Winepak Corporation (M) Sdn. Bhd. v KETUA PENGARAH JABATAN KASTAM DIRAJA MALAYSIA (B-01(IM)-725-11/2024)

This is an appeal by Winepark Corporation Sdn Bhd (the appellant) against the decision of the learned High Court Judge (HCJ) dated 12 November 2024 in dismissing the appellant's application for leave to commence a Judicial Review proceedings (JR) against the decisions of the Customs Appeal Tribunal (the Tribunal) in relation to Appeal Nos. MOF TRK.700-6/2/1(2021), 700-6/2/2(2021), and 700- 6/2/3(2021) all dated 17 January 2024 (the impugned decisions).

The appellant is a private limited company, whose nature of business is the manufacturing of intoxicating drinks, bottling of intoxicating drinks for sale, and also bottling for $ 3 ^{rd} $ parties. It has been operating since 2015.

Sometime in June 2020, the appellant received three (3) Bills of Demand issued by the Royal Malaysian Customs Department (the respondent) claiming additional duty be paid, viz.: (i) Bil Tuntutan KE.BB (88) 424/01/06 SK 2(3) dated 10 June 2020, amounting to RM605,395.65, (ii) Bil Tuntutan KE.BB (88) 424/01/06 SK 2(4) dated 10 June 2020 amounting to RM637,244.33, and Bil Tuntutan KE.BB (88) 424/01/06 SK 2(5) dated 10 June 2020 amounting to RM764,775.00, for a total sum of RM2,007,414.98, in respect of goods removed from excise control for the years 2017, 2018, and 2019 respectively.

The appellant applied on 9 July 2020 to the Director General of Customs and Excise for a review of the Bills of Demand under section 47(1) of the Excise Act 1976 (Excise Act), asserting that the excise duties had already been paid to the respondent's authorities through a third party.

By a letter dated 8 January 2021, the appellant was informed that there was a minor error in the computation of duty and the review panel had decided to reduce only the duties imposed for the year 2017 by RM4,564.34, i.e., from RM609,960.00 to RM605,395.65, while the duties imposed for the years 2018 and 2019 remained payable.

Dissatisfied with that decision, the appellant lodged an appeal to the Tribunal on 10 February 2021. The appellant contended that it was required to pay excise duties again to pursue the appeal.

On 17 January 2024, the Tribunal dismissed the appellant's appeal.

The appellant subsequently applied to the High Court for leave to commence the JR to quash the Tribunal's decisions.

The learned Senior Federal Counsel (SFC), on behalf of the Honorable Attorney General, had raised a preliminary objection on the forum to hear the appellant's grievance. The learned SFC submits that the appellant ought to have appealed the Tribunal's decision to the High Court as provided under section 141W of the Customs Act 1967 (Customs Act), and that the application for JR is therefore an abuse of court process and is frivolous and vexatious. Findings of the learned HCJ

The learned HCJ dismissed the appellant's application for leave to commence the JR on the following grounds: a. At the leave stage for JR, the appellant must show prima facie that the application is not frivolous or vexatious and that there is substance in the grounds raised. b. The Customs Act provides a clear statutory right of appeal against decisions of the Tribunal to the High Court under section 141W of the Customs Act, on questions of law or mixed questions of law and fact. c. The JR is concerned with the decision-making process and should not be used to challenge findings of fact or the merits of the Tribunal's decision where a statutory appeal mechanism is available. d. The appellant's complaints were essentially directed at the Tribunal's appreciation of facts and evidence, which amounted to an attempt to pursue a full appeal under the guise of JR. e. In view of the availability of an adequate alternative statutory remedy, the learned HCJ exercised its discretion to refuse leave for JR. f. Therefore, the application was frivolous, vexatious, and an abuse of the court process as the decision of the Tribunal ought to have been appealed pursuant to section 141W of the Customs Act, not by way of a JR. Accordingly, the application was dismissed with no order as to costs.

Dissatisfied with the decision, the appellant filed the present appeal.

