Tay Swee Teck v Public Prosecutor (B-07-45-09/2016)

Aggrieved by the decision of the High Court, the appellant filed a Notice of Motion for leave to appeal to the Court of Appeal. We heard the motion and had unanimously dismissed the same for the following reasons.

On 2.4.2013, a team of raiding officers from customs department went to Simpang 3, Jalan Bukit Changgang, Kawasan 10, 42000 Pelabuhan Klang. Mohd Razaki Bin Mohamad Zin, Raiding Chief (SP2), saw a Toyota Camry motor car bearing registration number TAY 9260 parked by the road side. SP2 observed the car for about 1 and half hour 3 and nobody approached the said car. SP2 found the car was not locked and there was a black coloured package at the back passenger seat. The car key was seen hanging at the ignition starter. Upon examination of the car boot, SP2 found 125 cartons of various brands and types of cigarettes, believed to be uncustomed or prohibited goods. SP2 posted a notice of seizure of the said vehicle and the goods therein pursuant to Section 114 of the Customs Act on a pole near the car.

Azis bin Mohd Rais (SP3), the investigating officer, stated that the value of the cigarettes was RM1602.00 with unpaid customs duty amounting to RM9,944.64 at the time of seizure. After further investigation, a notice of seizure was sent to the owner of the motor car under section 114 of the Customs Act for an offence under section 135(1)(d) of Customs Act.

The appellant then submitted a notice within one calendar month from the date of the seizure to claim that he is the owner of the said car as required under section 128(2) of Customs Act. The appellant further claimed that the motor car ought not to be forfeited as he was not involved in the commission of the offence under s.135(1)(d) of the Customs Act. Upon completing the investigation, SP3 then referred the investigation papers to the prosecution division and a decision was made that there will be no prosecution under section 135(1)(d) of the same as there was insufficient evidence. The Director General of Customs then directed that the appellent’s claim same to be referred to the Magistrate for an inquiry. 4

An inquiry was held before the Magistrate in accordance to section 128(4) of Customs Act. The main issue was whether the prosecution had failed to refer the claim made by the appellant to the Magistrate within one calendar month as required under section 128(3) of Customs Act. The appellant claimed that the delay of 1 year and 7 months in referring the appellant’s claim to the Magistrate by the prosecution had violated section 128 of the Customs Act and the principles laid down in Suntharaju Pachayappan v Jabatan Kastam Diraja Malaysia [2010] 3 CLJ 865. The Magistrate also found that there was no case under sections 135(1)(d) and 135(1)(e) of the Customs Act against the appellant and as such the prosecution could not apply for a forfeiture of the said car under section 128(3) of the same Act. Hence, the Magistrate dismissed the prosecution’s application and ordered the said car to be released and returned to the owner, the appellant.

Upon appeal, the learned High Court judge reversed the decision of the learned Magistrate and further made an order to forfeit the said car to the Government of Malaysia. His Lordship had disagreed with the learned Magistrate and opined that there is no burden imposed upon the prosecution to refer the appellant’s to the Magistrate Court within one calendar month from the date of seizure of the said vehicle. 5

Aggrieved by the decision of the High Court, the appellant filed this Notice of Motion, supported by his own affidavit for leave to appeal to the Court of Appeal. The prosecution had, through their affidavit in reply objected to this application on the ground that there is no question of law raised by the appellant to entitle the appeal to be heard on merit. It must be noted that this application was made pursuant to section 50(2) of Court of Judicature Act 1964 and the main issue for this court to decide is whether this application had complied with the strict requirement under the said section. The relevant provision is stipulated as below:-

Jurisdiction to hear and determine criminal appeals.

Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court -

in the exercise of its original jurisdiction; and

in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.

An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' Court but such appeal shall be confined to only question of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision. 6

An application for leave under subsection (2) shall be made within fourteen days after the date of the decision of the High Court.

Notice of any appeal by the Public Prosecutor shall be signed by the Public Prosecutor, the Solicitor General or any other officer authorized by the Public Prosecutor; and notwithstanding subsection (2) no leave of the Court of Appeal is required.

Except as otherwise provided in this section, an appeal may lie on a question of fact or a question of law or on a question of mixed fact and law. OUR FINDINGS [9] Upon hearing both the parties and perusing their respective affidavits, we are of the view that the thrust of appellant’s contention was not confined solely on the question of law but rather a mixture of question law and fact. In the case of Public Prosecutor v Pasupathy Kanagasaby [2001] 2 CLJ 753, Justice Lamin Mohd Yunus, President of the Court of Appeal (as he then was) stated that: “... Encik Shahul's main complaint was that there was not a single question of law formulated by the prosecution when filing the petition of appeal as envisaged by subsection (2) of s. 50 of the CJA 1964 and the appeal must therefore be dismissed. For ease of reference we reproduce below sub-ss. (2) & (3) of the CJA 1964: 7

An appeal shall lie to the Court of Appeal, with the leave of the Court of Appeal, against any decision of the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by a Magistrates' Court but such appeal shall be confined to only questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision.

