When a statement of claim is endorsed upon a specially endorsed writ in respect of the amount due upon a foreign judgment, the claim should be expressed in the local currency; and it should show the amount in local currency which is the equivalent of the amount of the foreign currency due on the foreign judgment, calculated as on the date when the foreign judgment was obtained.

Oversea Chinese Banking Corp Ltd v Firm of Yaik Joo Ann [1936] MLJ 110 High Court, Straits Settlements (Terrell J).

The plaintiffs and the defendants executed an agreement under seal for the sale by the defendants to the plaintiffs of a Linotype machine for RM4,550 (gold), the plaintiffs paying RM1,137.30 (gold) on the execution of the agreement, the balance RM3,412 (gold) by 36 instalments. The plaintiffs claimed that all payments under this agreement should be at a fixed rate of 56 cents US currency to RM1 Straits Settlements currency, which represents parity. The defendants contended that payment was to be in US currency at the current rate ruling on such date in Singapore as the payment had to be made.

Held: 'dollars gold' contained in the agreement referred to the currency of the USA and all payments due or to become due under the said agreement were payable in the said currency at the current rate ruling upon such date in Singapore as each of the said payments should have been made.

Nanyo Printing Office v Linotype & Machinery Ltd [1933] MLJ 186 High Court, Straits Settlements (Murison CJ).

Tiong Ing Chiong v Giovanni Vinetti [1984] 2 MLJ 169 Privy Council Appeal from Brunei (Lord Keith of Kinkel, Lord Elwyn-Jones, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Sir Robin Cooke).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 642.

In this case, it appeared that during the Japanese occupation one Lee Tuck Onn (since deceased) borrowed money from the plaintiff and signed IOUs wherein he agreed to repay 'in British or Allied currency'. The plaintiff brought an action against the executor of Lee Tuck Onn (deceased) to claim payment of the moneys lent.

Held: (1) evidence was admissible under s 98 of the Evidence Ordinance to explain the meaning of the words used; (2) on the facts the agreement in this case was to pay the money in the equivalent of British or Allied currency in use after the liberation and therefore there ought to be an inquiry to ascertain the amount repayable.

Ooi Phee Cheng v Kok Yoon San [1950] MLJ 187 High Court, Kuala Lumpur (Taylor J).

Held: s 428 of the Criminal Procedure Code (Cap 21) as amended by the Treasury Officers (Titles and Powers) Ordinance 1938, allows a certificate signed by the Chairman of the Board of Commissioners of Currency to be admitted in evidence in criminal proceedings when it is necessary to decide whether a currency note is or is not forged, but the requirements of this section must be strictly observed before such certificate can be admitted in evidence. The jury are not allowed to judge for themselves in such a case whether or not the notes are forgeries as to do so would confuse the functions of a juror with that of a witness and the fact that such notes are forgeries must be strictly proved at the trial.

R v Wong Kiang Chin [1938] MLJ 178 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Mills and Horne JJ).

An accused was charged under s 489B of the Penal Code with the offence of using as genuine forged currency notes having reason to believe the same to be counterfeit. He pleaded not guilty. At his trial he was charged not only with the above offence but on a second count for escaping from lawful custody, and offence punishable under s 224 of the Penal code, to which he also pleaded not guilty. He claimed trial on both charges. Evidence was given in support of each charge. The jury brought in a verdict of guilty on the first charge and the second charge was then withdrawn by the Crown Counsel who was prosecuting.

Held: the joinder of the two charges was illegal and could not be legalized unders 448 of the Criminal Procedure Code (Cap 21). The time for ascertaining whether or not there is a misjoinder is at the time when the accusation was made and not when the trial was concluded. It was immaterial that the misjoinder did not prejudice the appellant as the evidence to substantiate the first charge.

R v Tan Chu Chooi [1938] MLJ 230 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Mills and Pedlow JJ).

Held: the word 'traffic' in s 489B of the Penal Code includes any act done in connection with, and directly leading up to, a passing of forged notes, whether the passing is effected or not.Ê

Ohki & Ors v R [1938] MLJ 123 Court of Criminal Appeal, Straits Settlements (McElwaine CJ, Terrell and Horne JJ).

The facts in this case were shortly as follows: on 15 February 1942, the plaintiff was the owner of a Chrysler Saloon car. No evidence was available regarding its use from that date to 18 October 1945, but it was agreed that it was then taken over by the Japanese. From 18 October 1945 to 10 April 1946 it was used in Penang by the BMA (Rubber Buying Unit). On 11 April 1946, the Custodian of Property, Penang, acting (or purporting to act) under s 10 of the Custodian of Property Proclamation of the Malayan Union, sold the car to the defendant in Penang. On 17 April 1946, the defendant brought it from Penang to Singapore and the car was registered in Singapore. The plaintiff returned to Singapore on 5 September 1945 and claimed the return of the motor car and damages for its detention. Section 10 of the Custodian of Property Proclamation of the Malayan Union read as follows: 'When any property taken into custody by the Custodian is perishable or liable to waste or deteriorate if kept or kept untenanted, the Custodian may sell the same and retain custody of the proceeds pending directions as to their disposal, or may execute on behalf of the owner leases or tenancy agreements at such rents, upon such conditions and for such terms as the Custodian may think fit.' On 10 October 1946 (ie after the sale of the car in question in this case) the following subsection was added by amendment: '(2) Any sale by the Custodian purporting to be in exercise of the power of sale conferred upon him by subsection (1) which has taken place since this Proclamation came into force or which shall hereafter take place, shall be deemed to be a valid sale and shall not be called into question in any court.' The following questions of law were raised for the opinion of the court under the special case procedure provided by O XXXIII: (1)(a) whether in view of the Custodian of Property Proclamation of the Malayan Union and its statutory modifications the court can take cognizance of the claim of the plaintiff; (b) if so, whether the court must hold that there was a valid sale to the defendant by reason of the Custodian of Property Proclamation, s 10(2); (2) whether the Custodian of Property, Penang, had any power to sell the motor car; (3) whether the Custodian of Property, Penang, made a valid sale of the motor car to the defendant under which he became owner; (4) if the defendant's title is not absolute whether the plaintiff is entitled to an order for delivery up of the car; (5) if the defendant's title is not absolute on what principles are damages (if any) and compensation (if any) to be assessed and awarded.

Held: (1) the law to be applied in this case is the law of the Malayan Union at the time of the transfer by the Custodian of Property, Penang; (2) a motor car is liable to deteriorate if kept unused and therefore it falls within s 10(1) of the Custodian of Property Proclamation and the Custodian of Property, Penang, had the power to sell the motor car in question in this case; (3) the Custodian of Property, Penang, made a valid sale of the motor car to the defendant, under which he became the owner.

Sneddon v Shafe [1947] MLJ 197 High Court, Singapore (Brown J).

Both the plaintiff and the defendants claimed to be tenants of the premises known as No 149 Geylang Road, Singapore, the owner of which was one Ching Ewe Seng whose residence at all material times was in Borneo and whose duly constituted attorney was one Wong Wei Tang who lived in Singapore. Purporting to act under the said power of attorney the said Wong Wei Tang let the said premises to the plaintiff on 1 October 1945. Later, in exercise of his powers under s 8(2) of the Custodian of Property Proclamation 1945, the custodian took custody of the said premises and on or about 7 December 1945 let them to the defendants. The question to be decided was whether the said Wong Wei Tang or the custodian had the power to create a valid tenancy on behalf of the absent owner. For the defendants it was contended that on the occupation of Singapore by the Japanese Armed Forces the power of attorney aforesaid was abrogated and not merely suspended, so that the relationship of principal and agent was determined on account of the parties to the agency agreement being separated by a line of war, one becoming an enemy to the other.

Held: (1) to constitute occupation the court must not regard the fluctuations of a campaign but must look for a certain element of permanency; (2) in order to decide when a territory became enemy-occupied the court must not consider merely the question of the presence of the forces of one side and the absence of those of the other;the evidence in this case did not show that the enemy occupation took place at different dates in the case of the place of residence of the principal and that of the agent and that therefore there was in fact no moment when one of the parties was in occupied territory and the other outside; and (3) the power of attorney was not abrogated and therefore the plaintiff was entitled to the tenancy of the premises.

Loh Khing Woon v Lai Kong Jin [1946] MLJ 136 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: Reference may usefully be made to a Hong Kong case, Hankam Kwingtong Woo v Liu Lan Fong [1951] AC 707.]

The plaintiff sued the defendants for the return of a Renault car which was taken from his possession by the Japanese occupying forces in December 1941. The said car after the British reoccupation came into the custody of the Custodian of Property and was sold by him to one Lau Hee Peng, who later sold it to the defendants. It was argued for the plaintiff: (1) the car was seized illegally by the Japanese forces; (2) the Custodian seized the car illegally as it was not enemy property and it was not the property of a British or allied or neutral absentee owner, the plaintiff being at all relevant times in Penang; and (3) no title could be passed by the Custodian which is good as against the title of the plaintiff.

Held: (1) the Japanese military forces could under international law seize the car for military purposes; (2) as the car was in the custody of the enemy forces, the Custodian could validly take it into his custody; and (3) he could pass a valid title under s 10 (as amended) of the Custodian of Property Proclamation.

Pang Aun Nam v Seng Seng Motors & Anor [1949] MLJ 65 High Court, Penang (Bostock-Hill J).

This was an application by the Public Trustee to set aside a writ of summons against 'SS Gyoshin Maru' on the ground that the vessel was vested in His Majesty. It appeared that the ship was captured by the Japanese in or about 1941 in Hong Kong and when Malaya was reoccupied in 1945 the ship was being used here by the Japanese military authorities and was surrendered to the British occupation forces. It was taken into custody by the Ministry of Transport as agent for and on behalf of His Majesty and as agent for the Custodian of Property on behalf of His Majesty. Subsequently the custodian chartered the ship to an individual who gave instructions to the Singapore Harbour Board to carry out the necessary repairs and works which were the subject matter of the claim. The vessel was registered at Singapore as being in the ownership of His Majesty represented by the Ministry of Transport in London.

Held: (1) on the evidence there was nothing to show who the owner of the ship was; (2) under the Custodian of Property Proclamation, the public trustee had the custody of the vessel but there was no vesting in him of any property in the ship; (3) no sure inference as to ownership could be drawn from the fact that the ship was registered as being in the ownership of His Majesty represented by the Ministry of Transport in London; (4) therefore the motion must fail and the action should be allowed to proceed to judgment, such action being against the ship itself.

Singapore Harbour Board v Owners & Other Persons Interested in the Vessel 'Gyoshin Maru' [1949] MLJ Supp 18 High Court, Singapore (Gordon-Smith J).

A charge of bribery under s 63 of the Excise Enactment 1923 should state what was the bribe offered, who was the public servant to whom it was offered, and what was the duty to induce the neglect of which it was offered. But if these particulars come out in the evidence their omission may not be a ground for setting aside a conviction. The duty contemplated by the section is the safeguarding of the revenue, the offer of a bribe to induce neglect of other duties will be an offence (if any) under the Penal Code.

Sanmugam v Public Prosecutor [1924] 4 FMSLR 190 High Court, Federated Malay States (Woodward CJC).

This was an appeal against the conviction of the appellants for an offence under s 137(1) of the Customs Act 1967.

Held: (1) the charge in this case was defective as the addition of the words 'to wit authorized removal from customs control' was legally incorrect, as not being a legal ingredient required by the section; (2) the learned President in this case was misled by the consideration of some improper evidence, including the departmental standing instructions, the remarks of the investigating officer, evidence of the signature of the accused and similar fact evidence; (3) on the evidence in the first place the defence should not have been called in respect of the appellants and on all the above grounds the conviction and sentence must be set aside; (4) the ends of justice do not require that the appellants should be put on trial again.

Zahari bin Yeop Baai & Anor v Public Prosecutor [1980] 1 MLJ 160 High Court, Ipoh (Hashim Yeop A Sani J).

Tan Seng Tin & Ors v Public Prosecutor [1970] 1 MLJ 100 High Court, Penang (Ong Hock Sim J).

See CUSTOMS AND EXCISE, Vol 6, para 63.

Public Prosecutor v Lim Joo Soon [1978] 2 MLJ 127 High Court, Kuala Lumpur (Harun J).

See CUSTOMS AND EXCISE, Vol 6, para 20.

Deputy Public Prosecutor v Tan Ah Guat [1947] MLJ 32 High Court, Singapore (Brown J).

See CUSTOMS AND EXCISE, Vol 6, para 83.

The accused had been charged with possession of intoxicating liquor. The learned magistrate acquitted her on the ground that the chemist's certificate which was admitted in evidence did not comply with the requirements of the definition of 'intoxicating liquor' under s 2 of the Excise Act. The chemist had stated, inter alia, 'I analyzed the contents of the above-mentioned exhibits and found them to be 'intoxicating liquor' as defined in s 2 of the Excise Act 1961. The Public Prosecutor appealed against the acquittal.

Held: although it is highly desirable that the chemist in his report should follow the wording of the section, failure to do so is not fatal to the prosecution's case; so long as there is sufficient indication that the chemist had directed his mind to the requirements of the section, omission to state anything like detail will not be fatal.

Public Prosecutor v Tan Siew Lan [1966] 2 MLJ 285 High Court, Kuala Lumpur (Raja Azlan Shah J).

Held: improper admission of evidence would occasion a failure of justice if it resulted in a decision different from that which would have been given had the evidence not been admitted. The improper admission of evidence will have no effect unless it has occasioned a failure of justice and in order to discover whether there has been a failure of justice, one must be guided by s 167 of the Evidence Ordinance 1950. The test as to whether or not a judgment of the court below should be reversed or altered on account of wrongful admission of a certificate is whether or not without that evidence, there was sufficient evidence to justify the conviction.

Wong Kok Keong v R [1955] MLJ 13 High Court, Penang (Spenser-Wilkinson J).

This was an appeal by the Public Prosecutor against the acquittal of the respondents who were jointly tried on charges of possession of dutiable tobacco. The ground of acquittal was that the chemist reports which were produced to prove that the goods were tobacco were inadmissible. The learned magistrate agreed with the defence counsel who argued that at least 10% of the nett weight of the tobacco should be sent to the government chemist and as this was not done, the reports of the government chemist were not admissible.

Held: (1) to raise the presumption under s 116 of the Customs Ordinance 1952 it would be sufficient to open, examine and if necessary to test the contents of only 10% of the packages or receptacles of each description and the section does not require the taking of any particular quantity or weight for testing provided samples are taken from the contents of 10% of every description or type of package or receptacle; (2) as the offences related to goods carried on different vehicles, the charges should have been separately tried.

Public Prosecutor v Cheng Meng Bong & Ors [1966] 1 MLJ 237 High Court, Alor Star (Yong J).

In this case, the defendant was charged with refusing to meet the demand for payment of duty in respect of cast iron gate valves. The issue was whether the cast iron gate valves were dutiable. The prosecution relied on a notification by the Director-General to the Senior Superintendent of Customs that the article was dutiable.

Held: (1) the notification in this case was not a certificate and even if it was it was not conclusive evidence that the goods were dutiable nor did it raise a presumption that the goods were dutiable; (2) in customs cases, the burden of proof that the goods are not dutiable, uncustomed or prohibited is on the prosecution. In appropriate cases, the prosecution may rely on the presumption that the goods shall be deemed to be dutiable, uncustomed or prohibited to the knowledge of the defendant. In all cases the defendant is at liberty to prove either during the case for the prosecution or in the course of the defence that the goods are dutiable, uncustomed or prohibited as the case may be.

Public Prosecutor v Lim Joo Soon [1978] 2 MLJ 127 High Court, Kuala Lumpur (Harun J).

Yau Tin Kwong v Public Prosecutor [1970] 1 MLJ 159 High Court, Singapore (Chua J).

See CUSTOMS AND EXCISE, Vol 6, para 190.

The appellant was the captain of a motor vessel which had anchored off the Sungei Malaka. The arrival of the motor vessel was not reported to the customs authorities and when boarded by them was found to be carrying cargo consisting of rubber, coffee, groundnut oil, margarine and cooking oil. The appellant was charged with carrying dutiable goods in a local craft otherwise than with the permission of the comptroller of customs and was convicted. On appeal,

Held: as the goods were bona fide in transit and not imported it was no offence to carry them in a local craft; (2) (per curiam) 'There was no evidence on which it could be said that there was an apparent unlawful purpose involved in the vessel lingering; that if there was no apparent unlawful purpose in the lingering then she was not hovering; that if she was not hovering there was nothing to show that the goods on board were uncustomed; that if the goods were not uncustomed and if they were bona fide in transit they were not imported; that there was nothing to suggest that they were not bona fide in transit; that if they were not imported they were not dutiable goods; and that if they were not dutiable goods it was no offence to carry them in a local craft.'

Ng Kim Huat v Public Prosecutor [1961] MLJ 308 High Court, Kuala Lumpur (Thomson CJ).

In this case, the respondents had been charged under s 49(1) of the Customs Act 1967 (Act 235), for carrying tin ore in a local craft without the permission of the Director-General of Customs. The defence of the respondents was that their boat had a broken rudder and it had drifted in distress into Malaysian waters. The defence raised was one of necessity. The learned magistrate accepted the evidence of the respondents that the rudder of the boat was broken while the boat was in international waters and that the boat drifted into Malaysian waters but he held that in those circumstances the boat was in transit and therefore the offence under s 49(1) of the Customs Act was not committed. The Public Prosecutor appealed and it was submitted that the offence under s 49(1) of the Customs Act is one of strict liability and that no mental element or knowledge need be proved by the prosecution.

Held: (1) the respondents were justified out of necessity to enter Malaysian waters on specific reasons that the boat in which they were travelling was in distress due to the fact that the rudder of the boat was broken in international waters; (2) it would appear that in strict liability cases it is still open to the accused to prove absence of knowledge and the application of the rule that mens rea is an essential ingredient of every offence has not been ousted depending on the subject matter of the statute though the onus of proof required of the accused is on the balance of probabilities that he could not have reasonably known the existence of the law; (3) even assuming a charge under s 49(1) of the Customs Act is one of strict liability, it may be construed that mens rea or guilty mind by the respondents was not present when the offence was alleged to have been committed.

Public Prosecutor v Ali bin Umar & Ors [1982] 2 MLJ 51 High Court, Johore Bahru (Mohamed Yussof J).

The appellant sought to appeal against the whole judgment of the learned magistrate who convicted and sentenced him for offences under s 49(1) and s 135(1)(e) of the Customs Act 1967 (Act 235). The appellant was the taikong of a vessel carrying 3.195 tons of tin ore and 5.129 tons of tin slag. The said vessel was intercepted by customs officers on 24 December 1979. The appellant failed to produce any permit and the vessel was seized. The learned magistrate had found that the vessel was intercepted when it was within the Malaysian territorial waters. The appellant contended that (1) he did not know that he was in Malaysian territorial waters or that he was required to have permission to convey the said tin ore; (2) it was encumbent on the prosecution to prove that the tin ore and slag found in the vessel was for export out of Malaysia; (3) on the appellant being successful in establishing that the vessel was in transit, the appellant had made out a valid defence deserving acquittal.

Held: (1) the prosecution need only to prove that, on import or export, customs duties are leviable on such goods without having to prove that such goods are in fact imported into or exported out of Malaysia; (2) even if the vessel was in transit, it is obligatory on the consignor or consignee of the goods to obtain written permission of the Director-General of Customs where the vessel was to pass through Malaysian territorial waters. Failure to obtain such written permission would expose the person responsible for the vessel to a charge under s 49(1) of the Customs Act; (3) in the circumstances it was no defence for the appellant to contend that he did not know that he was in the territorial waters of Malaysia at that material time and place; (4) the prosecution had failed to prove that the goods conveyed in the 'local craft' were 'dutiable goods' since the prosecution had failed to prove that such goods were indeed exported out of Malaysia. The conviction and sentence under s 135(1)(e) of the Customs Act were set aside; (5) the offence created is a strict liability offence, the commission of which requires no guilty intention or knowledge;in the present case an offence under s 49(1) of the Customs Act had been committed and proved. In the circumstances, the appeal against the forfeiture of the 'local craft' and tin ore and tin slag was dismissed.

Tumlong Kuandi v Public Prosecutor [1982] 1 MLJ 95 High Court, Johore Bahru (Yusof Abdul Rashid J).

The dispute in this case concerned a vehicle which was registered under that law according to the certificate issued by the Road Transport Department. The appellant here was a subsequent purchaser, the vehicle having passed through a few hands following registration. Unknown to the appellant, the initial registration of the vehicle was procured improperly by the use of a forged customs import declaration Ð the chassis number had been altered and no evidence was forthcoming that import duty on the vehicle had been paid. On 18 June 1993, the Customs seized the vehicle but no prosecution ensued. Instead, proceedings were commenced by the Customs under s 128(4) of the Customs Act 1967 ('the Act'). A summons was issued stating that the vehicle had been involved in the commission of an offence under s 135(1)(d) of the Act, ie the possession of prohibited goods. A hearing was conducted wherein the magistrate found the vehicle to be uncustomed and ordered it to be forfeited to the Customs. The appellant appealed. Counsel for the appellant argued that: (a) the magistrate was bound by the summons to find whether there was the specified offence under s 135(1)(d) of the Act and was not allowed to go beyond that to find other offences under the Act; and (b) the appellant had no knowledge whatsoever that customs duty had not been paid and thus the offence was not made out.

