IN THE HIGH COURT OF MALAYA AT TEMERLOH
CRIMINAL APPEAL NO:________________2012
(In the matter of Raub Magistrates Court
Criminal case No: 83-86-2011)
BETWEEN
…APPELLANT
PUBLIC PROSECUTOR
AND
…RESPONDENT
JAMAIZHAM BIN ZAIDUN
GROUNDS OF JUDGEMENT
INTRODUCTION
This is an appeal from the Public Prosecutor (“ the Appellant”) against the decision of
the Magistrate of the Raub Magistrates Court given on 25.5.2012 which acquitted and
discharged the Respondent at the end of the prosecution’s case without calling his
defence for the charge under Section 135 (1) (e) Custom Act 1967 and ordered the
motorvan bearing registration no. CBF 1809 to be returned to the rightful owner.
The Appellant’s appeal is against the above said decision.
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THE CHARGE
The charge read as follows:Bahawa kamu Jamaizham bin Zaidun (No. Kad Pengenalan 740104-06-5161) pada
19 Mei 2010 lebih kurang jam 6.00 petang di kawasan Bukit Koman, Daerah Raub,
di dalam negeri Pahang dengan apa jua disedari kamu telah terlibat dengan
mengangkut barang larangan iaitu 7 kotak x 50 karton x 10 paket x 20 batang
rokok yang mengandungi tembakau yang bernilai RM12,600.00 yang diangkut di
dalam sebuah van bernombor pendaftaran CBF 1809 dengan niat untuk mengelak
larangan terhadap barang-barang tersebut, yang mana barang-barang tersebut
adalah barang yang dilarang import di bawah Butiran 1 Bahagian II Jadual
Keempat Perintah Kastam ( Larangan Mengenai Import) 2008 [ P.U. (A) 86/2008]
dengan itu kamu telah melakukan kesalahan di bawah Seksyen 135 (1) (e) Akta
Kastam 1967 yang boleh dihukum di bawah Seksyen 135 (1) (iii) (aa) Akta yang
sama.
FACTS OF THE CASE
The Respondent in this case was detained by 3 custom officers while he was driving a
motorvan bearing registration no. CBF 1809 along Jalan Bukit Koman, Raub on
19.5.2010. The said custom officers while doing their patrolling duty along Jalan Cheroh
coincidently bumped into the said motorvan, which was driven by the Respondent. After
tailing the motorvan for a few minutes, the motorvan was later stopped by the custom
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officers at Jalan Bukit Koman, Raub just near a roundabout. After doing some checking
on the said motorvan, the custom officers found seven (7) boxes of cigarettes under the
League brand. After a thorough checking by the Custom officers, they suspected all the
cigarettes were smuggled and uncustomed. The Respondent then on 31.3.2011 was
charged at the Raub Magistrates Court as per above said charge.
PROSECUTION’S CASE
During the prosecution’s case, the prosecution produced eight (8) witnesses as follows,
namely:-
SP1
-
Mohd Asnari bin Pilus
-
Photographer
SP2
-
Mohd Sabri bin Abu Bakar
-
Arresting officer
SP3
-
Ahmad bin Othman
-
Ciggarrete Valluer
SP4
-
Roslan bin Sulaiman
-
Arresting officer (with SP2)
SP5
-
Ishak bin Mohd Noh
-
Store Keeper
SP6
-
Abdullah bin Mohd Yusof
-
Chemist
SP7
-
Bahari bin Bujang
-
Investigating Officer
SP8
-
Teng Sai Moi
-
Van Owner
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THE COURT’S FINDING
At the end of the prosecution’s case, after considering all the adduced evidence and
valuating all the available evidence with maximum evaluation, this court is in the opinion
that the decision delivered on 25.3.2012 was right and impartial. The grounds of
judgment are as adumbrated below.
THE ELEMENTS
There are (3) three elements to be proven by the prosecution as follows:1)
That the Respondent knowingly concerned in conveying the prohibited goods
which in this case are cigarettes;
2)
The said goods are uncustomed or prohibited goods under Custom Order
(Prohibition on Import) 2008 except with the lawful licence;
3)
The Respondent with intention to defraud the government of any duties thereon.
