Pendakwa Raya v ONG BOON SIONG (JB-41LB-4-07/2024)

The Accused/Respondent was charged under s.135(1)(d) of the Customs Act 1967 (CA 1967) for knowingly loading prohibited goods onto a Toyota Alphard motorcar bearing registration number JTF 8034.

The prohibited goods were white cigarettes (“rokok putih”).

The accused will be referred to as the Respondent hereinafter.

The charge against the accused reads: - PERTUDUHAN Kamu dituduh atas ARAHAN PENDAKWA RAYA MALAYSIA dan pertuduhan kamu ialah:- BAHAWA KAMU pada 14.03.2019, kira-kira pada jam 10.40 pagi di Parkir kenderaan sebuah Restoran Xin Park, Jalan Dato’ Syed Esa,83000 Batu Pahat, Johor dengan disedarinya mempunyai dalam milikannya barang-barang larangan iaitu:- Bil.

Rokok Putih Canyon Signature Menthol 8 kotak x 50 karton x 10 paket x 20 batang

Rokok Putih Canyon Signature (merah) 15 kotak x 50 karton x 10 paket x 20 batang

Rokok Putih Canyon Kuning 2 kotak x 50 karton x 10 paket x 20 batang

Rokok Putih Mevius 2 kotak x 50 karton x 10 paket x 20 batang Yang ditaksirkan bernilai sebanyak RM 21,600.00 yang dimuatkan dalam kenderaan Toyota Alphard JTF 8034 yang mana barang-barang tersebut adalah barang yang dilarang pengimportannya di bawah Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan demikian kamu telah melakukan suatu kesalahan di bawah Seksyen 135 (1)(d) Akta Kastam 1967 yang kamu boleh dihukum dibawah seksyen 135(1)(v)(aa) Akta yang sama. HUKUMAN PERUNTUKAN DENDA DIBAWAH SEKSYEN 135(1)(v)(aa) AKTA KASTAM 1967 Denda minimum adalah sepuluh (10) kali ganda nilai barang atau seratus ribu ringgit (RM 100,000.00) mengikut mana-mana yang lebih besar, dan tidak melebihi dari dua puluh (20) kali ganda nilai barang atau lima ratus ribu ringgit (RM 500,000.00) mengikut mana-mana yang lebih besar,atau dipenjara selama tempoh tidak kurang daripada enam (6) bulan dan tidak lebih daripada lima (5) tahun atau kedua-duanya. Denda minimum : RM 216,000.00 Denda maksimum : RM 500,000.00 Atau Penjara : Tidak kurang 6 bulan dan tidak lebih 5 tahun atau kedua-duanya. PERUNTUKAN LUCUTHAK DI BAWAH SEKSYEN 127 (1) AKTA

Semua barang (1 hingga 4) di atas 2. Sebuah kenderaan Toyota Alphard nombor pendaftaran JTF 8034 3. Kunci Kenderaan dilucuthak kepada Jabatan Kastam Diraja Malaysia. 4 5. The Learned Magistrate (LM) discharged and acquitted the accused at the end of the defence case.

The prosecution being dissatisfied, appeals against the decision.

On 14 March 2019, at around 9.30 a.m., PW6 led a raiding team to an MPV Vehicle, Toyota Alphard bearing registration number JTF 8034 (“motorcar”), parked behind Restaurant Xin Park, Batu Pahat, Johor. Before the raid, PW6 directed PW4 and PW5 to observe the area surrounding the restaurant based on the information received.

Thereafter, at around 10.30 a.m., PW6 was informed by PW4 and PW5 that they saw the Respondent driving the MPV Vehicle Toyota Alphard bearing registration number JTF 8034 into the parking lot behind the restaurant and park the said vehicle there. PW4 and PW5 also saw the Respondent alight from the vehicle, walk into the Restaurant Xin Park, and sit at one of the tables.

PW6 then directed PW4 and PW5 to continue monitoring the movements of the Respondent and the motorcar until he arrives with other officers at the scene.

Next, at around 10.40 a.m., PW6 arrived at the scene with other officers. PW6, then accompanied by PW4 and PW5 walked into Restaurant Xin Park and introduced himself to the Respondent as a Customs officer. PW6 then directed the Respondent to step out of the restaurant.

