Chew Soo Ho JC:

[1] Respondent was charged under s. 135(1)(e) punishable under s. 135(1)(iii) of the Customs Act 1967 for knowingly concerned in dealing with prohibited goods ie, 1,630 copies of lewd VCD's valued at RM7,850 where such goods were prohibited under the First Schedule of Customs (Prohibition of Import) Order 1998 (PU(A) 210/98) on 15 August 2002 at about 11.30am at 24 Jalan Arumugam Pillai, 14000 Bukit Mertajam with intent to evade any prohibition applicable to such goods. Initially respondent was charged for possession of the prohibited goods under s. 135(1)(d) but the charge was subsequently amended as per p. 14 of the record of appeal but the magistrate in her ground of judgment maintained the initial charge which is apparently an error. Nevertheless, in her grounds that followed, she has dealt with the offence which is the amended charge. In other words, she still had the correct charge in mind when she made out her grounds of judgment and therefore, it does not vitiate her findings and decision. At the end of the prosecution's case, respondent was acquitted and discharged. The magistrate's main ground is that the prosecution had failed to prove the vital element of the charge that the goods had been imported into Malaysia.

[2] The ingredients of the aforesaid charge as listed out by the magistrate are:

(1) The respondent had the knowledge;

(2) The respondent was concerned in dealing;

(3) The goods were prohibited; and

(4) The goods were imported.

[3] The facts of the case show that customs commissioner Mohamad Razey b Ariffin (SP3) together with three other colleagues raided premises No. 24 Jalan Arumugam Pillay Bukit Mertajam which was selling VCDs on 15 August 2002 at about 11.30am. Upon entry into the premises, SP3 saw a few persons and the respondent who was at the counter where money transaction took place. SP3 instructed all customers to leave the premises. When all customers had left, the respondent remained. Thereafter SP3 and his team conducted examination on the VCD's and found a total of 1,630 copies of lewd VCDs which were subsequently confirmed by (SP2), Mamat Ibrahim who is from Bahagian Penapisan Filem, Kementerian Hal Ehwal Dalam Negeri Pulau Pinang.

[4] The magistrate found that the VCDs were displayed in racks in the said premises and they were exposed. From these VCD's, it was found that they clearly showed the acts which were obscene in nature. Evidence also shows that these VCDs were played and confirmed to contain obscenity. From the pictures exhs. P3(a) - (e), they also show that these VCDs were hung on the wall in a conspicuous place in the premises. On account of this evidence, the magistrate found as a fact that the respondent had the knowledge of those lewd VCDs. Not to forget, even if the magistrate did not so find, there is still the presumption under s. 135(2) of the Customs Act which provides that any prohibited goods shall be deemed to be prohibited goods to the knowledge of the defendant unless the contrary be proved by such defendant.

[5] The respondent was seen to be the person who attended to customers in transacting with money at a counter. By such act, was he "concerned in dealing with' as specified in the charge? The magistrate found the fact that the respondent was behind the counter in the premises which was a place of business showed that respondent was concerned in dealing with the VCD's therein. Clearly by the aforesaid act of the respondent of transacting money with the customers at that counter, it was undoubtedly an act of selling and buying of the goods ie, VCD's. In R v. Shivpuri [1986] 2 All ER 334 at p. 342, Lord Bridge said that the word "deal" meant to pass goods to some third party. An act of selling and buying certainly comes within the meaning of "deal".

[6] On the third ingredient that the goods are prohibited goods, under the Customs (Prohibition of Import) Order 1998 [PU(A) 210/98], the magistrate found that goods that are obscene are listed