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2025 MarsdenLR 3822
COURT OF APPEAL PUTRAJAYA
AGM DUTY FREE (TENGAH) SDN BHD – Appellant
Versus
MOHAMAD HAFIZ ISHAK & ORS – Respondent
[Civil Appeal No: B-01(A)-707-12/2023]
The continuous seizure of goods without prosecution within 30 days is unlawful under the Customs Act, and the court cannot impose prosecution timelines on the Attorney General.
Headnote:(A) Customs Act 1967 - Section 65 and Section 128 - Seizure of goods - Appellant's goods seized without prosecution within 30 days of claim - Court found continuous seizure unlawful due to non-compliance with statutory provisions - High Court's dismissal of Originating Summons set aside. (Paras 11, 12, 13, 14, 16, 19, 21, 38, 49, 67)
(B) Legal principles - The court emphasized that the Respondents must refer the claim to a magistrate if no prosecution is initiated within the stipulated time frame, as per Section 128(3) of the Customs Act. (Paras 21, 38, 49, 50)
(C) Usurpation of powers - The High Court Judge's order for prosecution within two months was deemed a violation of the Attorney General's discretion under Article 145 of the Federal Constitution. (Paras 68, 70)
Facts of the case:
The Appellant's goods were seized on 23 September 2022, and a claim for their return was made on 21 October 2022. The Respondents failed to initiate prosecution or refer the matter to court within the required timeframe.
Findings of Court:
The continuous seizure of goods was unlawful due to the Respondents' failure to comply with statutory requirements, entitling the Appellant to damages.
Issues: The main issues were whether the seizure was lawful given the lack of prosecution and whether the High Court Judge overstepped by imposing a time frame for prosecution.
Ratio Decidendi: The court ruled that the Respondents' failure to act within the statutory timeframe rendered the seizure unlawful, and the High Court's directive to prosecute within two months violated constitutional provisions.
Result: Appeal allowed; High Court's decision set aside.
JUDGMENT
Introduction
[1] The Appellant filed a notice of appeal on 29 December 2023 to appeal against the decision made by the High Court Judge of Shah Alam which had dismissed the Appellant's Originating Summons on 22 December 2023. The Respondents then on 29 January 2024 had cross-appeal against the order made by the High Court .
The Parties
[2] In this case, the Appellant is the AGM Duty Free (Tengah) Sdn Bhd which was licensed by the Customs Department under s 65 of the Customs Act 1967 ("the Act") to operate a duty-free shop at Lot 23 and 25, Lorong Sg Chandong 12, Pulau Indah, Selangor which permitted the Appellant to warehouse or store dutiable/taxable goods or goods on which customs duties taxes are unpaid at the plaintiffs premises to be sold to travellers.
[3] The First Respondent is Mohd Hafiz bin Ishak who, at the material time, was the investigating officer for this case pertaining to the seizure of various brands of beers and the lorry with registration number PLH 7299 at the Appellant's premise.
[4] The Second Respondent is Mohd Nor Hasyimi bin Adam who is Ketua Unit Siasatan Frod Perdagangan. The Third Respondent is the Director General of the Customs Department of Malaysia while the Fourth Respondent is the government of Malaysia.
Salient Facts
[5] On 23 September 2022, the Appellant's goods were seized during the inspection conducted by the Respondents in the Appellant's premises. The seized goods comprised various brands of dutiable beers and a lorry with the registration number PLH 7299. The Respondents issued the Notis Sitaan dated 23 September 2022 to the Appellant (See exhibit "DPS-3"). Paragraphs 2, 3, and 4 of the Notis Sitaan state as follows:
"2. Barang tersebut di atas disita kerana ada sebab-sebab yang munasabah untuk mensyakki bahawa kesalahan telah dilakukan di bawah s 135(1)(8) Akta Kastam 1967.
3. Menurut s 126 Akta Kastam 1967 semua barang yang disita boleh dikenakan lucuthak. Jika tiada tuntutan bertulis dibuat dalam tempoh satu bulan kalendar dari tarikh barang tersebut telah disita, barang-barang tersebut akan dilucuthak menurut s 128(1) Akta Kastam 1967.
4. Sila ambil perhatian bahawa menurut undang-undang, barang-barang yang disita seperti di dalam notis penyitaan ini, jika tiada dijalankan pendakwaan, akan dilucuthak jika kamu tidak membuat satu tuntutan bertulis kepada Jabatan Kastam DiRaja Malaysia untuk pemilikan dalam masa satu bulan kelendar bermula dari tarikh penyitaan."
[6] Subsequently, the Appellant issued a Notice to Claim dated 21 October 2022 (exhibit "DPS-6") to the Respondents claiming the return of the goods seized by the Respondents on 23 September 2022. It was made within one month from the date of the Notis Sitaan. The Appellant has complied with ss 128(1)(a) and (2) of the Act. However, the Respondents did not respond to this letter.
[7] Once again on 19 June 2023, the Appellant through his solicitor Messrs J R Ravendren & Associates sent a letter to the Respondents for the release of the seized goods. In this letter, the Appellant's solicitor stated that the Respondent's failure to release the seized goods would cause the Appellant to initiate proceedings in Court .
[8] On 26 June 2023, the First Respondent sent a letter to the Appellant stating that the investigation was completed and the consent to prosecute had been obtained from the Deputy Public Prosecutor. The letter further stated that the Orang Yang Disyaki ("OYDS") will be charged in the near future.
[9] On 10 October 2023, the Respondent temporarily released/returned the lorry with registration number PLH 7299 to the Appellant together with a semi-trailer with the registration number BKTR284319 to the agent of Direct Express (M) Sdn Bhd The release/return of the vehicle was with a bond of RM40,000.00 for the lorry (PLH 7299) and another RM20,000.00 for the semi-trailer. The Respondent had also submitted the "Sijil Pemulangan/Pelepasan Barang/Kenderaan di bawah s 115(1)(a) atau (b) Akta Kastam 1967".
