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2021 MarsdenLR 1250
COURT OF APPEAL PUTRAJAYA
SARMIINA SDN BHD – Appellant
Versus
GERRY HO & ORS – Respondent
[Civil Appeal No: B-01(NCvC)(W)-102-02/2020]
A party claiming ownership of seized goods must establish valid legal standing; mere agency without ownership does not suffice.
Headnote:(A) Customs Act 1967 – Section 128(3) – Seizure of goods – Appeal by Plaintiff challenging the seizure of 17 containers of liquor by customs – The seizure deemed lawful due to lack of legitimate claim by Plaintiff as agents for consignors – No valid locus standi established – Plaintiff’s claim dismissed. (Paras 36, 95, 109)
(B) Jurisdiction and legal standing – The court determined that the Plaintiff lacked locus standi to claim for the goods based on evidence that contradicted its assertions of ownership and agency – Defendants had reasonable grounds for seizure. (Paras 21, 88, 109)
(C) Evidence and authenticity – The court found the letters from the consignors questionable and likely fabricated, undermining the Plaintiff's claims regarding its status as an agent. (Paras 31, 88, 109)
(D) Damages – The Plaintiff sought substantial damages based on alleged unlawful seizure, which was rejected due to failure to prove ownership or valid claims. (Paras 15, 95)
JUDGMENT
Introduction
[1] This is an appeal by Sarmiina Sdn Bhd (No Pendaftaran Syarikat 150035- K) ("Plaintiff") against the decision of the learned Judge ("Judge") of the High Court at Shah Alam dated 17 January 2020 after a full trial, which dismissed the Plaintiff's claim with costs of RM25,000.00.
[2] The appeal arises out of the action taken by officers from the Royal Malaysian Customs Department ("RMCD") on 10 August 2017 to seize 17 containers which were located at the Free Zone West Port, Port Klang, which contained imported liquor which was (allegedly) to be trans-shipped to foreign destinations. The Plaintiff filed High Court Shah Alam Suit No BA- 21NCVC-55-08/2018 ("Suit 55") and sought the following reliefs against the Defendants:
a. Satu deklarasi bahawa penyitaan barang kepunyaan plaintif oleh defendan-defendan secara berterusan mulai 10 August 2017 sehingga kini adalah menyalahi undang-undang dan dengan demikian adalah tidak sah;
b. Gantirugi khas berjumlah RM2,889,035.30 yang merangkumi nilai barang tersebut, kos penahanan dan kos penyimpanan;
c. Gantirugi am;
d. Gantirugi Teladan;
e. Faedah pada kadar lima peratus (5%) atas jumlah bayaran yang diperintahkan dibayar dibawah Perenggan 1,2, 3 dan 4 diatas dari tarikh pemfailan Writ ini sehingga penyelesaian penuh;
f. Kos tindakan ini: dan
g. Lain-lain relif dan selanjutnya yang dianggap sesuai dan manafaat oleh Mahkamah yang Mulia ini
[3] On 2 August 2021, we heard the appeal. We were satisfied that there were no merits in the appeal. We, therefore, affirmed the decision of the Judge and dismissed the appeal accordingly. Our reasons for dismissing the appeal now follow. For convenience, we shall refer to the Appellant and Respondents by their titles in the High Court, namely as "Plaintiff" and "Defendants" respectively. Where the context requires, the Investigating Officers from RMCD, ie 1st, 2nd and 3rd Defendants shall be referred to by their abbreviated titles as "D1", "D2" and "D3" respectively. During the trial, D1, D2 and D3 testified as "DW4", "DW1" and "DW2" respectively. To avoid confusion, they will be referred to as D1, D2 and D3 respectively.
The Background Facts
[4] The Plaintiff's case is that between June and July 2017, (1) JGL Pte Ltd, Singapore (2) Zaac Holding Pte Ltd, Singapore, (3) Apollon Enterprise, Singapore, (4) Bavaria NV, Netherlands and (5) Brouwerij Martens NV, Belgium ("consignors") had appointed them to act as their "agent" in respect of the alcoholic beverages contained in 17 containers ("the said goods") which were sent from abroad to the Free Zone in West Port, Port Klang, allegedly for the purpose of re-exportation to other countries.
[5] At all material times, the Plaintiff did not possess the requisite import permit pursuant to Item 67 of Part 1 of the 3rd Schedule - Customs (Prohibition of Imports) Order 2017 ("the import permit") to bring imported liquor into Malaysia.
[6] The Plaintiff claims that they had brought in the said goods using the import permit belonging to an entity with a curious name - "No Signboard Too Enterprise" ("NSTE"). The relevant Bills of Lading states that NSTE is the consignee of the said goods. On 10 August 2017, customs officers from the Enforcement Division of the RMCD Johore Bahru seized the 17 containers containing the said goods at the Container Yard of Westport, Port Klang. D1, D2 and D3 were the investigating officers who carried out the investigations and seizure of the said goods in the 17 containers. Around the same time, officers from RMCD Selangor had also seized 8 containers which were brought into the Free Zone West Port containing imported liquor. These 8 containers were also brought in via Bills of Lading which state that NSTE is the consignee. The 8 containers are not the subject of Suit 55. However, the 8 containers are nevertheless relevant as these containers were later released after the name of the consignee was changed from NSTE to a related company, namely Sarmiina Trade
