JUDGMENT

Ahmad Kamal Md Shahid JCA:

Introduction

[1] This is an appeal brought by Lembaga Minyak Sawit Malaysia, the Respondent in the High Court (Appellant) against the decision of the High Court dated 16 June 2023 in allowing the Application for Judicial Review (JR) filed by Kyrox Sdn Bhd., the 1st Applicant in the High Court (1st Respondent) and Kazhou Pte Ltd, the 2nd Applicant in the High Court (2nd Respondent) to quash and/or remove the decision made by the Appellant through their letters dated 23 December 2021 issued to four (4) bidders, Trois Continental Sdn Bhd, Excel Criterion Sdn Bhd, KIS Resources Sdn Bhd and Nutra Lipids (M) Sdn Bhd (four (4) bidders), offering the sale of the Used Cooking Oil (UCO) seized from the 1st Respondent on 26 May 2020.

[2] We heard the appeal on 7 November 2024 and reserved the decision for deliberation. After carefully scrutinising the Records of Appeal and submissions by both parties, we unanimously dismiss this appeal. This is now our grounds of judgment having so decided.

Background Facts

[3] Sometime in May 2020, the 2nd Respondent purchased approximately 15,000 metric tonnes of UCO from three (3) suppliers namely lnnovans Palm Industries, Sepang Dynamics Sdn Bhd and Vandelay Ventures Sdn Bhd.

[4] The UCO was stored in the tanks of FIMA being FIMA Butterworth Installation Sdn Bhd (FBI) and/or FIMA Palmbulk Services Sdn Bhd (FBS) as early as 4 May 2020 to be exported to Europe by the 1st Respondent as the agent, since the 2nd Respondent has secured a purchaser in the name of Oberosterreichische Biodiesel - Bulgaria Ltd (the purchaser).

[5] On or about 25 May 2020 at 6.00am the purchaser's vessel arrived at Butterworth to load the UCO At around 1.00 am. on 26 May 2020, the Appellant seized 11 tanks containing the UCO on the ground that the 2nd Respondent has no licence to export UCO. The need for a licence was disputed by the 2nd Respondent as the 2nd Respondent had been exporting UCO and having received clearances from all relevant authorities especially from the Royal Malaysian Customs without any problem in the past.

[6] Following the incident, there were a series of Court proceedings including civil and criminal actions relating to the seizure which later, parties came to a settlement except on a few issues including the deteriorating condition of the UCO.

[7] On 23 December 2021, there was a meeting between the Appellant and Respondents, in which the Appellant cited that the Attorney General's Chambers (AGC) wanted the matter resolved. What transpired during the meeting, among others, were:

a. Citing the deteriorating condition of the UCO, the Appellant was of the mind to sell the UCO and keep the proceeds thereof. Should the 1st Respondent be successful against the prosecution, the proceeds would be released to the 1st Respondent. There would also be the payments to be determined on the differential between the current market price and the price at which the oil was to be sold.

b. The 1st Respondent's position was that once the charges are withdrawn, the UCO must be returned to the 1st Respondent as the UCO was seized from the 1st Respondent and not to anyone else. The 1st Respondent wanted the UCO back and not the proceeds of the sale.

c. The 2nd Respondent informed that they have been bearing all the storage charges and will continue to do so. No other party took any responsibility. The issue of deteriorating condition of the UCO did not arise as the 1st Respondent would take the entire seized UCO "as is". Further, there could have been no marked changes in the past one (1) month as opposed to the past one and a half years since the seizure when the Appellant did nothing to the UCO.

d. Owing to the holiday season, the Appellant requested a period of more than two (2) weeks to respond. Parties agreed that the Appellant would revert by 15 January 2022. At that time, no offer had been accepted and the process was kept on hold.

[8] Despite the above, the Appellant through their letters