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2025 MarsdenLR 2401
HIGH COURT MALAYA SHAH ALAM
PP – Appellant
Versus
LEE LI THING – Respondent
[Criminal Appeal No: BA-41LB-22-07/2024]
The prosecution failed to prove that the seized cigarettes were prohibited goods and that the respondent had knowledge of their status, leading to acquittal under s 135(1)(d) of the Customs Act.
Headnote:(A) Customs Act 1967 - Sections 2, 31, 119, and 135(1)(d) - Prohibited goods - Prosecution against the respondent for possession of uncustomed goods was unsuccessful due to failure to prove all elements of the charge - The magistrate found that the prosecution failed to establish the cigarettes were prohibited or uncustomed and that the respondent had knowledge of the goods - The prosecution's failure to exclude access by others to the premises impacted the case -
Result: Appeal dismissed. (Paras 15, 18, 24, 29, 30, 32, 74, 102)
(B) Burden of Proof - The burden lies on the prosecution to prove all elements of the charge under s 135(1)(d) of the Customs Act, including that the goods are imported - The presumption of knowledge under s 135(2) only applies if the prosecution establishes the first element of the offence. (Paras 78, 82)
(C) Adverse Inference - The trial judge's invocation of adverse inference due to failure to call a crucial witness led to significant repercussions, as it created gaps in the prosecution's narrative. (Paras 97, 100)
| Table of Content |
|---|
| 1. introduction to the appeal case. (Para 1 , 2) |
| 2. factual underpinnings of the prosecution's case. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. defendant's response and evidential claims. (Para 12 , 13 , 14) |
| 4. findings of the trial judge. (Para 15 , 16) |
| 5. issues raised on appeal regarding evidence and standards. (Para 17 , 19 , 30 , 31 , 32) |
| 6. court's reasoning on evidence and credibility. (Para 20 , 24 , 39 , 49 , 59) |
| 7. evaluation of the prosecution's burden of proof. (Para 67 , 74 , 90 , 100) |
| 8. court's final conclusion and dismissal of appeal. (Para 101 , 102) |
Introduction
[1] This is an appeal by the prosecution against the order of discharge and acquittal of the respondent by the learned magistrate court on 12 April 2024.
[2] At the trial court, the respondent was charged with an offence under s 135(1)(d) of the Customs Act 1967 ('the Act") which read as follows:
"Bahawa kamu pada 8 September 2019, kira-kira jam 12;40 tengah hari di premis Lee Maju Seri Anggerik 2 yang beralamat di Block F, No 103, Sri Anggerik 2, Jaian Bandar Puchong Jaya daiam Daerah Puchong, di dalam Negeri Selangor Darui Ehsan, dengan disedari memiliki barang larangan import iaitu:
1) 4 paket x 20 batang rokok John D-Biend
2) 13 paket x 16 batang rokok Sampoerna Mild
3) 13 paket x 12 batang rokok Surya Gudang Garam
4) 13 paket x 16 batang rokok Surya Gudang Garam
yang ditaksirkan bernilai RM88.08 yang mana barang-barang terebut adalah barang-barang yang dilarang pengimportannya di bawah Perintah Kastam (Larangan Mengenai Import) 2017 dan dengan itu kamu telah melakukan kealahan di bawah s 135(1)(d) Akta Kastam 1967 yang boleh dihukum di bawah s 135(1)(v)(aa) Akta yang sama."
The Prosecution Case
[3] Briefly, the prosecution's case may be summarised as follows. On 8 October 2019 at about 12.40 noon, a team of customs officers from the Enforcement Division of the Royal Malaysian Customs Department, headed by Shaifuddin Bin All (PW6) conducted a raid at premises known as Lee Maju Seri Anggerik 2, Block F, No. 103, Sri Anggerik 2, Jaian Bandar Puchong Jaya, Selangor ("the premises"). The raid was carried out pursuant to a public complaint that the premises contained prohibited goods.
[4] Upon arrival at the premises, PW6 introduced himself as a customs officer to the owner Lee Li Ting ("the respondent") and informed her of the purpose of his visit. The premises was used to run the business of a grocery store. As a result of a search on the premises, PW6 and his team found a bundle wrapped with "kain sarong" ('cloth bundle") hidden underneath a display rack in the grocery store area. There were also soap items arranged in front of the said rack. When opened, the cloth bundle revealed a plastic bag which contained the following items:
1) 4 packets x 20 sticks of cigarettes with the words "John D-Blend" written on each packet (exh P22);
2) 13 packets x 16 sticks cigarettes with the words "Sampoema Mild" written on each packet (exh P23);
3) 13 packets x 12 sticks cigarettes with the words "Surya Gudang Garam" written on each packet (exh P24); and
4) 13 packets x 16 sticks cigarettes with words "Surya Gudang Garam" written on each packet (exh P25).
[5] PW6 then requested the respondent to produce any documents pertaining to the cigarettes but the respondent was unable to do so. Suspecting the cigarettes to be prohibited or uncustomed goods, PW6 seized the same and arrested the respondent before heading back to the customs office.
[6] PW6 also instructed Shaddanend A/L Nesen (PW1) to draw a sketch plan of the premises (exh P6) while Mohamad Rafiq Bin Md Yunos (PW2) was instructed to take photographs of the premises and the cigarettes seized [exh P8 (1-31)].
[7] Back at the customs office, PW6 handed over the seized cigarettes and the respondent to the investigation officer, Muhammad Mustakim Bin Mohamaed Noh (PW5) for his further action.
[8] Each type of the seized cigarettes was then sent by PW5 to the Chemist Department for analysis. The chem