Before us, the appellant submitted the following: a. It is an erroneous proposition that the appellant ought to appeal in lieu of filing a JR. The word 'may' in section 141W of the Customs Act is discretionary in nature, and the appellant is free and/or at liberty to choose the remedy it desires. It was argued that the appellant does not intend to appeal against the decision of the Tribunal but rather to seek to quash it. b. An appeal to the High Court would lie only when the law and/or mixed law and fact had been wrongly applied; c. The said procedure is not applicable in the present appeal as the appellant seeks an order for certiorari to quash a decision of the Tribunal premised on illegality, estoppel, ultra vires, and abuse of process; d. The nature of the orders sought by the appellant is only available in JR as stated in Schedule 25(2) of the Court of Judicature Act 1964; e. It is the appellant's intent to quash the respondent's demand for additional duty because it is the process and legality of the decision-making of the respondent that is being challenged. f. Based on the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Kind Action (M) Sdn Bhd [2025] 3 MLRA 403; [2025] 4 CLJ 501; [2025] 3 AMR 817 (Kind Action case), it was held that there is no rigid rule that, whenever an appeal procedure is available to the applicant, he should be denied JR. JR is always at the court's discretion, but where other avenues or remedies are available to the applicant, it will be exercised only in very exceptional circumstances.

The learned SFC, on the other hand, submitted, by referring to the Amended Memorandum of Appeal, that: a. Paragraphs 7 to 10, 12 to 18, and 20 are mostly on the merit of the case (i.e., regarding legitimate expectation, estoppel, unreasonableness, standard operating procedure, etc), which ought to be dealt with at the substantive level, not at this leave stage. b. The appellant's contention that the learned HCJ had failed to consider the issue of vexatious and frivolous as at Paragraphs 11 and 19 of the Amended Memorandum of Appeal, the learned HCJ had indeed dealt with them and found that there is a statutory alternative under section 141W of the Customs Act as stated at paragraphs 9 to 33 of her Grounds of Judgment (GOJ). c. The appellant's application for leave to commence JR against the decision of the Tribunal was frivolous, vexatious, and an abuse of court process because section 141W of the Customs Act stipulates that whoever is dissatisfied with the decision of the Tribunal may appeal to the High Court on a question of law or of mixed questions of law and fact.

Section 141W of the Customs Act gives an avenue for appeal against the decision made by the Tribunal.

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." (emphasis added)

This section makes provision for anyone who is not satisfied or aggrieved by the decision of the Tribunal to appeal to the High Court on a question of law or of mixed questions of law and fact.

This was not done by the appellant. In our view, the intention of the Legislature then was clear, and that was for the person aggrieved by the decision of the Tribunal to appeal to the High Court on a question of law or of mixed questions of law and fact.

The task of the court in interpreting a statute is to give effect to the Legislature's intention, which must first be ascertained from the language used in the statute itself. The Federal Court in Foo Loke Ying & Anor v. Television Broadcasts Ltd & Ors [1985] 1 MLRA 635; [1985] 2 MLJ 35; [1985] CLJ (Rep) 122, held as follows: "[11] ...The court however is not at liberty to treat words in a statute as mere tautology or surplusage unless they are wholly meaningless. On the presumption that Parliament does nothing in vain, the court must endeavour to give significance to every word of an enactment, and it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded ... [15] We should perhaps reiterate that the starting point in statutory interpretation is to consider the ordinary meaning of the word or phrase in question, that is its proper and most known signification ... [16] We are of the view that the provisions of the Act under consideration before us call for a purposive and literal construction which is one which follows the literal meaning of the enactment where that meaning is in accordance with the legislative purpose and applies where the literal meaning is clear and reflects the purposes of the enactment ... The provisions of the Act are abundantly clear to refute any resort to a purposive and strained construction which requires a strained meaning where the literal meaning is not in accordance with the legislative purpose ...". (emphasis added)

Further, we are of the view that the court must interpret a statute as it is written; it cannot rewrite, add, or omit words, and must read the statutory language in its full context, not in isolation. In Martego Sdn Bhd v. Arkitek Meor & Chew Sdn Bhd & Another Appeal [2019] 5 MLRA 584; [2020] 6 MLJ 224; [2019] 8 CLJ 433; [2019] 5 AMR 516, the Federal Court has held as follows: "(57) It is well-established principle of interpretation that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there. It is also well settled canon of construction that words in a statute cannot be read in isolation, their colour and content derived from their context and every words in a statute is to be examined in its context." (emphasis added)

Given the above, we are of the considered view that the intention of the Legislature in enacting section 141W of the Customs Act was clear and unambiguous; any person aggrieved by the decision of the Tribunal may appeal to the High Court on a question of law or of mixed questions of law and fact. This is a statutory remedy provided by law.

