substantially connected to the offences. The iPhone was used to receive the supplier's request to carry the horns, to send passport details for flight bookings, to receive a Laotian eVisa, and to send bank details for a payment. The respondent's argument that these messages concerned rhinoceros horns only in general was rejected. Hours before leaving South Africa, he used the Macbook to search whether rhino horn was illegal in Singapore and to read about past seizures, which helped him assess the risk of detection. The charger was treated with the Macbook as a set.

The District Judge exercised the discretion on irrelevant considerations contrary to the authorities. Low value and ubiquity are not reasons to refuse forfeiture; otherwise many everyday instruments of crime would be returned. Under Magnum Finance and Prime Shipping, value matters only where it is disproportionately high compared with the offence. Likewise, a severe sentence makes forfeiture more, not less, justified. Comparing Hong Leong, where a vehicle owned by a third party was forfeited for an offence with the same maximum punishment, forfeiture of the respondent's own lower-value items was even more appropriate.

Deterrence weighed heavily. The respondent smuggled some $1.2m worth of rhinoceros horns, one of the largest ESA seizures in Singapore's history, and received the maximum sentence. Because electronic devices make criminal schemes easy to coordinate and conceal, the court held that the starting point should be to forfeit devices used to commit offences. Returning the items caused serious injustice to the State. The South African request did not need to be decided and was in any event irrelevant, as the Prosecution had always sought forfeiture to the State.

From the judgment