The Respondent then asked PW6 if he could settle this by saying “minta settle,” not to be detained. The Respondent looked worried. PW6 then asked the Respondent if the Toyota Alphard bearing registration number JTF 8034 belonged to him, to which the Respondent said that he was driving it.

After that, PW6 with his team and the Respondent walked towards the motorcar. PW 6 then asked the Respondent for the keys. The Respondent told PW6 that the keys are inside the motorcar.

PW6 then told PW4 and PW5 to inspect inside the motorcar, witnessed by him and the Respondent. They found the motorcar was not locked and the keys were in the ignition.

They also further found that the back passenger seat was folded down and loaded with boxes covered in a black cloth containing white cigarettes in packets suspected to be prohibited goods as follows: -

White Canyon Signature Menthol Cigarettes – 8 boxes x 50 cartons x 10 packets x 20 sticks.

White Canyon Signature Menthol Cigarettes (Red) – 15 boxes x 50 cartons x 10 packets x 20 sticks.

White Canyon Yellow Cigarettes – 2 boxes x 50 cartons x 10 packets x 20 sticks.

White Mevius Cigarettes – 2 boxes x 50 cartons x 10 packets x 20 sticks

These goods did not bear any Customs stamps or labels indicating duties paid and therefore violated the Customs Order (Prohibition of Import) 2017.

Neither did the Respondent produce any documents to show that the goods have been approved by the Customs Department.

PW6 then directed the team to detain the Respondent, to seize the prohibited goods, the motorcar with its key and bring them back to the Customs Department office in Batu Pahat for further investigations. PW6 also instructed PW4 to lodge a police report

Upon investigation, the Respondent was charged under s.135(1)(d) of the Customs Act 1967 (CA1967) for knowingly loading prohibited goods onto the motorcar. This section reads: - “(1) Whoever- ………………….

knowingly harbours, keeps, conceals, or is in possession of, or permits, suffers, causes or procures to be harboured, kept or concealed, any uncustomed or prohibited goods; shall be guilty of an offence and shall, on conviction-

in the case of goods included in a class of goods appearing in an order made under subsection 11(1)- (aa) be liable for the first offence to a fine of not less than ten times the amount of the customs duty or fifty thousand ringgit, whichever is the greater amount, and of not more than twenty times the amount of the customs duty or five hundred thousand ringgit, whichever is the greater amount, or to imprisonment for a term not exceeding five years or to both; and (bb) be liable for a second offence or any subsequent offence to a fine of not less than twenty times the amount of the customs duty or one hundred thousand ringgit, whichever is the greater amount, and of not more than forty times the amount of the customs duty or one million ringgit, whichever is the greater amount, or to imprisonment for a term not exceeding seven years or to both: Provided that where the amount of the customs duty cannot be ascertained, the penalty may amount to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both;

(ii) in the case of uncustomed goods, such goods not being dutiable or prohibited, be liable to a fine not exceeding twice the value of the goods or ten thousand ringgit whichever is the greater amount: Provided that where the value cannot be ascertained the penalty may amount to a fine not exceeding ten thousand ringgit;” 9 19. At the close of the Prosecution’s case, the Respondent was acquitted and discharged without his defence being called.

The Prosecution then appealed against the said decision to the High Court.

The High Court allowed the appeal and ordered the Respondent to enter his defence.

The Respondent elected to give evidence on oath and called one other witness, his friend who had accompanied him in the motorcar during the journey from Kulai to Batu Pahat on the date of the incident.

Before I proceed further, I am reminded of the principles of appellate intervention. In Amri Ibrahim & Anor v PP [2017] 1 CLJ 617, the Federal Court held: - “[51] It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing.”

In PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, Gopal Sri Ram JCA held: - “[7] It is settled law that it is no part of the function of the appellate court in a criminal case-or indeed any case-to make its own findings of fact. That is a function exclusively reserved by the law to the trial court. An appellate court is necessarily fettered because it lacks the audio-visual advantage enjoyed by the trial court.”

The Respondent’s defence is that he works in a grocery store and on 13.3.2019, he received a call from his employer, called Chok, to drive his employer’s Toyota Alphard motorcar from Kulai to Batu Pahat the next day.

Subsequently, the Respondent contacted his friend Jason (DW2) to ask if he would like to accompany him to Batu Pahat the following day. This was because DW2 also needed to go to Batu Pahat to deliver two boxes of spare parts to a friend there.

