Agm Duty Free (Tengah) Sdn Bhd v Mohamad Hafiz Bin Ishak (B-01(A)-707-12/2023)

KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Shah Alam, Selangor Saman Pemula No. BA-24-20-07/3023 Dalam perkara mengenai Seksyen 128(3) dan Seksyen 128(4) Akta Kastam 1967 (Akta 235); Dan Dalam perkara mengenai Seksyen 65 dan Seksyen 75 Akta Kastam 1967; Dan Dalam perkara mengenai Seksyen 132 Akta Kastam 1967 (Akta 235); Dan Dalam perkara mengenai Artikel 13 Perlembagaan Persekutuan; Dan Dalam perkara mengenai Seksyen 41 Akta Relif Spesifik 1950 (Akta 137); Dan Dalam perkara Aturan 15 kaedah 16 Kaedah-Kaedah Mahkamah 2012. ANTARA AGM DUTY FREE (TENGAH) SDN BHD [NO. SYARIKAT: 232244-H) PLANTIF

KERAJAAN MALAYSIA ...DEFENDAN-DEFENDAN CORAM: MARIANA BINTI HAJI YAHYA, JCA HASHIM BIN HAMZAH, JCA FAIZAH BINTI JAMALUDIN, JCA JUDGMENT INTRODUCTION [1] The Appellant filed a notice of appeal on 29.12.2023 to appeal against the decision made by the High Court Judge of Shah Alam which had dismissed the Appellant's Originating Summons on 22.12.2023. The Respondents then on 29.1.2024 had cross-appeal against the order made by the High Court. THE PARTIES [2] In this case, the Appellant is the AGM Duty Free (Tengah) Sdn. Bhd which was licensed by the Customs Department under section 65 of the Customs Act 1967 ("the Act") to operate a duty-free shop at Lot 23 and 25, Lorong Sg Chandong 12, Pulau Indah, Selangor which permitted the Appellant to warehouse or store dutiable/taxable goods or goods on which customs duties taxes are unpaid at the plaintiff's premises to be sold to travellers. [3] The First Respondent is Mohd Hafiz bin Ishak who, at the material time, was the investigating officer for this case pertaining to the seizure of various brands of beers and the lorry with registration number PLH 7299 at the Appellant's premise. [4] The Second Respondent is Mohd Nor Hasyimi bin Adam who is Ketua Unit Siasatan Frod Perdagangan. The Third Respondent is the Director General of the Customs Department of Malaysia while the Fourth Respondent is the government of Malaysia. SALIENT FACTS [5] On 23.9.2022, the Appellant's goods were seized during the inspection conducted by the Respondents in the Appellant's premises. The seized goods comprised various brands of dutiable beers and a lorry with the registration number PLH 7299. The Respondents issued the Notis Sitaan dated 23.9.2022 to the Appellant (See exhibit "DPS-3"). Paragraphs 2, 3, and 4 of the Notis Sitaan state as follows: "2. Barang tersebut di atas disita kerana ada sebab-sebab yang munasabah untuk mensyakki bahawa kesalahan telah dilakukan di bawah Seksyen135(1)(8) Akta Kastam 1967.

Menurut Seksyen 126 Akta Kastam 1967 semua barang yang disita boleh dikenakan lucuthak. Jika tiada tuntutan bertulis dibuat dalam tempoh satu bulan kalendar dari tarikh barang tersebut telah disita, barang-barang tersebut akan dilucuthak menurut Seksyen 128 (1) Akta Kastam 1967.

