Pendakwa Raya v LIEVON A/L CHING (AB-41LB-1-01/2023)

LIEVON A/L CHING

NITTHIRA RATTHANAPHAN A/P PERAT JUN (NO. K/P.: 960413075376) 15 GROUNDS OF JUDGMENT [1] The case before this Court was an appeal by the Public Prosecutor against the decision of the Pengkalan Hulu Magistrate’s Court on 27.12.2022 that had acquitted and discharged without calling for defence 20 the First and Second Accused persons in the Criminal Case No. AQ-83- 71-06/2021 in respect of an offence under the Customs Act 1967 (“the 1967 Act”) as follows: The charge against First Accused 25 "Bahawa kamu LIEVON A/L CHING (NO. KP: 900611-02-5519) bersama-sama NITTHIRA RATTHANAPHAN A/P PERAT JUN (NO. KP: 960413- 07-5376) pada 16.09.2019 jam lebih kurang 1.30 petang telah dengan diketahui mengangkut barang larangan dengan niat untuk memfraud Kerajaan dengan mengelak larangan yang terpakai bagi barang itu iaitu 30 minuman keras pelbagai jenama di dalam kenderaan Honda Jazz berwarna putih, No. Pendaftaran PNU8433 di Sekatan Jalan Raya, KM

4.5,Jalan Pengkalan Hulu-Betong, dalam daerah Pengkalan Hulu dalam negeri Perak Darul Ridzuan seperti berikut:

Tiger (0.32 ltr) - 4 crtn x 24 tin

Anchor (0.32 ltr) - 2 crtn x 24 tin

Apple Fox Cider (0.32 ltr) - 6 tin bernilai RM 327.86 5 di mana barang-barang tersebut merupakan barang larangan yang pengimportannya tidak mematuhi Butiran 3, Bahagian II, Jadual Ketiga, Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan demikian kamu telah bersubahat di bawah Seksyen 34 Kanun Keseksaan dan telah melakukan satu kesalahan di bawah Seksyen 135(1)(e) Akta Kastam 10 1967 dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 135(1)(v)(aa) Akta yang sama. Hukuman Denda Minimum: RM 100,000.00 15 Denda Maksimum: RM 500,000.00 Atau Penjara tidak kurang dari enam (6) bulan, atau tidak lebih dari lima

tahun atau kedua-duanya.". The charge against Second Accused 20 "Bahawa kamu NITTHIRA RATTHANAPHAN A/P PERAT JUN (NO. KP: 960413-07-5376) bersama-sama LIEVON A/L CHING (NO. KP: 900611- 02-5519) pada 16.09.2019 jam lebih kurang 1.30 petang telah dengan diketahui mengangkut barang larangan dengan niat untuk memfraud Kerajaan dengan mengelak larangan yang terpakai bagi barang itu iaitu 25 minuman keras pelbagai jenama di dalam kenderaan Honda Jazz berwarna putih, No. Pendaftaran PNU8433 di Sekatan Jalan Raya, KM

4.5,Jalan Pengkalan Hulu-Betong, dalam daerah Pengkalan Hulu dalam negeri Perak Darul Ridzuan seperti berikut: 30

Tiger (0.32 ltr) - 4 crtn x 24 tin

Anchor (0.32 ltr) - 2 crtn x 24 tin

Apple Fox Cider (0.32 ltr) - 6 tin bernilai RM 327.86 35 di mana barang-barang tersebut merupakan barang larangan yang pengimportannya tidak mematuhi Butiran 3, Bahagian II, Jadual Ketiga, Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan demikian kamu telah bersubahat di bawah Seksyen 34 Kanun Keseksaan dan telah melakukan satu kesalahan di bawah Seksyen 135(1)(e) Akta Kastam 40 1967 dan jika disabitkan kesalahan boleh dihukum di bawah Seksyen 135(1)(v)(aa) Akta yang sama. Hukuman Denda Minimum: RM 100,000.00 Denda Maksimum: RM 500,000.00 Atau Penjara tidak kurang dari enam (6) bulan, atau tidak lebih dari lima

