PHILLVIN GUACHIN v Pendakwa Raya (JA-44-39-10/2025)

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1 DALAM MAHKAMAH TINGGI DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TA’ZIM, MALAYSIA USUL NO. JA-44-39-10/2025 ANTARA PHILLVIN GUACHIN …PEMOHON DAN PENDAKWA RAYA …RESPONDEN GROUNDS OF JUDGMENT Introduction [1] By way of a Notice of Motion dated 17-10-2025, the Applicant had sought for the following orders:- a) That the charges against the Applicant at the Johor Bahru Magistrate’s Court case no: JA-83-1014-02/2025 be quashed/set aside on grounds that they are defective and invalid; b) That the seizure of goods made on 18.01.2025, including the vehicle, an Isuzu lorry with registration number VCR 7739, is invalid on grounds that the Applicant was only charged on 26.02.2025, which is after the 30-day period provided under Section 128(4) of the Customs Act 1967; c) All further proceedings against the Applicant in this case are null and void. The Charge Against The Applicant [2] The Amended charge against the Applicant at the Magistrate’s Court are as follows:- “Bahawa kamu, bersama-sama dua individu yang masih bebas, pada 18.01.2025 kira-kira jam 1.00 petang di Bay Pemeriksaan 06, Cawangan Eksport, Kompleks Sultan Abu Bakar, 81560 Gelang Patah, di dalam Negeri Johor yang dalam apa-apa cara dengan disedarinya terlibat dalam mengangkut barang larangan import iaitu:

Subsection

(1) 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-

Subsection

(2) 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.

Subsection

(3) 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.

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

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(4) 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.

Subsection

(5) 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. [11] A clear reading of Section 128 will reveal that the provision is a mandatory provision in respect of the right of a person making a claim on seized goods. [12] The section makes no reference or sets any time limit for initiating criminal prosecution, nor does it state that any prosecution initiated after 30 days is void or invalid. [13] There is a clear distinction between property forfeiture proceeding and criminal prosecution against an individual. The forfeiture proceeding initiated against the Applicant is pursuant to the Customs Act 1967, whereas the criminal prosecution is governed by the Criminal Procedure Code. [14] Both of these processes are separate and distinct. Therefore, any decision given in respect of the forfeiture proceeding has no bearing and in no way affects the validity of the criminal prosecution against the Applicant. [15] The Applicant relied heavily on the case of GM Duty Free (Tengah) Sdn Bhd v Mohamad Haliz bin Ishak & Ors (2025) 3 MLRA 324 in support of his motion. The main issue for consideration in that case is the failure of the authorities to claim the seized goods within the stipulated time frame. Hence, it cannot be applied in respect a criminal prosecution against an individual under the Act for a violation of its provision. [16] Article 145(3) of the Federal Constitution vests unfettered discretion in the Attorney General to initiate, conduct, or discontinue criminal prosecutions. Article 145(3) of the Federal Constitution (Schedule D) provides as follows: “The Attorney General shall advise on legal matters referred to him by the Yang di-Pertuan Agong or the Cabinet and shall have the power, which may be exercised at his discretion, to initiate, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a military court.” [17] Meanwhile, the powers of the Public Prosecutor is provided for under section 376 of the Criminal Procedure Code as follows: ”Prosecutor

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(1) The Attorney General shall be the Public Prosecutor and shall have control and direction over all criminal prosecutions and proceedings under this Code.” [18] The locus classicus Federal Court case of Long bin Samat & Ors v Public Prosecutor (1974) 2 MLJ 152 spoke about the prosecutorial powers under Article 145(3) of the Federal Constitution, which states that the discretion of the Attorney General cannot be easily revoked, as follows: “ It is obvious that today we have to determine the question before us in the light of the current statutes dealing with the jurisdiction of the courts, with criminal procedure and with the powers of the Public Prosecutor. The relevant provision of the statute dealing with the jurisdiction of the courts is section 85 of the Courts Ordinance to which reference has already been made, and it is quite clear from it that the learned magistrate had jurisdiction to fix the charges before him. Then references should be made to the provisions dealing with criminal procedure and with the power of the Public Prosecutor at whose instance these charges were brought. The first of these provisions is subsection (i) of section 378 of the Criminal Procedure Code which provides. “The Attorney-General shall be the Public Prosecutor and shall have the control and directions of all criminal prosecutions and proceedings under [the Criminal Procedure] Code.” ... and from that it would appear that the Public Prosecutor has a discretion as to what changes should be preferred, subject of course to the power of the court to amend charges in the course of a trial. That the law intends to give a wide discretion over criminal prosecutions to the Public Prosecutor appears from other provisions of the Criminal Procedure Code providing that for prosecution of certain offences his complaint is required (section 130) and yet for other offences his written sanction (section 129). Such was the state of the authorities before independence. On independence the Federal Constitution came into force, and clause