What were then the questions of law or of mixed questions of law and fact in the present appeal? Having perused the present appeal, we find that the JR filed by the appellant was premised on the grounds that the decision of the Tribunal was ultra vires, irrational, unreasonable, illegal, a violation of legitimate expectation, estoppel, and an abuse of process (the alleged grounds of JR).

We find that the appellant's complaints in the present appeal were essentially directed at the Tribunal's appreciation of facts and evidence. The appellant's complaints concern the Tribunal's failure to judicially appreciate the facts and evidence presented before it. The appellant relied on the minutes of meetings, as well as the testimony of the officers of the respondent, in support thereof.

We are of the considered view that the above facts and the alleged grounds of JR clearly involved the questions of law and of mixed questions of law and fact. It is to be noted that the High Court, in hearing an appeal arising from section 141W of the Customs Act, is vested with powers not only to determine the questions of law but also to determine if the Tribunal had misdirected itself so that its findings of fact may be disturbed by the High Court.

Having perused the cause papers filed by the appellant, we are of the view that the alleged grounds of JR raised by the appellant in the JR amounted to an attempt to pursue the appeal under the guise of JR. We find that the alleged grounds of JR involve a question of law or of mixed questions of law and fact which can be determined by way of an appeal to the High Court under section 141W of the Customs Act.

It is this court's view that to ignore the specific appeal machinery, i.e., appeal to the High Court under section 141W of the Customs Act, and replace it with a JR would be a mockery of the appeal provision under the Customs Act and would render the Act of Parliament to be in vain.

On this issue, there is a plethora of cases that have decided that parties need to exhaust the internal remedy provided by the statute before bringing the matter to court, including commencing with a JR application.

In this regard, it is instructive to refer to the Federal Court case of Robin Tan Pang Heng v. Ketua Pengarah Kesatuan Sekerja Malaysia & Anor [2010] 2 MLRA 571; [2010] 9 CLJ 505; [2011] 2 MLJ 457, where it stated: [16] The second question could better be described as a consequence of the first question. Section 71A has provided a remedial mechanism within the framework of the trade union legislation, that is a specific procedure whereby an appeal lies to the Minister. The second question relates to another matter, that is since s. 71A(1) is applicable to an employer does it still permit the employer to have an option not to appeal, and additionally, instead have recourse to a court of law in order to challenge the registration. The declaratory orders sought by the appellant would have the effect of negating the decision of the first respondent. By praying for the declaratory orders the appellant is in effect appealing against the decision of the first respondent while a specific procedure has been lain down in the Act 262. By statute a second tier has been established whereby an appeal lies to the Minister. The word used in s. 71A(1)(b) is 'may'. In construing the word 'may' generally, it could be contended that the word is permissive in relation to the person who is given the right to appeal in the sense that it gives the person a choice to prefer an appeal against the decision of the registrar or not to. But in relation to the person who is to be affected by the appeal we do not see this as directory. The declaratory orders sought for seek to reverse the decision of the registrar. Hence in that sense if an employer wishes to refute recognition then it is the mandatory procedure that is laid down that has to be resorted to for the legislation has identified the specific procedure whereby any person who is dissatisfied is to seek further recourse with the Minister if that person wishes to negate the decision of the registrar. [17] In our opinion the legislation by stipulating that the decision of the Minister is to be final is itself indicative that when there is already stipulated a second tier identified in the legislation, courts are not authorized to interfere for the statutory right that has accrued is not purely formal but mandatory. In other words, the statutory right has to be exhausted." (emphasis added)

Next, the Court of Appeal in the case of Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebun Teh (Sutera Utama) Sdn Bhd & Ors and another appeal [2014] 5 MLRA 324; [2014] 4 MLJ 377; [2014] 3 CLJ 733, had this to say on this issue: [18] Having perused that provision, we would agree with learned SFC that such recourse could only be had after the respondent taxpayer had exhausted the available remedy as provided for by Parliament within the four corners of the Sales Tax Act 1972. That would necessarily mean that the respondent taxpayer must have exhausted its appeal remedy with the Director - General of Customs in respect of the impugned notice as envisaged under s. 68 of the Sales Tax Act 1972 (supra). While s. 141N seems to suggest that the aggrieved party may go to the High Court, it does not expressly say that the aggrieved taxpayer may do so without first exhausting its remedy by appealing to the Director - General." (emphasis added)

Apart from the abovementioned cases, the Court of Appeal in Ketua Pengarah Kastam dan Eksais v. Coach Malaysia Sdn Bhd [2019] 2 MLRA 377; [2019] 4 CLJ 454; [2019] 2 MLJ 716, further explained this issue 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 s.124 of the GST Act. The provision was couched in the following language: 124 Application for review

Any person may apply to the Director General within thirty days from the date the person has been notified of any decision made by an officer of goods and services tax for the review of the decision and provided no appeal has been made on the same matter to the Tribunal or court.