Sila ambil perhatian bahawa menurut undang-undang, barang-barang yang disita seperti di dalam notis penyitaan ini, jika tiada dijalankan pendakwaan, akan dilucuthak jika kamu tidak membuat satu tuntutan bertulis kepada Jabatan Kastam DiRaja Malaysia untuk pemilikan dalam masa satu bulan kelendar bermula dari tarikh penyitaan." [6] Subsequently, the Appellant issued a Notice to Claim dated 21.10.2022 (exhibit "DPS-6") to the Respondents claiming the return of the goods seized by the Respondents on 23.9.2022. It was made within one month from the date of the Notis Sitaan. The Appellant has complied with Sections 128 (1)(a) and (2) of the Act. However, the Respondents did not respond to this letter. [7] Once again on 19.6.2023, the Appellant through his solicitor Messrs J R Ravendren & Associates sent a letter to the Respondents for the release of the seized goods. In this letter, the Appellant's solicitor stated that the Respondent's failure to release the seized goods would cause the Appellant to initiate proceedings in Court. [8] On 26.6.2023, the First Respondent sent a letter to the Appellant stating that the investigation was completed and the consent to prosecute had been obtained from the Deputy Public Prosecutor. The letter further stated that the Orang Yang Disyaki ("OYDS") will be charged in the near future. [9] On 10.10.2023, the Respondent temporarily released/returned the lorry with registration number PLH 7299 to the Appellant together with a semi-trailer with the registration number BKTR284319 to the agent of Direct Express (M) Sdn. Bhd. The release/return of the vehicle was with a bond of RM 40,000.00 for the lorry (PLH 7299) and another RM20,000.00 for the semi-trailer. The Respondent had also submitted the "Sijil Pemulangan/Pelepasan Barang/Kenderaan di bawah S.115(1)(a) atau (b) Akta Kastam 1967". AT THE HIGH COURT [10] On 21.7.2023, the Appellant filed an Originating Summons at the High Court of Shah Alam. The Appellant in commencing an Originating Summons had prayed as follows: a. A declaration that the seizure of the said goods and the said lorry by the first defendant is wrongful and therefore unlawful. b. Special damages, general damages, and exemplary damages to be assessed by the Registrar of the court and to be paid by the Defendants to the Plaintiff; c. Interest at the rate of 5% on the total damages assessed and awarded under paragraph (b) above from the date of the seizure until the full settlement of the amount; d. The cost of the application to be borne and paid by the defendants; and e. All other reliefs as this Honourable Court deems proper and just. [11] On 22.12.2023, the Appellant's Originating Summons was dismissed by the High Court. [12] The learned High Court Judge had distinguished between the facts of the case in Samiina Sdn Bhd v Gerry Ho & Ors [2023] 7 CLJ 349 ("Samiina") and Modern Freight Express v Afzarizzal bin Abdul Wahab [2017] 6 MLJ 83 ("Modern Freight Express"), wherein, in these two cases, there were no steps taken by the customs officer to initiate a prosecution until the court hears of the Originating Summons suit. In contrast, in this instant case, before this matter came up for hearing, the Customs had already obtained consent from the Deputy Public Prosecutor to prosecute the seized goods. The High Court also distinguished Samiina and Modern Freight Express in view that these cases were decided under the pre-amendment law of the Customs Act 1967. [13] In paragraph 34 of the High Court's Grounds of Judgment, the learned High Court Judge stated that the Act did not stipulate that the prosecution must be commenced within 30 days of the Appellant's request for the return of the goods or within a specified time after the expiry of the 30 days. His Lordship further stated that the Act requires that in the eventuality that there is no prosecution, the Director General shall either direct the return of the seized goods to the claimant or refer the matter of seized goods to the magistrate for decision. [14] The learned High Court Judge also stated that the Act provides for jurisdiction to different courts depending on whether or not there is a prosecution. His Lordship opined that if there is a criminal prosecution, the court hearing the criminal prosecution shall have the jurisdiction to deal with and dispose of the seized goods by order of such court as stipulated under Section 127(1) of the Act. His Lordship further stated that if there is no prosecution and the Director General does not direct the return of the goods to the claimant, the Director General shall refer the matter to the magistrate for examination and decision on whether or not to forfeit the goods as provided under Section 128(3) and 3A of the Act. [15] The learned High Court Judge further held that there were discrepancies in the documents regarding the goods. Accordingly, there was a reasonable suspicion to justify the seizure of the goods. [16] Following that, the learned High Court Judge has made the following orders. "Orders which should be made here

In the premises, the prayers sought in this originating summons were dismissed on the following terms:

The prosecution pursuant to s. 127(1) of the Customs Act 1967 shall be commenced within 2 months from the date of service of this sealed Order, failing which the continued seizure of the goods shall be deemed to be unlawful and invalid.

In the event that the final decision of the court hearing the prosecution pursuant to s.127(1) is that no order of forfeiture shall be made in respect of the seized goods or in the event that the continued seizure of the goods is deemed to be unlawful and invalid pursuant to the order in item (1) above, then the Plaintiff shall be at liberty to apply to this Court to assess the damages in the form of the value of the goods and to make order of damages in favour of the Plaintiff.

The cost of this suit shall be costs in the cause of the assessment of damages (if any)." [17] Dissatisfied with the learned High Court Judge's decision, hence this appeal before us. THE APPEAL BEFORE THIS COURT [18] The Appellant in its Memorandum of Appeal states 6 grounds of appeal as follows: "1. Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang apabila memutuskan tidak ada tempoh masa untuk defendan-defendan merujuk tuntutan perayu ke Mahkamah yang bertentangan dengan seksyen 128(3) Akta Kastam 1967.

Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang apabila memutuskan bahawa defendan-defendan hendaklah memulakan pendakwaan dalam tempoh masa dua bulan dari tarikh penerimaan perintah Mahkamah Tinggi yang termeterai di mana arahan tersebut adalah bertentangan serta bercanggah dengan Artikel 145 Perlembagaan Persekutuan.

Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta apabila gagal menimbang fakta bahawa tuntutan secara bertulis dibuat oleh perayu/plaintif adalah pada 21.8.2022 menuntut agar barangan yang disita dilepaskan kepadanya manakala kebenaran untuk mendakwa diperolehi oleh defendan-defendan hanya pada 26.6.2023 tetapi sehingga tarikh pendengaran pada 22.12.2023. defendan-defendan masih belum memulakan apa-apa pendakwaan terhadap perayu/plaintif.

Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang dan fakta dalam menolak permohonan perayu melalui Saman Pemula tersebut tetapi dalam masa yang sama setuju bahawa wujudnya satu tempoh masa untuk defendan-defendan merujuk perkara berkaitan penyitaan barang kepada Majistret.

Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang dalam salah-tafsiran seksyen 127 dengan keadaan kes kini di mana isu bukan berkenaan pelucuthakkan barang yang disita yang dibuat oleh perayu/plaintif dalam keadaan di mana pendakwaan tidak dimulakan dalam tempoh masa 30 hari dari tarikh tuntutan dibuat oleh perayu/plaintif.