The next day, around 8 pm, the Respondent picked up DW2 in front of the IOI Mall, Kulai, and went to Batu Pahat. During the journey, the Respondent received a call from his employer instructing him to park the motorcar at the car park behind Restoran Xin Park in Batu Pahat. His employer also told him to leave the keys inside the motorcar and not to lock it. DW2 overheard the conversation between the Respondent and his employer because the speaker was switched on.

On arrival at the Restaurant, the Respondent dropped DW2 in front of the restaurant and he saw DW2 carrying two (2) boxes of spare parts. The Respondent then proceeded to park the motorcar at the car park behind the restaurant as instructed by his employer and went inside the restaurant to have breakfast with DW2.

Whilst having breakfast, his employer arrived at the restaurant within 5 to 10 minutes and joined them. The Respondent introduced DW2 to his employer. The Respondent and Jason heard his employer making a phone call to his workers, asking them to load goods onto the motorcar.

After that, three Customs officers approached them and asked who owned the motorcar. His employer replied that he was the owner. The Customs officers then asked who was driving the motorcar, and the Respondent answered that it was he.

Next, according to the Respondent, he saw his employer discussing with the Customs officer. His employer then told the Respondent to follow the Customs officers to resolve the matter. DW2 was present at that moment and witnessed what was going on.

The Customs officers then took the Respondent to the motorcar. The Respondent informed them that the keys are inside the motorcar and it is unlocked. He told the Customs officers to open the motorcar. After inspecting inside the motorcar, the Respondent was detained and taken to the police station. His employer promised to resolve the issue, but never showed up.

S. 135(2) of the Customs Act 1967 states that an accused is presumed to have knowledge of the prohibited goods unless the contrary is proved by him. This section reads: - “(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 well-established that the Respondent must rebut statutory presumption on the balance of probabilities. Lord Diplock, in PP v. Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89, explained how a statutory presumption can be disproved. “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a (sic) fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it, it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities.”

According to the Respondent, DW2 works for Syarikat Yik Hao and at times, will ask the Respondent to deliver boxes of motorcar spare parts.

The Respondent’s defence is that on the date of the incident, during the journey from Kulai to Batu Pahat, the motorcar was not loaded with any goods except for the two boxes of spare parts brought by DW2 to deliver to his friend at Batu Pahat.

The Respondent says the prohibited goods found inside the motorcar by the Customs were loaded by his employer’s workers after his employer had called them to load these goods into the motorcar. Hence, the Respondent has no knowledge of these prohibited goods.

The crux of the Respondent’s defence is that the prohibited goods were never loaded inside the motorcar during the journey from Kulai to Batu Pahat, nor were they inside the motorcar when he parked the motorcar at the car park behind the restaurant.

The Respondent also testified that his employer had asked him previously to deliver cigarettes with delivery orders, but he had no knowledge of whether the duties were paid or not for the same.

The Respondent testified that he was contacted by his employer to drive his employer’s motorcar from Kulai to Batu Pahat the next day, and during the journey, no prohibited goods were loaded onto the motorcar. He stated that only two boxes of spare parts, brought by DW2 for delivery to his customer, were in the motorcar. The delivery order dated 14.3.2019, which is the date of the incident, was tendered by the defence as D43.

The Respondent’s testimony is supported by his friend, DW2’s evidence who travelled with him in the motorcar from Kulai to Batu Pahat and was present at the restaurant.

DW2 confirmed that he carried two boxes of spare parts into the motorcar driven by the Respondent when the Respondent fetched him. According to DW2, when he opened the boot of the motorcar to place the 2 boxes of spare parts, he did not see any other boxes. The delivery order dated 14.3.2019 (D43) was produced through DW2, who gave details of the spare parts during his evidence.

The learned Magistrate (LM) considered the Respondent’s defence and accepted that it was probable the prohibited goods were never loaded into the motorcar while being driven by the Respondent from Kulai to Batu Pahat, until the Respondent parked the motorcar in the car park behind Restaurant Xin Park.

The LM also found there was no evidence to show it was the Respondent who had loaded the prohibited goods into the motorcar at the parking area behind the restaurant.

Hence, the LM found that the Respondent had no knowledge of the prohibited goods found inside the motorcar.

In conclusion, the LM found that the Respondent had successfully raised a reasonable doubt on the prosecution’s case.