Where an application has been made under subsection (1), the Director General shall make a decision and notify the person within sixty days from the date of the application is received or within the time practicable.

An application under subsection (1) shall be made in the prescribed manner and prescribed form. [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." (emphasis added)

Given the above, we are of the considered view that the intention of the Legislature then was clear, and that was for the person aggrieved by the decision of the Tribunal to first exhaust the internal remedy by appealing to the High Court on questions of law or of mixed questions of law and fact. The present appeal v. the Kind Action case

Apart from our findings on the above issues of the specific nature of section 141W of the Customs Act, as well as the issue of exhaustion of the internal remedy, the learned counsel for the appellant had brought our attention to the Kind Action case by the Federal Court. Before we go further, by upholding the spirit of the doctrine of stare decisis, we are well aware of the binding effect of the Federal Court's decision upon us. However, we find that the fact in the Kind Action case can be distinguished from the present case, which warrants our appellate intervention.

In Kind Action case, the issue raised was whether any person aggrieved by the assessment raised by the Director General of Inland Revenue must first exhaust the internal remedy by appealing to the Special Commissioner of Income Tax (SCIT) under section 99 of the Income Tax Act 1967 (ITA) before commencing with the JR.

Section 99 of the ITA reads as follows: - "Section 99. Right of appeal.

Subject to subsection (1A), a person aggrieved by an assessment made in respect of him may appeal to the Special Commissioners against the assessment by giving to the Director General within thirty days after the service of the notice of assessment or, in the case of an appeal against an assessment made under s 92, within the first three months of the year of assessment following the year of assessment for which the assessment was made (or within such extended period as regards those days or months as may be allowed under s 100) a written notice of appeal in the prescribed form stating the grounds of appeal and containing such other particulars as may be required by that form." (emphasis added)

Upon perusal of section 99 of the ITA, we noticed there is a stark difference with the provision of section 141W of the Customs Act.

The wording in section 99 of the ITA states that: - "... a person aggrieved by an assessment made in respect of him may appeal to the Special Commissioners against the assessment..." (emphasis added)

Whereas the wording in section 141W of the Customs Act reads 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" (emphasis added)

Therefore, we find that Section 99 of the ITA is a general provision which merely employs the words "may appeal", whereas Section 141W of the Customs Act is more comprehensive, specific, and detailed, in that it provides that a party "may appeal to the High Court on questions of law or of mixed questions of law and fact."

It is also disturbing our minds on another issue that, with all due respect, we find that this is an unusual and confusing case, which warrants our departure from the Kind Action case.

To appreciate the distinction, it is prudent to have a look at the gist of the Kind Action case, which we can summarise the process as follows: a. 3 December 2020- The impugned decision was issued. b. (unknown date)- The Applicant filed an appeal to SCIT under section 99 of the ITA. c. 20 December 2020- The leave for JR was filed (with an alternative prayer to stay the proceeding before the SCIT). d. 16 March 2021- The leave for JR was granted. e. 12 January 2022- The JR (substantive) was dismissed.

In other words, despite having filed an appeal to the SCIT, the applicant in the Kind Action case did not wait for the outcome of the appeal; instead, promptly filed a JR application in the High Court to quash the Director General of Inland Revenue's decision in that very case. It means the applicant had bypassed the SCIT. This procedural bypass was allowed and affirmed by the Federal Court as it falls within the exceptional circumstances.