Held, dismissing the appeal: (1) the magistrate need only concern herself whether an offence had been committed against the Act and not any particular offence. Therefore, though the summons referred to the offence as relating to prohibited goods, it was not a misdirection on the part of the magistrate to find the offence of uncustomed goods just because the summons did not refer to the offence of uncustomed goods. That the offence relating to uncustomed goods would be relied on was apparent and known to the appellant and their counsel when the officers of the Customs gave evidence and adverted to the vehicle being uncustomed. Counsel for the appellant cross-examined the witnesses on this point and witnesses for the appellant adverted to the question of customs duty. On the facts, the court could not see how the appellant could be said to have been surprised or been denied the opportunity to defend the allegation that customs duty on the vehicle had not been paid; (2) what had to be established was not whether the appellant had the guilty knowledge that the vehicle was uncustomed but whether someone had at any time caused the vehicle to be brought into the country without the payment of customs duty. On the evidence, the magistrate was justified in her conclusion that customs duty had not been paid.

Rintis Utama Sdn Bhd v Jabatan Kastam dan Eksais DiRaja Civil Appeal No T(11) 5 of 1995 High Court, Tawau (Ian Chin J).

The knowledge of a person charged with an offence under s 111(f) of the Customs Enactment 1923 can generally only be deduced from his conduct but the conduct of the defence may also be considered.

Lee Chin Kee v Public Prosecutor [1935] MLJ 157 High Court, Federated Malay States (Thomas CJ).

Ng Eng Kooi & Anor v Public Prosecutor [1970] 1 MLJ 267 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Gill FJJ).

See CUSTOMS AND EXCISE, Vol 6, para 187.

Public Prosecutor v Chi Ah Kow & Ors [1963] MLJ 122 High Court, Johore Bahru (Adams J).

See CUSTOMS AND EXCISE, Vol 6, para 181.

In this case, the accused was driving a car from Penang to Ipoh. At the customs examination shed, Butterworth, he was asked whether he had uncustomed goods to declare. The car was later brought to the examination shed and there 96 dozens playing cards were found. The accused was convicted of being knowingly concerned in carrying uncustomed goods and the car in which the goods were being carried was ordered to be forfeited and from this conviction and order of forfeiture of the car he appealed.

Held: (1) the goods were not uncustomed goods as defined by the ordinance and the appellant was therefore wrongly convicted of being knowingly concerned in carrying uncustomed goods; (2) on the facts the learned magistrate could have convicted the appellant for failing to make a declaration of dutiable goods under s 129(1) para (e) of the Customs Ordinance 1952 and the conviction should therefore be altered accordingly; (3) the order for forfeiture could not stand under the altered conviction under s 129(1) and therefore it was set aside.

Yap Yoon Lin v R [1954] MLJ 59 High Court, Penang (Spenser-Wilkinson J).

In this case, the facts were that a certain Indian was found on the road with two bundles. An examination by the customs officers disclosed that the bundles contained cloth which the Indian said belonged to a friend of his. As the cloth was suspected to be uncustomed, the Indian and the cloth were taken to the police station. Later the accused with another man claimed that the cloth was theirs. Police investigation followed and the accused was subsequently charged with having knowingly conveyed uncustomed goods, with intent to defraud the government of the duties thereon, an offence under s 39(i)(f) of the Trade and Customs Enactment. He was convicted by the district judge and appealed to the Supreme Court.

Held: (1) s 58 of the Johore Excise Enactment does give power to the customs officers to seize goods in respect of which there has been committed, or there is reasonable cause to suspect that there has been committed, an offence against the customs law; (2) as the accused was found to be in possession of goods suspected of being uncustomed, the onus of proof that the goods were customed was on the accused; (3) as the accused had not discharged this onus of proof he was rightly convicted under s 39(i)(f) of the Trade and Customs Enactment; (4) (semble) if the words of a statute are unequivocal they must receive their full effect even though they appear to go far beyond the general purpose of the statute as set out in its title and preamble.

Muhidin bin A Kader v Public Prosecutor [1948] MLJ 35 High Court, Malayan Union (Jobling J).

This was an appeal against the conviction of the appellant for the offence of knowingly conveying uncustomed goods. The appellant was the attendant of the lorry in which the uncustomed goods were found when it was stopped at a customs road block. At the trial the learned President of the Sessions Court ruled that statements made by an accused to customs officers by way of answers to questions put by them were inadmissible because the accused had not been cautioned.

Held: (1) although there was a presumption that the appellant knew that the goods were uncustomed, he had rebutted this presumption by showing that he had no knowledge of the goods in the lorry because he was the attendant of the lorry and was carrying out his duties in the ordinary course of his employment; (2) a statement made by an accused person to a customs officer is admissible whether he had been cautioned or not provided the statement is not a confession made in breach of s 24 of the Evidence Ordinance 1950.

Goh Yin Guan v Public Prosecutor [1967] 1 MLJ 113 High Court, Ipoh (MacIntyre J).

On a charge under s 131(1)(e) of the Customs Ordinance 1952, the prosecution must prove (a) the accused was knowingly concerned in conveying uncustomed goods, and (b) at the time the accused was conveying the uncustomed goods, he was doing so with the intention to defraud the government. The effect of the presumption in s 131(2) was to place on the accused the burden of satisfying the court on a balance of the probabilities that he did not know that they were uncustomed. That subsection has in no way affected the duty of the prosecution to prove the intention to defraud. However, that intent could be presumed from the evidence. Any person who brings goods into the Federation without declaring them or producing them to the customs does so at his own peril. It is the act of a prudent man to inquire, if he is in any doubt, from customs whether or not a specific article carries duty. If he does not do this, then he cannot complain if the prosecution asks the court to presume that in not doing so he intended to defraud the government. The question of the intention to defraud remains at all times to be proved by the prosecution in the same way as 'intention' is proved in all criminal cases where guilty knowledge is one of the ingredients of the offence. In this case, the learned President omitted to consider the whole of the evidence in the light of the fact that before he could convict there must be proved to his satisfaction an intention to defraud the government.

Held: the apparent omission on the part of the President to consider the question of intention may as well have occasioned a miscarriage of justice and his omission to deal with it is an error in law.

Lim Kim Chai v Public Prosecutor [1963] MLJ 26 High Court, Johore Bahru (Adams J).

Where a man charged with the offence of being in possession of uncustomed goods under the Customs Ordinance 1952 was able to show that he purchased the goods from a shop dealing in such goods, the explanation was held to be sufficient to rebut the presumption that he knew that the goods were uncustomed. In the circumstances, it was for the shop keeper to satisfy the customs authorities that duty had been paid. See the observations of Buhagiar J.

Saminathan & Ors v Public Prosecutor [1955] MLJ 121 High Court, Kuala Lumpur (Buhagiar J).

The respondents were charged on two counts under s 131 of the Customs Ordinance 1952. At the trial it was submitted on behalf of the respondents that the prosecution had not proved that the goods were uncustomed goods and that the presumption under s 115 of the Customs Ordinance did not apply in this case. The learned President of the Sessions Court agreed with this submission and acquitted the respondents. The learned Public Prosecutor appealed against the acquittal on the first charge, that is, of being knowingly concerned in conveying uncustomed goods.

Held: (1) once the prosecution has proved that the respondents had conscious knowledge of the possession of the goods and were charged, then as soon as they claimed trial, the presumptions under s 115 of the Customs Ordinance arose; (2) once it is proved that the duty has not been paid, there is a breach of the provisions of the Customs Ordinance and the goods prima facie became uncustomed goods and the respondents charged under s 131(1)(e) of the Customs Ordinance were by s 131(2) of the said ordinance deemed to know that the uncustomed goods were in fact uncustomed and the onus of showing that they were not so would then be on them.

Public Prosecutor v Saminathan & Ors [1954] MLJ 162 High Court, Muar (Storr J).

Public Prosecutor v Mat Nawi bin Ismail [1987] 2 MLJ 366 High Court, Kota Bharu (KC Vohrah J).

See CUSTOMS AND EXCISE, Vol 6, para 71.

Attorney General v Transmax Marketing Pte Ltd [1996] 3 SLR 297 Court of Appeal, Singapore (M Karthigesu and LP Thean JA, Lai Kew Chai J).

See CUSTOMS AND EXCISE, para 957.

The plaintiff purchased a car from the second defendant and issued a cheque for the excise duty payable on the car to the first defendant, a motorcar salesman employed by the second defendant. The vehicle was handed over to the plaintiff together with its registration book. The plaintiff had possession and uninterrupted usage of the vehicle for just over three years when officers of the Customs and Excise Department seized the vehicle alleging that excise duty on it had not been paid. The sessions court later ordered forfeiture of the car on the ground that excise duty on the vehicle had not been duly paid. The plaintiff issued a writ against the first and second defendants and against the government of Malaysia as the fourth defendant. The cause of action relied on as against the government was the negligence of its servants in handling the documentation of the vehicle vis-á-vis the payment of excise duty and the issue of the registration card. The plaintiff also alleged that officers in the customs department fraudulently used funds for its own use when the same was for the express purpose of excise duty. The government applied to have the action against it struck out, contending that the acts complained of were acts carried out by servants of the government pursuant to powers/duties under both the Excise Act 1976 (Act 176) and the Road Traffic Ordinance 1958 (Ord 49/1958) and that accordingly, by s 2(a) of the Public Authorities Protection Act 1948 (Act 198), the action as against the government was time-barred.

Held, dismissing the application: (1) in respect of the matters covered by the Public Authorities Protection Act 1948, the provisions of the Limitation Act 1953 (Act 254) had no application. There was nothing express or implied in the 1948 Act that would make for the application of any of the provisions of the 1953 Act; (2) and the Public Authorities Protect Act 1948 was such a written law. Section 2(a) of the Public Authorities Protection Act 1948 did prescribe a period of limitation in respect of the suit, action or proceeding referred to therein; (3) s 3 of the Limitation Act 1953 expressly excluded the application of the Act in respect of actions for which a period of limitation had been prescribed by any other written law;the allegation of fraudulent usage of money paid to the customs authorities could not be said to be an act done in pursuance or execution or intended execution of any written law, of any public duty or authority or in respect of any alleged neglect or default in the execution thereof and accordingly, protection of the Public Authorities Protection Act 1948 could not be invoked.

Ban Guan Hin Realty Sdn Bhd v Sunny Yap Chiok Sai & Ors [1989] 1 MLJ 131 High Court, Kuala Lumpur (VC George J).

In this case, it was

Held, allowing the appeal: mens rea is not an element in the offences constituted by s 126(1)(a) of the Customs Ordinance 1952 and s (1)(a) of the Dangerous Drugs Ordinance 1952, the liability in either case being an absolute one.

R v Kung Sie Chew [1958] SCR 55 Supreme Court, Sarawak, North Borneo and Brunei

The expression 'importer' in s 13 of the Trade and Customs Enactment may mean either (1) the person in charge of a vessel or vehicle in which goods are brought to or across the territorial boundary of the state, or (2) the person within the state who orders goods from abroad and by whose instructions the goods are brought into the state. In order to make out a case of smuggling under s 39(i)(f) against a person of the latter class, it must be shown firstly that he knew that the dutiable goods had arrived, secondly that the duty chargeable had not been paid, and thirdly that with knowledge of these facts he contravened the provisions of the section.

Lim Yu Leong v Public Prosecutor 1 JLR 21 High Court, Batu Pahat (Reay J).

Wolfgang Pzetzholdt v Public Prosecutor [1970] 2 MLJ 195 High Court, Malacca (Sharma J).

See CUSTOMS AND EXCISE, Vol 6, para 188.

The appellant was charged before the learned President of the Sessions Court, Johore Bahru, on two charges, namely (a) for failing to declare under s 99 of the Customs Ordinance 1952 dutiable goods and thereby committing an offence under s 129(1)(e) and punishable under s 129(1) of the ordinance, and (b) for denying to be in possession of dutiable goods and thereby committing an offence under s 131(1)(f) and punishable under s 131(1)(i) of the said ordinance. He was convicted on both charges and the dutiable goods (gold) were confiscated. On appeal against conviction and sentence,

Held: (1) the appellant having made a false declaration, it was not incumbent upon the customs authorities to give him an opportunity to correct it by waiting until he attempted to leave the customs area before proving that it was false; (2) when the appellant replied that he had nothing, when in fact he was carrying gold which was dutiable and which he well knew was dutiable, he had denied that he had any dutiable goods in his possession; (3) appeal against conviction should be dismissed, but appeal against sentence should be allowed to the extent that the appellant's character and clean record had to be taken into consideration. Observations on the admissibility of evidence of similar facts.

Kan Sik Fong v Public Prosecutor [1961] MLJ 163 High Court, Johore Bahru (Adams J).

The Customs Duties (Exemption) Order 1953 provides that persons entering the Federation can take in without paying duty used portable articles, if imported in the baggage or on the person of the passenger and provided that the proper officer of customs is satisfied that the articles were such that a passenger might reasonably carry with him for his own regular and private use. The question in this case was whether the respondent had committed an offence in not declaring the two bangles which she was wearing in such a manner as not to be visible when she proceeded to the mainland from Penang. At the trial, the learned President of the Sessions Court acquitted her and against this acquittal the Crown appealed.

Held: (1) every passenger proceeding to the mainland is bound to declare all dutiable articles which he has with him and even used portable articles, if dutiable remain liable to duty until they have been declared and allowed to pass by a customs officer; (2) therefore the respondent in this case was wrongly acquitted.

R v Hor How Choo [1955] MLJ 62 High Court, Penang (Spenser-Wilkinson J).

Abu Bakar bin Nazmeer v Public Prosecutor [1970] 2 MLJ 216 High Court, Penang (Ong Hock Sim J).

See CUSTOMS AND EXCISE, Vol 6, para 211.

The plaintiff entered into an agreement with Mitsubishi wherein Mitsubishi appointed the plaintiff as the importer and distributor of its vehicles and spare parts ('the goods') into Malaysia. Mitsubishi in turn appointed an agent ('the agent') as its authorized agent to supply the goods to the plaintiff. To finance its operations, the plaintiff entered into an agreement with Sunrock whereby Sunrock would purchase the goods from the agent and retain ownership over them. The goods would, however, be consigned by the agent to the plaintiff which would then purchase them from Sunrock at a price equal to the amount paid by Sunrock to the agent ('the purchase price') plus a margin of 1%. Pursuant to s 78 of the Customs Act 1967 ('the Act'), the plaintiff has paid customs duty for the importation of the goods based on the purchase price declared by the plaintiff to have been paid to Sunrock, which did not include the margin of 1%. In March 1992, the second defendant informed the plaintiff that duty was also payable on the margin of 1% which the plaintiff had failed to declare. The plaintiff was also informed that for its part in failing to declare, an offence under s 135(1) of the Act had been committed but the second defendant was agreeable to have the offence compounded. The plaintiff refused to pay the duty imposed on the margin of 1% and applied, inter alia, for a declaration that customs duty was not payable on the margin imposed by Sunrock. The plaintiff also contended that as the claim by the defendants was made under s 17(1)(a) of the Act, it had to be made within three years from the date on which the duty was payable. As the three-year period had passed, the claim was time-barred.

Held, dismissing the plaintiff's application: (1) s 17(1)(a) refered generally to unintentional errors made by the plaintiff resulting in the short payment of customs duty. Here the defendants were not alluding to any error but merely contended that since duty was leviable on all imported goods, the plaintiff was statutorily obliged under s 78 of the Act to declare the value of the goods and pay the duty leviable thereon. Since the defendants were not acting under s 17(1)(a), the issue of time bar did not arise at all; (2) the plaintiff's documents testified to the fact that the 1% margin was the commission payable to Sunrock. Under s 2 of the Act, such commission had to be accounted for to fix the value on which duty was leviable and had to be declared by the plaintiff under s 78 of the Act, and failure to do so would constitute an offence under s 135(1)(g) of the Act.

United Straits Fuso Sdn Bhd v Timbalan Pengarah Kastam, Malaysia & Ors Originating Summons No R2-24-71-93 High Court, Kuala Lumpur (Siti Norma Yaakob J).

In this case, it was

Held: (1) where a declaration is untrue as to value, description, and country of origin, it was desirable to have three separate counts; (2) it was the 'value' of the goods as defined in the interpretation section of the Customs Ordinance and not the purchase price which was relevant.

Kwan Fook Sing v R [1957] SCR 82 Supreme Court, Sarawak, North Borneo and Brunei

Section 20 of the Excise Enactment 1907 comes within the class of statutes which make masters liable for acts of their servants in respect of which no mens rea can be imputed to the master and impose on an exporter an unconditional obligation to furnish a true account of goods liable to duty. The employer is liable even though his clerk may have furnished the false account for his own ends.

Ang Lock Toon v Public Prosecutor [1915] 1 FMSLR 199 High Court, Federated Malay States (Innes JC).

The first appellant authorized the third appellant under s 124 of the Customs Enactment 1936 to take delivery of imported goods through the customs. The third appellant in turn similarly authorized the second appellant, who was his clerk. The second appellant made a false declaration in respect of the goods. By s 124(iv) of the enactment, a principal is liable for the acts of his clerk, servant or agent.

Held: as the provisions of the subsection constitute an exception to the general rule in criminal matters that mens rea must be proved, its provisions must be strictly interpreted. As no authority was given by the first appellant to the second appellant, the latter was never authorized by the first appellant in the particular manner required under s 124. The law of agency which appertains to civil contracts cannot be applied for the purpose of establishing criminal liability for an agent's acts without proof of scienter.

Arthanarisami Chettiar v Public Prosecutor [1940] MLJ 67 High Court, Federated Malay States (Terrell JA).

Ting Seh Hing v Public Prosecutor [1985] 1 MLJ 463 High Court, Kuala Belait (Roberts CJ).

See CUSTOMS AND EXCISE, Vol 6, para 73.

The respondent was charged with having made a declaration under s 30 of the Customs Enactment (No 5 of 1936) which was false and therefore punishable under s 113(i)(a) of the Customs Enactment. On appeal against his acquittal it was argued for the appellant that the words 'required by this enactment to be verified by signature only' in s 113(i)(a) are annexed only to the words 'other document' and not to the words 'declaration certificate' and that an offence could be committed without signature.

Held: (1) the subsection is ambiguous and the ambiguity must operate in favour of the accused. For the respondent it was argued that he was not the 'person in charge' and that only the 'person in charge' could commit an offence under the section; (2) if a person other than the 'person in charge' chooses to make the declaration, an offence is committed.

Public Prosecutor v Lee Seang Joo [1941] MLJ 156 High Court, Federated Malay States (Murray-Aynsley J).

The onus of proving the falsity of the customs declaration lies on the prosecution.

Lew Wee Chin v Public Prosecutor [1937] MLJ 182 High Court, Johore Bahru (Laville Ag J).

The accused Wong Ki Chin was charged with two charges under s 129(1)(a) of the Customs Ordinance 1952 of making a false declaration regarding the contents and value of 60 cases of goods and also with exporting 50 (out of 60) cases of prohibited goods under s 131(1)(a). His two employers were also charged with similar charges but the charges against them were withdrawn before the hearing began and they were discharged and acquitted. Wong Ki Chin was convicted on the first and third charges and fined RM500 on each charge and the 60 cases were ordered to be forfeited. Wong Ki Chin appealed against his conviction, sentence and order of forfeiture, and the Crown appealed against the inadequacy of the sentence. One of the grounds of appeal was against the order of the learned President in rejecting the plea in bar raised by Wong Ki Chin to the effect that the two employers having been acquitted there could be no conviction against the employee Wong Ki Chin.

Held, (1) on this point: only if the master must, in all possible circumstances, be liable for the act of his servant might it be possible to say that the acquittal of the master must result in the acquittal of the servant. On the order of forfeiture, it was argued that the subject matter of the offence of making a false declaration was the declaration itself and not the goods in respect of which the declaration was made; (2) the 50 cases were forfeitable in respect of s 129 as well as s 131 of the Customs Ordinance. As regards the ten cases which were correctly declared, there was insufficient evidence to show that they were deliberately put forward in order to procure the passing through of all the 60 cases; (3) on the question of sentence, s 131(1)(iii) of the Customs Ordinance provides that the minimum fine shall not be less than RM5,000 except where the value of the goods is small in which case the minimum fine will be less than RM5,000.

R v Wong Ki Chin [1955] MLJ 39 High Court, Penang (Spenser-Wilkinson J).

The appellant, a clerk in the forwarding department of a lighterage and stevedoring company, signed a set of customs declaration forms as agent for the importers. The declarations were signed by the appellant at Penang and tendered to the customs at Butterworth by the driver of the lorry. The declaration was found to be incorrect and the appellant was charged and convicted for making a false declaration. On appeal it was argued that: (a) the declaration was not one required by the ordinance for the purposes of s 129(1)(a) of the ordinance, and (b) the 'Customs Warehouse, Butterworth' specified in the charge was not a place of import within the proviso to s 75 of the Customs Ordinance in the absence of evidence to that effect.

Held: (1) the declaration was one required by the ordinance for the purpose of s 129(1)(a) of the Customs Ordinance 1952, as it was a declaration enjoined by the proviso to s 75(1) of the ordinance; (2) Butterworth was the place of import for the purposes of s 24 of the Customs Ordinance 1952, by virtue of Part XVII of the ordinance which set out the special provisions dealing with Penang.

