Prosecution failed to prove possession of seized prohibited goods, resulting in dismissal of appeal.

Introduction

[1] This is an appeal by the prosecution against the order of discharge and acquittal of the respondent by the learned magistrate court on 12 April 2024.

[2] At the trial court, the respondent was charged with an offence under s 135(1)(d) of the Customs Act 1967 ('the Act") which read as follows:

"Bahawa kamu pada 8 September 2019, kira-kira jam 12;40 tengah hari di premis Lee Maju Seri Anggerik 2 yang beralamat di Block F, No 103, Sri Anggerik 2, Jaian Bandar Puchong Jaya daiam Daerah Puchong, di dalam Negeri Selangor Darui Ehsan, dengan disedari memiliki barang larangan import iaitu:

1) 4 paket x 20 batang rokok John D-Biend

2) 13 paket x 16 batang rokok Sampoerna Mild

3) 13 paket x 12 batang rokok Surya Gudang Garam

4) 13 paket x 16 batang rokok Surya Gudang Garam

yang ditaksirkan bernilai RM88.08 yang mana barang-barang terebut adalah barang-barang yang dilarang pengimportannya di bawah Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan itu kamu telah melakukan kealahan di bawah s 135(1)(d) Akta Kastam 1967 yang boleh dihukum di bawah s 135(1)(v)(aa) Akta yang sama."

The Prosecution Case

[3] Briefly, the prosecution's case may be summarised as follows. On 8 October 2019 at about 12.40 noon, a team of customs officers from the Enforcement Division of the Royal Malaysian Customs Department, headed by Shaifuddin Bin All (PW6) conducted a raid at premises known as Lee Maju Seri Anggerik 2, Block F, No. 103, Sri Anggerik 2, Jaian Bandar Puchong Jaya, Selangor ("the premises"). The raid was carried out pursuant to a public complaint that the premises contained prohibited goods.

[4] Upon arrival at the premises, PW6 introduced himself as a customs officer to the owner Lee Li Ting ("the respondent") and informed her of the purpose of his visit. The premises was used to run the business of a grocery store. As a result of a search on the premises, PW6 and his team found a bundle wrapped with "kain sarong" ('cloth bundle") hidden underneath a display rack in the grocery store area. There were also soap items arranged in front of the said rack. When opened, the cloth bundle revealed a plastic bag which contained the following items:

1) 4 packets x 20 sticks of cigarettes with the words "John D-Blend" written on each packet (exh P22);

2) 13 packets x 16 sticks cigarettes with the words "Sampoema Mild" written on each packet (exh P23);

3) 13 packets x 12 sticks cigarettes with the words "Surya Gudang Garam" written on each packet (exh P24); and

4) 13 packets x 16 sticks cigarettes with words "Surya Gudang Garam" written on each packet (exh P25).

[5] PW6 then requested the respondent to produce any documents pertaining to the cigarettes but the respondent was unable to do so. Suspecting the cigarettes to be prohibited or uncustomed goods, PW6 seized the same and arrested the respondent before heading back to the customs office.

[6] PW6 also instructed Shaddanend A/L Nesen (PW1) to draw a sketch plan of the premises (exh P6) while Mohamad Rafiq Bin Md Yunos (PW2) was instructed to take photographs of the premises and the cigarettes seized [exh P8 (1-31)].

[7] Back at the customs office, PW6 handed over the seized cigarettes and the respondent to the investigation officer, Muhammad Mustakim Bin Mohamaed Noh (PW5) for his further action.

[8] Each type of the seized cigarettes was then sent by PW5 to the Chemist Department for analysis. The chemist via his report dated 13 November 2019 (exh P29) states as follows:

(i) the 20 sticks of cigarettes in the packet with the words "John D-Blend" written on it contained tobacco and was suitable to be classified unde