In my judgement, the facts in this case show that the Respondent was detained inside the restaurant Xin Park. Meanwhile, the prohibited goods were discovered outside the restaurant, inside the motorcar driven by the Respondent and parked behind the restaurant.

It is not in dispute that the motorcar belongs to the Respondent’s employer, Chok Yuk Fui.

According to the Respondent’s testimony, his employer, Chok Yuk Fui, had instructed him to park the motorcar behind the restaurant and not to lock the motorcar and to leave the keys inside.

During the Prosecution’s case, the Respondent had put forward his defence that he had no knowledge of the prohibited goods discovered by the Customs inside the motorcar. He claimed that he had left the motorcar unlocked in the car park with the keys inside as instructed by his employer. Additionally, his employer Chok was present with him at the restaurant, seated on the same table beside him and DW2 when the Customs officers approached him.

The defence therefore had submitted that whilst the Respondent was at the restaurant, some others could have had access to the motorcar and loaded the prohibited goods inside the motorcar.

The fact remains that the Respondent was never caught red-handed with the prohibited goods and left the motorcar unlocked in the car park with the keys inside.

The Respondent’s evidence is that it was his employer who had instructed him to park the motorcar at the car park behind Restaurant Xin Park and to leave the motorcar unlocked with the keys inside. The fact that the motorcar was unlocked and the keys were inside was confirmed by PW5 and PW6 in their cross-examination.

Therefore, the Respondent’s evidence that his employer had instructed him to leave the motorcar unlocked with the keys inside certainly cannot be regarded as an afterthought.

According to Customs, they were unable to contact Chok Yuk Fui at his last known address despite attempts and also to trace his whereabouts. Therefore, they could not carry out any investigations with Chok regarding the ownership and possession of the prohibited goods found inside his motorcar.

Chok Yuk Fui is undoubtedly an important witness, given that he owns the motorcar where the prohibited goods were discovered. In my judgement, the burden remains on Customs to ensure there are no gaps in their investigation regarding possession of the prohibited goods found inside Chok’s motorcar.

Learned Counsel for the Respondent submits that the LM came to the right conclusion based on the inferences drawn from the Respondent’s evidence that he had no knowledge of the prohibited goods inside the motorcar.

This Court does not have the benefit of the grounds on which the Appellant is challenging the findings of fact and the decision of the LM. This is because the Appellant had only filed an incomplete 4 pages submission.

Both parties were directed to file written submissions on or before 11.4.2025. However, it was only the Respondent who had complied with the direction by filing their submissions on time.

When this matter then came up before me on 25.4.2025, I then directed the learned Deputy Public Prosecutor to file her written submissions by 9.5.2025 and fixed the matter again for case management before me on 9.5.5025.

However, on 9.5.2025, the learned Deputy Public Prosecutor was not present in Court and still failed to file her submissions. I was informed by the Prosecutor, who mentioned the case on behalf of Customs, that according to the learned Deputy Public Prosecutor, having conduct of this appeal, the submissions were ready for filing. I then directed the submissions to be filed by 5 pm on the same day and fixed the matter for hearing on 20.5.2025.

Thereafter, only an incomplete four-page submission was filed on the same day. Despite a reminder from the Court that the submissions were not complete, the learned Deputy Public Prosecutor did not take any steps to file her complete submissions. She also failed to attend the hearing on 20.5.2025 to make an oral submission. Neither did the learned Deputy Public Prosecutor serve her written submissions on the Respondent.

I then exercised my discretion in the interest of justice and in all fairness to the Respondent, who has been saddled with this charge since 2019, to proceed with the hearing of the Appeal in the presence of the Respondent and his counsel and adjourned the same for decision on 13.6.2025.

Yet the learned Deputy Public Prosecutor did not file the complete submissions at any time before this Court delivered its decision and also failed to be present during the decision on 13.6.2025

For easy reference, the relevant parts of the Appellant’s incomplete submission are reproduced below: - “PERKARA YANG DIBANGKITKAN DALAM RAYUAN a) Puan Majistret telah terkhilaf dari segi fakta dan undang-undang apabila memutuskan bahawa pihak Perayu telah gagal membuktikan elemen bahawa barang kes yang dirampas adalah barang larangan import dan elemen bahawa Tertuduh mempunyai pengetahuan memiliki barang kes bagi kesalahan di bawah seksyen 135(1)(d) Akta Kastam 1967.