Mohamed Abdullah v Public Prosecutor [1965] 2 MLJ 260 High Court, Penang (Ong Hock Sim J).

In this case, the court

Held: (1) s 124 of the Customs Ordinance 1953 provides the penalty for making any incorrect declaration, whether it is a declaration under ss 49, 53, 85 or a declaration under ss 71 to 77; (2) under the provision of s 124(1)(a), the weights declared must be accurate; (3) an over-declaration of weights is an inaccuracy within the meaning of s 124(1)(a) of the ordinance; (4) the material time at which the weight declared should be accurate for the purposes of s 124 of the ordinance is the time when the declaration is made to the customs authorities, and not the time of weighing by the exporter.

Fung Kah Cheng v R [1958] SCR 9 Supreme Court, Sarawak, North Borneo and Brunei

The appellant was convicted of an offence under s 133(1)(a) of the Customs Act 1967 for signing a customs import declaration containing incorrect particulars. The appellant only declared 21 tons of goods contained in 1,000 cartons valued at RM21,805.22 when in fact there were 29.7 tons valued at RM30,838.81. The magistrate released the appellant on bond of good behaviour for one year in the sum of RM1,000 with one surety. The goods were also forfeited. The appellant appealed against his conviction and sentence while the prosecution appealed against sentence. The 1,000 cartons were all of standard packing and the prosecution witnesses testified that out of the 1,000 cartons, they had weighed the whole contents of 12 cartons, each of which weighed 29.7kg. The appellant argued, inter alia, that the presumption under s 120 of the 1967 Act could not be invoked in this case. Section 120 of the 1967 Act, inter alia, provideD that it was sufficient to examine and test the contents of 10% of 'each description of package or receptacle' in which the goods are contained, and the court shall presume that the goods in the unopened packages or receptacles were the same as those found in the similar packages or receptacles which had been opened.

Held, dismissing both appeals: (1) the essence of the charge was the weight of the goods as declared. The offence was committed upon proof of particulars being incorrectly declared; (2) in the context of this case the phrase 'each description of package or receptacle' in s 120 of the 1967 Act was a carton. The evidence showed that the whole contents of the 12 cartons were tested and not just the 10% of each of the 12 cartons. Accordingly the requirement needed to invoke s 120 of the 1967 Act, had been complied with; (3) on the facts and circumstances of this case, the magistrate had not wrongly exercised her discretion to sentence the appellant under s 294 of the Criminal Procedure Code (FMS Cap 6).

Tan Khoon Eng v Public Prosecutor [1992] 2 MLJ 132 High Court, Kuching (Chong Siew Fai J).

A was charged with making an incorrect declaration regarding the quantity of beer imported in a particular container. The defence was that the bill of lading had mistakenly transposed the quantities in two different containers. Thus, 1,904 cartons was stated to be in container X and 1,600 in container Y when in fact container X held the smaller number of cartons. A was allowed to amend the permit in respect of container X to reduce the number of cartons declared to 1,600. She was not allowed to amend the permit in respect of container Y and was prosecuted for under-declaring the amount imported. A was acquitted by the trial judge. The prosecution appealed.

Held, dismissing the appeal: (1) s 128(2) of the Customs Act (Cap 70) did not create a strict liability offence; (2) A's defence was that she did not know that the declaration was incorrect as she had relied on the bill of lading and the invoice. The section did not preclude this defence; (3) in the present case, Customs should have allowed A to amend both permits when the mix-up was discovered. It was not appropriate that they should be allowed to prosecute A for the incorrect declaration.

Public Prosecutor v Toon Lee Pink Magistrate's Appeal No 151 of 1990 High Court, Singapore (KS Rajah J).

The accused presented at the customs office in Johore Bahru a declaration of goods to be imported to the value of RM409.50 together with nine packages of goods. These and the invoices to cover the goods were detained for clearing the next day. The accused also stated that the declaration was not correct as one box had been omitted and that he would hand in another declaration the next day. The next morning the senior customs officer checked the goods and found that there were many more than had been entered in the declaration and that the values in the declaration were all less than those given by the invoices. At 8.45 am that morning, the accused appeared at the customs office with a fresh declaration giving correct values for all the goods detained. He was subsequently charged with being knowingly concerned in an attempt to evade customs duty and was convicted. He appealed.

Held: the preparation of an incorrect customs declaration is not conclusive evidence of an intention to use it for an improper purpose, and that, if there is a reasonable explanation of all the circumstances, such explanation must be accepted.

Sung Song Ling v Public Prosecutor [1948] MLJ 51 High Court, Malayan Union (Laville J).

One WH Ltd contracted with the army to carry out certain works at Terendak Camp, Malacca, and in respect of the said works required plate glass (dutiable goods) which had to be imported from Singapore. The army authorities endorsed a declaration form claiming exemption from duty (under Customs Duties Exemption Order 1959) showing the quantity of plate glass required and sent it to WH Ltd in Singapore. The declaration form was signed in Singapore by the first respondent who was at all times the director of WH Ltd. The form was then sent to AG & Co who supplied the glass. AG & Co through the second respondent packed and handed the glass together with the declaration form to a transport company for transportation to Malacca. At the Johore Bahru customs gate it was found that the quantity of plate glass was considerably in excess of the quantity shown in the declaration form. The respondents were charged under s 129(1)(a) and alternatively under s 129(1)(e) of the Customs Ordinance 1952. The learned magistrate acquitted both respondents because he was of the view that the importer was AG & Co and not the respondents. On appeal by the Public Prosecutor,

Held: (1) the first respondent as director of WH Ltd signed the declaration form which he knew was a declaration of dutiable goods. Having put forward himself as the importer by signing the declaration he was responsible for the actual quantities described in the form which was prepared by his agent in Malacca; (2) the signing of the declaration form at Singapore and its presentation at Johore Bahru was a continuous act culminating in an act committed within the jurisdiction of the court at Johore Bahru. Observations on what the prosecutor need prove under s 129(1) of the Customs Ordinance.

Public Prosecutor v Yong Nam Seng & Anor [1964] MLJ 85 High Court, Johore Bahru (Azmi J).

The appellant was manager of a company carrying on business as dealers in cotton goods in Singapore. He sold certain goods to four firms trading in the Federation amounting according to the invoices to RM847. These goods and invoices were to be delivered in the Federation by the proprietor of a transport business in Singapore. In the course of transportation the goods were checked at Johore Bahru. The customs officer thought that there was an under valuation and after investigations made by him he made his own assessment at RM1,192.50, the difference in duty being RM80.53. The appellant was subsequently charged under s 129(1)(a) and s 136(1) of the Customs Ordinance 1952 and the proprietor of the transport business under s 129(1)(a) of the said ordinance and both were found guilty the appellant being fined RM200 or one month's imprisonment and the proprietor of the transport business was cautioned and discharged under s 173A(ii)(a) of the Criminal Procedure Code. On appeal,

Held: (1) the magistrate's court at Johore Bahru had no jurisdiction to try the appellant because the actus reus took place in Singapore; (2) the presumption under s 12(2) has been abundantly rebutted and for this reason also the appellant ought to have been acquitted; (3) it was impossible to hold that there was any relationship of principal and agent between the appellant and the proprietor of the transport business.

Lee Szu Yin v Public Prosecutor [1962] MLJ 49 High Court, Johore Bahru (Ong J).

The appellants were convicted of being concerned in the delivery of uncustomed goods to wit dutiable cigarettes which were not under customs control under s 113(1)(a) of the Customs Ordinance 1960 and fined S$5,000 each in default 12 months' imprisonment. The first appellant paid the fine but the second appellant did not and he had served more than half his sentence. On appeal it was argued for the appellants that: (a) the learned district judge was wrong in refusing an application made during the trial to view the locus in quo; (b) the learned district judge erred in law in amending the charge to one under s 113(1)(a) of the ordinance which applies only to delivery from or in connection with ships.

Held: (1) in this case no useful purpose would be served by viewing the locus in quo as photographs depicting the locus in quo were before the district judge and the locality and physical features were described by the witness; (2) s 113(1)(a) of the ordinance relates to delivery from or in connection with ships and not to the facts of the present case. As there was the clearest possible evidence of an offence under the ordinance a conviction under s 113(1)(d) was substituted.

Loo Lau Chai & Anor v Public Prosecutor [1963] MLJ 401 High Court, Singapore (Buttrose J).

In 1985, the applicant applied to the Lembaga Pelesenan Pengangkutan Jalan (`the Licensing Board') for a permit to run a limousine taxi service. On 18 April 1985, the Licensing Board issued a licence to the applicant. Pursuant to the granting of the licence, the Licensing Board imposed certain conditions, inter alia, that the relevant vehicles had to be manned by uniformed drivers who spoke English and that the vehicles were to be kept at the Tropical Inn and the Holiday Inn at Johor Bahru and picking up of passengers from unauthorized routes were disallowed by them. The licence covered three vehicles bearing registration numbers MB 9, MA 33 and MH 333. To ensure that the vehicles were exempt from any import duty, the applicant wrote to the Minstry of Finance for those privileges. The Chief Secretary of the Treasury pursuant to s 14(2) of the Customs Act 1967 and s 11 of the Excise Act 1976 granted the exemption from import duty. This exemption was subject to a variety of restrictions. Subsequently, the Customs Department through its own investigations found that MA 33 and MH 333 were kept at places which were not the business addresses of the applicant. Further investigations revealed that these vehicles were not used as limousine taxi cabs but for private purposes. As a consequence of the blatant disregard of the conditions imposed by the Licensing Board and the Minstry of Finance, the Customs Department imposed the excise duty over the three cars. The facts showed that the Customs Department had imposed the excise duty even before the licence was terminated by the Licensing Board. The applicant prayed for a declaration that the excise duty of RM105,341.81 by the respondent against the applicant be declared null and void and returned immediately.

Held, dismissing the application: (1) for the purposes of interpretation, it was trite law that where the words were precise and unambiguous, the literal and strict construction rule should apply. Perusing the conditions imposed by the Licensing Board, it was clear that if the applicant had breached any of the substantive provisions, the privileges pertaining excise duty would dissipate and thus the applicant would be required to pay up; (2) s 12 of the Excise Act 1976 was a reimposition of duty which had been exempted conditionally by the Minister of Finance pursuant to 11 of the Excise Act. The action of the Customs Department (which was under the portfolio of the Minister of Finance) to impose the duty was in consonant with the conditions imposed by the Licensing Board; (3) the conditions were also silent as to the necessity of the Customs Department to inform the Licence Board or to act accordingly only after having been told to do so by the latter; (4) (obiter) for the purpose of reimposing custom duty which had been initially exempted, s 14(2) of the Customs Act 1967 would be applicable. Why no custom duty was imposed as against the vehicle was beyond the court, but certainly the non-imposition meant a loss of revenue to the Government of Malaysia.

Calio Car Rentals & Tours Sdn Bhd v Pengarah Kastam & Eksais Negeri Melaka, Jabatan Kastam dan Eksais Diraja Malaysia & Anor Originating Motion No 25-206 of 1995—High Court, Melaka (Suriyadi J).

This was a prosecution under s 5 of the Entertainments Duty Proclamation. The defendant is the proprietor of a cafe providing music and vocal recitators inside an amusement park in Penang. Melon seeds were automatically served on customers who were charged an exorbitant price for them by means of a printed form of bill which apparently contemplated such a charge to every customer, and the charge paid for coffee was also excessive. The prosecution alleged that part of the price paid for the coffee and melon seeds must represent the price of a seat for the entertainment.

Held: (1) following the Trocadero case [1919] 1 KB 11, payment (whether excessive or otherwise) for melon seeds is not a payment in a lump sum or a payment for a ticket within the meaning of s 7 of the Proclamation; (2) in a prosecution, the strict law of proof in criminal proceedings must be applied. It cannot be inferred that the excessive charge for coffee and melon seeds must represent or includes a charge for admission to this cafe. Sections 3, 5 and 7 of the Proclamation distinguished.

R v Khoo Joo Tiang [1952] MLJ 237 High Court, Penang (Spenser-Wilkinson J).

There being no provision in the Customs Enactment 1936 enabling the court to deal with goods which have been seized but are not liable to seizure and no provision in the Criminal Procedure Code enabling a criminal court to transfer the ownership or possession of innocent goods the only course open to the magistrate in the present case was to order the return of the exhibits to the authority which had produced them, namely the customs authority.

R v Baichand [1952] MLJ 229 High Court, Penang (Spenser-Wilkinson J).

This was an application in the name of one FTC, a director of an import and export company ('the company') for an order of prohibition to prohibit the Director-General of Customs and Excise ('the DG') from further proceeding to recover S$130,241.30 by deduction from bankers' guarantees lodged by the company with the Customs and Excise Department ('the Customs') as security for charges payable under the Customs Act (Cap 70) ('the Act'). On or about 12 December 1987, the applicants removed a large quantity of cigarettes ('the goods') from a licensed warehouse and transported them to the port area of the Port of Singapore Authority for loading on board a vessel for export. This removal was supervised by Customs but the loading of the goods on board the vessel was not. In accordance with regulations, the applicants delivered to the Customs three outward declarations showing that the cigarettes had been loaded on board the vessel. Later, however, whilst in the course of reconciling outward declarations and ships' manifests supplied by shipowners or their agents, a customs officer discovered that the goods had not been entered in the manifest of the vessel supplied by a company called TTS who were the agents of the vessel. The DG then made inquiries with TTS and later asked the applicants to provide evidence that the goods had been exported. The applicants submitted an undated document signed by a Sibu businessman certifying that on 15 December 1987, he had received and paid for the said goods. Correspondence between the DG and the applicants concluded with the DG stating that they were satisfied that the goods were never exported and requested the applicants to pay duty amounting to S$130,241.30. The applicants then took out an ex parte application for leave to apply for an order of prohibition.

Held, allowing the application: (1) s 27 therefore was not intended to affect the court's jurisdiction in judicial review proceedings; (2) the test as to amenability to prohibition was whether the tribunal concerned was exercising a public duty. The DG was a public officer appointed to discharge public duties under the Act and was therefore amenable to an order of prohibition; (3) the correct interpretation of 'evidence' in the context of reg 12(6) of the Customs Regulations 1979 was that the DG had a discretionary power to assess and evaluate all the evidence and decide whether such evidence was sufficient or otherwise to prove that goods had indeed been exported. This interpretation gave effect to the purpose of the second limb of reg 12(6) which provided the two situations giving rise to a liability to pay customs duty; (4) it was a tax statute. Whether dutiable goods had been exported was a question of fact. Whether that particular fact existed depended on whether it could be proved by evidence and not by belief. Regulation 12(6) provided that the exporter had to pay customs duty on dutiable goods which he could not account for to the satisfaction of the DG. That required the exporter to produce evidence to account for the export in order to satisfy the DG; (5) the expression 'satisfaction' in reg 12(6) was not to be measured in terms of reasonableness but in terms of justification on the evidence. Regulation 12(6) was a 'precedent fact' case. The DG had to establish the fact of non-export before the exporter became liable for customs duty. The function of the court in such a case was not to decide whether there was evidence on which the DG could reasonably have come to the decision (provided there was no breach of natural justice) but to decide whether the decision was justified on the evidence; (6) however, since the applicants did not argue on the basis that reg 12(6) was a 'precedent fact' case, the applicants' case was examined on the basis that it was a case where the DG had a discretionary power to decide whether the evidence produced by the applicants accounted for the export of the goods. The test of validity of the DG's demand was whether the DG could reasonably have come to his decision on the evidence before him. There had to be a factual basis for making the evaluation and the court was entitled to inquire into the existence of the facts upon which the evaluation was made; (7) the applicants had now produced ample evidence of export which had never been investigated by the customs officer. Even assuming that the court was not entitled to have regard to the applicants' evidence produced after December 1988, the applicants had tendered evidence that could prove the fact of export of the goods. But the DG did not believe TKM (a director of the applicants) or his documents, and did not interview TKM or examine the documents. He preferred the evidence which tended to prove non-export to evidence which tended to prove the contrary, without an investigation of the latter evidence; (8) s 27 of the Government Proceedings Act (Cap 121) affected 'civil proceedings' and did not include judicial review proceedings;the condition of 'satisfaction' under reg 12(6) was concerned with an inquiry as to a fact, ie whether dutiable goods had been exported. The Act was a law which imposed customs duty on dutiable goods imported into Singapore;the customs officer had misdirected himself on the nature and effect of the evidence required under reg 12(6) to prove the export of the goods. This was a misdirection as to the law. He also failed to investigate fully the evidence produced by the applicants. He did not give a fair hearing to the applicants. On the affidavit evidence produced by the applicants in these proceedings, the DG could not reasonably have come to his conclusion without hearing.

Re Fong Thin Choo [1992] 1 SLR 120 High Court, Singapore (Chan Sek Keong J).

The defendant imported into the state a quantity of liquor. He failed to pay the import duty and the liquor was therefore deposited in the customs bonded warehouse. After the liquor had been stored for six months it was sold by public auction under the provisions of s 14 of the Customs Regulation Enactment 1907. The amount realized by the sale was not sufficient to defray the duty chargeable and a suit was brought to recover the balance of duty due.

Held: the Legislature had imposed duties on articles under s 3 of the Customs Duties Enactment 1898, and that the only means it had thought fit to grant for the recovery of duty upon goods placed in bond and not removed within six months was by sale of the goods; and that there was therefore no personal liability created by the enactment.

State of Selangor v Lim Yeow Chai [1916] 1 FMSLR 289 High Court, Federated Malay States (Braddell CJC).

This appeal arose from the decision on an inquiry under s 83(3) of the Liquors Revenue Ordinance regarding the disposal of a motor car which was seized by a customs party on 21 May 1954. At about 9.10 pm on that day the car in question appeared on the scene and stopped at a shop at Spottiswoode Park. A male Chinese alighted from the car and went to the rear and opened the luggage boot of the car. Just then the customs party which lay in wait nearby came out of hiding and the male Chinese together with another Chinese who came out from the front seat of the car bolted. The revenue officers gave chase but failed to apprehend the persons. In the luggage boot of the car were found 14 one-gallon tins of samsu. The car and samsu were seized and the seizure was reported to the court under s 83(3) of the Liquors Revenue Ordinance. The appellant in response to the notice inviting claims against the article seized claimed the car and she was ordered to show cause as to why an order of forfeiture should not be made in respect of the said car. The nature of the liquid found in the car was proved by a certificate of the government chemist. Although the person or persons who committed the offence had not been arrested and brought to justice the learned magistrate found that an offence had been proved in respect of the dutiable liquor found in the luggage boot of the car and he ordered a forfeiture under s 83(1) of the ordinance. He also found that the prosecution had shown that an offence under the ordinance had been committed in respect of the liquor and the car and that the car had been seized by a revenue officer and he therefore ordered forfeiture of the car. The appeal was on the grounds that the learned magistrate erred: (1) in ordering forfeiture on the strength of the general words used in the analyst's certificate of his findings in respect of the liquor; (2) in law in holding that s 83(1) of the Liquors Revenue Ordinance applied when there was no accused person or persons before the court and no conviction.

Held: (1) the order must be set aside on the ground that the nature of the liquid found in the car was proved by a certificate of the analyst which was not admissible in this case; (2) the learned magistrate had no jurisdiction to decide whether a forfeiture had taken place as s 69 of the Liquors Revenue Ordinance merely enables a magistrate's court to order a forfeiture where such forfeiture arises out of an order of a court.

Choo Sai Boey v R [1954] MLJ 263 High Court, Singapore (Murray-Aynsley CJ).

The appellants were charged with being concerned in an attempt at fraudulent evasion of customs duties by declaring over-issued newspapers as over-issued magazines. A certificate was produced that the goods were over-issued newspapers. The learned President of the Sessions Court acquitted the appellants on the ground that he was not satisfied that the goods were over-issued newspapers but he ordered them to be forfeited. The appellant appealed against the order for forfeiture.

Held: the learned President in this case had failed to come to any finding of fact one way or the other and therefore, acting in revision, the court should set aside the order of acquittal and order a retrial.

Tan Seng Tin & Ors v Public Prosecutor [1970] 1 MLJ 100 High Court, Penang (Ong Hock Sim J).

The accused was convicted of attempting to export motor tyres in contravention of the Prohibition of Export Order 1949. The magistrate refused the application of the prosecution for an order of forfeiture. Subsequently a separate application was made under s 108 of the Customs Enactment 1936. The magistrate again refused to make an order for forfeiture.

Held: under s 108(iv) of the enactment, unless the claimant can prove that he is the owner and that the goods are not liable to forfeiture, it is the duty of the court to carry out the machinery provided by s 108 by ordering a forfeiture.

R v Ang Eng Keat [1953] MLJ 1 High Court, Penang (Spenser-Wilkinson J).

Public Prosecutor v Mohd Omar Lopez [1993] 1 CLJ 222 High Court, Kuching (Chong Siew Fai J).

See CUSTOMS AND EXCISE, Vol 6, para 116.

Syed Abdullah v Public Prosecutor [1964] MLJ 48 High Court, Kota Bharu (Hashim J).

See CUSTOMS AND EXCISE, Vol 6, para 177.

