The detention and seizure of property is unlawful if there is no reasonable cause at the time of seizure, violating the right to property under the Constitution.

[1] The subject matter of this suit is a vehicle model BMW 735 IL (Auto) bearing vehicle registration number AGW 288 ('the said vehicle'). The plaintiff had purchased the said vehicle on 28 September 2009 from one Yanty bt Mohamed Taib through a car dealer in Kuala Lumpur. The vehicle was however seized by the defendant pursuant to a notice of seizure dated 13 October 2009. The plaintiff has now filed this action and seeks a declaration that the said notice was unlawful, null and void and unsupported by the law. He further claims that the detention and seizure of his vehicle was unlawful, null and void and seeks the return of his vehicle as well as compensation for unlawful seizure.

[2] Arising from the events that transpired leading to the seizure of the vehicle, the broad issues that arise for consideration of the court can be summarised as follows:

(a) whether the detention and seizure of the plaintiff's vehicle was unlawful or not in accordance with the law ('issue one'); and

(b) whether there had been non-compliance of s 128(3) of the Customs Act 1967 , and if so, whether the plaintiff is entitled to the return of the said vehicle ('issue two').

Issue One

[3] The evidence at the trial disclosed that the said vehicle was seized pursuant to a 'Notis Penyitaan' dated 13 October 2009 ('the said notice'). The said notice stated that the said vehicle was being detained and seized on suspicion of an offence having been committed under s 135(1)(d) of the Customs Act 1967 ('the Act'). Now s 135(1)(d) of the Act provides that whoever knowingly harbours, keeps, conceals, or is in possession of, or permits, suffers, causes or procures to be harboured, kept or concealed, any uncustomed or prohibited goods shall be guilty of an offence.

[4] The seizure of any such goods envisaged under s 135(1)(d) of the Act is allowed under s 114 of the Act which reads:

114. Seizure of goods the subject of an offence (1) All goods in respect of which there has been, or mere is, reasonable cause to suspect that there has been committed any offence against this Act or any regulation made thereunder, or any breach of any of the provisions of mis Act or of any regulation made thereunder or of any restriction or condition subject to or upon which any licence or permit has been granted, together with any receptacle, package, conveyance, vessel not exceeding two hundred tons nett registered tonnage, or aircraft other than an aircraft engaged in international carriage, in which the same may have been found or which has been used in connection with such offence or breach, and any books or documents which may reasonably be believed to have a bearing on the case, may be seized by any officer of customs in any place either on land or in territorial waters.

[5] It is trite law that the 'reasonable cause to suspect' provided under s 114(1) of the Act must exist before or at the time of seizure of the said vehicle and not anytime after the seizure (see also Chia Sia Chek v. Ketua Pengarah Kastam, Jabatan Kastam Diraja Malaysia & Ors, 2008 MarsdenLR 530 ). It would also follow that in the absence of that reasonable cause prior to or at the time of detention and seizure, that seizure would become unlawful, null and void. It would be a violation of art 13(1) of the Federal Constitution which states 'No person shall be deprived of property save in accordance with the law.'

[6] Coming back to the instant case, it was unfortunate that the officer who effected the seizure and issued the said notice was not called to give evidence as to the reasonable grounds of suspicion that existed for the said vehicle to be detained and seized. This was further compounded by the evidence of the in