Pendakwa Raya v Ananthan Jacob A/L G Samuel (BA-41LB-25-08/2024)

HELEN GEVA A/P E. NOHASATHIYANATHA 21/08/2025 10:31:42 Kand. 36 S/N 8NPdJqBSkyvrbUbinXdw

In this appeal, the parties are referred to as they were before the Magistrate. The prosecution is appealing against the learned Magistrate's decision to discharge and acquitted (DNA) all the accused. For this appeal, the prosecution only appeals against the DNA order of the first accused, Ananthan Jacob a/l G Samuel.

The narrative of the case began with the Customs Department charging the accused with an offence for failure to comply with the Customs (Prohibition of Import) Goods Order 2023 and section 135(1)(d) of the Customs Act 1967 (the Act) for knowingly possessing 92 prohibited goods. The offence is punishable under section 135(1)(v)(aa) of the Act. See Record Rayuan(RR) Jilid 3(B) on pages 290 until 293 ( exhibit P1).

During the trial, on 15.11.2023, the prosecution amended the charge/ Pertuduhan Pindaan Kedua for case no. BB-83-839- 06/2021 (exhibit P15A) heard together with the case no. BB- 839-03/2021 (Exhibit P15B). See - Rekod Rayuan (RR) Jilid 3(B) on pages 295 until 299.

The amended charge states that the accused knowingly possessed 89 prohibited goods, totalling 433.68 litres.

The amended charge was read to the accused, who denied the charge and claimed trial.

At the end of the prosecution's case, the Magistrate found that the prosecution had failed to establish a prima facie case against all the accused. Consequently, the accused were discharged and acquitted of the charge.

The prosecution was unsatisfied with the decision and appealed to the High Court against the Magistrate's decision only with respect to the first accused.

Hence, the appeal.

The prosecution called nine witnesses as follows:

Md Sufhae Bin Hosnan (SP1) – the head of the raiding team.

(ii) Abdul Khalim Bin Bawok (SP2) • A Valuation officer from the Royal Malaysian Customs Department (Customs Department) who prepared the Laporan Penilaian Harga Dagangan (P7).

(iii) Zol Hailmy Bin Hasanuddin (SP3) • an officer from the Customs Department, prepared the Keputusan Klasifikasi Kod Tarif (P9). S/N 8NPdJqBSkyvrbUbinXdw

(iv) Mohammad Hazwani Bin Mohamed Yunus (SP4) • an officer from the Customs Department in charge of the sketch plan/Pelan Lakar at the premises (P12 A-B).

Muhammad Azril Fahmi Bin Lazam (SP5) • an officer from the Customs Department/photographer during the raid exhibit P13 (1-66).

(vi) Azrul Bin Mohd Johan (SP6) • an officer from Lembah Sari Sdn Bhd in charge of preparing the Laporan Analisis Dagangan (P18).

(vii) Mohd Zamri Bin Alias (SP7) • the Investigating officer.

(viii) Masyhadi Bin Mohamad (SP8) • the substitute IO.

(ix) Nur Sharlina Binti Samsudin (SP9) • a chemist from Jabatan Kimia Malaysia who analysed the sample of the prohibited goods and prepared the Chemist Report/Laporan Kimia (P26).

On 20.6.2019, at about 11.45 am, a team of customs officers led by Md Sufhae Bin Hosnan (SP1) raided the premises known as Vintage Wines and Spirits Trading Sdn Bhd.

The team carried out the raid after an observation of fifteen minutes. In the observation, SP1 said he saw an Indian man pacing back and forth, arranging some goods in the area of the premises. The Indian man, Anantha Jacob, was identified as the accused.

The team proceeded with the raid and, upon inspection, found a certain quantity of beer and liquor from various brands S/N 8NPdJqBSkyvrbUbinXdw suspected to be prohibited goods. SP1 testified that the seized beer and liquor were allegedly prohibited goods. From the inspection, SP1 found that some impugned beer and liquor were not affixed with any tax stamp. Some goods were marked as MDNP (Malaysian Duty Not Paid). Using a device known as SM45 at the premise to verify the tax stamps affixed on some of the impugned prohibited goods, SP1 found that the impugned prohibited goods were affixed with counterfeit tax stamps.

SP1 and his team seized the impugned prohibited goods. SP1 arrested the accused and brought him to the Enforcement Division of the Customs Department for further investigation. SP1 also lodged a police report (exhibit P6). SP1 also prepared the Borang Bongkar (P3(1-19), Notis Sitaan (P4) and Borang Serah Kes (P5). SP1 handed over the incriminating exhibits to Mohd Zamri Bin Alias, the investigating officer (SP7), for further investigation.

The prosecution's petition of appeal states seven grounds of appeal, and the main grounds of appeal are summarised as follows:

The Magistrate had erred when the Magistrate decided that the prosecution failed to prove the first and the third element of the charge;

The Magistrate failed to appraise the fact that the prosecution's witnesses had been able to explain the 89 prohibited goods as mentioned in the charge. As such, there was no defect on the charge;

The Magistrate had erred when the Magistrate decided that the prosecution failed to prove the element of knowledge because the accused couldn't differentiate between the genuine tax stamp and counterfeit tax stamp without using the device SM45, which the accused could not possess.

