An agent can be considered an 'owner' under the Customs Act, allowing them to claim seized goods, which must be referred to a Magistrate if not prosecuted, making failure to do so unlawful.

[1] This is an appeal by a company, Sarmiina Sdn Bhd ("the appellant") against the Court of Appeal's decision in affirming the High Court's decision which dismissed the appellant's claim against the respondents in this case.

[2] The appellant's claim hinges on the wrongful and unlawful continuous seizure of liquor in 17 containers ("goods") at Port Klang by officers of the Royal Malaysian Customs Department ("RMCD"). In this regard, the appellant in its suit against the respondents is seeking inter alia for a declaration that the continuous seizure of the goods was unlawful and invalid, and for special, general, and exemplary damages.

[3] Respondents 1, 2, and 3 ("R1, R2, R3") were the investigation officers of the RMCD, respondent 4 ("R4") is the Johor State Director of RMCD, respondent 5 ("R5") is the Director General of RMCD and respondent 6 ("R6") is the Government of Malaysia.

[4] Leave to appeal to this Court was granted with the following questions of law for determination;

(i) whether on the true and correct interpretation of the law under s 128(2) of the Customs Act 1967 (Act 235), only the consignee of the imported goods seized pursuant to s 114(1) of the same Act 235 and not the agent for the consignors is entitled to make a claim for the goods;

(ii) whether the applicant acting as an agent for the consignors who had asserted a claim for the goods seized pursuant to subsection 114 of the Customs Act 1967 must prove the proprietary title of the goods to the satisfaction of the senior officer of customs before such claim could be referred to a Magistrate pursuant to subsection 128(3) of the Customs Act 1967;

(iii) whether any person who is not served with the seizure notice issued pursuant to s 114(1) of the Customs Act 1967 has a locus standi to claim for the goods seized by a customs officer;

(iv) whether based on the true and correct interpretation of subsections 128(2) and 128(3) of the Customs Act 1967 (Act 235), the respondents have a statutory duty to refer a person's claim for the seized goods to the Magistrate Court who shall determine whether or not an offence has been committed under the Customs Act 1967 and the seized goods were the subject matter of the offence and the decision made to forfeit or release the goods to the claimant.

The Background Facts

[5] On 10 August 2017, customs officers from the Enforcement Division, RMCD Johor Bahru, seized 17 containers containing liquor at the Container Yard, Free Zone Westport, Port Klang, Selangor. The basis of the seizure as stated in a police report dated 11 August 2017 filed by Customs Officer Mohd Nasir Mohd Nor was that the consignee of the containers by the name of "No Signboard Too Enterprise" ("NSTE") had denied that it was the consignee or owner of the goods. The goods were then detained for further investigation.

[6] Having learned of the said seizure, the appellant who claimed to be the agent of the consignors, JGL Pte Ltd, Singapore, Zaac Holding Pte Ltd, Singapore, Apollon Enterprise, Singapore, Bavaria NV, Netherlands and Brouwerij Martens NV, Belgium, instructed their solicitors to make a claim to the investigating officers for the release of the goods.

[7] The appellant's solicitors, Messrs Azamuddin & Co, carried out the instruction, whereby written notice by letters was sent to the investigating officers claiming the return of the goods.

[8] In a letter to the investigators dated 5 September 2017, the appellant's solicitors