Yang Arif Hakim Mahkamah Tinggi telah terkhilaf dari segi undang-undang apabila memegang tiada tempoh masa ditetapkan di bawah undang-undang jenayah untuk memulakan sesuatu pendakwaan tanpa menghayati objek dan niat yang ternaktub di bawah Akta Kastam 1967 yang memerlukan satu pendakwaan dimulakan dalam tenpoh masa 30 hari dari tarikh tuntutan dibuat." [19] The grounds contained in paragraphs 1 to 6 in the Memorandum of Appeal are primarily issues of law where the crucial element of law relates to the questions involving the interpretation of relevant laws and the applicable legal principles. [20] At the outset, we note that the grounds raised in the Memorandum of Appeal encompass two broad areas as follows: i. The legal principles applicable with respect to the seizure of goods under Section 128 of the Customs Act 1967; and ii. The usurpation of the powers of the public prosecutor by the learned High Court Judge in imposing a time frame of two months from the date of the service of the court order to commence the prosecution in violation of Article 145 of the Federal Constitution. ISSUES [21] For the purpose of this appeal, the Appellant raised two main issues that are to be determined by this Court as follows: "a. Sama ada berdasarkan kepada satu pentaksiran yang benar dan tepat terhadap subseksyen 128(3) dan subseksyen 128(4) Akta Kastam 1967 (Akta 235) bahawasanya dalam keadaan di mana tiada pendakwaan dijalankan dan di mana tuntutan sewajarnya dibuat oleh Plaintif terhadap penyitaan 2430 karton minuman keras pelbagai jenama (selepas ini dirujuk sebagai "barang tersebut") di Gudang Lot 23 & 25, Lorong Sg. Chandong 12, Pulau Indah, Selangor serta di dalam kenderaan lori dengan nombor pendaftaran PLH 7299, oleh defendan-defendan pada 23.9.2022, defendan-defendan gagal dan/atau enggan melepaskan barang tersebut tetapi terus menyita barang tersebut selepas tamat tempoh 30 hari dari tarikh tuntutan tanpa merujuk kepada Mahkamah adalah menyalahi undang-undang; dan b. Sama ada berdasarkan kepada satu pentafsiran yang benar dan tepat terhadap subseksyen 128(3) Akta Kastam 1967 (Akta 235), kegagalan dan/atau keengganan defendan-defendan untuk melepaskan barang tersebut kepada plaintiff dan kegagalan dan/atau keengganan defendan-defendan untuk merujuk tuntutan plaintiff terhadap barang tersebut kepada Mahkamah selepas tamatnya 30 hari dari tarikh tuntutan hanya menjadikan penyitaan barang tersebut sebagai tidak sah.” PARTIES' SUBMISSIONS Submission of the Appellant [22] The Appellant submitted that the crux of this case concerns the continuous seizure of goods since 23.9.2022 by the Respondents without referring the Appellant's claim to a magistrate pursuant to Section 128(3) of the Customs Act 1967 when no prosecution was commenced within thirty days from the date of the Appellant's claim making the seizure of the said goods as unlawful. [23] The Appellant submitted that the law made it clear that when there is no prosecution in respect of the said goods within 30 days from the date of the claim and the Respondents have no intention to release the goods, then the matter must be referred to the court on the expiry of 30 days from the date of the claim for a decision. [24] The Appellant asserted that the law does not empower nor authorize the Respondents to continue seizing the goods upon the expiration of 30 days from the date of the claim without any prosecution or referring the matter to the court for a decision when there is a claim for the said goods made in accordance to the law. [25] The Appellant also submitted that the law had envisaged a time limit to commence prosecution where the prosecution has to be commenced within 30 days from the date of notice of claim. [26] Further, the Appellant averred that the Respondents had failed or refused to release the said goods. The Respondents did not even refer the claim to the court for a decision on the expiration of the period stated under Section 128(3) of the Act, which only made the continuous seizure as wrongful and unlawful. [27] To support the Appellant's contentions, the Appellants cited a few cases such as Samiina case (supra), Modern Freight Express case (supra), Sunthararaju Pachayappan v. Jabatan Kastam Diraja Malaysia [2010] 3 CLJ S65, and Soong Chee Kong v. Public Prosecutor [1951] 17 MLJ 5, to support the proposition that when there is no prosecution in respect of the goods and the continuous seizure of goods without referring to court renders the seizure unlawful. [28] The Appellant submitted that the continuous seizure of the said goods from 23.9.2022 until now without reference to the court had deprived the Appellant of the property in contravention of the law. [29] The Appellant highlighted that since only the First Respondent deposed the affidavits, it is crucial that the Third Respondent himself depose the same to ascertain whether the claim made by the Appellant was referred to him in the first place. [30] The Appellant also submitted that the order made by the learned High Court Judge for the Respondents to commence the prosecution within two months from the receipt of the Sealed Order is usurping the power of the Public Prosecutor as enshrined under Article 145 of the Federal Constitution. [31] The Appellant also highlighted that the consent to prosecute was only obtained after almost nine ("9") months from the date of the Appellant's written claim which is in breach of the express provisions of Section 128(3) of the Act renders it as null and void. Submission of the Respondents [32] The Respondents in their cross-appealed had stated that the learned High Court Judge had erred in law and facts in dismissing the Appellant's Originating Summons. [33] The Respondents submitted that the learned High Court Judge had erred in law when deciding that the Respondents must commence the prosecution within two ("2") months from the date of the service of the Sealed Order, which was in contravention with Article 145 of the Federal Constitution. [34] On the other hand, the Respondent asserted that the learned High Court Judge had not erred in law in ruling that there is no period of time for the Respondents to refer the Appellant's claim to the court and this is not in contravention with Section 128(3) of the Customs Act 1967. [35] It was the Respondents' submission that the amended provision of Section 128(3) of the Act did not specify that the release of the seized goods or the reference to the magistrate court is to be made within 30 days. The amended provisions only specify that the Senior Customs Officer must refer the claim to or application to the Director General of Customs on the expiry of 30 days from the notice of the seizure. [36] The Respondents further submitted that the claim was referred to the Director General of Customs in accordance with Section 128(3) of the Act which brings to the consent to prosecute by the Deputy Public Prosecution being obtained to charge in court. [37] The Respondents asserted that there is no time prescribed under Section 128(3A) for the Director General to direct the Senior Officer of Customs to release the seized goods or the proceeds sale of the goods or to refer the matter to the First-Class Magistrate for decision. OUR DECISION FIRST ISSUE The legal principles applicable with respect to the seizure of goods under Section 128 of the Customs Act 1967. Section 128 Customs Act 1967 (Revised 1980) Act 235 [38] Section 128 of the Customs Act 1967 has undergone three amendments via Customs (Amendment) Act 1990 ("Act A783") on 31.8.1990, Customs (Amendment) Act 2019 ("Act A1593") on 1.1.2020 and Customs (Amendment) Act 2022 ("Act A1669") on 1.1.2023. [39] Following all those amendments by Act A1593 (and at the time of the seizure of the goods), the current provision of Section 128 of the Act reads as follows: "128. Goods seized in respect of which there is no prosecution, or the proceeds of sale thereof, are forfeited if not claimed within one month.

If there be no prosecution with regard to any goods seized under this Act, such goods or the proceeds of sale of such goods which are held pursuant to paragraph 115(1)(c) shall be taken and deemed to be forfeited at the expiration of thirty days from the date of the notice of seizure of the goods unless, before such expiration-

a claim to such goods or the proceeds of sale of such goods is made under subsection (2);

a written application is made for the return of such goods under paragraph 115(1)(a) or (b); or

such goods are returned under the said paragraph (a) or (b).