The Magistrate had erred when the Magistrate decided that the prosecution had failed to prove all the elements of the charge under section 135(1)(d) of the Customs Act 1967 and the non-application of the presumption provisions under section 135(2) and 119 of the Act against the accused. CONTENTIONS BY THE PARTIES IN THE APPEAL

The prosecution maintained its contentions as in the petition of appeal.

The accused, on the other hand, contended as follows:

The Magistrate was correct to decide that the charge was defective;

The Magistrate was correct in determining that the prosecution had failed to prove the elements of the charge on the basis that there was doubt on the actual numbers of the prohibited goods, which had caused prejudice to the accused. Hence, there was a break in the chain of evidence. The accused also disputed that he did not know that the goods were fixed with invalid tax stamps, as the accused did not have the SM45 device to verify the tax stamps. The prosecution failed to bring SM45 to the court. Accordingly, the prosecution had failed to establish a prima facie case against the accused. THE LAW RELATING TO APPEAL

The court is mindful of the duty of this court regarding criminal appeals. The Federal Court in Herchun Singh v. Public Prosecutor [1969] 2 MLJ 209 where Ong Hock Thye C.J decided: "An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding."

The same principle has been enunciated in LCY v. TWY [2019) 7 CLJ 158, where YAA Tengku Maimun Tuan Mat HMR (former Chief Judge) said as follows: "[26] The principle of law on appellate intervention is settled. In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at p.476: [60] It is now established that the principle on which an appellate court interferes with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 1 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys lntergrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of the evidence (See Chew Yee Wah & Anor v. Choo Ah Pat [1978]1 LNS 32; Watt v. Thomas [1947] AC 484; and Chin v. Lee Ing Chin & Ors [2004] 4 CLJ 309."

Bearing the above principles in mind, the court now deals with the contentions raised by both parties. S/N 8NPdJqBSkyvrbUbinXdw

The learned Magistrate essentially found that the appellant failed to establish a prima facie case due to the prosecution's failure to prove the first and the third elements of the charge. Nonetheless, the Magistrate decided that the prosecution succeeded in establishing the second element of the charge, which was that the respondent was in possession of the prohibited goods.

The elements of the charge under section 135(1)(d) of the Customs Act 1967 are as follows:

That the items are prohibited goods;

That the accused is in possession of the prohibited goods; and

That the accused has knowledge of the possession of the prohibited goods.

Having read the Magistrate's ground of judgment, the Magistrate took the view that SP7 could not explain the actual numbers of the prohibited items in dispute. According to the second amended charge, the offence relates to 89 prohibited goods. SP7 testified that 85 impugned prohibited goods were affixed with counterfeit stamps and confirmed that one item was affixed S/N 8NPdJqBSkyvrbUbinXdw with a genuine stamp. However, SP7 could not satisfactorily explain four more impugned prohibited goods.

Following this, the Magistrate decided that the charge was defective and that the failure to prove the elements of the charge was fatal to the prosecution's case.

The Magistrate also found that the prosecution failed to establish the element of knowledge on the part of the accused as the accused could not be said to know that the tax stamp affixed to the prohibited goods was not valid as it could not be easily distinguished by the "naked eyes" unless if the accused had the opportunity to have the device SM45.

Now, bearing in mind the clear principles of law pertaining to appeal, this court, in exercising its appellate jurisdiction, should be slow to interfere with the finding of facts by the Magistrate's court unless there is a plain and overriding error that affected the assessment. See cases of Low Kian Boon & Anor v PP [2010] 1 MLRA 418 and Topaiwah v Salleh [1968] 1 MLRA 580.

Before this court, the issue was whether the Magistrate was correct in her view that there was doubt regarding the disputed prohibited goods.

According to section 2 of the Customs Act 1967, "intoxicating liquor" is defined as "includes any alcohol, or any liquid containing more than 1.14 per centum volume over volume of S/N 8NPdJqBSkyvrbUbinXdw alcohol, which is fit or intended to be or which can by any means be converted for use as beverages;"

In addition, section 2 of the Act defined "prohibited goods" as "goods the import or export of which is prohibited, either absolutely or conditionally by an order under section 31 or by any written law."

The Minister is also empowered to issue an order to prohibit imports or exports of goods. Based on the Customs (Prohibition of Imports) Order 2023 (referred to as "Order 2023"), it is mandatory that every prohibited good must be affixed with a tax stamp approved by the Director General, except in exceptional circumstances where the exception does not apply to the facts of the instant case.

Failure to comply with Order 2023 with the intent to defraud the Government of any duties is an offence under section 135(1)(v)(aa) of the Customs Act 1967.