Notice of any appeal by the Public Prosecutor shall be given by, or with the consent in writing of, that officer only; and notwithstanding subsection (2) no leave of the Court of Appeal is required. In support of his contention that the question of law must be formulated he referred to the judgment of this court in the case of Saad Abas & Anor v. PP [1998] 2 MLRA 93; [1999] 1 MLJ 129; [1998] 4 CLJ 575; [1999] 1 AMR 384 where we said (at p. 587): Now one final and vital point to be shown in an application made under s. 50(2) is one without which the application may be dismissed. It is this. The affidavit in support must formulate the "question of law" which have arisen in the course of the appeal "and the determination of which by the High Court has affected the event of the appeal." Not one such "question of law" was formulated. If we had so minded we could have summarily dismissed the application on this ground.” [10] In the present case, the appellant posed a question whether the application under section 128(3) of Customs Act must be made within one calendar month from the date of the notice of seizure. This question, to us, arises from the decision of the learned High Court judge who held that there is no mandatory requirement under the said provision for the matter to be referred to the Magistrate within one calendar month from the date of seizure of the goods. The appellant claimed that the 8 prosecution had violated section 128(3) of the Customs Act as the application by the prosecution was made only after approximately one year and seven months from the date of the seizure. [11] We are mindful that it is unnecessary for us to dwell into the merits of the case at this juncture but nonetheless, we opined that the law is well settled with regards to section 128 Customs Act. The said provision states:-

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 one calendar month from the date of seizure of the goods unless, before such expiration-

a claim to such goods or the proceeds of sale of such goods is made under subsection (2);

a written application is made for the return of such goods under paragraph 115(1)(a) or (b); or

such goods are returned under the said paragraph (a) or (b).

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.

On the expiration of the period mentioned in subsection (1), or, if a decision is made earlier that there be no prosecution with regard to the goods, on the making of the decision the senior officer of customs shall, if such goods or the proceeds of sale of such goods are not taken and deemed to be forfeited under that subsection, refer the claim to the Director General who may direct that 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, be released, or may direct such senior 9 officer of customs, by information in the prescribed form, to refer the matter to a Magistrate of the First Class for his decision.

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. [12] In totality, from the words employed in this section, it stipulates that upon seizure of the goods on suspicion by Customs Department under section 114 of the Customs Act 1967, a claim must be made within one calendar month pursuant to section 128. If there is no claim within one calendar month, the goods are deemed to be forfeited. In the event of a claim for the goods being made but where there is no prosecution over the same, the senior officer of customs shall refer the claim to the Director General who may then direct them to be released or the matter be referred to a Magistrate of the First Class to carry out an investigation or a hearing as to whether the goods ought to be forfeited or returned to the owner. Thus, there is no mandatory requirement for an application to the Magistrate of first class to be made within one calendar month from the date of seizure. There is no specific time frame given to the senior customs officer to make reference to the Director General for further 10 directions or to make an application before the Magistrate for an inquiry. As an illustration, if the owner of the goods became aware of the seizure only on the final day of the one calendar month and the claim was made over the goods on the final day, how then could the senior custom officer can possibly file an application on the same final day taking into account that he still have to refer the claim to the Director General? Therefore, it is not practical to suggest that an application must be made to a Magistrate within one month from the date of seizure of the goods. This case can be very well distinguished from the case of Suntharaju (supra) where the judge in that case had applied his mind to the facts and circumstances of the case. It involved a matter of urgency where the goods seized were not only a motor lorry, but also nine buffalos and the main concern was whether the matter had been first referred to the controller i.e. the Director General of Customs prior to referring the same to the Magistrate for his decision to release the seized goods on an immediate basis. [13] In order to obtain “leave” and subsequently file the notice of appeal, the appellant has to satisfy the court that there are questions of law as specified in subsection (2) of Section 50 of Courts of Judicature Act for the determination by the court. In the present case, the appellant’s arguments were a mixture of facts or merits of the case and law. This, is obviously not in accordance with section 50(2) of Court of Judicature Act 1964. CONCLUSION [14] For the reasons stated as above, we unanimously dismiss the application for leave as there is no merits in the appeal. The law on 11 section 128(3) Customs Act 1967 is settled. Therefore, the leave for appeal is not allowed. t.t. (MOHTARUDIN BIN BAKI) Judge, Court of Appeal Malaysia. Dated : 17 January 2018 Counsel for the Appellant: En Ayasamy A/L Velu and Renuka A/P Krishnasamy Messrs V. Samy & Co, No.22, Jalan Bagor, Taman Petaling, 41200 Klang, Selangor Darul Ehsan Counsel for the Respondent: Puan Farah Ezlin Bt Yusop Khan and Puan Goh Hsiao Tung Timbalan Pendakwa Raya Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Malaysia PUTRAJAYA