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2021 MarsdenLR 2558
HIGH COURT MALAYA KUALA LUMPUR
PARK IN KEUN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: WA - 41S - 41 - 08/2020]
Knowledge of possession in prohibited goods is inferred from management roles, and the statutory presumption of knowledge cannot be rebutted by mere claims of ignorance.
Headnote:(A) Customs Act 1967 - Section 135(1)(d) and Section 135(2) - Charge for knowingly possessing prohibited intoxicating liquors - Accused claimed lack of knowledge regarding prohibition - Court affirmed that knowledge is inferred from management roles - Rebuttable presumption of knowledge under section 135(2) placed on the accused - Prosecution established prima facie case. (Paras 15-19, 31-35)
Facts of the case: The accused, a director of Shin Sun Mi Market, was charged for possessing 188.31 litres of intoxicating liquors valued at RM1,830.64, found during a Customs raid. His co-accused was acquitted.
Findings of Court: The prosecution successfully proved the presence of prohibited goods, and the presumption of knowledge was not rebutted by the accused.
Issues: The main questions included the knowledge of the accused regarding the illicit nature of the liquors and the adequacy of evidence against him.
Ratio Decidendi: The court ruled that assuming management roles implies knowledge of the business's legality, and ignorance is not a sufficient defense. The prosecution fulfilled its burden of proof through statutory presumptions and the evidence presented.
Result: Appeal dismissed; conviction and sentence affirmed.
JUDGMENT
Introduction
[1] In this judgment, the parties are referred to as they were at the trial court. The accused was charged together with another person, Tan Geok Gern ("Tan"), for an offence under s 135(1)(d) of the Customs Act 1967 for knowingly in possession of prohibited goods, to wit, the total of 188.31 litres of intoxicating liquors valued at RM1,830.64.
[2] At the close of prosecution, the learned trial judge made a finding of prima facie case against the accused and Tan and called upon them to enter their defence. At the end of the case for the defence, the accused was convicted whereas Tan was acquitted and discharged. The accused was sentenced to a fine of RM100,000.00 in default 6 months of imprisonment and the intoxicating liquors which are subject matter of the offence were ordered to be forfeited. The accused was not satisfied with the decision of the learned trial judge and appealed against the conviction. There accused did not appeal against sentence and the order of forfeiture.
The Charge
[3] The charge proffered against the accused reads as follows:
"Bahawa kamu, Tan Geok Gern bersama-sama dengan Park In Keun pada 18 February 2019 jam lebih kurang 12:30 hrs di premis Shin Sun Mi Market Sdn Bhd di alamat No 45, Jalan Raden Bagus, Bandar Baru Seri Petaling, Sri Petaling, 57000 Kuala Lumpur, dengan diketahui dalam milikannya barang-barang larangan, iaitu liquor yang memabukkan:
1. Liquor jenama Soju Fresh sebanyak 18 botol x 360ml
2. Liquor jenama Soju (Green) sebanyak 1 botol x 360ml
3. Liquor jenama Soju (Red) sebanyak 9 botol x 360ml
4. Liquor jenama Soju (Purple) sebanyak 11 botol x 360ml
5. Bir jenama Tiger Lager Beer (Imported) sebanyak 35 tin x 330ml
6. Bir jenama Hite Extra Cold sebanyak 480 tin x 330ml
Jumlah keseluruhan: 188.31 liter
yang bernilai RM1,830.64 yang mana barang tersebut adalah dilarang import di bawah Butiran 3, Bahagian II, Jadual Ketiga, Perintah Kastam (Larangan Mengenai Import) 2017 [PU(A) 103/2017] dan dengan itu kamu telah melakukan satu kesalahan di bawah s 135(1)(d) Akta Kastam 1967 dan kamu boleh dihukum mengikut s 135(1)(v)(aa) Akta yang sama serta dibaca bersama s 34 Kanun Keseksaan.".
The Case For The Prosecution
[4] On 18 February 2019 at about 12:30 noon, a team of Customs officers from the Preventive Division led by Customs Superintendent Md Shufhae bin Hosnan @ Kosnan (PW1) raided the premises known as Shin Sun Mi Market Sdn Bhd at No 45, Jalan Raden Bagus, Bandar Baru Seri Petaling, Sri Petaling, Kuala Lumpur. When PW1 and his team reached the vicinity of the premises, they made a brief observation for about 10 minutes. In the observation, PW1 said he saw a woman pacing up and down in the premises and then sat herself at the cashier's counter.
[5] PW1 and his team then proceeded to raid the premises. When the premises was inspected, the Customs raiding team found certain quantity of bottled and canned beverages in the refrigerator located at the back within the premises. The bottled and canned beverages were suspected to be intoxicating liquors. The woman which PW1 had seen earlier in the premises was identified as Tan. PW1 and his team confiscated the impugned beverages on suspicion that they were prohibited goods within the meaning of the Customs Act 1967 . PW1 arrested Tan and brought her together with the impugned beverages to the Kuala Lumpur Customs office for further investigations. PW1 also lodged a police report vide Sri Petaling Report No 1569/19 (Exhibit P4).
[6] The investigating officer, Senior Customs Officer Mohd Zamri bin Alias (PW6), took samples of each type of the impugned beverage and instructed his officer, Azlan Nizam bin Amir Nazarullah, to send them to the Chemistry Department for analysis. The Chemist analysed the samples and confirmed them to be "intoxicating liquor" as defined under s 2 of the Customs Act 1967 . The Chemist Report was produced as Exhibit P20. PW6 also used the SM45 device to verify the tax stamps affixed on the b
