Steve L.K. Shim J:

This is an appeal by the appellant Lau Kieng Chung against the decision of the Magistrate's Court, Sibu, made on 14 November 1991. Thereat, the appellant had been convicted of an offence under s. 135(1)(e) of the Customs Act l967 . He was ordered to pay a fine of RM50,000 in default 6 months imprisonment. The charge against him reads as follows:

That you at about 3.00 p.m. on 8 May 1988 at 1 about 6 / Mile, Oya Road, Sibu, were knowingly 2 concerned in conveying uncustomed goods, to wit, 383 cartons x 24 cans x 355 mls. of 'Carlsberg' beer and 669 cartons x 24 cans x 330 mls. of 'Heineken' beer on a truck plate registration No. SD 1518 with intent to defraud the Government of the duties thereon, to wit RM34,400.31 and thereby committed an offence under s. 135(1)(e) of the Customs Act 1967 , and punishable under s. 135(1)(i) of the same Act ,

Although 10 grounds of appeal are propagated in the petition of appeal, Mr. George Lim, Counsel for the appellant has, at the outset, indicated that, for the sake of convenience, he would concentrate his submission upon 3 propositions, namely, that the learned Magistrate was wrong in holding that the goods, subject matter of the charge, were uncustomed goods; that the learned Magistrate had failed to consider whether the appellant had discharged the onus that he had no knowledge that the goods were uncustomed and that the learned Magistrate had erred in finding there was intention to defraud on the part of the appellant. I shall deal with them separately but before that, I should perhaps consider the ingredients necessary to sustain such a charge in relation to uncustomed goods. They are (1) that the accused person was knowingly concerned in conveying uncustomed goods and (2) that in doing so, he had intended to defraud the Government. As regards the first ingredient, Spencer Wilkson, J. in Yap Yoon Lin V. Regina had said inter alia:

I think the prosecution must, before conviction as a part of their case, prove that there was a conveying of the goods and that these goods were already uncustomed at the time they were conveyed. In other words, the offence of breach which resulted in the good being uncustomed must, I think, be prior in time to the conveying of the goods ..... In other words, I think the natural meaning of the words 'knowingly concerned in conveying uncustomed goods' is 'being knowingly concerned in conveying goods which one knows, at the time that they are conveyed, to be uncustomed' and not 'concerned in conveying goods which one knows will become uncustomed goods if they are conveyed'.

It seems clear from the above passage that in order to establish the first ingredient, it is necessary to prove (a) that there was a conveyance of the goods by the accused person, (b) that at the time of such conveyance, the goods were uncustomed goods and (c) that the accused person knew that the goods he conveyed were uncustomed goods. I do not think element (a) presents any difficulty but elements (b) and (c) may give rise to some problems. As regards element (b), the case of Kee Kim Chooi & Ors. V. Public Prosecutor provides sufficient revelation. Therein Thomson J., said inter alia:

As regards the question of whether the tobacco was uncustomed, the prosecution had to prove that it had been brought at sometime from outside Malaya and that duty had not been paid upon it, and to do so they were entitled to invoke the assistance of s. 99 of the Customs Enactment which reads as follows:

If in any prosecution in respect of any goods seized for non-payment of duties or for any other cause of forfeiture or for the recovering of any penalty or penalties under this Enactment, any dispute shall arise as to whether the customs duties have been paid in respect of such goods, or whether the same have been lawfully imported or lawfully landed, or concerning the place whence such goods were brought, then and in every such case the proof thereof shall be on the defendan