Returning to the case narratives, the prosecution has proved that the subject matter of the charge was intoxicating liquors, as in the Chemist Report (exhibit P26) prepared by the chemist from Jabatan Kimia Malaysia (SP9). Having perused the notes of the proceedings, the defence counsel did not seriously challenge the validity of SP9 evidence regarding her analysis. Thus, it is not disputed that the seized prohibited goods were intoxicating liquor.

The Magistrate only raised the issue of the discrepancy in the total number of the subject matter of the charge. SP7 explained that 85 prohibited goods, which were items of prohibited goods from no. 5 until 89 as listed in the charge, were affixed with counterfeit tax stamps.

SP6 from Lembah Sari Sdn Bhd prepared a report, as in exhibit P18 (RR Jilid 3(B) from pages 303-306), to verify that the tax stamps affixed to the prohibited goods were invalid. However, according to the Magistrate, no explanation was offered by SP7 regarding the remaining four prohibited goods. On appraisal of the evidence, the Magistrate concluded that there was doubt regarding the subject matter of the charge against the accused.

With respect, this Court found that the Magistrate had erred in her finding on the four items as listed in the appendix to the charge, which were:

Bir jenama Foster’s Strong – 236 cans

(ii) Bir jenama Tiger Asian Lager – 96 cans

(iii) Bir jenama Singha Lager – 103 cans

(iv) Bir jenama Kingfisher Blue Premium – 13 cans

Had the Magistrate directed her mind to the clear facts of the case, the Magistrate would have been aware that no tax stamp was affixed on the cans (beer) of those prohibited goods for Lembah Sari Sdn Bhd to verify the validity of the tax stamp. (See S/N 8NPdJqBSkyvrbUbinXdw RR3(A) on pages 86 to 92). Hence, the critical issue involving the four items was whether they were prohibited goods as provided under Order 2023, and that failure to affix the tax stamp is an offence under the Act.

The counsel for the accused argued that failure to affix the tax stamp on the prohibited goods was not ipso facto an offence under the Customs Act 1967 based on the High Court decision in Chong Yin Kim v PP [2017] MLJU 1762.

Unfortunately, the case referred to by the learned counsel is a High Court decision having the same jurisdiction as this Court. As such, this Court merely acknowledges the decision of that case, which is peculiar to the facts of the case.

Contrary to the facts of the instant case, the Court found that the Magistrate had misdirected her mind on the crucial evidence from the prosecution's witnesses regarding the subject matter of the charge. Though the prosecution had amended the charge more than once, it is wrong for the Magistrate to infer that the charge was defective from the beginning, as the amendments show that the prosecution was uncertain about the subject matter of the charge. It is crucial to note that the prosecution can amend the charge during the trial as provided under the Evidence Act. Thus, amending the charge was indeed a non-issue.

Hence, based on the evidence of the prosecution witnesses, this Court is satisfied that the prosecution has proved the first element of the charge.

On the third element of the charge, this Court found that the Magistrate had erred in her finding that the prosecution had failed to prove the third element of the charge, vis a vis, that the accused has knowledge of possessing the prohibited goods.

Before the court deals with the issue, it is critical to note that the Customs Department used the device SM45 to verify the validity of the tax stamp as approved by the Director General. Laman Sari Sdn Bhd is the company responsible for the device SM45.

SP9 is the expert who could shed some light on the application of SM45, as no one else could except a Laman Sari Sdn Bhd representative. Therefore, the court is entitled to accept SP9's expert opinion on its face value as decided in Munusamy v PP [1987] 1 MLJ 492. See also the Federal Court decision in Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 19 on the principles of law on expert witness.

Based on the notes of the proceeding, this Court also found that SP9's evidence was credible to support her opinion, and she does not need to bring the device SM95 before the Magistrate to give details of her analysis. S/N 8NPdJqBSkyvrbUbinXdw There was also no evidence tendered by the defence of another expert to contradict SP9's opinion. Had the Magistrate accepted SP9's evidence as in the report, the Magistrate ought to have accepted SP9's evidence at face value.

The Magistrate must acknowledge that the tax stamp carries critical security features to protect it from counterfeiting. As such, there is a need for a special device (SM45) to verify tax stamp validity. SP7 gave evidence that the accused did not show any documents when asked during the raid.

The Court found that it was wrong for the Magistrate to conclude that, as the accused did not have SM45, the accused could not be said to know that the tax stamp affixed to the prohibited goods was counterfeit. For the court to accept the Magistrate's conclusion was extremely far-fetched and had a significant impact on future cases, as the prosecution would not be able to prove knowledge since only the Customs Department has the device SM45. As a diligent duty payer, the accused must keep records of documents to show that the stamp affixed to the prohibited goods was genuine. See section 103 of the Evidence Act.

Based on the above, the Court found that this is a fit and proper case for this court to intervene as the Magistrate's decisions fall into error for failure to make a maximum evaluation of the credibility of the prosecution witnesses and the documents tendered as exhibits at the prosecution's stage.