Kes ini telah dirayu di akhir kes pendakwaan, dan dapatan Mahkamah Tinggi pada ketika itu adalah bahawa Perayu telah berjaya membuktikan kes di peringkat prima facie. Penghakiman kes Rayuan adalah seperti mana alasan penghakiman Yang Arif Pesuruhjaya Kehakiman (ketika itu) AWG ARMADAJAYA AWG MAHMUD JC dalam Alasan penghakimannya dalam kes PP v Ong Boon Siong [2021] CLJU 1738. [TAG1]

Secara ringkasnya Yang Arif Pesuruhjaya Kehakiman (ketika itu) AWG ARMADAJAYA AWG MAHMUD JC telah mendapati elemen-elemen Pertuduhan telahpun dipenuhi dan telah mengarahkan Responden untuk membela diri.

AWG ARMADAJAYA AWG MAHMUD JC, dalam penghakimannya telah menjelaskan seperti berikut: [39] I am guided by the judgment which said, “other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance” [40] Having analysed the conduct of the Respondent that “he wish to settle”: (minta settle), it must be understood that later when a search was done on the vehicle, uncustomed / contraband items were found. This must be taken in context that the request came when PW6 identified himself as a customs officer, and the Respondent was asked to lead the raiding party to the vehicle, the care keys were with the Respondent, no one was with the Respondent in the car at all times and more importantly no one open the car and put something in. [41] In our instant case, if for the sake of the arguments we assume that the Respondent did not meant the bribe part, the inference that can be drawn is the Respondent knew he had some contraband or illicit items with him. He is asking for mercy to PW6 to let me go. This would have been totally unnecessary if the Respondent had no guilty conscience and hence need not worry. He could just lead the team (and PW6) and showed that he has nothing to hide or worry about. This conduct is relevant because of the items seized later were found to be contraband / uncustomed, and the Evidence Law allows us to scrutinised the conduct in relation to the items found in the car which keys were held by the Respondent in person. [42] For the above reasons, it is the ruling of this Court that the Respondent has control and knowledge of the prohibited items. “In short he has mens rea possession of the prohibited items”

Keputusan Mahkamah Tinggi ini adalah mengikat mahkamah yang lebih rendah Melalui prinsip stare decisis. Dalam kes DHALIP BHAGWAN SINGH v PUBLIC PROSECUTOR [1997] 4 CLJ 645, [TAG2] Mahkamah Persekutuan menjelaskan “doctrine of stare decisis” “The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts at a higher or the same level in the court structure subject to certain exceptions affecting especially the

Oleh itu, tindakan Puan Majistret yang menggunapakai alasan penghakiman Tuan Majistret yang mendengar kes pendakwaan (Enclosure 5, mukasurat 3) adalah bertentangan dengan Prinsip stare desis.

Memandangkan pertimbangan Puan Majistret adalah merujuk dan berasasakan kepada dapatan Tuan Majistret tanpa merujuk kepada keputusan rayuan yang diputuskan di peringkat mahkamah tinggi, Perayu menghujahkan keputusan”

Based on the incomplete submission, this Court is unable to ascertain the grounds relied on by the Appellant to attack the findings and decision of the LM.

Furthermore, without the Appellant’s submissions challenging the findings and decision of the LM served on the Respondent, the Respondent is prejudiced because he would not know how to respond to the Appellant’s appeal.

Upon an overall assessment of the facts and evidence in this case, in my judgment, an inference can be drawn that it was more probable than not that the Respondent did not know about the prohibited goods loaded inside the motorcar.

Furthermore, if it were true that the Respondent himself had loaded the prohibited goods onto his employer’s motorcar and the employer was unaware of this, why then had he left his employer’s motorcar unlocked with the keys in the ignition? Thus, compromising the security of his employer’s motorcar as well.

The LM accepted and believed the Respondent’s defence that the prohibited goods were never inside the motorcar whilst he was travelling from Kulai to Batu Pahat until he reached the car park behind Restaurant Xin Park.

Therefore, this would mean that the prohibited goods were not inside the motorcar when the Respondent parked the motorcar behind the restaurant. They must have been loaded after he had parked and gone inside the restaurant. If the Respondent was inside the restaurant, he certainly could not have been the one to load the prohibited goods into the motorcar.

In fact, there is no evidence adduced by the prosecution to show it was the Respondent who had loaded the prohibited goods into the motorcar, which was parked at the parking area behind the restaurant.