The appellant and the captain of the vessel in which rice belonging to the appellant was carried, were both charged under s 69(c) of the Customs and Excise Enactment, Trengganu, but were acquitted by the learned district judge on the ground that no intent to evade the prohibition had been proved. The learned district judge, however, found that the rice was imported, that there was no licence or permit to import and that the vessel carrying the rice was anchored off Pulau Kapas (an island forming part of the state of Trengganu) and he therefore dealt with the rice the subject of the charge in the following way: 'No order made as to the rice which is a prohibited article imported without licence'.

Held: the effect of the learned district judge's findings was that he deemed an offence under s 69(b) of the Customs and Excise Enactment, which makes it an offence to be concerned in importing any goods contrary to the provisions of the enactment, to have been committed and that being so, he had no discretion under s 75(1) of the enactment but to order confiscation of the rice.

Aw Yock Beng v Public Prosecutor [1947] MLJ 121 High Court, Malayan Union (Brodie Ag J).

The first, second, third, fourth and fifth defendants were charged with an offence under the Customs Act 1967. The fourth defendant was the owner of the boat which was allegedly used to carry the goods. The fifth defendant was the owner of the goods which were allegedly the subject matter of the offence charged. The boat and the goods were seized by the police. Without the knowledge of the first, fourth and fifth defendants, the second and third defendants pleaded guilty to the charge in the magistrate's court. The magistrate, inter alia, forfeited the boat and the goods pursuant to the pleas by the second and the third defendant. The first, fourth and fifth defendants claimed trial. The fourth and fifth defendants applied to the High Court to revise the forfeiture order of the magistrate on the ground that the forfeiture order should not have been made before the case against the other co-accused was disposed of. The fourth and fifth defendants argued that the forfeiture order deprived them of being heard relating to their rights to the boat and the goods.

Held, dismissing the application for revision: (1) under ss 127(1) and 128(4) of the 1967 Act, before a forfeiture order could be made, two conditions had to be fulfilled. Firstly, there had to be an offence committed under the 1967 Act or any regulations made thereunder. Secondly, the goods to be forfeited were the subject matter of the offence or were used in the commission of the offence. Once these conditions were fulfilled it was mandatory for the court to make a forfeiture order. The court did not have a discretion to give the owner or anyone else who might have a legitimate interest in the goods an opportunity to show cause why the goods should not be forfeited; (2) in this case an offence under the 1967 Act had been committed since the second and third had pleaded guilty to the charge. The 1967 Act did not specify that before a forfeiture order could be made, the owner had to be guilty of an offence; (3) the goods were the subject matter of the offence and the boat was used in the commission of the offence. This was ascertained from the facts tendered by the prosecution and admitted to by the second and third defendants after they had pleaded guilty.

Public Prosecutor v Hamzain bin Yusoff & Ors [1991] 2 CLJ 1596 High Court, Johore Bahru (James Foong JC).

See customs and excise, para I [52].

Public Prosecutor v Guan Sheng Trading Sdn Bhd [1997] 4 MLJ 20 High Court, Johor Bahru (Abdul Malik Ishak J).

R v Hor How Choo [1955] MLJ 62 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 40.

Yap Yoon Lin v R [1954] MLJ 59 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 28.

The respondent, the driver of car DG 899 Model Datsun 220C, was convicted and fined for failing 'to comply to the signal of the proper officer of customs and signboard ... requiring the said vehicle ... to stop for customs examination ... an offence under s 111A(2) of the Customs Act 1967 and punishable under the same Act'. The car was abandoned after a chase. Goods were found in the car. They were suspected to be dutiable and therefore the car was lawfully seized. But the goods were subsequently released upon proof that duty had been paid. The car DG 899 which the respondent used at the time of the commission of the offence was ordered to be returned to the respondent. The Public Prosecutor appealed against the magistrate's order returning the car.

Held: (1) no offence having been committed in respect of the said goods, the car should have been released; (2) no question of forfeiture arises under s 127 of the Act and the order of the magistrate returning the car to the respondent is confirmed.

Public Prosecutor v Mat Nawi bin Ismail [1987] 2 MLJ 366 High Court, Kota Bharu (KC Vohrah J).

On the order of forfeiture, it was argued that the subject matter of the offence of making a false declaration was the declaration itself and not the goods in respect of which the declaration was made.

Held: the 50 cases were forfeitable in respect of s 129 as well as s 131 of the Customs Ordinance 1952. As regards the 10 cases which were correctly declared, there was insufficient evidence to show that they were deliberately put forward in order to procure the passing through of all the 60 cases.

R v Wong Ki Chin [1955] MLJ 39 High Court, Penang (Spenser-Wilkinson J).

On 10 December 1991, a motorlorry and trailer arrived at the import examination bay of the Johor Bahru customs from Singapore. An examination was conducted and 450 pieces of raw particle boards (`the boards') and several other goods were discovered. Only the boards tallied with the declaration of imported goods (exh P1). A hearing was conducted by summons under s 128(4) of the Customs Act 1967 (`the Act') and at the conclusion of that hearing, the magistrate released the motorlorry and the tralier to the owners (the respondent in this case). Although the summons in support of the proceedings under s 128(4) of the Act specifically referred to an offence under s 135(1)(g) of the Act which was said to have been committed and no prosecution was instituted thereunder, the magistrate did not consider whether an offence would arise under 135(1)(g) of the Act. The prosecution appealed.

Held, allowing the appeal: (1) in proceedings pursuant to s 128(4) of the Act, the function of the magistrate was to examine the matter pertaining to the claim by the owner of the goods seized. In doing so, he had to satisfy himself that first, an offence against the Act had been committed and secondly, either (i) the goods were the subject mater of the offence, or (ii) where the claim related to the conveyance, such conveyance was used in the commission of the offence; (2) once an intention to defraud the government of duties or to evade any prohibition was established by the prosecution, an offence under s 135(1)(g) of the Act was said to have been committed and it was the duty of the prosecution to prove that the defendant was concerned in any fraudulent evasion; (3) in s 135(1)(g) of the Act, `fraudulent' meant that a false representation had been made (i) knowingly; or (ii) without believe in its truth; or (iii) recklessly, careless whether it was true or false; (4) fraudulent evasion was established if the prosecution proved fraudulent conduct in the sense of dishonest conduct deliberately intended to evade prohibition or restriction with respect to, or the duty chargeable on, the goods. While it was the duty of the prosecution to prove the intent to defraud, the intent could be presumed from the evidence; (5) on the question of proof and the likely presumptions which could be invoked for the proceedings under s 128(4) of the Act in this case, the court might by reason of s 128(5) of the Act, invoke the use of s 119 of the Act. Based on the application of s 119 of the Act, the burden of proof thereof should lie on the respondent and it was for the respondent to show the court that (i) the customs duties had been paid in relation to the goods; or (ii) the goods had been lawfully imported; or (iii) the goods were exempt from duty under s 14 of the Act. On the facts of the case the respondent had failed to discharge the burden of proof that had shifted to them under s 119 of the Act; (6) In this case the magistrate in an apparent oversight failed to take into account the evidence of fraud on available evidence and there was abundant material available to hold that there was indeed fraud perpetrated; (7) the innocence of the respondent would not entitle them to the return of the motorlorry and the trailer. The court strictly construed s 127(1) of the Act against the respondent. The goods were the subject matter of an offence under s 135(1)(g) of the Act and the motorlorry together with the trailer came within the definition of `goods' in s 2 of the Act as `goods' included `a conveyance of any kind in any circumstances'. As the motorlorry and the trailer were used in the commission of such offence, consequently, it was mandatory to forfeit both the said vehicles. (8) (per curiam) under s 127(1) of the Act, notwithstanding that no person might have been convicted of an offence, forfeiture was mandatory so long as `the goods were the subject matter of or were used in the commission of the offence'.

Public Prosecutor v Guan Sheng Trading Sdn Bhd [1997] 4 MLJ 20 High Court, Johor Bahru (Abdul Malik Ishak J).

The appellant pleaded guilty to two charges under the Customs Enactment No 5 of 1954, firstly with making a false customs declaration contrary to s 124(1)(a) and secondly with attempting to export uncustomed goods contrary to s 126(1)(a) of the enactment. The magistrate imposed fines and ordered the forfeiture of the goods and a truck used in the commission of the offence against s 126. This appeal was against the order for forfeiture of the truck.

Held, dismissing the appeal: (1) the magistrate was correct in concluding that an offence under the enactment had been committed and that the truck falls within the expression 'the goods were used in the commission of the offence'; (2) the wording of s 118 imposes an obligation on the court to order forfeiture of the vehicle, once the conditions of s 117 are satisfied, whether or not there is an application for forfeiture by the prosecution.

Ting Seh Hing v Public Prosecutor [1985] 1 MLJ 463 High Court, Kuala Belait (Roberts CJ).

Articles which were liable to customs duty were placed in a lorry and concealed by 160 bags of poultry food which was not liable to customs duty. On a question whether a forfeiture order could be made in respect of the 160 bags of poultry food under the Customs Ordinance 1952,

Held: as the bags of poultry food were specially arranged to deliberately conceal the dutiable articles they were goods liable to seizure under s 110(4) of the Customs Ordinance and therefore subject to forfeiture under s 122 of the same ordinance. The prosecution need not show in such a case that the non-dutiable goods were specifically bought for the purposes of concealing the dutiable goods.

Public Prosecutor v Wong Kong Yoong [1964] MLJ 63 High Court, Johore Bahru (Azmi J).

When a contraband offence has been proved and application is made for forfeiture of a vehicle the registered owner is the proper respondent and he should be required to show cause unless he has in fact no interest in the property. Any other person claiming a proprietory interest, eg a hire purchase vendor, may appear and be heard. Where there is more than one owner, the vehicle should not be released unless all the owners are not only innocent of complicity in the actual offence but innocent of connivance or giving facilities.

Public Prosecutor v Tan Chin Seng [1951] MLJ 84 High Court, Selangor (Taylor J).

Tai Theong & Anor v R [1947] MLJ 11 High Court, Singapore (Brown J).

See CUSTOMS AND EXCISE, Vol 6, para 149.

Public Prosecutor v Lee Wye Kheng [1978] 1 MLJ 38 High Court, Alor Star (Syed Agil Barakbah J).

See CUSTOMS AND EXCISE, Vol 6, para 189.

The appellant in this case was charged under the Excise Enactment (Cap 133) for having in possession 8.5 gallons of fermented toddy in a lorry. The accused pleaded guilty. The trial magistrate imposed a sentence of RM200 or one month imprisonment. He also made an order of forfeiture of the lorry in which the toddy was conveyed on the ground that the order of forfeiture was mandatory. The accused appealed against the order of forfeiture.

Held, allowing the appeal: (1) under the Excise Enactment an order of forfeiture was not mandatory but merely discretionary; (2) having regard to the quantity of the toddy conveyed and the fine imposed by the magistrate the order of forfeiture of the lorry as part of the sentence was manifestly excessive and must be quashed.

Khoo Tam Seng v Public Prosecutor [1970] 1 MLJ 5 High Court, Kuala Lumpur (Abdul Aziz J).

In this case, it was

Held: under s 117 of the Customs Ordinance 1953, if the court is satisfied that somebody, no matter who that somebody may be, has committed an offence in respect of goods, then the court must order the forfeiture of such goods and that this is so even though the owners of such have been acquitted of such offence.

R v Tan Long Cher @ Tan Long Choo & Anor [1958] SCR 60 Supreme Court, Sarawak, North Borneo and Brunei

The magistrate, having found the appellants guilty of offences under the Customs Ordinance 1953 in connection with goods seized, had no power to order the goods to be returned to the appellant. An order for their forfeiture was mandatory under s 117. The judge in the exercise of his powers of revision had authority to substitute for the magistrate's order for forfeiture.

Chai Min Chow & Chia Chiat v R [1956] SCR 40 Supreme Court, Sarawak, North Borneo and Brunei

A motor vehicle was used to carry cigarettes in respect of which one Tan Han Leong was found guilty of an offence under s 126 of the Customs Ordinance. The magistrate who tried the case stated a case for the opinion of the court whether the motor vehicle must be forfeited. The vehicle was the property of the employer of Tan Han Leong.

Held: the provisions of s 117 of the Customs Ordinance are mandatory and if the motor vehicle was used in the commission of the offence for which Tan Han Leong was convicted the magistrate must make an order for its forfeiture.

Re Tan Han Leong [1959] SCR 31 Supreme Court, Sarawak, North Borneo and Brunei

This matter came before the Court of Appeal as a result of a certificate given by the Public Prosecutor under s 34 of the Courts Ordinance 1948, and the court was asked to determine whether a magistrate, or a judge of the Supreme Court on an appeal from a magistrate may, when refusing an order of forfeiture under s 106 of the Customs Enactment 1936, order that the goods shall be released, and thereby preclude the operation of s 108 of the enactment.

Held: sub-s (ii) of s 106 and sub-s (v) of s 108 of Customs Enactment 1936 only enable the courts to order the forfeiture of goods, and that action can only be taken if it is proved to the satisfaction of the court that they were liable to seizure under the enactment. If goods seized are not, in fact, liable to seizure under the enactment, their release should follow as matter of law. The power to order release of goods liable to forfeiture is clearly and unequivocally vested only in the Executive.

Soon Chee Kong v Public Prosecutor [1951] MLJ 86 Court of Appeal, Federation of Malaya (Foster-Sutton CJ, Thomson and Wilson JJ).

At the conclusion of the trial under s 135(1)(e) of the Customs Act 1967 (`the CA 1967'), the magistrate made an order that the applicants be acquitted and discharged, and the order was subsequently affirmed by the High Court. The magistrate also made a further order that the security deposit of RM25,000 made for the release of vehicle no ME 1445Q pending trial of the case be forfeited under s 127(1A) of the CA 1967. Before the order was made the magistrate did not hold an inquiry to determine who was the true owner of the vehicle. The applicants contended that the order of forfeiture of the deposit was wrong in law on the grounds that: (i) there was no offence committed under s 135(1)(e) of the CA 1967; and (ii) there had been no inquiry held by the court to determine the true owner of the said vehicle.

Held, setting aside the order of forfeiture: (1) it was clear that under s 127(1) and (1A) of the CA 1967, forfeiture was mandatory if two conditions had been proved to the satisfaction of the court: namely (i) that the offence against the CA 1967 had been committed; and (ii) that the goods were the subject matter of or were used in the commission of the offence; (2) it was imperative that an inquiry be held by the court before an order of forfeiture was made - and sufficient care had to be given to the recording of particulars, facts and statements made by the relevant persons involved; (3) it was not the intention of the legislature that the court had to order the forfeiture of the vehicle that carried uncustomed goods without due inquiry to ascertain the true owner of the vehicle and the nexus between the vehicle and the offence.

Tiong Kung Cheu & Anor v Public Prosecutor Criminal Application No 44-01-96-1(SG)—High Court, Sri Aman (Muhd Kamil J).

This was an appeal by the Deputy Public Prosecutor against the order of the learned magistrate that a taxi, in which alleged dutiable liquor had been found, should be restored to the respondent, who was the driver of the taxi. On the hearing of the appeal, it was contended for the respondent that (i) the record failed to disclose that the car had been detained or seized and (ii) the certificate of the analyst was defective.

Held: (1) the certificate from the 'chemist' which was put in evidence in this case was inadmissible in evidence, as he was not a person whose certificate was admissible under s 427 of the Criminal Procedure Code (as modified by the Departmental Titles (Alteration) Ordinance 1937); (2) the certificate did not show that the alleged samsu was fit or intended for use as a beverage, which is one of the ingredients of the definition of 'intoxicating liquor' in the Ordinance and there was therefore no proof that the alleged samsu was 'intoxicating liquor'; (3) before an order for forfeiture of a vehicle can be made under s 83 of the Liquors Revenue Ordinance, it must be shown that (a) an offence has been committed and (b) the vehicle has been detained, and as in this case no offence has been proved to be committed and there was no express evidence that the vehicle had been seized, no order of forfeiture could be made.

Deputy Public Prosecutor v Tan Ah Guat [1947] MLJ 32 High Court, Singapore (Brown J).

Although the appellant was only a paid employee of the firm which owned the damar, he was an 'exporter' of the damar and as the offence was in connection with the export of the damar, the appellant was the only person who had a right to be heard. Section 357 of the Criminal Procedure Code (Cap 62) provides forfeiture but where an ordinance specially provides for forfeiture it is not open to a court to make use of the general powers under the Criminal Procedure Code to supplement the powers given under the ordinance. Section 107 of the Customs Ordinance 1947, which provides for the seizure of goods, has no application to the facts of this case. If goods are not liable to seizure they are not liable to forfeiture. The words in s 44 'if no account shall be rendered all such goods shall be liable to seizure' must be taken literally to mean 'no account whatsoever' and not 'no true and full account'.

Ho Tiew Cheng v R [1954] SCR 29 Supreme Court, Sarawak, North Borneo and Brunei

In all cases under the Customs Enactment the magistrate has a discretion as to the forfeiture of goods or vehicles. Beh Chang Hin v Public Prosecutor [1950] MLJ 239 followed. Public Prosecutor v Nai Hor Par (Application No 11 of 1947 (unreported)) not followed. Principles of punishment in revenue cases explained and applied.

Soong Chee Kong v Public Prosecutor; Ng Soon Sum & Anor v Public Prosecutor [1951] MLJ 5 High Court, Kuala Lumpur (Taylor J).

The plaintiff imported 1,840 cartons of cigarettes, ie prohibited goods, without a licence. The goods were kept in the free trade zone in Port Klang pending their onward transmission. The defendant issued a notice seizing the goods pending investigations under s 114(1) of the Customs Act 1967 ('the Act') and subsequently, under s 115(1)(b) of the Act, informed the plaintiff that the goods would be returned to the plaintiff on condition that: (i) the plaintiff pay the open market value of the goods, customs duty and tax, amounting to RM1,158,224.80 as security ('the security'); and (ii) the goods had to be re-exported. The plaintiff paid the security and, after the release of the goods, re-exported them. The defendant later informed the plaintiff that it had committed an offence under s 135(1)(a) of the Act for importing prohibited goods and that if it paid a compound fee of RM5,000 within 14 days, it would not be prosecuted, but the seized goods were to be forfeited; however, as they had already been re-exported, the security would be forfeited. The plaintiff refused to pay the compound fee, contending that: (i) it had not committed any offence; (ii) the security was not forfeitable since the plaintiff had already complied with the defendant's conditions regarding the release of the goods; and (iii) the Free Zone Act 1990 applied as the goods were stored in the free trade zone area. It applied for a declaration to that effect as well as the return of the security.

Held, allowing the plaintiff's application in part: (1) bearing in mind the subject matter of the dispute and the notices issued under ss 114 and 115(1)(b), the defendant had to be acting under the provisions of the Act and not the Free Zone Act 1990; (2) under s 131(3) of the Act, only goods seized were forfeitable but not the security. It appeared that the security under s 115 (1)(b) was to cover the situation where the court made an order for forfeiture of the security under ss 127(1A) or 128(4) of the Act; (3) in this case, under s 127(1A), the court could only consider forfeiture of the security upon proof of the commission of an offence against the Act or any regulation made thereunder. The defendant did not have the power to forfeit. If he wanted to forfeit the security, he should have charged the plaintiff in court and urged the court to order forfeiture. Instead, he had elected to compound the offence. Therefore, the security was to be returned to the plaintiff within one month, less the sum of RM5,000 in compound fees which the plaintiff had subsequently agreed to pay.

Atlantic Scope (M) Sdn Bhd v Director General of Customs and Excise Malaysia [1994] 3 MLJ 669 High Court, Kuala Lumpur (Siti Norma Yaakob J).

[Annotation: Affirmed on appeal. See [1995] 1 MLJ 835]

The respondent had applied for an order for the return of the security deposit of RM1,158,224.80 which it had paid to the appellant to obtain the release of 1,840 cartons of cigarettes which the respondent had imported without a licence and which the appellant had seized under s 114(1) of the Customs Act 1967 ('the Act'). The High Court judge granted the application with the order that the amount be returned less the sum of RM5,000 payable to the appellant as a compound fee to the offence allegedly committed by the respondent under s 135(1)(a). (See [1994] 3 MLJ 669.) The appellant had appealed against that order, contending that the trial judge had erred in not giving effect to ss 128(1) and 131(3) of the Act by ordering the forfeiture of the security deposit. The appellant argued that it was empowered to proceed under s 128(1) of the Act to forfeit the security deposit as the goods had already been released.

Held, dismissing the appeal: (1) the security deposit was called for under s 115(b) of the Act in the event of the court making an order for the forfeiture of such amount under s 127(1A) or s 128(4). Therefore, the judge could not possibly have acted under s 131(3) to order forfeiture under s 127(1A) or s 128(4). Furthermore, as no prosecution of the respondent ever took place, it followed that no order under s 127(1A) of the Act for forfeiture of the security deposit could be or was made; (2) s 128(1) was also not applicable as the forfeiture had to be be confined to the goods seized and the proceeds of sale under s 115(c) and did not include the security deposit provided under s 115(b). Furthermore, the effect of s 128(1) which deemed the goods seized or their proceeds of sale to be forfeited at the expiration of one calendar month, were lost by the words in s 128(1)(c), unless 'such goods are returned' under s 115(a) or (b). As the goods were returned to the respondent, the security deposit was not forfeitable.

Ketua Pengarah Kastam dan Eksais DiRaja Malaysia v Atlantic Scope (M) Sdn Bhd [1995] 1 MLJ 835 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, VC George and Abu Mansor JJCA).