tahun atau kedua-duanya.". 5 [2] Both of them pleaded not guilty and a full trial was held wherein at the end of the prosecution case, the learned Magistrate found that the prosecution had failed to establish a prima facie case against both Accused persons. After hearing the appeal, on 14.12.2023, this Court 10 upheld the acquittal order of the Magistrate but ordered that the seized goods (duty not paid) and the Honda Jazz car bearing registration number PNU 8433 (“the Car”) to be forfeited to the Government of Malaysia upon expiry of the period of appeal. Dissatisfied with the Court’s decision, the Second Accused has filed a Notice of Appeal only in respect of the 15 forfeiture order against the Car. In this Grounds of Judgment, I will refer to the parties as they were at the Magistrate’s Court. [3] The prosecution case was that on 16.9.2019, at about 1.30pm, the First Accused was driving the Car along Jalan Pengkalan Hulu – Betong, 20 Perak and the Second Accused was a passenger seated next to him. At approximately KM 4.5 of the said road they were stopped by Kpl. Jazlan Bin Mahmood (SP1) at a roadblock. Immediately, SP1 inspected the Car and discovered a variety of liquors wherein they were wrapped in black plastic bags and hidden under the floor-mat of the back passenger seats. 25 Two other AKSEM officers on duty there was Kpl. Mohd Khairulniza bin Bolhan (SP2) and Kpl. Mohd Fazalee bin Ahmad Jonaidi (SP3). [4] Upon a closer look at the seized items, SP1 found the words “Malaysia Duty Not Paid” (MDNP) and none of the items had a duty stamp 30 on them. The liquors were branded Tiger (marked as P12(1-24), P13(1- 24), P14(1-24) and P15(1-24), Anchor (marked as P16(1-24) and P17(1- 24) and Apple Fox Cider marked as P18(1-6). Altogether there were 150 cans of the liquors. Samples of each brand were sent to the Jabatan Kimia Malaysia and was analysed by Chemist Rosnani Binti Othman (SP5). They were found to contain “liquor yang memabukkan” or “intoxicating 5 liquor” as defined in s.2 of the 1967 Act with not less than 4% alcohol content (refer to the Chemist Report in exhibit P35). EVALUATION AND FINDINGS OF THE COURT [5] It is trite law that an appellate court must, in order to reverse findings 10 of the lower court, not merely entertain doubts whether the decision below is right but be convinced that it is wrong: Dato’ Mokhtar Hashim and Another v. PP [1983] CLJ (Rep) 101. The crux of the defence case here was that the prosecution had the charge all wrong when it stated s.34 of the Penal Code but at the same time mentioned the word “bersuhabat” in 15 the same vein i.e. “…dan dengan demikian kamu telah bersubahat di bawah Seksyen 34 Kanun Keseksaan dan telah melakukan satu kesalahan di bawah Seksyen 135(1)(e) Akta Kastam 1967 ...”. The Magistrate correctly pointed out in the grounds of judgment (RRJ3, at page 7) the variations of how the charge can be read as follows: 20 “[13] Pertuduhan yang dirangka menimbulkan persoalan yang berikut:

Adakah hasrat sebenar pihak pendakwaan untuk menuduh bahawa OKT1 dan OKT2 dengan niat bersama mengangkut Barang Larangan yang merupakan kesalahan di bawah seksyen 135(1)(e) Akta Kastam 1967 dan dibaca bersama seksyen 34 25 Kanun Keseksaan; atau

(ii) Adakah hasrat sebenar pihak pendakwaan untuk menuduh bahawa OKT1 telah bersubahat dengan OKT2 untuk mengangkut Barang Larangan yang merupakan kesalahan di bawah seksyen 109 Kanun Keseksaan dan dibaca bersama 30 seksyen 135(1)(e) Akta Kastam 1967; atau