With regards to the second element i.e cigarettes, both the prosecution and the defence
are in agreement that the seized goods are cigarettes which are prohibited and or
uncustomed. Then, the Court does not intent to discuss regarding the matter in length
as the Court is in the opinion that this matter is not the main issue anymore here. So
that, the Court thinks that the prosecution is already establishing this second element.
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In contrast, the defence counsel submitted that the Respondent was out of knowledge
regarding the cigarettes found in the said motorvan and urged that the said prohibited
goods were not belongs to him. The Court is in the opinion that the Respondent
argument is about the issue of knowledge. This issue is the main issue considered by
the Court in reaching the ruling in this case. This involves the first and third element i.e
“knowingly” and “with intention”. When these two elements combine it shows that the
offender had knowledge about the seized goods. The Court will discuss this issue
further under the topic of knowledge.
PRESUMPTION UNDER SECTION 135 (2) CUSTOM ACT 1967
The prosecution in proving the element of knowledge is referring to the presumption
under Section 135 (2) Custom Act 1967. This Section read as follows:(2) in any prosecution under this section or section 139 any dutiable, uncustomed
or prohibited goods shall be deemed to be dutiable, uncustomed or prohibited goods, as
the case may be, to the knowledge of the defendant unless the contrary be proved by
such defendant.
It is a clear fact that this presumption is in favour of the prosecution in proving the
knowledge of the Respondent towards the goods. However, the Court is in the opinion
that the presumption under Section 135 (2) Custom Act 1967 is a rebuttable
presumption which could be rebutted by the defence counsel.
Now, the issue is how the defence can rebut the said presumption?
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The answer is that, there are two ways to rebut this presumption. Firstly, the defence
can cross-examined the prosecution’s witnesses at the prosecution’s case in order to
create the doubt about the Respondent’s knowledge towards the prohibited goods.
Secondly, by adducing the Respondent’s evidence and/or by any other witnesses that
corroborate the Respondent’s evidence at the defence case.
The Court is in the opinion that if the first option is successful in rebutting the
presumption or creating doubt, it would be pretty enough. With that, the second option
will be irrelevant and no more needed. It is what happens in this current case that the
Court is in the opinion that the defence counsel has already succeeded in rebutting the
presumption of the Respondent’s knowledge towards the prohibited goods involved by
cross-examining the prosecution’s witnesses at the prosecution’s case.
The examples of the rebuttal created by the defence counsel during cross-examination
of the prosecution’s witnesses are as follows:1)
SP2 (Mohd Sabri bin Abu Bakar) said in his testimony that the motovan’s driver
did not attempt to abscond and gave his cooperation to the SP2 during checking.
While cross-examined by the defence counsel, the witness agreed that there was
no speed and chase while detaining the Respondent even it was stated in the
Raub police report no. 1867/2010 (P5).
2)
The evidence by the SP8 (Miss Theng Sai Moi) i.e the owner of the said
motorvan also rebutted the presumption of Respondent’s knowledge.
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It is because the SP8 said that she was the sole owner of Zulas Friend
Enterprise as the company’s name stated on the seized motorvan. The company
dealed with stationaries, books and cigarettes. Her company only sold the
cigarettes under Scope, Maxwill and Suria M1 brand. The cigarettes under the
siezed brand were not traded by her company.
The said motorvan was owned by her company. In her testimony, she told that
she employed three (3) employees. The van was routinely used by the three
employees including the Respondent.
She also said that the said motorvan normally parked in front of the house and
usually was not locked. They key normally left in the motorvan even if
unattended. The said motorvan actually can be used by the others even without
SP8’s approval.
Furthermore, SP8 also stated that on the date i.e on 19.5.2010, before the
Respondent used the motorvan there were her other employees used it.
The SP8 also confirmed in his testimony that the seven (7) seized boxes were
not of her company or the Respondent himself. It was because on the said date
the SP8 had not directed the Respondent to take or to convey the cigarettes to
any destination.
3)
The testimony by the Investigating Officer (SP7) in this case also confirmed that
he has not done any investigation on whether there was any other persons were
using the said motorvan on the said date other than the Respondent himself.
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It is a crystal clear that the testimony by the SP8 abovementioned to be accepted
by the Court as no other evidences stating otherwise.