The respondent company had been acquitted on a charge of being knowingly in possession of uncustomed goods. The company owned a ferry-boat which was sent for reconditioning in Singapore, where new equipment, including engines, were installed. Subsequently the ferry-boat was detained by the customs and the respondent company was charged. The learned President, Sessions Court, although he acquitted the respondent company, ordered the ferry-boat to be forfeited. The Public Prosecutor appealed against the acquittal and the respondent-company cross-appealed against the forfeiture.

Held: (1) the learned President was correct in acquitting the respondent-company as its officers and agent had no knowledge that the goods were uncustomed; (2) the items fixed to the boat were nevertheless uncustomed goods and the learned President was right in ordering the forfeiture of the boat.

Public Prosecutor v Kedah & Perlis Ferry Service Sdn Bhd [1978] 2 MLJ 221 High Court, Alor Star (Syed Agil Barakbah J).

Where a vehicle used in the commission of an offence had been seized by a customs officer under s 110 of the Customs Ordinance 1952, and if it is proved to the satisfaction of the court that the vehicle had been so used, s 123 of the said ordinance gives no discretion to the court, but renders an order for forfeiture mandatory.

R v Ng Hee Weng & Ors [1956] MLJ 85 Court of Appeal, Kuala Lumpur (Hill, Buhagiar and Good JJ).

The Public Prosecutor appealed against the decision of the magistrate to release the respondent's motor lorry and the trailer that was seized under the Customs Act 1967. The magistrate's hearing was conducted under s 128(4) of the Customs Act 1967. The facts of the case were that customs officers found certain goods in the motor lorry and trailer driven by two Indians which were not declared in the declaration of imported goods. The respondent asserted that they were owners of the motor lorry and trailer but they were not interested in the goods and requested the magistrate to forfeit the goods only.

Held, allowing the appeal: (1) even though the summons in support of the proceedings under s 128(4) of the Customs Act 1967 specifically referred to an offence under s 135(1)(g) of the Act which was said to have been committed and no prosecution was instituted thereunder, yet the learned magistrate did not address his mind as to whether an offence, on the available evidence, would arise under s 135(1)(g) of the Act; (2) the learned magistrate in an apparent oversight failed to take into account the existence of fraud on the available evidence. There was abundant material before the court to hold that there was indeed fraud perpetrated by the two Indians; (3) the respondent was pushing blame to the two Indians. The innocence of the respondent will not entitle them to the return of the motor lorry and the trailer as it does not preclude the court from forfeiting them. The court strictly construes s 127(1) of the Act against the respondent; (4) after considering the available evidence, it is the court's judgment that an offence against the Act has been committed. The goods were the subject matter of an offence under s 135(1)(g) of the Act and the motor lorry together with the trailer were used in the commission of such offence and consequently it is mandatory to forfeit both the motor lorry and the trailer.

Public Prosecutor v Guan Sheng Trading Sdn Bhd Criminal Appeal No 41-84-1994 High Court, Johore Bahru (Abdul Malik Ishak J).

The respondents were the registered owners of a vehicle, motor lorry number GL 21 T, which had been lent out by their agents. That vehicle was subject to a hire-purchase agreement with a finance company. The lorry had been seized under s 110(1) of the Customs Act (Cap 70, 1995 Ed) when it was found to carry contraband cigarettes for which no duty had been paid. The driver of the lorry was not located or prosecuted. The lorry was sought to be forfeited under s 124(4) of the Customs Act. Below, the district judge held that s 124 was merely directory, and that he, therefore, had the discretion not to forfeit. On considering various factors, the judge ordered the vehicle to be released. It was argued by the prosecution on appeal against the release of the vehicle that forfeiture was mandatory. The respondents maintained that there was a discretion. One of the reasons given was that the provisions of the Customs Act were in pari materia with those of the Environmental Public Health Act (Cap 95, 1988 Ed) which have been held to allow the exercise of a discretion. Additionally, it was said that if forfeiture were ordered it would not further the intention of Parliament for the respondents were innocent and had taken all reasonable precautions.

Held, allowing the appeal: (1) forfeiture was mandatory. The provisions were distinguishable from those of the Environmental Public Health Act (Cap 95, 1988 Ed). That no discretion existed under s 124(4) was supported by the fact that s 123, which governed forfeiture in the context of a prosecution, had been interpreted to be mandatory; (2) though the owners may be innocent, the effect of s 124 was clear. They would have to be left to their remedies against the offenders; (3) s 124, which governed forfeiture in the absence of a prosecution, was clear and unambiguous in its effect;(per curiam) it was hoped that the legislature would take note of the difficulties arising from compulsory forfeiture, and consider making the necessary amendments.

Public Prosecutor v M/s Serve You Motor Services [1996] 1 SLR 669 High Court, Singapore (Yong Pung How CJ).

In this case, the Public Prosecutor appealed against an order of the learned magistrate, whereby a van which had been used for conveying uncustomed goods, was ordered to be returned to the owner. The order was made after an inquiry which was held by the learned magistrate in which the owners of the van were asked to show cause why it should not be forfeited.

Held: (1) as the Trade and Customs Enactment (Enactment No 80) contains special provisions relating to forfeiture, the provisions contained in s 407 of the Criminal Procedure Code did not apply; (2) the learned magistrate had therefore no power to order the return of the van to the owners.

Public Prosecutor v Yew Yong Kong [1953] MLJ 15 High Court, Johore Bahru (Buhagiar J).

Re Tan Han Leong [1959] SCR 31 Supreme Court, Sarawak, North Borneo and Brunei.

See CUSTOMS AND EXCISE, Vol 6, para 81.

The appellant was the owner of a junk which was forfeited as having been used for the commission of an offence against the Customs Enactment 1936. He appealed against the forfeiture to the High Court which reserved the appeal for the consideration of three judges.

Held: (1) as the appellant has not been a party to the case in the first place he had no right of appeal from the order made; (2) s 448 of the Criminal Procedure Code (Cap 6) cannot be relied on to enable a person who was not a party to the original charge to intervene at a later stage and constitute himself an appellant; (3) the matter was not properly before the court and the appeal must therefore be dismissed.

Koay Ban Siew v Public Prosecutor [1948] MLJ 54 Court of Appeal, Malayan Union (Murray-Aynsley CJ (Singapore).

In this case, customs officers had laid an ambush for a motor car. The road was blocked by placing a landrover across the road. The motor car however drove past the barrier, landed in a ditch and was abandoned. Goods were found in the abandoned car but no one came forward to claim the goods. Ownership of the car was claimed by the applicant. A summons was issued requiring the applicant to appear at an inquiry. At the inquiry the President of the Sessions Court found that the goods were dutiable goods and the offence of being concerned in conveying dutiable goods had been committed. He also found that the motor car was used in the commission of the offence and ordered it to be forfeited. The applicant appealed to the High Court but the appeal was dismissed. The applicant thereupon applied for the following questions of law to be referred to the Federal Court: (i) whether the court, when hearing a summons issued pursuant to s 128(4) of the Customs Act 1967 (Act 235) can rely on the presumption under s 135(2) of the same Act to determine whether an offence in relation to the conveyance is committed when no prosecution was preferred against any person for any offence under the same Act and when the conveyance could not have been the subject matter of the said summons; (ii) whether the court could, pursuant to s 128(5) of the Customs Act 1967, invoke the provisions of s 119 of the same Act and shift the burden of proof on to the defendants as owners of the conveyance to show that customs duties on the goods found in the conveyance but belonging to unknown persons had been paid when the subject matter for inquiry under the said summons should only have been goods found in the conveyance.

Held: (1) s 135(2) of the Customs Act 1967 enables the presumption under it to be invoked strictly in cases where there is a prosecution under s 135 or s 139 of the Act. It has no application where the court is hearing a summons under s 128(4) of the Act; (2) a proceeding under s 128(4) of the Act is to determine whether an offence under the Act has been committed and if it has whether the conveyance, the subject matter of the claim was used in the commission of the offence; (3) in proceedings pursuant to s 128(4) of the Act, the President or magistrate has to satisfy himself that an offence against the Act has been committed and either the goods were the subject matter of the offence or where the claim relates to the conveyance, whether such conveyance was used in the commission of the offence. In such a case the court may invoke any presumption of law provided by the Act as and when it is applicable. Therefore by reason of s 128(5) of the Act, s 119 of the Act shall apply in the determination of the matter pursuant to s 128(4); (4) if the court is satisfied after considering the whole of the materials before it that an offence against the Act has been committed and that the goods were the subject matter or the vehicle was used in the commission of such offence, then in that event, but not otherwise, it is mandatory for the court to make an order for forfeiture. The question of the shifting of the onus of proof does not arise.

Keng Soon Finance Bhd v Pegawai Kanan Kastam, Johore Bahru [1981] 2 MLJ 249 Federal Court, Kuala Lumpur (Wan Suleiman, Salleh Abas and Abdul Hamid FJJ).

The appellant appealed against the decision of the magistrate to order the forfeiture of a Toyota Landcruiser under s 127 of the Customs Act 1967. The vehicle was registered in the hire-purchaser's name but ownership of the vehicle was claimed by the appellant. The vehicle was seized from the hire-purchaser by a customs officer but the hire-purchaser was not issued with a summons to appear at the inquiry which was conducted by the magistrate. The appellant argued that s 128(4) of the Customs Act 1967 requiring a summons to appear to be issued to the person from whom the vehicle was seized is a mandatory provision. The question is whether the duty imposed by s 128(4) on the magistrate to issue a summons is mandatory or directory.

Held, allowing the appeal and setting aside the order and directing a rehearing of the claim under s 128: (1) s 128 provides for forfeiture of goods seized without the need for a conviction. Where anyone has claimed the goods, the claim must be decided by a First Class Magistrate. The process for the magistrate to come to a decision is set out in s 128(4). It is clear that the legislature intended the audi alteram partem rule to apply as s 128(4) provides for the issuing of the summons to the claimant and the person from whom the vehicle was seized. These persons must be heard. Therefore to construe this provision for the service of the summons as being merely directory would result in the magistrate being able to decide not to issue the summons to the person from whom the vehicle was seized and to decide on the claim which may adversely affect that person without having to hear him. This is contrary to the rule of natural justice; (2) it makes no difference that the person from whom the vehicle was seized did not claim the vehicle, the summons must still be issued to him; (3) s 128(2) permits only the owner to lay claim. Here the hire-purchaser from whom the vehicle was seized was not the legal owner and was not entitled to claim the vehicle as the legal owner. The hire-purchaser has obligations to fulfill under the hire-purchase agreement, he has a right to use the vehicle and a decision of the magistrate concerning the claim to the vehicle has a direct effect on the rights and obligations of the hire-purchaser. The hire purchaser has as much interest as the appellant as to the outcome of the decision of the magistrate and has as much right to be heard. Therefore laying a claim under sub-s (2) cannot be imposed as a precondition on the hire-purchaser before the hire-purchaser is entitled to a summons. To adjudicate on a matter that affects the hire-purchaser without giving the hire-purchaser an opportunity to be heard is contrary to the rules of natural justice. Hence section 128 provides for a summons to be issued to the hire-purchaser as well as to the appellant. It makes no difference that the hire purchaser had no claim. It is a mandatory provision that the magistrate must issue a summons to the hire-purchaser as well as to the appellant. A failure to do so renders the proceeding null and void.

Asia Commercial Finance (M) Bhd v Public Prosecutor Criminal Appeal No K41-07-1996 High Court, Kota Kinabalu (Ian Chin J).

The respondent, who had been granted permission to transact business as a forwarding agent relating to the import and export of goods, had been convicted of two offences under the Customs Act 1967 (Act 235). The respondent lodged notice of appeal but there was no stay of execution. A senior officer of customs then informed the respondent of his decision to cancel the registration of the forwarding agency. The respondent appealed to the same senior customs officer but was told that his matter had been reconsidered but the earlier decision could not be revoked. The respondent then appealed to the Comptroller-General but the appeal was dismissed. He then applied to the High Court for an order of certiorari to quash the decision of the senior officer of customs and the High Court granted the application on the ground that the cancellation was premature as the appeal against the convictions was still pending. The Comptroller-General appealed to the Federal Court.

Held, allowing the appeal: (1) the rule of natural justice that no man may be condemned unheard applies to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled 'judicial', 'quasi-judicial' or 'administrative' or whether or not the enabling statute makes provision for a hearing; (2) in this case the respondent had been given a chance of a fair hearing; (3) it was within the power of the customs officer to cancel the forwarding agency when the respondent was convicted of the two offences under the Customs Act. It would be against the public interest to wait until after the determination of the appeal, especially when there was no stay of execution.

Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ 152 Federal Court, Kuala Lumpur (Gill CJ (Malaya).

Tan Seng Tin & Ors v Public Prosecutor [1970] 1 MLJ 100 High Court, Penang (Ong Hock Sim J).

See CUSTOMS AND EXCISE, Vol 6, para 63.

Loh Chak Wan v Public Prosecutor [1939] MLJ 84; [1937-38] FMSLR 68 High Court, Federated Malay States (Thomas CJ).

See CUSTOMS AND EXCISE, Vol 6, para 169.

Where a person is charged under s 39(1)(h) of the Trade and Customs Enactment, Johore, with being knowingly concerned in an attempt to evade payment of customs duty, the prosecution must prove that the accused had knowledge of his possession of the dutiable goods or of the attempted evasion of the payment of duty thereof. The only presumption created by s 39(ii) is a presumption of knowledge that the goods in question are dutiable goods on which duty has not been paid.

Public Prosecutor v Theo Theng Swee [1937] 1 JLR 136 High Court, Johore Bahru (Mills J).

The three accused were all charged under s 114(i)(h) of the Customs Enactment 1936 for being knowingly concerned in a fraudulent attempt at evasion of customs import duty amounting to RM124.12. The evidence for the prosecution was that the first defendant as the accredited agent of Lai Wah & Co, Ipoh, on 26 May 1950, made an application to the customs office, Ipoh, to import a case of textiles and declared the cost at RM1.85 per yard. He also produced in support of the application an invoice in Chinese from Lee Say & Co, Singapore which mentioned the price of the cloth as RM1.85 per yard. The customs officer doubted the value declared by the importer and referred the matter to the technical adviser on piece goods, Federation of Malaya, who assessed the cloth at RM3.15 per yard. The prosecution also disclosed that the same case together with two others were ordered by the second defendant on behalf of Lai Wah & Co in December 1949 from the firm of 'Societa' Singapore. An agreement for the said order was signed by the second defendant and the firm's agent at Kuala Lumpur. According to the agreement the cases were to be delivered at Singapore railway station and the cost was RM3.70 per yard. The goods arrived from Italy round about March 1950. Some time before the arrival of the goods the second defendant directed the 'Societa' agent to deliver them to Lee Say & Co on arrival, that is, in March 1950 and were paid for by the defendant firm (Lai Wah & Co) about two months later. The prosecution also disclosed that Lee Say & Co, Singapore, were shareholders of Lai Wah & Co, Ipoh, and also directors of the latter company. The first defendant said in his defence that he was handed the invoice by the second defendant on 26 May 1950, and asked to take delivery of the goods. He did as instructed. He did not know about the contract nor if the value stated in the invoice was false or not. There was no evidence against the first defendant that he was privy to the attempt at evasion of the customs duty, and the learned magistrate acquitted him. The third defendant said he was the buying agent for Lai Wah & Co. He went to Singapore on 22 May 1950, and bought ten pieces of 'palm beach' at RM1.85 per yard from Lee Say & Co. He paid cash. He also stated that he merely saw the samples of the cloth and thought they were cheap at RM1.85 per yard. He did not see the case of cloth in Singapore. He returned to Ipoh and handed the invoice to the second defendant who was managing director. He did not bring back any samples with him to Ipoh but only the invoice. The learned magistrate held that there was no evidence that the third defendant knew anything about the order from 'Societa' and that there was no evidence that he knew anything about the history of the goods at all, and as the prosecution proved no guilty knowledge, he acquitted him. The story of the second defendant, the managing director of Lai Wah & Co, was that he did order in December 1949 three cases of textiles from 'Societa' through its agent. He did so, he stated, on behalf of Lee Say & Co who wanted such goods and he directed that they be delivered to Lee Say & Co, Singapore. What happened to them after the delivery to Lee Say & Co he did not know except that he paid for the goods using his own cheque as Lai Wah & Co had not sufficient funds. He was also acquitted. The learned magistrate held that the prosecution must show that either the invoice is false by discovery and production of another invoice or that the seller is called to say that he sold at a different price and was asked by the defendants to put up an invoice stating a lower price. In this case neither had been proved, he further held. From this decision the public prosecutor appealed.

Held: (1) although there was a considerable amount of evidence in this case that went to show that a system of fraudulent evasion of customs duty was in fact being practised, before any of the respondents could be convicted of an offence under s 114(i)(h) of the Customs Enactment in relation to it, it had to be proved, and proved according to the ordinary standards of proof in criminal cases, that he was concerned in the evasion and that he was knowingly concerned; (2) in this case the proper view was that the onus of proof lay all along upon the prosecution; there was never and could never be at any time any question of a technical shifting of the onus of proof and the evidential value to be attached to any invoice or any other piece of evidence was entirely a matter for the consideration of the court of trial in the light of the circumstances of the individual case as a whole.

Public Prosecutor v Looi Yew Chun & Ors [1951] MLJ 29 High Court, Ipoh (Thomson J).

On 25 April 1973, three customs officers were laying in wait at the export gate at the Johore Bahru Causeway for motor car JK 3856. At about 5.30 pm the car was seen leaving the immigration check point and approaching the customs checkpoint. The first officer on seeing the car signalled the others to be on the alert. One was at the export gate near the check point, and the other was at the emergency gate which was further up the export gate and was about the beginning of the causeway leading to the border between Johore and Singapore in the middle of the causeway. The officer manning the emergency gate on being alerted closed the gate. The car was then about ten yards from the check point. There were two cars ahead of it. The officer at this gate signalled the respondent who was driving to stop. But the respondent reversed and made a U-turn, ignoring the first officer's shout to stop. With a revolver in his hand, the officer leapt on to the bonnet of the moving car and tried to get into it by smashing the windscreen with his revolver. In the process, the revolver was thrown into the car and the officer off the car. The car got away through a gap in the kerb beside the road. The gap was after the immigration point leading to a road back to town. The car was later found and the respondent was taken to the police station. The revolver was recovered when the respondent led them to a spot where he had thrown it. The car was taken to customs and in it were found 21 bags of tin ore, 2 in the boot, 3 under the seat, and 16 in a special compartment between the back rest of the rear seat of the car and the engine. The car was a Volkswagen with an engine at the back. The prosecution appealed against the acquittal of the respondent. The learned President held that the respondent had no case to answer on a charge of having been knowingly concerned in an attempt at fraudulent evasion of export duty on 21 bags of tin ore weighing 9.45 piculs, an offence under s 135(1)(e) and punishable under s 135(1)(i) of the Customs Act 1967 (Act 235).

Held, setting aside the acquittal: (1) a person could only be convicted of an attempt to commit in the circumstances where the steps taken by him in order to commit the offence, if successfully accomplished, would have resulted in the commission of that offence; (2) acts remotely leading to the commission were not to be considered as an attempt to commit but acts immediately leading to the commission of the offence or acts immediately connected with the commission of the offence constituted an attempt to commit that offence; (3) and if he had the goods, then they were in the course of being exported; (4) the remote acts, ie preparatory to or as showing intention to commit the offence, would be the making of the secret compartments in the car, the obtaining and loading of the tin-ore into the car, and the driving up to the immigration check point to present his travel documents; (5) and he reversed the car and drove off; (6) the customs had the right to examine a vehicle after it left the immigration point, because after that point the traveller must be said to be in the course of leaving the country;the immediate acts were that he was within the area of the customs check point; he failed to stop when called upon do to so;all the evidence, the immediate acts and the prevailing circumstances, considered as a whole, constituted the offence of attempt at fraudulent evasion of export duty.

Public Prosecutor v Kee Ah Bah [1979] 1 MLJ 26 High Court, Johore Bahru (Syed Othman J).

Abu Bakar bin Nazmeer v Public Prosecutor [1970] 2 MLJ 216 High Court, Penang (Ong Hock Sim J).

See CUSTOMS AND EXCISE, Vol 6, para 211.

The appellant was convicted in this case under s 39(1)(h) of the Johore Trade and Customs Enactment for being knowingly concerned in a fraudulent attempt at evasion of customs duty. It appeared that on 7 December 1946 the appellant was bringing into Johore 25 cases of textiles. On being stopped at the customs barrier and asked to fill in a declaration form, accused No 2 acting under the appellant's authority filled in the prescribed form in which the value of the goods was so expressed as to represent an overall price of RM1.10 per yard. The prosecution alleged that this figure was too low and amounted to an attempt at fraudulent evasion of customs duty. In his statement the appellant said that he hoped the figure he put would be accepted, and that if not, he would accept the customs valuation and pay duty on that. The cloths had been bought by the appellant from various traders at different prices and it was agreed that the market was and had been a falling one and that the goods had been bought several weeks previously.

Held: on the evidence there was not sufficient evidence of fraudulent intent on the part of the appellant to convict him of the offence of attempting the fraudulent evasion of customs duties.

Mohamed Taiyob v Public Prosecutor [1947] MLJ 101 High Court, Malayan Union (Bostock-Hill J).