(iii) Adakah pihak pendakwaan juga berhasrat untuk menuduh bahawa OKT2 telah bersubahat dengan OKT1 untuk mengangkut Barang Larangan yang merupakan kesalahan di bawah seksyen 109 Kanun Keseksaan dan dibaca bersama seksyen 135(1)(e) Akta Kastam 1967? 5 [14] Sekiranya hasrat sebenar pihak Pendakwaan adalah untuk memasukkan elemen persubahatan dalam pertuduhan yang dirangka ke atas OKT-OKT, limb atau cabang manakah dalam seksyen 107 Kanun Keseksaan yang menunjukkan OKT-OKT melakukan persubahatan? 10 ... [16] Dalam kes ini, Pertuduhan ke atas setiap OKT hanya menyebut perkataan subahat tanpa memperincikan limb atau cabang manakah yang dirujuk sebagaimana yang dinyatakan dalam seksyen 107 Kanun Keseksaan. 15 [17] Dalam kes PP lawan Mahathir Abu Bakar [2016] 10 CLJ 567, Mahkamah Tinggi memutuskan: "Kegagalan pihak pendakwaan menyatakan cara subahat dalam pertuduhan merupakan satu kecacatan terhadap kes pendakwaan.". 20 [6] The offence charged was read with the element of common intention under s.34 of the Penal Code whereas “bersubahat” means “abetment” which is defined in s.107 of the Penal Code-Abetment of a thing

A person abets the doing of a thing who— 25

instigates any person to do that thing;

engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

intentionally aids, by any act or illegal omission, the doing of that thing. 30 [7] Meanwhile, s.34 simply reads- Each of several persons liable for an act done by all, in like manner as if done by him alone 34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. 5 [8] Therefore, the Magistrate was not wrong in her analysis that the charge was confusing and the Accused persons had been prejudiced in their defence. What was the charge that they had to meet? Under s. 34, there must be evidence that the act was done in furtherance of a common intention whereas under s. 107, the prosecution must spell out which 10 element of abetment, i.e. “instigation”, “command” or “engages in conspiracy” is relied upon in framing the charge. In the case of Ravindran a/l Ramasamy v PP [2015] 6 MLJ 509, the Federal Court held that the “error” referred to in section 156 of the Criminal Procedure Code (CPC) relates to the error in stating the offence or the particulars required to be 15 stated in the charge. It does not include an error which relates to the ingredients of the offence. This is an important difference to take cognisance of as the courts have consistently held that an error or omission in stating the ingredients of an offence, renders to the fact that the accused would have been misled and thus a failure of justice. 20 Pursuant thereto, ss. 156 and 422 of the CPC would not be able to rectify the error(s). On this ground alone i.e. error in stating the charge, the acquittal and discharge order can be upheld by this Court. [9] The Deputy Public Prosecutor (DPP) during the appeal tried to 25 argue that the Magistrate was wrong in her conclusion that there was confusion in the charge which caused a miscarriage of justice on both Accused persons. I had evaluated all the evidence in the Records of Appeal and perused the Grounds of Judgment of the Magistrate and found no error of law or fact therein, except in certain paragraphs which I will discuss later, on the issue of “dutiable goods”. Therefore, I agreed with the findings and rationale of the Magistrate in the grounds of judgment and upheld the acquittal and discharge without calling for their defence. Then the DPP changed her tune to plead with the Court that they 5 conceded the charge was badly drafted. The prosecution just wanted the exhibits to be forfeited to the Government because, despite there being no conviction, duty had not been paid on the seized liquors and the Car was used as a conveyance in the commission of the offence. 10 [10] The Magistrate then went on to consider the ingredients of the offence. She had stated in her grounds of judgment the following: “[42] Selanjutnya, Mahkamah merujuk ekshibit P21(L) dan P21(P) mendapati terdapat cetakan pada tin-tin minuman keras yang dirampas yang 15 menunjukkan bahawa barang rampasan tersebut dibru dan dipek di sebuah kilang bir di Sg. Way, Petaling Jaya. [43] Mahkamah ini berpandangan apabila terdapat keterangan yang menunjukkan bahawa barang rampasan tersebut, bukan barang import, tetapi 20 barang yang dikilangkan secara tempatan, maka isu sama ada OKT-OKT mempunyai beban untuk membuktikan bahawa barang rampasan tersebut telah diimport secara sah, sudah tidak lagi relevan. [44] Lanjutan daripada itu juga, Mahkamah ini mendapati bahawa Perintah 25 Kastam (Larangan Mengenai Import) 2017 tidak terpakai memandangkan status Barang Rampasan tersebut bukanlah barang import, tetapi barang yang dikilangkan secara tempatan. [45] Oleh yang demikian, Mahkamah ini mendapati barang rampasan tersebut 30 bukanlah barang larangan import.” [11] Section 2(1) of the 1967 Act defines “prohibited goods” as "goods the import or export of which is prohibited, either absolutely or conditionally by an order under section 31 and any subsidiary legislation made under this Act or by any other written law". [12] The DPP argued that the offence was completed when the Accused persons conveyed the dutiable liquors without paying any duty, regardless 5 of the fact that the goods seized were not imported goods but goods which “MALAYSIA DUTY NOT PAID”. The provision of s.135 of the 1967 Act reads as follows: "Section 135. Penalty relating to smuggling offences, evasion of duty, fraud, 10 etc.

