JUDGMENT

Wong Siong Tung J:

Introduction

[1] This is the Prosecution's appeal against the decision of the learned Magistrate on 3 November 2024 in discharging and acquitting all the four respondents/accused at the close of the Prosecution's case on two (2) charges under ss 135(1)(a) and 135(1)(e) of the Customs Act 1967 having found that the Prosecution had failed to prove a prima facie case against all of them.

[2] These two (2) charges are reproduced as follows:

First Charge:

That you, on 20 July 2021 at about 08.15am on board a vessel namely, Sungai Indah at a jetty at Lot 495, SEDC Industrial Estate, Lorong Teng Kung Suk Off Jalan Upper Lanang, Sibu, in the State of Sarawak, in furtherance of common intention of you all, were concerned in importing prohibited goods to wit:

[As per Appendix A (see pp 16 of the Record of Appeal, Vol 1)]

Valued at RM2,547,858.69, the import of which is prohibited under the Third Schedule of the Customs (Prohibition of Imports) Order 2017, and you have thereby committed an offence under s 135(1)(a) of the Customs Act 1967 and punishable under s 135(1)(v) of the same Act read together with s 34 of the Penal Code.

Second Charge

That you, on 20 July 2021 at about 08.15am at jetty at Lot 495, SEDC Industrial Estate, Lorong Teng Kung Suk Off Jalan Upper Lanang, Sibu, in the State of Sarawak in furtherance of common intention of you all, were knowingly concerned in dealing with prohibited goods, to wit: - [As per Appendix B (see pp 17 of the Record of Appeal, Vol 1)]

Valued at RM2,547,858.69, by shipping them on board a vessel namely, Sungai Indah from Cat Lay Port, Vietnam to Sibu, Sarawak with the intention to evade the prohibitions of their import which is prohibited under the Third Schedule of the Customs (Prohibition of Imports) Order 2017, and you have thereby committed an offence under s 135(1)(e) of the Customs Act 1967 and punishable under s 135(1)(v) of the same Act read together with s 34 of the Penal Code.

Undisputed Facts Established by the Prosecution Witnesses at the Close of the Prosecution Case

[3] Evidence of the Prosecution's witnesses established that in the early hour of the morning at about 1.20am on 20 July 2021, the vessel "MV Sungai Indah" was observed entering the Rejang River at Bawan Assan. It proceeded past Rejang Port, sailed towards Ulu Lanang, and was later seen berthing at about 6.15am at a jetty situated behind premises owned by Overseas Union Industrial Sdn Bhd., Lorong Theng Kung Suk 4, Upper Lanang Industrial Estate, which is not a customs port.

[4] At around 8.15am, a team of customs officer boarded the vessel. On inspection, they found on board 27 sealed containers containing liquor and cigarettes (seized goods). These items fall within Part II of the Third Schedule of the Customs (Prohibition of Imports) Order 2017 and did not comply with the requirements specified in column 5 thereof. (e.g. without the requisite tax stamps and health warning for cigarettes and tax stamps for liquor), Consequently, they were seized by the customs authorities.

[5] The 1st Respondent/Accused was identified as the vessel's master while 2nd, 3rd and 4th Respondents/Accused were also onboard at the material time.

The Statutory Provisions

[6] The relevant provisions of the Customs Act 1967, namely ss 135(1)(a) and 135(1)(e) under which the respondents/accused were charged, are reproduced below for ease of analysis:

135 Penalty relating to smuggling offences, evasion of duty, fraud, etc.

(1) Whoever:

(a) is concerned in importing or exporting any uncustomed goods or any prohibited goods contrary to such prohibition whether such uncustomed or prohibited goods be shipped, unshipped, delivered or not;

(b)....(d)

(e) is in any way knowingly concerned in conveying, removing, depositing or dealing with any dutiable, uncustomed or prohibited goods with intent to defraud the Government of any duties thereon, or to evade any of the provisions of this Act or to evade any prohibition applicable to such goods;

(