The first respondent had been charged with the offence of importing taxable goods on which sales tax had not been paid, an offence under s 43 of the Sales Tax Act 1972; and the first, second and third respondents were charged with being knowingly concerned in a fraudulent evasion of customs duty. The learned President of the Sessions Court acquitted the respondents as he held that one of the witnesses for the prosecution was an accomplice and there was no corroborating evidence. The Public Prosecutor appealed.

Held, allowing the appeal: although the learned President of the Sessions Court was correct in holding that the prosecution witness was an accomplice, he erred in holding that there was no corroboration. There was prima facie evidence against the respondents at the end of the prosecution's case and they should be called on to enter on their defence.

Public Prosecutor v Abdul Azizsou & Ors [1978] 2 MLJ 165 High Court, Kota Bharu (Mohamed Zahir J).

The appellant was charged and convicted under s 114(i)(h) of the Customs Enactment 1936, which is as follows: 'Whoever ... (h) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any customs duty shall...be liable on conviction to a fine not less than six times the amount of the duty or five thousand dollars whichever is the less, and which may extend to twenty times the amount of the duty or five thousand dollars whichever is the greater ...'. The appellant resided in Singapore where he carried on business in partnership as a dealer in goods from Shanghai and Hong Kong. He opened a shop of his own in Kuala Lumpur in 1938 under the style of Khim Yick & Co. He did not manage or conduct the business of this shop himself, but left it entirely to a manager, Chop Lip Sam, to whom he granted a power of attorney containing wide powers. Khim Yick & Co imported goods from Shanghai, and in April 1940, goods arrived therefrom per SS 'Santhia'. The shipping documents and bill of exchange, payable 45 days after acceptance, were presented to and accepted on behalf of Khim Yick & Co, who proceeded to clear the goods through the customs in the following manner: (i) In August 1939, Khim Yick & Co had appointed Loon On Forwarding Agents Co to transact their business with the customs department. This document was signed in Chinese 'Chong Tin Yew' without any description of what position that person held in Khim Yick & Co and bore the 'chop' of Khim Yick & Co affixed by an ordinary rubber stamp. (ii) A special invoice of the goods, supplied by the exporters from Shanghai, was presented by Khim Yick & Co to the forwarding agents who prepared an application for the removal of the goods in accordance with that invoice. It was a false invoice, understating the quantities and prices of the goods concerned, and clearly prepared with a view to defrauding the customs. (iii) On the faith of the forwarding agents' application, duty was assessed and paid, and the goods were cleared. The amount of duty paid was RM342.83; the amount, as subsequently ascertained, which should have been paid was RM757.78. It was accepted that the forwarding agents were innocent participants in the fraud, and the magistrate found that the appellant was not concerned therein except for the facts that he was the proprietor of Khim Yick & Co and that, as such, he received 80% of the amount by which the customs had been defrauded. The magistrate convicted the appellant on the ground that he was liable for the criminal act of his agents, applying the principle set out in Allen v Whitehead [1930] 1 KB 211, and also s 124(iv) of the Customs Enactment. He inflicted the approximately minimum sentence of a fine of RM4,225, basing his calculation upon six times the total duty on all the goods, and deducting from this total the amount of duty actually paid. The appellant appealed against both conviction and sentence.

Held: the question of whether s 144(i)(h) of the Customs Enactment is an exception to the general rule of mens rea in criminal cases, in so far as a principal is to be held criminally responsible for the offence actually committed by his agent, irrespective of any guilty knowledge in the principal, is concluded by s 124 of the enactment. By that section the Legislature has expressly stated when and how in the case of offences under the Customs Enactment this exception to the general principle of criminal law is to apply. An extension of criminal liability such as this must be strictly confined to its express enactment. The principal expressio unius exclusio alterius applies. The only act of an authorized agent to which s 124(iv) could attach was the act of the forwarding agents in making the false declaration and presenting it and the false invoice to the customs officer. That act was not an offence under s 114(i)(h) because there was no guilty knowledge in the forwarding agents. The conviction under that section cannot therefore stand. The offence constituted by the provisions of s 113 is an absolute one, irrespective of any knowledge on the part of the offender, and was committed by the forwarding agents. They were appointed on behalf of Khim Yick & Co in the ordinary course of business, the appointment was acted upon by all parties and its validity was not questioned at the trial. The words 'authorized by him' in s 124(iv) do not require that the authorization must be personal, and the forwarding agents were agents within the meaning of that section. A conviction under s 113(i) was therefore substituted. Semble: the words 'amount of duty' in s 114(i) mean the 'amount of duty evaded' and not the total duty.

Wong Ngian Thin v Public Prosecutor [1941] MLJ 199 High Court, Federated Malay States (Cussen J).

Tan Kee Tai v Public Prosecutor [1988] 1 MLJ 10 High Court, Bandar Seri Begawan (Macdougall J).

See customs and excise, Vol 6, para.

Saminathan & Ors v Public Prosecutor [1955] MLJ 121 High Court, Kuala Lumpur (Buhagiar J).

See CUSTOMS AND EXCISE, Vol 6, para 33.

Public Prosecutor v Saminathan & Ors [1954] MLJ 162 High Court, Muar (Storr J).

See CUSTOMS AND EXCISE, Vol 6, para 32.

In this case, the respondent was charged with the offence of being knowingly concerned in the fraudulent evasion of customs duty. At the close of the prosecution's case, while defence counsel was in the process of submitting no case to answer, the learned magistrate stopped him. He noted that there was no provision in the law to say that the court must hear the defence submission at the close of the prosecution's case. He then proceeded without hearing the prosecution to rule that the prosecution had failed to make out a prima facie case and he acquitted and discharged the respondent. The learned magistrate then ordered the respondent to pay the undercollection of duty under s 17 of the Customs Act 1967 (Act 235) and upon payment the car in question to be returned to him. The Public Prosecutor appealed.

Held: (1) in this case, on the oral and documentary evidence produced, the prosecution had made out a prima facie case and the respondent should be called to enter on his defence; (2) the trial court has no jurisdiction to discharge and acquit the accused on payment of the deficient customs duty. The power under s 17 of the Customs Act 1967 may be exercised by the Customs Department, not by the court.

Public Prosecutor v Ong Khoon Seng [1982] 1 MLJ 351 High Court, Kuching (Seah J).

Although the Customs Enactment 1936 contains certain provisions placing the onus of proof of certain matters arising in prosecutions under it on accused persons, there is nothing in it affecting the general principle of criminal law whereby in every criminal case the onus lies on the prosecution to satisfy the court of guilt of the accused person. In certain respects that task may be rendered easier by the operation of 'reversal of onus' provisions but nevertheless, although it may invoke to the full the assistance of any such provisions that may be applicable the prosecution must prove its case to the satisfaction of the court and the court must not convict an accused person unless it is satisfied he is guilty. There is a fundamental distinction between ss 99 and 114(ii) that may easily be overlooked. Both sections have the effect of shifting the onus of proof regarding certain facts from the prosecution on which it would otherwise lie to the accused. These facts, however, are very different. Section 99 applies to the fact that the goods are customed or uncustomed whilst s 114(ii) applies to the fact that the accused has or has not knowledge of the fact that the goods are uncustomed. Abetment of an offence is a distinct offence from the offence itself.

Kee Kim Chooi & Ors v Public Prosecutor [1952] MLJ 180 High Court, Ipoh (Thomson J).

R v Cheu Chin Hin [1946] SCR 14 Supreme Court, Sarawak.

See CUSTOMS AND EXCISE, Vol 6, para 198.

Aw Yock Beng v Public Prosecutor [1947] MLJ 121 High Court, Malayan Union (Brodie Ag J).

See CUSTOMS AND EXCISE, Vol 6, para 67.

When a fine is imposed it should be commensurate with the offence of which the prisoner has been convicted and it should not be inflicted with a view to punishing wealthy principals who have not been discovered.

R v Ong Chwee Hoh & Anor [1933] MLJ 39 High Court, Straits Settlements (Murison CJ).

Public Prosecutor v Chua Yew Eng & Ors [1968] 2 MLJ 108 High Court, Kota Bharu (Raja Azlan Shah J).

See CUSTOMS AND EXCISE, Vol 6, para 179.

Syed Abdullah v Public Prosecutor [1964] MLJ 48 High Court, Kota Bharu (Hashim J).

See CUSTOMS AND EXCISE, Vol 6, para 177.

Goh Ah Tin & Ors v Public Prosecutor [1970] 1 MLJ 173 High Court, Johore Bahru (Syed Othman J).

See CUSTOMS AND EXCISE, Vol 6, para 191.

Koo Cheh Yew & Anor v Public Prosecutor [1978] 1 MLJ 141 High Court, Penang (Arulanandom J).

See CUSTOMS AND EXCISE, Vol 6, para 184.

There were two charges against the respondent. The first charge was in respect of making a customs import declaration. The second charge was that the respondent was concerned in importing a jeep and four vans ('the vehicles') which were prohibited goods, an offence under s 135(1)(a) of the Customs Act 1967 and punishable under s 135(1)(iii) of the 1967 Act. The prosecution adduced evidence to show that the respondent had been issued an import license to import 30 units of vehicles under a certain tariff classification ('the licence'). The respondent however took delivery of the vehicles which were of a different tariff classification. There was no valid import licence for the vehicles. The respondent had been in the business of selling imported vehicles since 1970 and his firm was given a quota to import 30 vehicles each year. In 1980, the respondent had been given a letter by the director of the Ministry of Trade and Industry to use part of the quota allocated to his firm for the purpose of importing seven vans ('the letter'). The respondent testified that he honestly believed that the letter authorized him to import the vehicles. The respondent further said that he was unaware of the prohibition in respect of the vehicles. The magistrate acquitted and discharged the respondent of both charges at the end of the trial. The vehicles were however ordered to be forfeited. The prosecution appealed to the High Court only against the respondent's acquittal and discharge in respect of the second charge. The respondent lodged a cross-appeal against the forfeiture of the vehicles. The magistrate found that since 1980, the respondent had, by virtue of the letter, actually imported vans and jeeps without any query so long as the importation was kept within the quota of 30 vehicles. The prosecution contended that the licence did not entitle the respondent to import the vehicles.

Held, dismissing the appeal and the cross-appeal: (1) it was reasonable and proper for the magistrate to come to the conclusion that based on previous transactions, the respondent was justified in labouring under the impression that he could import reconditioned vehicles under the licence so long as the quota of 30 units was not exceeded; (2) in an appeal against acquittal, the burden was on the prosecution to prove not only that the magistrate's finding was not justified in law or by evidence but also that the accused was guilty beyond all reasonable doubt. The acquittal ought not to be interfered with unless the appellate court came to the conclusion that the appraisement of evidence made by the magistrate was so unreasonable or perverse; (3) s 127(1) of the 1967 Act was clear and mandatory. The court should order forfeiture notwithstanding that there might be no conviction provided that an offence against the 1967 Act had been committed and the goods were the subject matter of or were used in the commission of the offence. The fact that the accused was not guilty or that no one was convicted was not a relevant factor; (4) in this case, it was clear beyond all reasonable doubt that the vehicles were prohibited goods and were imported contrary to the prohibition. An offence against the 1967 Act had been committed and the vehicles were the subject matter of the offence. Hence despite the acquittal of the respondent, the vehicles were rightly forfeited.

Public Prosecutor v Mohd Omar Lopez [1993] 1 CLJ 222 High Court, Kuching (Chong Siew Fai J).

Public Prosecutor v Koo Cheh Yew & Anor [1980] 2 MLJ 235 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

See CUSTOMS AND EXCISE, Vol 6, para 185.

The appellants were charged with importing prohibited goods, ie frozen chicken wings ('the goods'), without a valid import licence issued by the Director General of Customs under the Customs (Prohibition of Import) Order 1988 ('the Order'), which was an offence under s 135(1)(a) of the Customs Act 1967 ('the Act'). The prosecution alleged that the appellants had produced incomplete declaration forms when they claimed the goods as the import permits were not attached but were only produced the next day. At the conclusion of the case, the appellants were acquitted and discharged by the magistrates' court. The goods, however, were ordered to be confiscated. Both sides had appealed against this decision; the prosecution against the acquittal and discharge of the appellants on both charges, and the appellants against the order for forfeiture of the goods.

Held, allowing the appellants' appeal and dismissing the prosecution's appeal: (1) for the purpose of the importation of chicken wings, the import licence issued by the Veterinary Department was all that was required under the Order. As the only veterinary officer of the Sibu Veterinary Department was away on duty at the material time, there was no one to sign the permits. From the evidence before the court, the appellants did not have the intention to evade the law and the magistrate had not misdirected himself on the facts of the case; (2) it was clear that forfeiture under s 127(1) of the Act was mandatory if the offence against the Act had been committed and the goods were the subject matter of or were used in the commission of the offence. In the instant case, no offence was committed against the Act because the goods were covered by the import permits issued by the Veterinary Department and the permits had not been withdrawn. Therefore they were imported under valid permits. The duties on the goods had been paid before the issue of the permits and as such, they were not the subject matter of the offence. In the circumstances of the case, the order of acquittal was confirmed, the order of forfeiture set aside, and the goods or the proceeds thereof ordered to be returned to the appellants.

Public Prosecutor v Lau Siew Nguong & Anor [1994] 2 MLJ 91 High Court, Sibu (Muhammad Kamil JC).

Suthon Kavsonthi v Public Prosecutor [1975] 1 MLJ 154 High Court, Malacca (Ibrahim J).

See CUSTOMS AND EXCISE, Vol 6, para 186.

In a prosecution under the Excise Enactment (Cap 133) for being in possession of intoxicating liquor it is not only an 'analyst' defined in s 54 who can give evidence of the amount of alcohol in such liquor. The alcoholic contents of such liquor may be proved by any person experienced in testing such liquor in the course of his duties provided that the court is satisfied that such person possesses sufficient experience to qualify him to testify as an expert.

Public Prosecutor v Ang Pooi [1936] MLJ 113 High Court, Federated Malay States (Pedlow J).

Section 54 of the Excise Enactment (Cap 133) does not apply in cases in which a person experienced in testing liquor for its alcoholic contents is called by the prosecution as a witness.

Chin Ah Yee v Public Prosecutor [1937] MLJ 14 Court of Appeal, Federated Malay States (Terrell Ag CJ, Whitley and Aitkin JJ).

In this case, the respondent had been charged with some others for having been knowingly concerned in an attempt at fraudulent evasion of custom duty on 15 cases of playing cards, an offence under s 135(1)(g) of the Customs Act 1967 (Act 235). The facts showed that the respondent ordered the goods from Naafi, Singapore; he was responsible for the preparation of the customs declaration although it was signed by the Naafi chief clerk; he was present at the loading of the goods in Singapore; and he was present when the customs carried out investigation and could not give an explanation as to why the goods were not the same as in the declaration. The sessions court acquitted the respondent as it found that the acts of the respondent were not committed within the jurisdiction. The Public Prosecutor appealed.

Held: (1) if a person's criminal act or responsibility for the criminal act runs from outside the jurisdiction to within jurisdiction then he is liable to be tried in Malaysia; (2) therefore he was responsible; (3) in this case the respondent was responsible for the preparatory acts done in Singapore and those acts culminated within the jurisdiction, when the goods and the declaration for which the respondent was responsible reached the customs at Johore Bahru;the order of acquittal should therefore be set aside and the respondent called to enter on his defence.

Public Prosecutor v Loh Ah Hoo [1974] 2 MLJ 216 High Court, Johore Bahru (Syed Othman J).

Lee Szu Yin v Public Prosecutor [1962] MLJ 49 High Court, Johore Bahru (Ong J).

See CUSTOMS AND EXCISE, Vol 6, para 56.

Public Prosecutor v Yong Nam Seng & Anor [1964] MLJ 85 High Court, Johore Bahru (Azmi J).

See CUSTOMS AND EXCISE, Vol 6, para 55.

This was an appeal against the conviction of the appellant on a charge of knowingly keeping on licensed premises intoxicating liquor on which excise duty had not been paid. The liquor, the subject matter of the charge, was at the time of the alleged offence in the manufacturing part of the distillery and one of the grounds of appeal was that the prosecution had not proved that excise duty was payable at the time of the alleged keeping of the liquor.

Held: (1) excise duty on intoxicating liquor manufactured locally in a distillery is payable only on removal from the distillery; (2) on the facts of this case as the liquor was at the time of the alleged offence in the manufacturing part of the distillery, no duty was payable in respect of such liquor at that time and therefore no offence under s 62(c) of the Excise Enactment (Cap 133) had been committed by the appellant.

Sin Yong Chang v Public Prosecutor [1949] MLJ 96 High Court, Kuala Lumpur (Russell J).

Ang Lock Toon v Public Prosecutor [1915] 1 FMSLR 199 High Court, Federated Malay States (Innes JC).

See CUSTOMS AND EXCISE, Vol 6, para 43.

Arthanarisami Chettiar v Public Prosecutor [1940] MLJ 67 High Court, Federated Malay States (Terrell JA).

See CUSTOMS AND EXCISE, Vol 6, para 44.

The Board of Licensing Justices is a judicial body and a 'person' within the meaning of s 4 of the Oaths Ordinance 1980. The Board has power, if the parties by consent authorize it to receive evidence, to administer an oath or affirmation. Unsworn conflicting statements by the chief police officer and the applicant or his counsel relative to the past management of the premises in question, do not afford material on which the board may exercise a judicial discretion under s 42 of the Liquors Revenue Ordinance 1909. Should either party refuse his consent to the taking of evidence the Board should draw a proper inference from such refusal.

Ex parte Sim Soo Koon [1915] 13 SSLR 57 High Court, Straits Settlements (Earnshaw J).

A licence in the usual form only professes to deal with the consumption of liquor on the licensed premises. Where, as in the case of beer, no licence is required for sale off the premises, there is no prohibition in the licence itself. Rule 57 of the Licensing Rules 1937, which absolutely prohibits the holder of a liquor shop licence from exposing for sale any intoxicating liquors whatever other than Chinese liquors, is inconsistent with the express provisions of s 38(1) of the Liquors Revenue Ordinance and is accordingly ultra vires.

R v Ng Chim Poh [1938] MLJ 132 High Court, Straits Settlements (Terrell J).

In this case, an attendant in a shop at No 69 Jalan Trus was charged under ss 22(i) and 64 of the Excise Enactment (Cap 133), Johore, with selling a bottle of beer without being licensed to sell beer for consumption on the premises. Accused admitted he had no licence and was convicted. The learned Deputy Public Prosecutor submitted this case for revision in order to get a ruling as to the true meaning of ss 22 to 25 inclusive of the Excise Enactment.

Held: (1) the sale of beer in unopened bottles for consumption off the premises requires no licence for sale; (2) the sale of bottled beer in unopened bottles, for consumption on the premises, likewise requires no licence for sale, except in certain gazetted areas; (3) the sale of beer in unopened bottles must be a delivery to the customer of an unopened bottle and its contents and on payment or credit for same; (4) the storage of bottled beer for future sale must be covered by licence under s 25(i)(b) of the Excise Enactment, Johore.

Public Prosecutor v Ling Ee Huat [1949] MLJ Supp 1 High Court, Johore Bahru (Laville J).

The appellant as managing director of a company held a licence to distil liquor in Kuala Lumpur during the year 1952 and held similar licence for previous years. The licence was due to expire on 31 December 1952. During the year 1952 certain discrepancies were discovered between the actual and certified proof strength of samsu released from the distillery which resulted in an underpayment of the duty to which such samsu was liable. Additional duty was claimed and paid. It is not suggested that the appellant was personally involved in this underpayment but the company and the appellant only could have benefited directly from it. Under r 6 of the Excise Rules, application for renewal of licences must be made to the comptroller in writing at least two months before the expiry of the period of licence. By a letter dated 8 September 1952, before any application had been made for a renewal of the licence, the appellant was informed by the Senior Assistant Comptroller of Customs, Selangor and Pahang West, that his distillery licence would not be renewed for the year 1953. As a result, a letter of protest was sent by the appellant's solicitors and in reply thereto the Comptroller of Customs stated that he was not at present satisfied as to the character and general suitability of the appellant to continue to hold a licence in respect of the distillery but he stated he was ready to consider any representations which the appellant or the company might wish to offer. Subsequently, the appellant's solicitor attended at the office of the Comptroller of Customs who listened to everything which the appellant's solicitor had to say on 6 November 1952, and by a letter dated 10 December 1952, the Comptroller of Customs informed the appellant that he had carefully considered the representations made by Mr Mills on his behalf but he was not satisfied, in view of the circumstances surrounding the underpayment of duty by the distillery during the year 1951, and early 1952, that he was a suitable person to hold a licence, and in the exercise of his discretion he refused the application for a licence for the year 1953. The appellant applied by originating motion to the High Court for an order in the nature of a mandamus directing the Comptroller of Customs to hear and determine according to law an application by the applicant for a licence for the year 1953. The application was dismissed and now comes before the Court of Appeal on an appeal by the appellant.

Held: (1) the Comptroller exercised his discretion in a judicial manner; (2) it would be improper to intervene in the exercise of the Comptroller's discretion, unless either he has acted arbitrarily and has not given an applicant an opportunity to state his case, or he has exercised his discretion for reasons which, properly, could not be taken into consideration in arriving at his decision.

Tay Chek Meng v Comptroller of Customs [1953] MLJ 61 Court of Appeal, Kuala Lumpur (Mathew CJ (FM).