Back to our present appeal, upon perusing the cause papers filed in this case, as we said before, this case is one of an unusual and confusing case where: a. In the intitulement of the "PENYATAAN YANG DIFAILKAN MENURUT ATURAN 53 KAEDAH 3(2) KAEDAH-KAEDAH MAHKAMAH 2012 EX-PARTE" it was stated that: "Dalam Perkara Permohonan Kebenaran Antara Lain Perintah Certiorari Mengenai Perintah Tribunal Rayuan Kastam yang diputuskan pada 17.01.2024 Bagi Rayuan No. MOF TRK.700- 6/2/1 (2021), 700-6/2/2(2021) &700-6/2/3(2021)." b. While in paragraph 1, it mentioned that: "1. Relif-relif yang di pohon adalah seperti berikut:-

Perintah-perintah berikut:- a. Suatu perintah Certiorari untuk membatalkan keputusan Responden yang diberi oleh Tribunal Rayuan Kastam pada

01.2024 Di Dalam No. MOF TRK.700-6/2/1(2021), 700- 6/2/2(2021) & 700-6/2/3(2021) bahawa Keputusan tersebut adalah menyelahi (sic) undang-undang (ultra vires), tidak sah (null) bercanggah dengan undang-undang, dan/atau melebihi kuasa, serta adalah tidak rasional dan lalat (sic) (void) tidak munasabah dan bayaran duti sebanyak RM2,007,414.98 dibatalkan (null and void)." (emphasis added)

In the High Court, the appellant's submission stated as follows: [14] ...The Applicant is not appealing the CAT's decision whatsoever. It is only if and when the Applicant decides to appeal the decision of CAT that section 141W of the Customs Act 1967 is invoked." (emphasis added)

Before us, in the written submission at Enclosure 19, the appellant submitted that: [15] The order sought is for certiorari to quash the entire decision of the CAT. The preliminary objection raised by the Respondent is thus without merits, and a total misconstruction of section 141W. It is the appellant's intent to quash the respondent's demand for additional duty, because it is the process and legality of the decision making of the respondent that is being challenged." (emphasis added)

From the above, we can see how the appellant was confused and unsure what relief they were seeking in this leave application: whether to quash the decision of the Tribunal or the decision of the respondent?

It is our view that, if the appellant's intention is to quash the decision of the respondent's demand for additional duty, because it is the process and legality of the decision-making of the respondent that is being challenged, upon receiving the decision of the respondent, plus with the so-called exceptional circumstances therein, the appellant should have followed the Kind Action case's step by filing a JR against the decision of the respondent instead of filing an appeal to the Tribunal (which stands the same position as SCIT).

Unfortunately, despite of the view that this case has the so-called exceptional circumstances, the appellant chose to file an appeal to the Tribunal rather than a JR to challenge the respondent's decision. It is glaring here that the appellant, having been unsuccessful in its appeal before the Tribunal, is now taking a back door to have the second bite of the cherry to challenge the decision of the respondent twice, namely by way of appeal to the Tribunal and by way of this present JR leave application.

The appellant's action is not only an afterthought, but it is clearly an abuse of the court's process, which the court cannot condone. To allow this practice, it will open the floodgates for the same situation cases in the future.

We are of the view that the learned HCJ shared the same sentiment with us when Her Ladyship found in her GOJ that: "[28] At the outset, it could be observed that while the applicant, on one hand, claimed that it is trying to quash the findings of the Tribunal, on the other hand, the complains were about how the respondent being the DG had contradicted himself and had been acting unfairly."

This is how we concluded that this present appeal can be distinguished from the Kind Action case and ultimately, with all due respect, the departure from the same.

To conclude, we are of the considered view that the alleged grounds of JR raised by the appellant in the JR not only involved the questions of law and/or mixed questions of law and fact, but this is an attempt to pursue the appeal under the guise of JR when the appellant's complaints were essentially directed at the Tribunal's appreciation of the facts and evidence and also constituted a collateral attack on the decision of the respondent. This is clearly an abuse of the court's process and an afterthought. On this score, it is our considered view that the issue of exceptional circumstances does not arise.

Based on the reasons given above, we are of the view that the appellant's application for leave to commence JR is frivolous and vexatious and an abuse of the court process, as the decision of the Tribunal ought to have been appealed pursuant to section 141W of the Customs Act, instead of filing an application for JR.

Accordingly, we see no appealable error in the judgment of the learned HCJ. We find no merit in the appeal and order that it be dismissed with costs of RM30,000.00, without the allocator. Dated: 01 July 2026 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Malaysia Counsel appearing: For the Appellant: Mr. Jacob Rabindranath (together with Mr. Christopher Joseph) [Messrs Jacob Rabindranath & Co.] For the Respondent: SFC Noor Fadzila Ishak (together with FC Loh Xian Yee) Attorney General's Chambers, Putrajaya