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(3) of its Article 145 (as amended) provides:— “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 Maxim court, a native court or a court-martial.” In our view, this clause from the supreme law clearly gives the Attorney-General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted, and the courts cannot compel him to institute any criminal proceedings which he does not want to institute or to go on with any criminal proceedings which he has decided to discontinue.” [19] The powers of the Attorney-General were again raised and argued in Repco Holdings Bhd v. PP [1997] 4 CLJ 740; [1997] 3 MLJ 681. Gopal Sri Ram J sitting as a High Court Judge (as he then was) held: “[1] Reading the plain language of art. 145(3) of the Federal Constitution, it is clear that the supreme law has committed to the hands of the Attorney-General the sole power, exercisable at his discretion, to institute, conduct and discontinue criminal proceedings. Sections 376 and 380 of the Criminal Procedure Code, likewise, make it clear that the only authority that is constitutionally entitled to conduct prosecutions is the Attorney-General as Public Prosecutor. [1a] The expression 'conduct' in art. 145(3) of the Federal Constitution cannot but refer to the conduct of prosecutions in court. So also, the expression 'control and direction' in s. 376(i) of the Criminal Procedure Code which must refer to all criminal prosecutions and proceedings. The word 'conduct' appearing in art. 11 145(3) and in sub-ss. 39(2) of the SCA and 126(2) of the SIA, however, carries the same meaning. [2] Since the Federal Constitution exclusively authorises the Attorney-General to conduct prosecutions, it must follow that no other authority may be lawfully empowered to exercise that function” [20] As articulately explained by Gopal Sri Ram J in Repco that the supreme law, namely the Federal Court, has committed to the hands of the Attorney-General the sole power, exercisable at his discretion, to institute, conduct and discontinue criminal proceedings. [21] Abdoolcader J (as he then was) in PP v. Datuk Hj Harun Hj Idris & Ors [1976] CLJU 180; [1976] 1 LNS 180; [1976] 2 MLJ 116 further articulated that the word 'conduct' in art. 145(3) refers: “... to the conduct of prosecutions in court, as it indeed appears ipsissimis verbis in s. 377 of the Code. And "control and direction" in s. 376(i) of the Code is in respect of all criminal prosecutions and proceedings, and not of criminal procedure or the jurisdiction of the courts.” [22] The decision to bring the charges was within the authority and discretion of the Public Prosecutor, as stated under Article 145(3) of the Federal Constitution, read together with section 376 of the Criminal Procedure Code (CPC). It means the Public Prosecutor has the discretion to bring charges against someone based on the available evidence. It is clearly stated in the Federal Constitution and should not be undermined by allowing applications to challenge such discretion. see Karpal Singh & Anor v. PP [1991] 1 CLJ Reprint 183 and Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v. PP [2014] 9 CLJ 289; [2014] 6 MLJ 831. [23] Therefore it is axiomatic that the general principle applicable to criminal prosecution is that the Public Prosecutor has the discretion to initiate prosecution at any time and it is reasonable to assume that this criminal prosecution is not subject to the Limitation Act 1953, as it is limited for civil and contract actions. EXCEPT where a specific time limit has been expressly provided for in any special law. There is no statutory time limit for initiating criminal prosecution under the Customs Act 1967. This Motion [24] The motion before this court is under 2 limbs as follows and this Court will deal with them separately: - a) That the charges against the Applicant in Johor Bahru Magistrate’s Court case no: JA-83-1014-02/2025 be quashed/set aside on grounds that they are defective and invalid; [25] Premised upon the analysis above, this prayer of the motion us untenable and therefore ought to be dismissed in limine. b) That the seizure of goods made on 18.01.2025, including the vehicle, an Isuzu lorry with registration number VCR 13 7739, is invalid on grounds that the prosecution was only initiated on 26.02.2025, which is after the 30-day period provided under Section 128(4) of the Customs Act 1967; [26] From the facts it could be deduced no charge was proffered against the Applicant within the 30 days from the seizure notice dated 18.01.2025. The Applicant was only charged on 26.02.2025, after a lapse of 9 days after the limited for doing so. Hence rendering the seized goods susceptible to be returned to its owner pursuant to section 128(2) of the Act, provided that a written notice was given by the claimant to a senior officer of the customs department . [27] In the Federal Court case of Sarmina Sdn Bhd v. Gerry Ho & Ors [2023] 7 CLJ 349 it was held: “(2) The keywords in s. 128(2) of the CA are 'any person asserting that he is the owner of such goods' may claim the release of the said goods. An agent is considered an 'owner' who may claim for the goods under s. 128(2) of the CA. In this case, the uncontroverted facts showed that the appellant was the agent of all the consignors. This was proved by letters from all five consignors and the oral evidence of PW7 and PW8 which clearly stated that the appellant was appointed as their authorised agent to claim for the release of the seized goods. As such, there was a valid written claim by the appellant for the release of the goods under s. 128(2) of the CA, 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 CA.” [28] However, a perusal of the affidavit in support of this motion revealed that the Respondent did not aver of having made any claim to the seized goods pursuant to s 128(1)-(2) of the Customs Act by giving written notice to the customs department asserting: