SD Guthrie International Pasir Gudang Refinery Sdn Bhd v KETUA PENGARAH JABATAN KASTAM DIRAJA MALAYSIA (WA-25-389-11/2025)

The Applicant files these judicial review proceedings to challenge the Custom’s decision to issue a Bill of Demand dated 11.8.2025

An application for judicial review must precede with the grant of leave under Order 53 rule 3 of the Rules of Court 2012. The Attorney General, upon being served with the cause papers appear to object to the leave application on the ground that the Applicant ought to have resorted to the statutory remedy as provided for in the Customs Act 1967, instead of filing judicial review proceedings. Salient facts

The Applicant’s case for review is premised on the following facts:

The Applicant was formerly known as Sime Darby Oils Pasir Gudang Refinery Sdn Bhd. Its principal activities are investment holding and processing of edible oil and related products;

(ii) The Respondent issued a Bill of Demand dated 11.8.2025 for import duty owing for the period of January 2020 to December 2024 in relation to the import of crude coconut code (HS code: 1513.11.9000) by the Applicant; S/N rce1fGrA8UqxpU15O7LzIw

(iii) The decision to do so was premised on a breach of condition of the import duty exemption facility granted to the Applicant under section 14(2) of the Customs Act 1967 which requires all invoices and import documentation pertaining to the import to be in the Applicant’s name, being the company which has been approved for the exemption;

(iv) The breach of the condition was discovered when upon an audit conducted on the Applicant, the Applicant had allegedly produced a third-party invoice for the import of the goods under the import duty exemption facility;

The Applicant however contends that the Respondent had failed to consider that all invoices produced by the Applicant was issued in the Applicant’s name. The Applicant has therefore fulfilled the relevant condition in the import duty exemption facility and is entitled to claim the import duty exemption;

(vi) The Applicant therefore contends that the Respondent’s decision in disregarding the express condition in the exemption facility is tainted with illegality and irrationality. The Respondent was not the authority which granted the Import Duty Exemption, but the Minister. Therefore, the Respondent had no power to vary/impose its condition to the import duty exemption and had acted ultra vires section 14 of the Customs Act 1967 which provides that the power to impose conditions for any exemptions lies with the Minister. S/N rce1fGrA8UqxpU15O7LzIw

(vii) Aggrieved with the decision to issue a Bill of Demand dated 11.8.2025, the Applicant applies inter alia, for certiorari to quash the said decision. The Attorney General’s (AG) role in leave applications

It is settled law that the Attorney General can, at the leave stage attend to object to the grant of leave. (See: Peguam Negara Malaysia v. Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) [2019] 1 MLJ 30, Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v. Arifin bin Zakaria & Anor [2020] 5 MLJ 207 at p. 216)

The Attorney General assists the court by perusing the cause papers and addressing the court if there are reasons not to grant leave. One such reason is where the application is considered to be frivolous. He thus fulfils his role as a custodian of public interest by safeguarding public authorities or institutions by deterring or eliminating clearly ill-founded claims without the need for them to become a party to litigation and to prevent public administrative actions from being paralysed. (See: Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] 4 MLJ 656). AG’s objection

The Attorney General contends that the statutory remedy as provided in the law has not been resorted to. The Applicant ought to have appealed to the Customs Appeal Tribunal (“CAT”) against S/N rce1fGrA8UqxpU15O7LzIw the decision of the Respondent first. In the event the decision of the CAT is not in its favour, it can then appeal to the High Court.

I shall now set out the relevant provisions regulating such process and procedure. The starting point is section 143 of the Customs Act 1967 as follows: Review of and appeal against decision of the Director General

(1) Subject to subsection (4), any person aggrieved by any decision of the Director General may apply to the Director General to review any of his decision within thirty days from the date the person has been notified of such decision provided that no appeal has been made on the same decision to the Tribunal or High Court.

An application under subsection (1) shall be made in the prescribed form.

Where an application for review has been made under subsection

(1), the Director General shall, where practicable within sixty days from the date of the receipt of such application, carry out the review and notify the decision of the review to the person.

No review may be made in any matter relating to compound or subsection 128(3).

Any person aggrieved by any decision of the Director General under subsection (3) or any other provision of this Act, except any matter relating to compound or subsection 128(3), may appeal to the Tribunal within thirty days from the date of notification in writing of the decision to the aggrieved person. S/N rce1fGrA8UqxpU15O7LzIw

The Respondent therefore has the option of either seeking a review of the Respondent’s decision under paragraph (1) or to appeal to the CAT under paragraph (5). If the review decision is not in the Respondent’s favour, it can also appeal to the CAT. Notwithstanding the employ of the word ‘may’ I am of the view that it does not detract from the mandatoriness of the statutory remedy.

PART XIVA of the Customs Act provides for the establishment of the Customs Appeal Tribunal and matters relating thereto. It is only upon a decision made by the CAT that an appeal may be brought to the High Court as follows:

Any person aggrieved by the decision of the Tribunal may appeal to the High Court on a question of law or of mixed law and fact.

Where an appeal is brought to the High Court against the decision of the CAT, the provisions of O. 55A of the Rules of Court 2012 which provides for appeals to the High Court under written law, shall apply. The appeal shall be made by way of an Originating Summons, and must be filed within one month from the date on which the decision was given or the date on which such decision was notified to the person appealing, whichever is the later date.

The Applicant did not resort to any of the procedure above, but filed judicial review proceedings instead. S/N rce1fGrA8UqxpU15O7LzIw Analysis and findings

I consider this issue to have been well settled in Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185, where the Supreme Court upon examining U.K cases on the issue held that save in the most exceptional circumstances the review jurisdiction will not be exercised where a statutory remedy is available. The relevant portion of the judgment reads as follows: A clear principle is reiterated here i.e. it is not a rigid rule that whenever there is an appeal procedure available to the applicant he should be denied judicial review. Judicial review is always at the discretion of the court but where there is another avenue or remedy open to the applicant it will only be exercised in very exceptional circumstances. …. In answer to the first question we would therefore hold that the discretion is still with the courts but where there is an appeal provision available to the applicant certiorari should not normally issue unless there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. (emphasis added)

Subsequent cases cited by the Attorney General shows this approach to be supported by ample legal authorities. Tax cases is one such instance. The income tax law provides that a taxpayer who is aggrieved by an assessment is obliged to appeal to the Special Commissioners. The Federal Court in Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 1 MLJ 563 referred to Gill FJ’s decision in Sun Man S/N rce1fGrA8UqxpU15O7LzIw Tobacco Co. Ltd v Government of Malaysia [1973] 2 MLJ 163 which held that: The doors of justice are not shut to him merely because its claimant is the Government, but he has to enter the doors of the Special Commissioners first to raise the plea of non-observance of the principle of natural justice or to establish that the Director-General acted arbitrarily and in a non-judicial manner. It is only after he has availed himself of that remedy as laid down by the law that he has a right to come to the courts. (emphasis added)

Similarly, in the case of Robin Tan Pang Heng @ Muhammad Rizal bin Abdullah (suing as public officer at Penang Turf Club) v Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2011] 2 MLJ 457 an action was brought to challenge the decision of the Director General of Trade Union (“DGTU”) to register a trade union. Section 71A of the Trade Unions Act 1959 provides for an appeal to the Minister in respect of a decision of the DGTU. The appellant did not resort to this provision, but filed a suit in the High Court instead. The Federal Court was of the view that a statutory remedy should be exhausted first, and its availability ought to preclude judicial review.

In a recent decision of the Court of Appeal in Ketua Pengarah Hasil Dalam Negeri v Jeffrey Florian and other appeals [2025] MLJU 831 it was held as follows: [66] …Even if the Respondents claimed that it was a question of law, the Federal Court in Alcatel-Lucent (supra) has put in place the proper S/N rce1fGrA8UqxpU15O7LzIw process for revenue matters to be dealt with by the parties i.e. either party to the proceedings before the Special Commissioners may appeal on a question of law against a deciding order or may request the Special Commissioners to state a case (generally known as case stated) for the opinion of the High Court. [67] The validity of otherwise of the impugned notice of assessment or the existence or otherwise of an error of law may be raised as an issue in the hearing of the Respondents’ appeal before the SCIT … … [70] The ITA has specifically provided comprehensive provisions on the right and procedure of appeal for the taxpayers to avail themselves to in the event they were aggrieved by the act of the Appellant. Parliament would not have enacted in vain without any real significance such comprehensive provisions on appeal. It is income tax legislation that allows any person aggrieved by an assessment to appeal before a body that is dedicated specifically to hear such appeals. It would indeed be an exercise in futility to create such a mechanism of appeal if it is not to be complied with. (emphasis added)

There are also similar decisions specifically on customs cases. In Pengarah Kastam Negeri Johor & Anor v Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd & Ors and another appeal [2014] 4 MLJ 377, the Court of Appeal held as follows: Again, with regard to the statutory remedy as contained under s 68 of the Sales Tax Act 1972 we are of the view that the position in such a case is rather trite. This court is guided by a slew of cases emanating from high authority such as Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41, Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185, and Robin Tan Pang Heng @ Muhammad Rizal bin Abdullah (suing as public officer at Penang Turf Club) v Ketua S/N rce1fGrA8UqxpU15O7LzIw Pengarah Sekerja Malaysia & Anor [2011] 2 MLJ 457; [2010] 9 CLJ 505. These cases have decided that where a statute has provided for a further internal remedy to an aggrieved party, then it would become incumbent that recourse must first be had to that grievance mechanism. In other words, the respondent is statutorily obliged to exhaust that remedy first before running, as it were, to the courts for what is essentially a discretionary relief. (emphasis added)

The same approach was taken by the Court of Appeal in Ketua Pengarah Kastam dan Eksais v Coach Malaysia Sdn Bhd [2019] 2 MLJ 716 when it held as follows: [34] We further agreed with the learned Senior Federal Counsel that the appeal should be allowed on another ground, and that is, the respondent’s application for judicial review was premature as there was an alternative remedy available to it under section 124 of the GST Act. The provision was couched in the following language: …. [35] What the provision meant was that any person aggrieved by the decision of the DG may apply, within thirty days of the notification of the decision, for a review of the decision, provided no appeal was made to the Tribunal or to the Court within that period. [36] This was not done by the respondent. In our view the intention of the legislature then was clear, and that was for the person aggrieved by the decision of the DG to first exhaust the internal remedy before appealing to the Tribunal or to the Court.

In the light of numerous authoritative pronouncements that statutory remedy precludes judicial review, I consider the position well settled. Judicial review should not be allowed to oust normal appeal procedure. S/N rce1fGrA8UqxpU15O7LzIw

The Applicant has sought to argue that the threshold for the grant of leave is very low as decided by authorities cited. To my mind, leave threshold and recourse to statutory remedy are two distinct principles. Leave threshold is satisfied when on the facts and evidence adduced in the O. 53 statement and the affidavit filed in support, the Applicant can demonstrate an arguable case for leave to be granted.

However, where the Applicant has not utilised the remedy afforded under the law, I am of the view that the test of low threshold has no application.

The Applicant has also sought to argue that the present proceedings are permitted by virtue of section 141N (1)(a) of the Customs Act 1967. The provision allows proceedings to be commenced in court on issues in dispute which may be the subject of an appeal before the Customs Appeal Tribunal, provided the proceedings in court were filed before an appeal was lodged with the Tribunal.

To appreciate the argument, it is necessary to set out the provision as follows: Exclusion of jurisdiction of court

(1) Where an appeal is lodged with the Tribunal and the appeal is within the jurisdiction of the Tribunal, the issues in dispute in such appeal, whether as shown in the initial appeal or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless— S/N rce1fGrA8UqxpU15O7LzIw

the proceedings before the court were commenced before the appeal was lodged with the Tribunal;

or (b) the appeal before the Tribunal is withdrawn, abandoned or struck out.

Where paragraph (1)(a) applies, the issues in dispute in the appeal to which those proceedings relate, whether as shown in the initial appeal or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the appeal before the court is withdrawn, abandoned or struck out.

A reading of the entire provision would tend to show that the provision was intended to exclude the court adjudicating on the issues already in dispute in the appeal before the CAT. However, this exclusion would not apply if the court proceedings were filed earlier than the appeal to the CAT. In my view, the provision is not to be construed to mean that the Applicant has the option of filing judicial review proceedings if he so wishes without appealing to the

Such an interpretation would render the provisions for appeal to the CAT to be completely redundant. The CAT was established by an amendment to the Customs Act in 2007 to provide for an avenue to adjudicate on the grievance of any person aggrieved with the decision of the Director General, without first filing a suit in court. It was clearly to provide for an appellate process to the CAT to be had first. S/N rce1fGrA8UqxpU15O7LzIw

In any event, the wordings of the section, particularly paragraph (2) appear to envisage an appeal filed in court. The present judicial review proceedings is clearly not an appeal.

In short, section 141N(1)(a) has no application to permit the present proceedings which has the effect of bypassing an appeal to the CAT.

In the circumstances, the preliminary objection of the Attorney General is upheld. Consequently, the judicial review application is dismissed. I make no order as to costs. Dated: 25th May 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur S/N rce1fGrA8UqxpU15O7LzIw Counsel for Applicant : Pn. Chang Ee Leen (En. William Wong together with her) Tetuan Raja, Darryl & Loh Counsel for Attorney General: Cik Krishna Priya a/p Veenagopal @ Venugopal Peguam Persekutuan Jabatan Peguam Negara S/N rce1fGrA8UqxpU15O7LzIw