Where the licensee of a public-house is authorized 'to sell... for consumption on the premises', he commits no offence unless, at the moment of sale, he intends that the liquor shall be consumed otherwise than on the premises.

Ng Yek Khoon v Public Prosecutor [1935] 1 JLR 92 High Court, Muar (Mills J).

A customer of a firm of grocers, carrying on business in premises not licensed for sale of intoxicating liquors, ordered a bottle of whisky by telephone to be called for later. This firm procured from a firm of whisky importers a bottle of whisky, which was sent to the grocery firm, together with an invoice, by messenger. This invoice showed that the transaction was between the whisky importers and the grocery firm only. On receipt of the bottle of whisky and the invoice, the manager of the grocery firm paid the messenger the price of the whisky in cash, and placed the bottle on the counter together with a debit note. This debit note showed that the customer had bought this bottle of whisky from the grocery firm. Before the customer could call at the grocers, an Assistant Superintendent of Trade and Customs searched the shop and took possession of the bottle of whisky. Upon the hearing of a summons against the manager of the grocery firm for attempting to sell liquor without a licence, the magistrate found that there had been a sale at the shop of the grocery firm by this firm to the customer, and convicted the defendant.

Held: there was evidence upon which the magistrate might properly hold that the sale was at the shop, and that the conviction was right.

Ibrahim v Public Prosecutor [1933] MLJ 46; [1931-32] FMSLR 349 High Court, Federated Malay States (Thorne Ag CJ).

When a restaurant waiter goes outside the restaurant and purchases liquor elsewhere for a customer of the restaurant the sale of liquor takes place where the liquor is appropriated for the purpose of the customer and where the money is paid. Assuming that the restaurant proprietor has no interest in the shop where the liquor is sold or in any profit derived from the transactions there is no sale contrary to s 38 of the Liquors Revenue Ordinance. The mere consumption of beer on unlicensed premises is no offence. Quaere: whether under s 310 of the Criminal Procedure Code the court can entertain an appeal by the Crown.

R v JW Lim [1941] MLJ 7 High Court, Straits Settlements (Terrell Ag CJ).

In this case, the facts shortly were that two revenue officers took their seats on a table on the lawn of a rest house, which was not licensed for sale of intoxicating liquor, and ordered a chop and a bottle of beer. The waiter said that there was no beer for sale at the rest house and the revenue officers then asked him to 'go outside' and buy it. The waiter did so and bought the bottle of beer at a licensed premises with his own money. The waiter and the managing partner of the rest house were charged and convicted for selling the bottle of beer at the rest house, such rest house not having been licensed. They appealed against their conviction.

Held: (1) on the facts, the waiter purchased the bottle of beer as agent for the revenue officers and the only sale of beer was at the shop outside to the waiter as the agent of the revenue officers; (2) the sale of beer at the shop outside was a sale to the revenue officers and there was not, in law, a resale of the beer to the revenue officers at the rest house.

Lim Kiat Hean & Anor v R [1949] MLJ Supp 13 High Court, Singapore (Gordon-Smith Ag CJ).

The Spirit Farmer, under the Liquors Ordinance 1894, is entitled to keep a shop for selling of spirituous and fermented liquors, by retail, without obtaining a licence for such premises from the Board of Licensing Justices.

Choo Chong Yok v R [1905] 9 SSLR 25 Court of Appeal, Straits Settlements (Cox CJ, Law and Thornton JJ).

Sharikat Perniagaan Malaysia Barat of Muar (the 'sharikat') had a car in Singapore bearing registration no SN7257. It obtained an approved permit to import a second-hand body and chassis of a car from Singapore. This was imported into Johore Bahru on 20 August 1971. On 28 August 1971 under the name of the sharikat the respondent imported a secondhand diesel engine. For this no permit was required. The body and chassis for customs purposes were valued at RM1,500 and the total duty paid on them was RM735. The engine was valued at RM500 and duty leviable was RM200. But the car components were actually parts of SN7257, and if this car had been imported, its value would have been assessed at not less than RM10,000 and duty thereon would be 49% of the value. On getting the parts into Johore Bahru, the respondent brought them to a service station and had them assembled. This was done at a charge of RM49.10. Subsequently the RIMV Malacca registered the car as MD2917 in the name of the respondent's wife. The customs made investigation and lodged a complaint and consequently the respondent and the manager of the sharikat were charged in the sessions court with an offence under s 73(1) of the Excise Act 1961 to the effect that they not being licensed for the purpose were knowingly concerned in manufacturing dutiable goods, ie a car. The case against the manager of the sharikat was not proceeded. The learned President held that the respondent had no case to answer and he made the following finding: 'The same old engine was put back into the same old chassis, etc in Johore Bahru, and new tyres were attached to them.... Besides being given a new registration number and different set of tyres this was the same old car. There has been no transformation into a new thing. This was only putting back together of two main parts of an already manufactured old car. I do not think this is manufacturing.' The Public Prosecutor appealed.

Held: (1) any conversion or transformation of any article or material into goods which by their nature is dutiable under the Excise Act 1961 is manufacturing for the purposes of the Act; (2) if the goods which are manufactured attract excise duty then there must be a licence for that manufacture. It was not necessary to show that the manufacture should be on a large scale. The test was whether excise duty was leviable on the goods produced; (3) in this case the process of putting the component parts together so as to turn them into a car was the act of manufacturing. Since excise duty was leviable on a car, a licence was required for its manufacture; (4) on the evidence established by the prosecution the acts of the respondent came within the offence charged, ie he was concerned in the manufacture.

Public Prosecutor v Tan Kim Lim [1975] 1 MLJ 215 High Court, Johore Bahru (Syed Othman J).

The Public Prosecutor in this case appealed against the decision of the lower court in acquitting and discharging both the respondents of the offence under s 135(1)(g) of the Customs Act 1967 (Act 235). The first respondent was charged for being knowingly concerned on 15 December 1978 in a fraudulent evasion of a prohibition relating to five units of new Porsche cars under the Customs (Prohibition of Imports) Order 1978, and the second respondent was charged for abetting the first respondent, an offence under s 135(1)(g) read together with s 139 of the Customs Act. The appellant contended that the learned President had erred in law and in fact in holding that the five Porsche cars were 'used cars' when he held in his grounds of judgment that 'once the cars were registered, it would mean that they were the subject of a retail sale', without adequately considering the other factors which would make the said cars 'new cars'. The facts revealed that the first respondent's application for approved permit to import new Porsche cars was rejected vide Ministry's letter of 25 November 1978. Before the rejection letter was received, the first respondent had made another application on 26 September 1978 for approved permit to import five units of 'any make of used passenger cars/station wagons at RM10,000 per unit from West Germany, Japan or England'. This application was approved on 5 October 1978. The respondent contended that the five cars were legally 'used' when they were imported. The learned President acquitted them without calling for their defence.

Held, allowing the appeal: (1) there must be substantial usage of the car before it ceases to be new and can qualify as 'old'; (2) a car ceases to be 'new' if, firstly, it has been the subject of a retail sale with a dealer or distributor, and, secondly, it has been the subject of substantial use, in that the mileage it has travelled under its own power has significantly exceeded that to be expected as reasonably incidental to delivery from the point of manufacture to the dealer or distributor; (3) the registration book was not a document of title to the car. Thus, merely because the cars in the present case were in the registered name of the five persons on importation it does not follow that they were the legal owners and that there had been a retail sale; (4) and that on importation, three of the cars were in fact sold as new cars by retail sale to bona fide customers; (5) in this case the learned President had failed to consider evidence adduced by the prosecution which showed that at the time of importation there was in fact no retail sale; that the five persons in whose names the cars had been registered were not the purchasers or legal owners; that there was no substantial usage of the cars by any of the purported purchasers or their agents;the order of acquittal and discharge should be set aside and the case should be remitted to the same President for the defence to be called.

Public Prosecutor v Europe Motors Sdn Bhd & Anor [1981] 2 MLJ 93 High Court, Kuala Lumpur (Mohamed Azmi J).

Public Prosecutor v Chieng Ung Kai [1993] 1 MLJ 21 High Court, Sibu (Abdul Kadir J).

See CUSTOMS AND EXCISE, Vol 6, para 235.

Kee Kim Chooi & Ors v Public Prosecutor [1952] MLJ 180 High Court, Ipoh (Thomson J).

See CUSTOMS AND EXCISE, Vol 6, para 108.

The accused was charged under s 3(b) of the Prevention of Corruption Ordinance, alternatively under ss 116 and 165 of the Penal Code, for giving RM70 to a police inspector as 'tea money' for a favour the latter had showed to him when he brought in rice from Thailand to Rantau Panjang. At the end of the case for the prosecution the learned President acquitted and discharged the accused.

Held: under s 2 of the Customs Ordinance 1952, an 'officer of customs' means a police officer, and under s 7 of the said ordinance all police officers not below the rank of inspector shall have and may exercise all the powers conferred by this ordinance on senior officers of customs.

Public Prosecutor v Tan Hock Sing [1963] MLJ 219 High Court, Kota Bahru (Hashim J).

This was an appeal against the conviction of the appellant on a charge of abetment of possession of uncustomed goods. The principal ground of appeal was that there was no evidence that the appellant knew that the goods were uncustomed.

Held: (1) as there was no evidence of knowledge of the appellant that the goods were uncustomed, the appellant was wrongly convicted under s 119 of the Customs Enactment 1936; (2) there was no evidence before the learned President which would justify the charge being amended to one under s 114(i)(e) of the Customs Enactment.

Oh Eng Thye v Public Prosecutor [1954] MLJ 1 High Court, Malacca (Bellamy J).

Ramayah v Public Prosecutor [1931-32] FMSLR 107 High Court, Federated Malay States (Burton J).

See CUSTOMS AND EXCISE, Vol 6, para 219.

Rowland v Public Prosecutor [1940] MLJ 131 High Court, Federated Malay States (Cussen J).

See CUSTOMS AND EXCISE, Vol 6, para 216.

Public Prosecutor v Raja [1949] MLJ 97 High Court, Kuala Lumpur (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 217.

Kalimuthu v Public Prosecutor [1955] MLJ 187 High Court, Ipoh (Thomson J).

See CUSTOMS AND EXCISE, Vol 6, para 218.

In this case, the appellant had been convicted of a charge which alleged that he had in his control a still for distilling liquor. Section 17(1) of the Excise Act 1961 makes it an offence to keep or have in one's possession any still, etc.

Held: it was not an offence under s 17(1) of the Excise Act 1961 to have control, short of possession, of a still and therefore the conviction on this charge must be quashed.

Pan Kok Wah v Public Prosecutor [1966] 2 MLJ 141 High Court, Kuala Lumpur (Ong Hock Thye FJ).

The mere fact that a parcel found to contain dutiable liquor was handed by a rickshaw puller to the appellant's daughter was seized by a revenue officer before she had time to examine its contents, unaccompanied by any circumstances indicating that the girl or the appellant knew it was liquor or intended to retain it, does not constitute possession within the meaning of, and therefore is not sufficient to support a conviction under s 28 of the Liquors Revenue Ordinance (Cap 225). A person is not guilty of the offence of possession if he is not aware of the possession. There must be some evidence from which it can reasonably be inferred that the accused knew the general nature of the thing alleged to be in his possession, such as length of time he had the object, evidence that he was expecting it, evidence of course of business, or any other evidence from which an inference of the general nature of the thing can be inferred.

Chiah Tian v R [1937] MLJ 105 High Court, Straits Settlements (McElwaine CJ).

The appellant and another accused were convicted of being in possession of dutiable liquor, an offence under s 28(1) of the Liquors Revenue Ordinance (Cap 225). The evidence was that at 5 pm on 1 July 1946 two revenue officers took up their position in a back lane between Angus Street and Fisher Street in order to wait for a certain car, No S 4819, which it was anticipated would contain dutiable liquor. At about 5.30 pm car No S 4819 duly arrived. Before the revenue officers could reach the car a woman jumped out of the back seat, and escaped. The car then started off immediately and collided into a wall. In the car, when the revenue officers came up, were the driver (in the driving seat) and the appellant in the back seat. On the floor at the back of the car was a gunny sack. The appellant had his feet on the gunny sack, which on being opened was found to contain a motor car tube containing samsu. A further search revealed two more tubes containing samsu behind the cushion in the back seat. The learned magistrate convicted the appellant and the driver and also ordered the liquor and the motor car to be confiscated. The appellant appealed against his conviction and sentence and against the order for forfeiture of the motor car.

Held: (1) the facts showed that the appellant was only an innocent passenger in the car and that therefore the magistrate should have acted under s 182(f) of the Criminal Procedure Code (Cap 21), and acquitted him without calling upon him to make his defence; (2) as there is no common feature in the words preceding 'or conveyances' in s 83(1) of the Liquors Revenue Ordinance and no common genus or category to which they all belong, the ejusdem generis rule has no application to the subsection and that therefore the word 'conveyances' must be given its full and natural meaning, which includes motorcars; (3) under s 83(1) of the Liquors Revenue Ordinance the magistrate had no discretion and was bound to order the forfeiture of the car which the revenue officer had seized.

Tai Theong & Anor v R [1947] MLJ 11 High Court, Singapore (Brown J).

The appellant was a dealer in watches who was charged with having contravened s 114(i)(e) of the Customs Enactment 1936 in that he was knowingly in possession of a valuable gold watch on which customs duty had not been paid. There was evidence that the watch had been purchased in Singapore by one Mr Brown, who later sold it to the appellant. The magistrate, apparently, accepted the appellant's statement to the effect that when he purchased the watch he did not know whether customs duty had been paid on it or not, and convicted the appellant for having possession of the watch.

Held: (1) the onus of proving that he did not know that customs duty had not been paid lay upon the appellant; (2) the matter for determination was a matter of guilty knowledge; (3) this was a proper case for retrial.

Chow Chee Yong v Public Prosecutor [1952] MLJ 158 High Court, Seremban (Abbott J).

This was an appeal by the appellant against his conviction on a charge of being in possession of samsu on which the excise duty leviable by law had not been proved to have been paid, an offence under s 73(1)(a) and punishable under s 73(1)(i) of the Excise Act 1961. In an earlier trial against another person charged with the possession of the same samsu, the appellant appeared as a defence witness and made a statement which incriminated him. There was evidence of the appellant's reluctance to make the statement until the defence counsel assured him that he came under the protection of s 132 of the Evidence Ordinance 1950. The statement of the appellant was made in Hokkien, a language which the President of the Sessions Court did not understand. It was interpreted by an interpreter into English and recorded in its English form. The English form was produced at the trial of the appellant and relied upon as proof of his possession of the samsu. The interpreter was not called to give evidence. On the question of the admissibility of the record of the appellant's testimony,

Held, allowing the appeal: (1) s 132 of the Evidence Ordinance did not preclude the record of the appellant's testimony from being admissible against him. The section excludes an incriminatory statement made by a witness from being admissible in subsequent criminal proceedings against him only where the witness had been compelled by the court to make such statement. This is clear from the language of s 132(2) of the ordinance. In this case no compulsion was exercised by the court; (2) the testimony of the appellant was recorded by the President of the Sessions Court from what was told to him by the interpreter. As the interpreter himself was not called, the record of the appellant's testimony was hearsay and inadmissible. R v Attard [1959] 43 Cr App R 90 followed.

Tang Lew Keng v Public Prosecutor [1968] 2 MLJ 48 High Court, Perak (Chang Min Tat J).

In this case, the only point in dispute was whether duty had been paid on a certain quantity of samsu that was found on the appellant's premises.

Held: by reason of s 53 the onus of proving that duty had been paid on the samsu lay on the appellant, or at the very lowest to raise a reasonable doubt on the point in the mind of the court. This he could do either by adducing evidence of his own to show that duty had in fact been paid or by showing that the prosecution evidence gave rise to an inference to the same effect. Observations on making entry in retail stock book.

Looi Teik Lan v Public Prosecutor [1961] MLJ 12 Court of Appeal, Penang (Thomson CJ, Hill and Good JJ).

Possession of dutiable samsu under s 113 of the Customs Ordinance 1960 is not proved by evidence showing that the accused was leaning against the car in which the dutiable samsu was found and that his finger-prints were on the rear window of the car.

Seow Peng Kuan v R [1963] MLJ 279 High Court, Singapore (Winslow J).

In this case, the three accused were charged with knowingly being in possession of a commercial quantity of uncustomed cigarettes which were found in a lorry driven by the second accused, the other two being also in the lorry. Evidence of a statement made by one of them to a customs officer was tendered by the prosecution but rejected by the learned President of the Sessions Court. At the close of the case for the prosecution all three accused were acquitted on the ground that they were not proved to have been in possession. The Public Prosecutor appealed on the grounds that: (a) the evidence mentioned was wrongly rejected; (b) there was evidence of possession which, if unrebutted, would have warranted a conviction.

Held: it is no doubt correct that when the evidence points to only one of the several accused being guilty and the circumstances do not implicate one rather than another the court will be left in doubt and therefore should acquit them all (even though convinced that one or other of them must be guilty), but when the evidence points to a joint enterprise, the court ought to consider whether a prima facie case of joint possession is made out and if so should call on the accused for their defence. It is still open to the accused to show that the possession was not joint.

Public Prosecutor v Soh Tuan Cheung & Ors [1949] MLJ 261 High Court, Kuala Lumpur (Taylor J).

Public Prosecutor v Lee Wye Kheng [1978] 1 MLJ 38 High Court, Alor Star (Syed Agil Barakbah J).

See CUSTOMS AND EXCISE, Vol 6, para 189.

Yue Sang Cheong Sdn Bhd v Public Prosecutor [1973] 2 MLJ 77 Federal Court, Kuala Lumpur (Ong CJ, Gill and Ong Hock Sim FJJ).

See CUSTOMS AND ECXCISE, Vol 6, para 192.

Wolfgang Pzetzholdt v Public Prosecutor [1970] 2 MLJ 195 High Court, Malacca (Sharma J).

See CUSTOMS AND EXCISE, Vol 6, para 188.

In this case, the appellant was convicted of possession of distilling apparatus for distilling intoxicating liquor, an offence under s 13(i) of the Excise Enactment (Cap 133). On appeal it was argued (a) that the charge was bad as the word 'knowingly' was left out in it, (b) that there was insufficient proof that the articles found were component parts of a still.

Held: (1) the defect in the charge did not embarrass the accused in making his defence and could be cured under s 422 of the Criminal Procedure Code (FMS Cap 6); (2) the onus was on the prosecution to prove clearly that the articles found in fact form a still for distilling intoxicating liquor and as they had failed to do so in this case the conviction must be quashed.

Wong Ah Kee v Public Prosecutor [1949] MLJ 68 High Court, Ipoh (Evans J).

In order to support a charge under s 13(i) of the Excise Enactment (Cap 133) for knowingly keeping a still for distilling intoxicating liquor it is not necessary to prove possession of a complete still. Evidence of possession of dismantled components of a still and of their past use for distilling purposes is sufficient to sustain a conviction under the section.

Public Prosecutor v Manickam [1940] MLJ 133 Court of Appeal, Federated Malay States (Poyser CJ (FMS).

This was an appeal against the conviction of the appellant on a charge of possession of intoxicating liquor and possession of a still. The evidence against the appellant on the first charge consisted solely of his admission, which was given in answer to questions by an excise officer, who it appeared had said in Malay 'Don't you tell lies'.

Held: (1) s 113 of the Criminal Procedure Code (Cap 6) and ss 25 and 26 of the Evidence Ordinance 1950 do not apply to excise officers and statements made by an accused person to an excise officer are admissible in evidence provided the court is satisfied that the answers were given voluntarily; (2) in this case the part of the statement made by the appellant after the warning had been given was inadmissible and therefore the conviction on the first charge must be quashed.

Koh Jok Sim v Public Prosecutor [1966] 2 MLJ 50 High Court, Kota Bahru (Abdul Aziz J).

The accused, having been found with certain articles which were component parts of a still but which were not capable by themselves of forming a complete still, were charged under s 13(i) of the Excise Enactment and acquitted.

Held: a part of a still is a utensil and if the purpose for which the part was owned can be proved an offence under the section can be established.

Public Prosecutor v Chia Lip Boon & Ors [1941] MLJ 158 High Court, Federated Malay States (Murray-Aynsley J).

In this case, the Public Prosecutor appealed against the sentence of a fine of RM25 or in default three weeks rigorous imprisonment passed on the respondent for the defence of knowingly being in possession of a complete still, an offence under s 9 of the Enactment 102. On the accused's plea of guilty, the learned magistrate did not record any evidence. It was submitted on behalf of the State that: (a) there was evidence which should have been called for by the magistrate that the still was being used for manufacturing illicit samsu on a small commercial scale; (b) in view of the maximum sentence set out by s 64 for this offence, the infliction of a fine of 1/40th of the maximum was inadequate; and (c) a deterrent sentence was necessary to safeguard the revenue.

Held: (1) in assessing the fine for an offence under s 9 for knowingly being in possession of a still, it would be improper to presume that an offence under s 8 for distilling liquor without a licence has also been committed and to allow such presumption to influence the weight of the sentence to be inflicted; (2) section 64 is an omnibus section and the maximum penalty laid down should not be taken as a criterion by which to measure all offences punishable thereunder; (3) the court in assessing sentence should not be influenced by the financial position of government or any of its departments.