Any person asserting that he is the owner of such goods or the proceeds of sale of such goods, as the case may be, and that they are not liable to forfeiture may give written notice to a senior officer of customs that he claims the same.

If there is a claim or a written application made within the period of thirty days referred to in subsection (1) and there is no prosecution with regard to the goods, the senior officer of customs shall, on the expiration of the period of thirty days, refer the claim or the application to the Director General.

Upon reference by the senior officer of customs under subsection (3), the Director General may direct such senior officer of customs-

to release such goods or the proceeds of sale of such goods or the security furnished under paragraph 115(1)(a) or (b); or

by information in the form and manner as determined by the Director General, to refer the matter to a Magistrate of the First Class for his decision.

The Magistrate of the First Class shall issue a summons requiring the person asserting that he is the owner of the goods or the proceeds of sale of such goods, and the person from whom the goods were seized, to appear before him, and upon their appearance or default to appear, due service of such summons being proved, the Magistrate of the First Class shall proceed to the examination of the matter, and upon proof that an offence against this Act or any regulations made thereunder has been committed and that such goods were the subject matter, or were used in the commission, of such offence, shall order such goods or the proceeds of sale of such goods or the amount secured under paragraph 115(1)(a) or (b), as the case may be, to be forfeited, or in the absence of such proof, may order the release of such goods or the proceeds of sale of such goods or the security furnished under paragraph 115(1)(a) or (b), as the case may be.

In any proceedings under subsection (4), section 119 shall apply to the person asserting that he is the owner of the goods and to the person from whom they were seized as if such owner or person had been the defendant in a prosecution under this Act." (Emphasis added) [40] Upon scrutinizing the amended provisions of Section 128 (1) of the Customs Act, the following observations can be highlighted. The amendment made in subsection (1) of section 128 is only on the substitution of "one calendar month from the date of seizure of the goods" to the words "thirty days from the date of the notice of seizure of the goods". The new amendment made the provision clearer when it substituted the "date of seizure of the goods" to the "date of notice of seizure of the goods". Therefore, there are no major changes made to this provision. [41] Next, it is observed that subsection (2) of section 128 of the Act was not amended by Act A1593. Subsection (3) of Section 128 of the Act was amended by Act A1593 by substituting the words in subsection (3) and adding a new subsection (3A), which reads:

If there is a claim or a written application made within the period of thirty days referred to in subsection (1) and there is no prosecution with regard to the goods, the senior officer of customs shall, on the expiration of the period of thirty days, refer the claim or the application to the Director General

Upon reference by the senior officer of customs under subsection (3), the Director General may direct such senior officer of customs—

to release such goods or the proceeds of sale of such goods or the security furnished under paragraph 115(1)(a) or (b); or