Therefore, in my considered view, the Respondent has rebutted the presumption under s. 135(2) of the Customs Act 1967 on the balance of probabilities.

In Goh Yin Guan v P.P (1966) CLJU 53, a case concerning a similar charge under the Customs Ordinance, 1952, against an attendant of a lorry transport company, MacIntyre J stated as follows: - “In the instant case, the appellant is the servant of a transport company. He works as an attendant of the company's lorry used for transporting goods. It is not a part of his duties to receive orders from customers or see to the loading of the goods into the lorry. It would be unreasonable to expect any driver or attendant of a transport vehicle belonging to a transport company to question the honesty of his employers every time he is asked to deliver goods to a consignee. It would be different if he was asked to transport the goods in a surreptitious manner. In the light of the facts revealed at the trial, it would appear that the managing director is the proper person who should have been charged in this case and who should have proved that he was not aware the customs duty had been paid on the goods or not. The explanation given by the appellant is, in my opinion, sufficient to show that he did not know whether duty had been paid or not.”

Thus, in my opinion the Respondent’s explanation is sufficient to show that the prohibited goods were not loaded into the motorcar when he was travelling from Kulai to Batu Pahat and when he had parked the motorcar at the car park behind the restaurant. In other words, the Respondent does not know about the existence of the prohibited goods found in the motorcar.

In the foregoing, my finding is that it is more likely than not that the Respondent followed his employer Chok’s instruction to leave the motorcar unlocked with the keys inside and does not know who loaded the prohibited goods into the motorcar thereafter.

In reaching my decision, I have considered the evidence during the prosecution case.

The LM therefore drew the correct inferences from the evidence. Furthermore, the LM, as the trier of fact, had the opportunity to observe the Respondent’s demeanour. I do not see any reason to disagree with her finding.

In the foregoing, the LM had made a correct assessment of the evidence before her and did not misdirect herself.

As I mentioned earlier, this Court does not have the benefit of the Appellant’s submissions on the reasons why they are challenging this finding made by the LM.

An appellate Court should be slow in disturbing the findings of facts by any trial Court except when the trial judge had misdirected herself on how to assess the evidence. Please see Pang Chee Meng v PP [1992] 1 CLJ (Rep) 265.

In the foregoing, based on the Respondent’s defence, my finding is that it is more likely than not that the Respondent followed his employer Chok’s instruction to leave the motorcar unlocked with the keys inside and does not know who loaded the prohibited goods into the motorcar thereafter.

Lastly, regarding the issue, the Respondent asked PW6 to settle. This fact was only mentioned for the first time in Court by PW6. It was never stated in the police report (P15) prepared by PW4. If it were true, PW6, to whom the Respondent allegedly made this statement, should have lodged a police report to record this fact.

Furthermore, when examining PW6’s evidence-in-chief, he stated that the Respondent said, “minta settle” and not to be detained. However, there is no evidence that the Respondent made these remarks regarding the prohibited goods found in the motorcar. Therefore, it is not a relevant fact to the issue at hand. In Ng Peng Seng v PP and another appeal [2017] 2 MLJ 750, concerning a similar point, it was held by the Court of Appeal as follows: - “[38] As for conduct, the first appellant had challenged the prosecution’s version and even if the court were to accept the prosecution’s evidence that the first appellant ‘minta tolong’ and ‘minta settle’, there was no evidence to establish that the words uttered was in specific reference to the drugs found in the boot of the car. An inference favourable to the first appellant may be drawn that the words uttered were in relation to the manner she was driving the car.”

In the foregoing, upon a maximum evaluation of the entire evidence, the Prosecution has failed to prove the charge against the Respondent beyond a reasonable doubt.

Henceforth, the LM had arrived at a correct finding and decision to discharge and acquit the Respondent, although she had inadvertently failed to state in her grounds of judgment that the Respondent had successfully rebutted the presumption on the balance of probabilities.

In the foregoing, the Appellant’s appeal has no merit and is dismissed. The decision of the LM to discharge and acquit the Respondent is upheld. Dated 13th June 2025 t.t. SURIA KUMAR DJ PAUL JUDGE HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Deputy Public Prosecutor : Nur Anida Binti Mohd Nasir Jabatan Kastam Diraja Malaysia For the Respondent : R. Ravendren with Sree Kanapathi Nyanasegaran Messrs J. R. Ravendren & Associates