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2025 MarsdenLR 322
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]
Seizure of goods without prosecution exceeding statutory timelines renders actions unlawful, violating rights to property and due process under the Customs Act and the Federal Constitution.
Headnote:(A) Customs Act 1967 - Section 65, 128 - Appeal regarding the High Court's decision on the seizure of goods - The Appellant challenged the dismissal of the Originating Summons on the grounds that the continuous seizure of goods without prosecution exceeded prescribed statutory timelines. The High Court erred in asserting that no time frame existed for prosecution and referencing the claim, allowing rights pertaining to legally seized property to be denied. Customs officials failed to comply with statutory duties as outlined in relevant sections, depriving the Appellant of property without legal basis. (Paras 1-71)
(B) The power to initiate prosecution lies exclusively with the Attorney General under Article 145 of the Federal Constitution, so any directive from the Court imposing a deadline for prosecution is a usurpation of such power and contravenes constitutional provisions. (Para 68)
Facts of the case:
The Appellant’s goods were seized on 23 September 2022. Following a Notice to Claim, the Appellant’s call for the return of the goods was disregarded, leading to an Originating Summons being filed which was dismissed by the High Court. A subsequent cross-appeal was filed by the Respondents.
Findings of Court:
The continuous seizure of the goods was unlawful as it exceeded the statutory timeline, and the High Court's dismissal was found to be in error.
Issues: The primary questions addressed were the legality of the continuous seizure without prosecution, and whether the Judge overstepped by directing a timeline for the Respondents to commence prosecution.
Ratio Decidendi: The Court held that statutory provisions require prosecution to be initiated within 30 days following a claim for the seized goods. The High Court's failure to apply these principles led to a catastrophic misinterpretation of both the Customs Act and the Federal Constitution.
Result: Appeal allowed and matter remitted for damages assessment.
| Table of Content |
|---|
| 1. appellant's goods were seized under customs act. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 10 , 11) |
| 2. high court's analysis of seizure legality. (Para 12 , 13 , 14 , 15) |
| 3. framework of legal issues raised in appeal. (Para 18 , 19 , 20) |
| 4. arguments regarding unlawful seizure of goods. (Para 22 , 23 , 30 , 31) |
| 5. respondents contested high court's decisions. (Para 32 , 34 , 35) |
| 6. interpretation of customs act provisions. (Para 38 , 39 , 40) |
| 7. court's view on compliance with procedural law. (Para 41 , 42 , 49 , 50) |
| 8. concluding judgment and order of appeal. (Para 67 , 70 , 71) |
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-appealed 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 Lots 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 Appellant's premises to be sold to travellers.
[3] The 1st 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 premises.
[4] The 2nd Respondent is Mohd Nor Hasyimi bin Adam, who is the Ketua of Unit Siasatan Frod Perdagangan. The 3rd Respondent is the Director General of the Customs Department of Malaysia, while the 4th 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 exh "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 kalendar bermula dari tarikh penyitaan.
[6] Subsequently, the Appellant issued a Notice to Claim dated 21 October 2022 (exh "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 s 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 Respondents' failure to release the seized goods would cause the Appellant to initiate proceedings in Court.
[8] On 26 June 2023, the 1st 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 tha