by information in the prescribed form, to refer the matter to a Magistrate of the First Class for his decision." (Emphasis added) [42] The amendment to subsection 3 and the insertion of the new subsection 3A to Section 128 of the Act by Act A1593 does not change the requirement that if there is no prosecution with regards to the goods within thirty days from the date of the notice of the seizure (which preamendment was one calendar month from the seizure), the Senior Officer Of Customs is required to refer the matter to the Director General and for the latter to direct either the goods to be released or to refer the matter to a magistrate. The amendment by Act 1669 was a general amendment where the words "in the prescribed form" in Section 128(3A)(b) was substituted with words "in the form and manner as determined by the Director General." Therefore, after amendment by Act A1669, Section 128(3A)(b) of the Act reads: "by information in the form and manner as determined by the Director General, to refer the matter to a magistrate of the First Class for his decision." It is our considered view that this court's decision in Modern Freight Express (supra) where it had interpreted Section 128 prior to its amendment by Act A1593, can serve as a guidance except for the changes in regard to the period of "one month from the date of seizure" which has been substituted to "thirty days from the date of the notice of seizure." [43] In Modern Freight Express (supra), Tengku Maimun JCA (as then she was, now CJ) in delivering the judgment of the court held that:- [37] In the light of the authorities quoted earlier, we ruled that pursuant to sub-s 128(3) of the Act, where a written claim is made by the plaintiff for the said goods within one calendar month from the date of seizure and where no prosecution is commenced in respect of the said goods within the same period of time, then on the expiration of the one calendar month from the date of notice of claim, the defendants shall release the goods or refer the claim to the magistrate court. Since the defendants had failed to do either, we found that the defendants have failed to observe the statutory requirements under s 128 of the Act". [44] The Federal Court in Sarmiina case in allowing the appeal by the appellant against the decision of the Court of Appeal held that the principles of law propounded in Modern Freight Express are relevant where His Lordship Nordin Hassan, FCJ, in paragraphs 37, 45, and 49 of the judgment said: [37] In the Modern Freight case, the goods seized were not released and the claim made was not referred to the magistrate, and as such the court held that s 128 of Act 235 had not been observed. The court allowed the prayer for a declaration that the seizure of the goods was invalid and remitted the case to the High Court for assessment of damages...On 24 January 2018, the defendants' application for leave to appeal to the Federal Court in Case No 08- 462-10 of 2017 (B) was dismissed. The principle in the Modern Freight case we find is relevant to the present case. [45] As such, there was a valid written claim by the appellant for the release of the goods under s 128(2) of Act 235, and since the goods were not released to the appellant, the matter must be referred to the magistrate for decision as required under s 128(3) of the same Act. This was not done by the respondents even after receiving letters from consignors and after two years from the date of the seizure. This breaches s 128(3) of the Act 235. [49] The deprivation of the consignors' rights to the goods in this case was not in accordance with the law as the provision of s 128(3) has not been complied with. In the circumstances, the continuous seizure of the goods by RMCD in the present case is unlawful and invalid." [45] What was emphasized in Samiina case (supra) is the choices that the Director General has in exercising his statutory duty when there is no prosecution which is either to release the goods or if not to direct the Senior Officer of Customs to refer the matter to the magistrate. The particular excerpt of judgment is as follows: [35] Next, if there is a claim under s.128(1)(a) as alleged by the appellant in the present case, the claim must be referred to the Director General who then has two choices; either to release the goods to the claimant or if not, to direct the senior officer of RMCD to refer the matter to a Magistrate for decision as envisaged under s.128(3) of Act 235. In other words, if the Director General decides not to release the goods, in the existence of a valid written claim under s.128(1)(a), the claim must be referred to the Magistrate. The Director General has no other choice as the goods, if not released, cannot be forfeited where there is a valid written claim made within one month from the date of its seizure. The R5's statutory duty is to refer the matter to the Magistrate under the circumstances." [46] In Samiina case (supra), subsection (1) to Section 128 of the Customs Act is interpreted to mean as follows: [34] Subsection 128(1) provides inter alia all seized goods, where there is no prosecution, are deemed to be forfeited after one month from the date of the seizure unless the existence of facts as stated under s. 128(1)(a), (b), or (c). In other words, the goods are not to be deemed forfeited if any of the facts under s. 128(1)(a), (b), or (c) has been established. The provision of s. 128 is unambiguous and should not be given any other interpretation." [47] In construing a statute, effect must be given to the object and intent of the Legislature in enacting the statute. First, the duty of the court is limited to interpreting the words used by the Legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself. Therefore, in construing any statute, the court will look at the words in the statute and apply the plain and ordinary meaning of the words in the