This honorable Court is in the opinion that the evidence by the above stated witnesses
has casted doubt regarding the knowledge of the Respondent towards the seized
goods. Hence, the presumption under Section 135 (2) Custom Act 1967 has been
successfully rebutted by the defence.
As submitted by the defence counsel, the Court accepted the case law authorities
referred by him.
In PP v Tay Yew Lia [1957] 1 MLJ 17, the court ruled as follows:“What the Defendant had to proved to rebut the presumption under section 131
(2) of the Customs Ordinance 1952 was that he does not know the duty has not been
paid”.
In the case of Goh Yin Guan v PP [1967] 1 MLJ 113, the Court stated as follows:“Although there was a presumption that the appellant knew that the goods were
uncustomed, he had rebutted this presumption by showing that he had no knowledge of
the goods in the lorry because he was the attendant of the lorry and was carrying out
his duties in the ordinary cause of his employment”.
In the case of Wolfgang Pzetzholdt v PP [1970] 2 MLJ 195, the Court further stated
that:“The second charge under Sec. 135 (1) (e) of the Custom Act 1967 required not
only knowledge but an intent to defraud the government of the duty payable or to evade
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any prohibition under the act or to evade the prohibition applicable to the goods
concerned and in the case the prosecution had not shown that the appellant had no
such knowledge or intent”.
In the case of Lim Kim Chai v PP [1963] 1 MLJ 26, the Court stated as follows:“The question of the intention to defraud remains of all times to be proved by the
prosecution in the same was no intention is proved in all criminals cases were guilty
knowledge is one of the ingredients of the offence”.
THE STATUS OF THE SEIZED MOTORVAN
Regarding the motorvan which was returned to the rightful owner after the expiration of
the appeal time limit as ordered by the Court, this honorable Court is in the opinion that
the ruling is absolutely right and reasonable. It is because the Court firstly heard the
supplementary submission and arguments by both parties on this matter before
deciding on that with satisfaction.
The prosecution in their submission has referred to Section 127 (1) Custom Act 1967.
The Section read as follows:“(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 held, and an order for the forfeiture of the goods shall be made if it is
proved to the satisfaction of the court that an offence against this Act or any regulation
made there under has been committed and that the goods were the subject matter of or
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were used in the commission of the offence notwithstanding that no person may have
been convicted of such offence”.
The prosecution also referred to the case of Ting She Sing v PP [1985] 1 MLJ 463 and
the case of Cheng Kok Ting v PP [1933] MLJ 160 in order to support their arguments.
In contrast, the defence submitted that with regards to Section 127 (1) Custom Act as
referred by the prosecution, they were of the opinion that it was clearly stated that “the
offence has been committed” and “with the satisfaction of the Court”. The defence
further stated that in this current case there was no offence committed as ruled by the
honorable court. In this current case the Court ruled that the Respondent was acquitted
and discharged without calling for defence at the end of the prosecution case. So that it
was clear that no offence takes place. In a nutshell, the defence argued that it would be
unreasonable and partial if the motorvan being forfeited as no such offence committed
by the Respondent.
After the court give full consideration to the both parties’ submissions and arguments,
with satisfaction, the court rules that the motorvan to be returned to the rightful owner
after the expiration of the appeal period.
CONCLUSION
For the above stated reasons, this honorable Court is of the opinion that the decision
made is reasonable, right and impartial.
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Dated this 10th day of August 2012
……………SGD…………………..
NIK HABRI BIN MUHAMAD
Magistrate
Raub Magistrate Court
Pahang Darul Makmur.
Prosecutor
:
En. Mohd Nazri (KDRM)
Defence Counsel
:
En. Ooi from Messrs Aedi & Ooi
REFERENCE
1.
Seksyen 135 (2) Akta Kastam 1967
2.
Seksyen 127 (1) Akta Kastam 1967
3.
PP v Tay Yew Lia [1957] 1 MLJ 17
4.
Goh Yin Guan v PP [1967] 1 MLJ 113
5.
Wolfgang Pzetzholdt v PP [1970] 2 MLJ 195
6.
Lim Kim Chai v PP [1963] 1 MLJ 26
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