Low Hop Bing JCA

APPEAL

[1]On 22 July 2005, the Kota Kinabalu High Court held the appellant ('the defendant') liable for wrongful seizure of the respondent's ('the plaintiff's') logs and allowed the plaintiff's claim, with damages to be assessed: see Syarikat Raspand (suing as a firm) v Government of the State of Sabah

[2]Being dissatisfied, the defendant appealed against the decision of the High Court. By majority (Low Hop Bing and Clement Allan Skinner JJCA concurring; Mohd Hishamudin bin Mohd Yunus JCA dissenting), we allowed the defendant's appeal, with costs here and in the court below, and set aside the decision of the High Court. We now give our grounds for the majority judgment.

FACTS OF THE CASE

[3]The facts of the case consist of agreed facts as well as those established by way of evidence adduced at the trial.

[4]The agreed facts may be unfolded as follows:

(a)At the material time, the Ministry of Primary Industries Malaysia approved the plaintiff's application to import 100,000 cubic meters (m3) of logs for sale to local sawmills in Tawau; and to import 50,000 m3 logs for exporting sale.

(b)On 18 January 1997, the defendant seized a total of 3,056 logs, 980 of which were in the process of being loaded onto the vessel MV ABLE HELSMAN, while the remaining 2,076 logs were still at Wallace Bay, Tawau.

(c)At the time of seizure, the 980 logs measuring 7,072.44 m3 were valued at RM2,263,180.80, while the other 2,076 logs measured 15,805.20 m3, for which the value was RM6,005,976.

(d)On the date of seizure, the plaintiff still had an unexhausted quota of 67,830 m3 logs to be imported for the purpose of supplying to local sawmills in Tawau with a prevailing market value of RM400 per m3, and another unexhausted quota of 36,340 m3 logs to be imported for the purpose of exporting them with a prevailing market value of RM623 per m3.

(e)On 31 March 1997, the Tawau Magistrate's Court ordered the 3,056 logs to be returned to the plaintiff as being entitled to possession thereof.

(f)On 1 April 1997, the defendant returned the said 3,056 logs to the plaintiff.

[5]Other facts established by way of evidence adduced at the trial are based on the pleadings. In this regard, para 7(a) to (f) of the defendant's statement of defence at p 65 of the appeal record avers to the effect that on 18 January 1997, the defendant seized the 3,056 logs on suspicion that offences under the (Sabah) Forest Enactment 1968 ('the Forest Enactment') had been committed. The grounds for the suspicion are:

(a)the species of logs are those normally produced in Sabah eg keruing, seraya merah, seraya putih, melapi, kapur etc;

(b)there was no serial number, no property hammer-mark, no royalty hammer-mark to indicate that royalty had been paid to the defendant;

(c)the logs could not have come from Indonesia as Indonesia had disallowed the export of logs at the material time; and

(d)there was no import licence issued in respect of the logs as required under the Customs (Prohibition of Imports) Order 1988.

[6]The evidence-in-chief of DW1, the Director of Forestry Sabah, adduced via question and answer 17 in his witness' statement at p 161 of the appeal record, reads:

17. Q:What happened when you were at the loading area in Wallace Bay?

A:Upon arrival at Wallace Bay, we surveyed the swamp area and detected 2 rafts of approximately 2,157 logs in the fringes of Tawau Mangrove Forest Reserve and a raft of approximately 611 logs next to the ship. We inspected the logs and found no FD hammer markings, royalty markings, incised serial numbers or property marks on the logs. The logs only have painted numbers. (FD = Forestry Department)

[7]Lower down the same page, in question and answer 19, DW1 confirmed the purpose of the detention ie for further investigation under the Forest Enactment:

19. Q:What happened next?

A:At about 11.00 am, I informed the owner that the logs were detained for further investigation pursuant to the Forest Enactment.

[8]When re-examined, DW1 reiterated as follows:

Grounds of