Whoever—

is in any way knowingly concerned in conveying, removing, depositing or dealing with any dutiable, uncustomed or prohibited goods with intent to defraud the Government of any duties thereon, or 15 to evade any of the provisions of this Act or to evade any prohibition applicable to such goods; … shall be guilty of an offence…". [Emphasis added] [13] It was also brought to the Court’s attention the provision of ss. 20 and 127 of the 1967 Act which state: “Goods liable to seizure liable to forfeiture

All goods liable to seizure under this Act, shall be liable to forfeiture and 25 all forfeited goods shall be disposed of in accordance with the directions of the Director General. Court to order disposal of goods seized 30

(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 goods shall be made if it is proved to the satisfaction of the court that an offence against this Act or any regulation made thereunder has been committed and that the 35 goods were the subject matter of or were used in the commission of the offence notwithstanding that no person may have been convicted of such offence.”. [14] The Magistrate in paragraph 34 of her grounds of judgment made this specific finding of fact that as follows: “[34] Semakan kepada Butiran 3, Bahagian II, Jadual Ketiga, P.U. (A) 103/2017 menunjukkan bahawa barang yang dirampas berupa minuman keras tersebut tersenarai sebagai Barang Larangan sebagaimana yang ditakrifkan oleh 5 seksyen 2(1) Akta Kastam 1967.” [15] Then, the Magistrate went on to discuss whether the Accused persons had the necessary mens rea and concluded that the presumption under s.135(2) could not be raised by the prosecution as it had failed to 10 prove that the goods were “prohibited imported goods” (barangan larangan import). And in paragraph 57, she ordered all the seized items and the Car to be returned to the owner as the court was not satisfied that an offence had been committed under the 1967 Act. 15 [16] The Court is guided by the case laws in respect of s.407 of the CPC which generally provides for “the order for disposal of property regarding which an offence has been committed and that during or at the conclusion of any inquiry or trial in any criminal court the court may make such order as it thinks fit for the custody or disposal of any property or document 20 whatsoever produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence”. An inquiry is required for the purpose of s.407 of the CPC to determine the owner of the property. 25 [17] In the case of Ooi Chin Seng & Anor v PP [1980] 1 MLJ 164, the Court stated: “… But the words of section 15(1) of the Fisheries Act, 1963 are so clear that an order for forfeiture shall be made if it is proved to the satisfaction of the court 30 that the offence committed is either for using any net, instrument, fishing material or appliance which is "prohibited" or the offence is for doing or carrying on an act without a licence or permit required by that Act or any regulations or rules made thereunder provided that the "thing" was the subject-matter of or was used in the commission of the offence. There is no doubt also that the general provision of section 407 of the Criminal Procedure Code is overridden 5 by the specific provision of section 15(1) of the Fisheries Act, 1963 with regard to disposal of property and that to have an inquiry under section 407 of the Criminal Procedure Code would in any case be meaningless for the court must give effect to the express words of section 15(1) of the Fisheries Act, 1963…”. 10 [18] In Afta Nizam bin Ibrahim v Pendakwa Raya [2016] MLJU 274, there the Court stated: [10] The first issue raised by the appellant’s counsel was that the previous Sessions Court Judge had no power or jurisdiction to order a forfeiture of the 15 exhibits, i.e. P261, P262 and P263. He argued that the appellant was convicted under BAFIA, and there is no provision in BAFIA empowering a trial judge who tried an offence under the Act to order a forfeiture of the exhibits tendered in court. When the offence Act is silent as to the dealings of the exhibits, reference has to be made to s.407 of the Criminal Procedure Code (hereinafter referred 20 to as the ‘CPC’), and s.407 does not give a trial judge the power of forfeiture. Hence, the order made by the previous Sessions Court judge was illegal and ought to be set-aside. [11] I could not accept the appellant’s counsel argument that s.407 of 25 the CPC does not give a trial judge the power of forfeiture of any property or documents produced before the court regarding any offence which appears to have been committed or which has been used for the commission of any offence. Cases on point are Lim Poon Pok v PP [1947] MLJ 172, Mohamed Yusoff v PP [1956] MLJ 87 and Tan Khing Hung v PP [1996] 4 MLJ 316. 30 [12] However, before any order of forfeiture is made on the exhibits under s.407(2) of the CPC, an inquiry must first be held to determine the true ownership of the exhibits before they could be forfeited. In Chung Khiaw Bank Ltd v PP [1968] 196, at page 200, the then Federal Court held: 35 “That section [referring to s.407(2) of the CPC] empowers the court to order the delivery of the property seized to ‘any person’ [any party] and we must presume that the expression ‘any person’ is wide enough to embrace the true legal owner of a vehicle having regard to the dictum of 40 the Privy Council in Sajan Singh v Sadara Ali ....” [19] Therefore, s.407 of the CPC is applicable as a general law where there is no specific law providing for the disposal of the exhibits. Now, s.406A of the CPC provides: “Court shall consider manner of disposal of exhibits 406A.