statute. Second, if, however, the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain, and clear, they must be given their natural and ordinary meaning (See Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyai bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased), [2020] 4 MLJ 721. [48] Again, in the Samiina case, the pre-amendment provision of Section 128 of the Customs Act 1967 was interpreted in its literal and ordinary meaning as the court found that the wording of the provision was plain and unambiguous. Nordin Hassan FCJ opined as follows: "[33] On the application of s.128 of Act 235, firstly, the wordings of the provision are plain and unambiguous. As such, the provision must be given its literal and ordinary meaning. The intention of the Parliament by legislating a plain and unambiguous provision should be given its effect by the court and should not be interpreted in such a way as to affect its ordinary meaning. (see Tebin Mostapa v. Hulba-Danyal Balia & Anor [2020] 7 CLJ 561 (FC); Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747 (FC); Megat Najmuddin Dato' Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645; [2002] 1 MLJ 385 (FC))." (Emphasis added) Applying the same principles enunciated in the Samiina case, we chose not to depart from the Federal Court decision that the provision of Section 128 is unambiguous and should not be given any other interpretation. [49] Coming back to this appeal, it is pertinent to note that the Respondents did not commence any prosecution against the Appellant within 30 days from the date of notice of seizure as required under Section 128(1) of Act 235 nor did the Respondents refer the Appellant's claim to the court for an inquiry under Section 128(4) of Act 235 upon expiration of the 30 days from the date of the claim, when it refused to release the said goods to the Appellant. [50] The Respondents had blatantly refused to comply with the law when the matter was not referred to a magistrate in the first place which is in breach of the statutory provision under Section 128(3) of Act 235. This has resulted in the seizure being wrongful and unlawful. [51] The Respondents took the stance that there is no time frame stipulated under Sections 128 (3) and (3A) of the Act for prosecution in respect of the seized goods or referred to a magistrate on the expiration of 30 days from the date of the claim, therefore the seizure could not be said invalid or unlawful. [52] At this stage, the stand taken by the Federal Court in Samiina are appropriate to be followed where it was held as follows: [48] In the present case, the non-compliance with s. 128(3) of Act 235 is fatal as it involves a deprivation of property of a person or party which is protected under art. 13(1) of the Federal Constitution that states: No person shall be deprived of property save in accordance with law" [53] Back to this current appeal, it is appropriate to follow the same stand that non-compliance with Section 128 of the Act is fatal as it will deprive a person of their property which is guaranteed under Article 13(1) of the Federal Constitution. [54] From a clear reading of Section 128 of the Act, it is our considered view that there is an express provision under the law that if there be no prosecution with regard to any goods seized within 30 days from the date of notice of seizure of the goods, the goods are deemed to be forfeited, meaning to state that if the Respondents intend to prosecute, it must be commenced within 30 days from the date of seizure. [55] However, if there is a claim for the said goods within 30 days, then if the Respondents intend to prosecute, a prosecution shall be commenced within 30 days from the date of the claim or on the expiration of 30 days, the Senior Officer of Customs shall refer the matter to the Director General as required under subsection 128(3) of Act 235. [56] It is clear from Sections 128(3) and (3A) of the Act that if there is a claim and there is no prosecution in respect of the goods within 30 days, then the Senior Officer of Customs shall refer the claim to the Director General who shall release or refer the matter for a proceeding under Section 128(4) of Act 235. [57] The scheme of the provision clearly does not allow the Respondents to be the persons to decide the status of the seized goods on the expiration of the 30 days from the date of the claim when there is a valid claim. Instead under Sections 128(3) and 128(4) of the Customs Act 1967, it is for the court to decide. [58] The facts of the case show that the Respondents who had admitted seizing the goods since 23.9.2022 still continued seizing the goods without referring the matter to court on the expiration of the 30 days from the date of claim made by the Appellant on 21.10.2022. In fact, the Respondents did not show any cogent evidence that they had taken any action from 21.10.2022 until the Appellant through its solicitor Messrs. J R Ravendren & Associates vide a letter dated 19.6.2023 (Exhibit DPS-7) demanded that the Respondents release the said goods and the motor lorry failing which the Appellant insisted that it shall commence a legal suit against the Respondents. [59] After 9 months without any response from the Respondents, the Respondents then vide their letter dated 23.6.2023 informed the Appellant that they had completed the investigation and the consent from the Deputy Public Prosecutor had already been obtained to prosecute the Appellant under the Act 235 (see exhibit MHI-2, $ 1^{\mathrm{st}} $ Respondent's Affidavit In Reply affirmed on 21.9.2023). [60] It is worth highlighting that the court did not have the opportunity to ascertain the actual date when the consent to prosecute was obtained from the Deputy Public Prosecutor. In the letter sent by the Respondents to the Appellant, the actual date of consent was not mentioned. The parties in their submissions had only relied on the date of the letter dated

6.2023 which in our view is not conclusive proof that the consent to prosecute was made before the expiration 30 days from the Notice to Claim by the Appellant. [61] From our observation, we find that there was only one affidavit deposed by the Respondents which was deposed by the First Respondent i.e. the investigating officer for this case. The First Respondent averred that he was empowered by all the other Respondents including the Director General of Customs to depose the Affidavit in Reply. The First Respondent admitted that at all times he was under the control, direction, and supervision of the Second and Third Respondents. It is vitally important that the Third Respondent to depose an affidavit himself as to whether the claim made by the Appellant was referred to him in the first place. We do not agree that pursuant to subsection 3(3) of the Act, the First Respondent is competent to depose any affidavit on behalf of the Director General. In such circumstances where allegations on affidavit are unrebutted by the party against whom they are made, a Court is entitled to conclude that such allegations have been accepted (see Datuk Bandar Kuala Lumpur v Zain Azahari Zainal Adibin, [1997] 2 CLJ 248). [62] Additionally, in so far as the status of the goods seized pending investigation by the Respondent from 23.9.2022 and 21.10.2022 (Notice to claim) is concerned, there was no evidence to show that the Respondent had informed the Appellant that the matter was under investigation before 26.6.2023. In any event, if it was true, we find that the Respondents has yet to prosecute the Appellant within the stipulated period which was not in this case. [63] It is our considered view that when there is an express provisions of law that direct the Respondents to do certain acts, the Respondents could not ignore their statutory duty pursuant to Section 128 of Act 235 especially where there was a valid claim made by the Appellant within 30 days from the date of the seizure and when there is no prosecution done in respect of the seized goods on the expiration of the 30 days from the date of claim by the Appellant. [64] Based on the facts of the case, we find that the learned High Court Judge had erred in law and fact in holding that there is no time frame pursuant to Sections 128(3) and 128(3A) of Act 235 for the seized goods to be released or referred to the court in the expiration of 30 days. [65] We also find that the learned High Court Judge had misdirected himself in applying Section 127 (1) of Act 235 when the main crux of the application by the Appellant is to determine the legal status of the continuous seizure of the goods by the Respondents upon expiration of the 30 days period provided by Sections 128(3) and (3A) of Act 235. We are of the considered view that Section 127(1) of the Act does not apply to the given facts of the case. We find that the learned High Court Judge had misconstrued the interpretation of Section 128 (3) of the Act. [66] Given the above authorities, the Respondents must observe the procedure stipulated in Sections 128(3) and (3A) of the Act. At this juncture, the Respondents should be ordered to refer the matter to the magistrate court for its decision. Applying the principle of stare decisis, we do not see that the learned High Court Judge should depart in its decision by not following the recent decision of the Federal Court in the Samiina case. We are of the view that if the learned High Court Judge had applied the Samiina case as he was obliged to, His Lordship would have allowed the Appellant's Originating Summons. Damages Whether the Appellant is entitled to damages. [67] In light of the non-compliance of Section 128 of Act 235 by the Respondents, the continuous seizure of the said goods since 23.9.2022 until now without any reference to court not only deprived the Appellant of the property not in accordance with the law but also wrongful and unlawful, entitles damages to the Appellant. Applying the same principles enunciated in the Samiina case, the case should be remitted to the High Court for assessment of damages. SECOND ISSUE The usurpation of the powers of the public prosecutor by the learned High Court Judge in imposing a time frame of two months from the date of the service of the court order to commence the prosecution of the Appellant. Whether usurpation of the power of the Attorney General by the learned High Court Judge is in violation of Article 145 of the Federal Constitution [68] The learned High Court Judge in his decision has ordered that the Respondents commence the prosecution and/or prosecute the Appellant within two (2) months from the receipt of the Sealed Order. [69] The power to institute or commence prosecution is ultimately left at the discretion of the public prosecutor pursuant to Article 145 (3) of the Federal Constitution. Article 145 of the Federal Constitution provides as follows: "145 (3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial." [70] It is the Attorney General who has the conduct of prosecutions and not the court. It is also the prerogative of the Attorney General under Article 145(3) of the Federal Constitution to institute, conduct, or discontinue any proceedings for an offence (See Lai Soon Onn v Chew Fei Meng & Other appeals [2018] MLJU 627). We find that the learned High Court Judge had erred in his decision to direct or instruct the public prosecutor to commence a prosecution within 2 months from the date of service of the Sealed Order of the court which in our view would violate Article 145 of the Federal Constitution and if allowed will open floodgates to litigation of this nature. Conclusion Our decision is unanimous. [71] In conclusion, based on the above reasons, we find that the learned High Court Judge was plainly wrong in dismissing the Appellant's Originating Summons that warrant our appellate intervention. We therefore allow the Appellant's appeal with costs of RM10,000 here and below and the decision of the High Court dated 22.12.2023 is hereby set aside. We also ordered that the matter be remitted to the Shah Alam High Court for assessment of damages. [72] To avoid repetition and overlapping, it is our observation that the Respondents' cross-appeal is related to the Second Issue of the Appellant's appeal, and in light of our decision to allow the Appellant's appeal, we also allow the Respondent's cross-appeal. We order no costs for the cross-appeal. Dated this: 16 January 2025. MARIANA BINTI HAJI YAHYA Judge Court of Appeal Malaysia PUTRAJAYA Counsel (s): For the Appellant (Plaintiff) Datuk JR Ravendren A/LJC Ramalu together with Janeni Devi A/P Ravendren and Sri Kanapathi A/L Nyanasegaran. (Messrs. J R Ravendren & Associates, Petaling Jaya, Selangor Darul Ehsan) For the Respondents (Defendants) SFC Noor Fadzila binti Ishak. Pejabat Penasihat Undang-Undang Negeri Selangor, Shah Alam, Selangor Darul Ehsan.