At the conclusion of any proceedings under this Code the Court shall consider in what manner the exhibits shall be disposed of and may make any order for that purpose in accordance with law. …”. 10 [20] This Court opined that s.406A may be applicable to resolve the manner of disposal of the exhibits where upon the conclusion of an appeal which is a proceeding under this Code, “the Court shall consider in what manner the exhibits shall be disposed of and may make any order for that purpose in accordance with law.”. Nevertheless, there is a specific 15 provision under s. 127 of the 1967 Act which deals with dutiable goods where the duty had not been paid for disposal of such seized goods “… if it is proved to the satisfaction of the court that an offence against this Act or any regulation made thereunder has been committed and that the goods were the subject matter of or were used in the commission of the 20 offence notwithstanding that no person may have been convicted of such offence.”. [21] Although there is no conviction in this case, and that was I would say due to the technicality issue of duplicity of charge, the Court cannot 25 turn a blind eye and disregard the evidence that no duty had been paid for the seized goods which were found to have been conveyed (refer to the evidence of SP1 at page 16 of the Notes of evidence “Barangan duty free Malaysia dibawa masuk ke zon bebas cukai). The Court also has to consider the manner in which the liquors were concealed in the Car in 30 black plastic bag and hidden under the floor-mat of the back passenger seat). The Second Accused person was proved to be the owner of the Car and she was in the Car when they were stopped at the roadblock. The provision of s.127 of the 1967 Act does not necessitate anyone to be convicted of an offence under the Act for the items to be forfeited, as long as the Court is satisfied that there is an offence concerning the seized 5 goods which has offended against the 1967 Act. The Court is also satisfied from the available evidence, there was no necessity to hold an inquiry under s. 407 of the CPC to determine the ownership of the Car. It cannot be said then that the provision is against Art. 13 of the Federal Constitution because the deprivation of the property (to its owner) is well 10 within the ambit of the law when despite no conviction the law allows for its forfeiture since it had been used in the commission of an Act. CONCLUSION [22] Premised upon the above considerations, the Court dismissed the 15 appeal against the order of acquittal and discharge but found that the seized goods were items which were liable to be forfeited to the Government of Malaysia as the duty had not been paid. Additionally, there was clear evidence that the Car was used in the conveyance of the seized goods. Therefore, the Car was also forfeited to the Government of 20 Malaysia. Dated 2 April 2024 Sgd. 25 NOOR RUWENA BINTI MD. NURDIN Judicial Commissioner High Court of Malaya, Taiping Representations: For the Public Prosecutor: 5 DPP Istisyhad Ismail Jabatan Kastam DiRaja Malaysia Negeri Perak 10 For the Accused persons: Amnach A/L Ee Niam Messrs. Amnach & Co., Alor Setar 15 20