Public Prosecutor v Sim Moh Ee [1946] MLJ 88 High Court, Johore (Laville Ag J).

The appellant was charged under s 9(i) of the Excise Enactment (Cap 133), Johore, with knowingly having in his possession apparatus for the manufacture of intoxicating liquor and was convicted and fined RM100. The appellant was a tinsmith and on 8 May 1947 there was found in his shop three pieces of apparatus such as are used in a still for manufacturing samsu. Evidence was also given that these three pieces of apparatus called respectively a condenser, a pipe and a salor (or spout) would require a pan or boiler to constitute a complete still.

Held: (1) where some important part of the complete still or other apparatus is missing, it is essential that there should be evidence that the apparatus found had been used for distilling or manufacturing intoxicating liquor or that the possessor definitely knew that it was so used; (2) in the absence of such evidence in this case, there was reasonable doubt, and the accused must be given the benefit of it.

Chia Chin Sen v Public Prosecutor [1948] MLJ 5 High Court, Malayan Union (Bostock-Hill J).

Khoo Tam Seng v Public Prosecutor [1970] 1 MLJ 5 High Court, Kuala Lumpur (Abdul Aziz J).

See CUSTOMS AND EXCISE, Vol 6, para 78.

In this case, at the trial of the appellant for being in possession of uncustomed goods, evidence was given by a prosecution witness that he had been arrested for carrying certain goods of the appellant which were headache powders similar to those in respect of which the appellant was charged. This witness stated that the appellant gave him the goods when he was going off duty and that the appellant asked him to take the goods to a rubber godown and wait for him. The witness said he was arrested before he could reach his rendezvous.

Held: (1) the evidence of the witness was clearly evidence tending to suggest that the appellant had committed a similar offence on a different occasion; (2) such evidence was not admissible as it went to show merely that the appellant was likely to have committed the offence charged and therefore should not have been admitted; (3) (semble) where a magistrate decides to accept the evidence of an accomplice without corroboration he should give definite reasons for so doing.

Wong Kok Wah v R [1955] MLJ 46 High Court, Penang (Spenser-Wilkinson J).

This was an appeal against the conviction of the appellant on a charge of being in possession of uncustomed goods, to wit, a Movado watch. The defence of the appellant was that he bought the watch from a trader.

Held: as the appellant had given an explanation which showed that he did not know the goods were uncustomed he should have been acquitted.

Lee Guek Hon v Public Prosecutor [1953] MLJ 17 High Court, Johore Bahru (Buhagiar J).

Public Prosecutor v Kedah & Perlis Ferry Service Sdn Bhd [1978] 2 MLJ 221 High Court, Alor Star (Syed Agil Barakbah J).

See CUSTOMS AND EXCISE, Vol 6, para 88.

The appellants were two firemen on the Straat Mozambique, which was on her way from Japan to South America. In Japan the appellants accepted certain goods from a person to be delivered to another person at the port of Santos in South America. The existence of these goods on the boat was not known to the captain of the ship, and none of them appeared in the ship's manifest or in the list of dutiable goods in the possession of the crew signed by each of them. On 21 December 1961, the ship called at Port Swettenham and these goods were found by the customs hidden in the cofferdam tank in the engine room. The appellants each made a confession admitting possession of these goods but stated that they were not meant to be imported into Malaya as they were to be delivered to someone in Santos. On these facts they were jointly convicted of two offences, of being in possession of uncustomed goods contrary to s 131(1)(d) of the Customs Ordinance 1952.

Held: in this case all the prosecution need prove were: (a) possession, and (b) the offending goods were uncustomed goods. As possession was admitted and an irrebuttable presumption having arisen that the goods were uncustomed goods under s 105(3) of the ordinance, the appellants were rightly convicted.

Pang Po & Anor v Public Prosecutor [1962] MLJ 294 High Court, Kuala Lumpur (Suffian J).

Where a duty of giving an explanation is cast upon a defendant, and an explanation is given, which is consistent with innocence, the court must consider whether it might reasonably be true although not convinced of its truth.

Loh Chak Wan v Public Prosecutor [1939] MLJ 84; [1937-38] FMSLR 68 High Court, Federated Malay States (Thomas CJ).

The appellant in this case was charged with another accused man in the alternative (1) with knowingly being in possession of uncustomed tobacco or (2) with knowingly conveying uncustomed tobacco.

Held: mere juxtaposition is not enough to constitute possession. There must be something more, a nexus that establishes in the accused a power of controlling the thing said to be possessed. In such charges the onus is laid by law on the accused to prove that the goods are duty paid or that he did not know that were uncustomed. The prosecution must prove that accused was in possession of the goods.

Tan Boon Teck v Public Prosecutor [1950] MLJ 44 High Cour, Muar (Laville J).

The appellant was found guilty and convicted under s 131(1)(d) of the Customs Ordinance 1952 of being knowingly in possession of uncustomed articles. He appealed against the conviction and sentence. The defence was that the articles in question were unredeemed articles and part of the stock of a pawnshop in Kuala Lumpur. The articles had been given by the pawnshop to the appellant's uncle who was to take them out of Kuala Lumpur to sell them at a profit. As his uncle decided not to go outstation he gave the articles to the appellant to sell them at Ipoh. The learned President found that the items referred to in the pawnshop's unredeemed articles book were so vague and general in description that they were incapable of being identified with the articles found in possession of the appellant.

Held: the appellant in this case had failed to discharge his burden of proof and therefore had not rebutted the presumption under the Customs Ordinance, s 131(2).

Chee Shih Kwang v Public Prosecutor [1955] MLJ 126 High Court, Kuala Lumpur (Buhagiar J).

The respondent was stopped by a customs officer when walking past the customs shed at Rantau Panjang railway station, Kelantan. She was asked if she had anything to declare and replied that she had only some old clothings. After searching the bags she was carrying the customs officer found apart from old clothings a number of dutiable articles. The respondent did not give a reasonable explanation of the presence of these articles or produce any receipts. She was accordingly charged with knowingly being in possession of uncustomed goods contrary to s 131(1)(d) of the Customs Ordinance 1952. At the conclusion of the prosecution case the respondent was acquitted and discharged without being called for her defence. The Public Prosecutor appealed.

Held: what the prosecution had to prove was simply that the respondent was in possession of dutiable goods at the time and place alleged in the charge. The effect of s 115 of the ordinance is that if a customs officer finds a person in possession of dutiable goods anywhere in the Federation he can take him to court and make him prove that the duty has been paid, or make him rebut the presumption of knowledge which is created by s 131(2). In the latter case the person charged must prove to the satisfaction of the court that he does not know that the duty has not been paid.

Public Prosecutor v Fatimah [1960] MLJ 109 High Court, Kota Bahru (Hepworth J).

The facts were that on a search of the respondent's shop in Muar a customs officer found 73 packs of playing cards. The respondent was charged for being knowingly in possession of uncustomed goods. He was acquitted and the public prosecutor appealed. On appeal reliance was placed on the presumption in s 131(2) of the Customs Ordinance 1952 which provides that 'in any prosecution under this section any uncustomed goods shall be deemed to be uncustomed goods to the knowledge of the defendant unless the contrary be proved by such defendant'. It was argued that unless a person had reason to believe that the duty had been paid he cannot be said not to know it has not been paid.

Held: (1) what the defendant had to prove to rebut the presumption under s 131(2) of the Customs Ordinance 1952 was that he does not know the duty has not been paid; (2) in this case the respondent had succeeded in rebutting the presumption and therefore was rightly acquitted.

Public Prosecutor v Tay Yew Lia [1957] MLJ 17 High Court, Muar (Good J).

The accused was charged with being knowingly in possession of 3,005.5 yards of cloth in 90 bales on which duty amounting to RM3,077.05 had not been paid. The accused had imported by means of the postal services, the 90 bales at the expressed total cost of RM7,819.50 and another consignment of 25 bales of the same kind of goods. The importer declared in his importation form the area of cloth imported in square yards and indicated the length as 910.7 yards. The accused had declared 910.7 yards and paid the duty assessed by the customs officer at the post office on this yardage. But he had taken delivery of 3,005.5 yards, an excess of 2,094.8 yards. This extra yardage had not been declared and cleared for importation and duty had not been assessed or paid. The defence submitted that customs duty had in fact been paid and the goods could not be uncustomed goods. The accused was acquitted and discharged without his defence being called. The prosecution appealed.

Held, allowing the appeal: (1) the court having the power to amend charges, the charge should have been amended to one of being knowingly in possession of goods, to wit, 2,094.8 yards on which duty amounting to RM2,279.14 had not been paid; (2) the accused could only be and should be charged with failure to pay the duty assessed on the price determined by the customs officer at the post office and not at the price subsequently imposed; (3) the case should be remitted to the learned President with a direction to amend the charge and to call for the defence.

Public Prosecutor v Lee Kee Chang [1974] 2 MLJ 15 High Court, Ipoh (Chang Min Tat J).

The appellant in this case was observed by five customs officers led by Assistant Superintendent of Customs Cheong handing a white plastic bag to one Koh. The latter was finally arrested and the bag which contained 26 packets of brownish substance was analyzed by the Senior Scientific Officer of the Department of Scientific Services and was found to contain 111.96 g of diamorphine. The trial judges held that as it was the appellant who gave the plastic bag containing the diamorphine to Koh and, having regard to the definition of 'traffic' in s 2 of the Act, a prima facie case had been made out against him under s 3(a) of the Misuse of Drugs Act 1973. The trial judges accepted the voluntary statement the appellant gave to Assistant Superintendent of Customs Cheong on the night of his arrest. The statement was taken in writing by Assistant Superintendent of Customs Cheong under s 121(6) of the Criminal Procedure Code (Cap 113, 1970 Ed). The appellant contended that as an officer of customs is not a police officer, Assistant Superintendent of Customs Cheong had no power to record the statement from the appellant under the provisions of the Criminal Procedure Code and that the statement should not have been admitted in evidence. It was also submitted by the appellant that a Scientific Officer is not a 'Government Chemist', a certificate given by the former is not a valid certificate under s 14 of the Misuse of Drugs Act 1973 that prima facie the 26 packets contained 111.96 g of diamorphine.

Held, dismissing the appeal: (1) an officer of customs has a duty to investigate into the facts leading to the arrest and seizure. If, after investigation, the facts so warrant he must charge the person in court for an offence under the Misuse of Drugs Act, for arrest is the first step of the judicial process in the administration of justice; (2) the powers given to officers of customs to arrest, search, seize and detain under the old ordinances, and in the Misuse of Drugs Act, are similar to the powers given to police officers under the Criminal Procedure Code; (3) given that an officer of customs has a duty to investigate and charge offenders under the Misuse of Drugs Act, Assistant Superintendent of Customs Cheong in this case was empowered under s 121(6) read with s 121(8) of the Criminal Procedure Code to record a statement from the appellant; (4) a certificate purporting to be signed by the Senior Scientific Officer complied with s 14 of the Misuse of Drugs Act 1973; it must on the face of it also show that the Scientific Officer is a chemist in the service of the government, as a Scientific Officer can be a qualified officer other than a chemist.

Chia Beng Chye v Public Prosecutor [1980] 2 MLJ 171 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Chua JJ).

This was an appeal against the acquittal of the respondent on a charge of abetting a person or persons unnamed in the illegal importation into the Colony of gold, in contravention of para 2(1) of the Prohibition of Imports Order 1950 read with s 27 of the Control of Imports and Exports Ordinance 1950. The facts as adduced by the prosecution were as follows: On 17 June 1955 a PAA aircraft landed at Kallang Airport at about 4.45 pm. Some customs officers kept observation on the plane. After the passengers' baggage and the mail had been cleared some fitters and the accused who was employed by Pan-American Airways were working on the plane. Accused was seen to enter the plane and come out after two or three minutes. He then mounted a bicycle and rode towards a hangar and disappeared. After about three or four minutes he rode back to the aircraft, and again entered the plane. About two minutes afterwards he came out of the plane, mounted the cycle and rode towards the hangar. He was then stopped by the customs officers. Accused produced two heavy brown-paper parcels to the customs officers. Later the customs officers went to the hangar and in a tool box, the key to which was handed to them by the accused, were found four parcels similar in appearance to the two parcels which the accused had handed to the customs officers. The parcels were subsequently found to contain gold. At the time the accused was stopped he had on him a white waistcoat with a number of pockets under his singlet. The learned district judge acquitted the accused as he held (i) that there was no evidence to show where the aircraft came from and (ii) that the prosecution had failed to establish a prima facie case that the accused had engaged in a conspiracy for the importation of gold into the Colony: this being the form of abetment alleged. The Deputy Public Prosecutor appealed.

Held: (1) it is common knowledge that the big international airlines do not operate internally and therefore in the absence of anything in the evidence suggesting some abnormal circumstances, eg a forced landing up-country, there could be no reasonable doubt that the plane in this case flew into Singapore from outside local territorial waters; (2) having regard to all the circumstances there was evidence in this case to raise the prima facie inference that at some time before the gold was imported, the accused had become a party to the conspiracy for its illegal importation and therefore the learned district judge should have called on the accused to enter for his defence.

R v Chew Chong Jin [1956] MLJ 185 High Court, Singapore (Whitton J).

The appellant was charged under s 131(1)(a) of the Customs Ordinance for being concerned in the importation of prohibited goods namely 173 sacks of rice from Siam by boat across the river. The learned President convicted the appellant and sentenced him to a fine of RM5,000 or two years imprisonment and ordered that the rice be confiscated. On appeal,

Held: (1) in this case the prosecution failed to prove beyond any reasonable doubt that the appellant was concerned in the importation of rice as he was not conclusively identified; (2) as the evidence showed that an offence had been committed under the ordinance the order of confiscation of the 173 sacks of rice and the boat confirmed. Observations on the definition of 'import' and the meaning of 'is concerned' in the Customs Ordinance 1952.

Syed Abdullah v Public Prosecutor [1964] MLJ 48 High Court, Kota Bahru (Hashim J).

Aw Yock Beng v Public Prosecutor [1947] MLJ 121 High Court, Malayan Union (Brodie Ag J).

See CUSTOMS AND EXCISE, Vol 6, para 67.

The respondents were charged on two charges under s 131(1)(a) of the Customs Ordinance 1952, and s 22(1) of the Control of Supplies Act 1961 (Act 122) respectively. The question for decision in the court below was whether or not there was importation when the MS Harin Panich 32 with cargo of 2,300 bags of Siam rice entered Tumpat harbour on 7 September 1965. The learned President answered the question in the negative and acquitted the respondents without calling for their defence. On appeal by the Public Prosecutor,

Held: in this case, there was importation when the ship conveying the rice arrived within the limits of Tumpat port. It was clear from the evidence that the respondents had arranged for the importation of the rice from the Bangkok firm who at their instruction had shipped them via Tumpat being the ultimate port of call.

Public Prosecutor v Chua Yew Eng & Ors [1968] 2 MLJ 108 High Court, Kota Bharu (Raja Azlan Shah J).

The appellant was charged with being knowingly concerned in conveying prohibited goods, to wit, ten pounds of saccharin, an offence under s 131(1)(e) and punishable under s 131(1)(iii) of the Customs Ordinance 1952. He was found guilty by the President of the Sessions Court and fined RM250 and the car used for conveying the goods was confiscated. On appeal against conviction and sentence a preliminary point was raised by counsel for the appellant as to whether saccharin was 'prohibited goods' within the meaning of the Customs Ordinance. Counsel argued that only goods whose import was prohibited under an order under s 30(1) of the said ordinance could be said to be prohibited goods and that there was no order under this section relating to the prohibition of the import of saccharin.

Held: although there was no order under s 30(1) of the Customs Ordinance prohibiting the import of saccharin, reg 25(1) of the Sale of Food and Drugs Regulations 1952 made under s 28 of the Sale of Food and Drugs Regulations 1952 prohibited the import of saccharin. Saccharin was therefore 'prohibited goods' within the meaning of the Customs Ordinance.

Teo Soo Siang v Public Prosecutor [1961] 3 MC 303 High Court, Muar (Ismail Khan J).

The respondents were charged under s 131(1)(e) of the Customs Ordinance 1952 for knowingly conveying in a motor lorry 141,200 packets of firecrackers, 400 lbs of saccharine and 400 dozen tins of sardines manufactured in the Union of South Africa. The first and third respondents were convicted on the first and second charges and were acquitted without their defence being called on the third stage. The second accused was acquitted of all three charges. The Public Prosecutor appealed against the acquittal of the second respondent on all three charges and against the acquittal of the first and second respondents on the third charge. He also appealed against the sentence imposed on the third respondent because he had a previous conviction under the Customs Ordinance. It was argued for the prosecution that (i) the explanation of the second respondent that he was merely a lorry attendant and only carried out the duties as such attendant was highly unreasonable, (ii) the acquittal of the first and third respondents in respect of the 400 dozen tins of sardines was wrong because they were labelled to be a product of South West Africa and therefore prohibited under the Customs (Prohibition of Imports) Order 1960.

Held: (1) on consideration of all the evidence in this case the explanation of the second accused was reasonable under the circumstances; (2) if an article is labelled as in this case that it is a product of South West Africa then that is prima facie evidence that it is a product of South West Africa; (3) (per curiam) '... Any South African goods in the country are prohibited goods, and that they became so at the date of the coming into force of the Order, and if the owner of those goods wants to claim the protection of para 2(1), then under the normal provisions of law contained in s 106 of the Evidence Ordinance, the onus is on the owner to show that he is entitled to take advantage of that privilege or exemption.'

Public Prosecutor v Chi Ah Kow & Ors [1963] MLJ 122 High Court, Johore Bahru (Adams J).

The appellant was charged with possession of prohibited goods. The only evidence of the goods being prohibited was the listing on the packages: 'manufactured in Communist China'. The question was whether the evidence was sufficient.

Held: in the circumstances of this case the words 'manufactured in Communist China' would amount to hearsay and inadmissible evidence and as such they should have been held as inadmissible evidence in a court of law. In the absence of any other evidence it was apparent that the prosecution had not therefore sufficiently proved that the goods in question were in fact prohibited goods and as such the prosecution had failed to establish a prima facie case against the appellant.

Ang Chai Beng v Public Prosecutor [1974] 4 MC 257 High Court, Kuala Lumpur (Pawan Ahmad J).

R v Wong Ki Chin [1955] MLJ 39 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 48.

This was an appeal from the appellants' conviction for an offence under s 135(1)(a) of the Customs Act 1967 (Act 235). The charge against them was as follows: 'That you, Koo Cheh Yew and Khoo Chun Woh at about 8.15 am on 5 July 1972 at the Royal Customs and Excise Office, Seberang Prai, were concerned in importing from Cape Town, South Africa, prohibited goods, to wit, six ÒR Gore & KallmanÓ pianos, valued at RM11,606.86 which are the products of the Union of South Africa, such goods being goods absolutely prohibited on import under the Customs (Prohibition of Imports) Order 1969, and thereby committed an offence under s 135(1)(a) and punishable under s 135(1)(iii) of the Customs Act 62/67.'

Held, allowing the appeal: the mere fact that the words 'knowingly' or 'with intent to defraud or import prohibited goods' did not appear in s 135 of the statute creating the offence did not mean that the doors are tightly shut to an accused who establishes to the court from all the circumstances of the cases that he did not have a guilty mind to avail himself of the defence of an innocent mind.

Koo Cheh Yew & Anor v Public Prosecutor [1978] 1 MLJ 141 High Court, Penang (Arulanandom J).

In this case, the accused persons were charged in the sessions court in Penang with being concerned in importing six pianos which being the products of South Africa were by law prohibited goods. They were convicted and they appealed to the High Court. In the High Court Arunalandom J held that on the facts of the case the accused had no guilty mind and he therefore quashed the convictions ([1978] 1 MLJ 141). The Public Prosecutor then applied for a certificate to refer to the Federal Court certain questions of law of public interest. The questions were: '(1) In a prosecution against the accused under s 135(1)(a) of the Customs Act 1967 (Act 235) of being concerned in importing prohibited goods contrary to a prohibition does a denial by the accused of knowledge of the relevant prohibition order entitle him to an acquittal? (2) Is not the denial of knowledge under s 135(2) of the Customs Act 1967 limited only to denial of knowledge as to the facts and not as to the law concerning prohibited goods? (3) Is it not sufficient for the prosecution to prove that the goods imported were of the description mentioned in the prohibition order in order to show that such importation was contrary to the prohibition? (4) In a proceeding against the accused under s 135(1)(a) of the Customs Act 1967 of being concerned in importing prohibited goods contrary to a prohibition, if all the circumstances of the case point to an innocent mind of the accused, is the court entitled to take cognizance of this fact before giving the verdict?'

Held, by a majority (Suffian LP dissenting): (1) a denial by the accused of knowledge of the relevant prohibition under s 135(1)(a) of the Customs Act 1967 does not entitle him simpliciter to an acquittal. Even if he proves to the satisfaction of the court that he in fact does not know the existence of the prohibition, he is still not entitled to be acquitted unless he proves on a balance of probabilities that he could not have reasonably known of the prohibition; (2) proof of lack or absence of knowledge, again on a balance of probabilities, that the goods in question are prohibited from importation (eg as in this case that the pianos originated from South Africa) may be ground for an acquittal as a mistake of fact, but a denial of the knowledge of the ban, as a matter of law may not be, even if backed by sufficient proof except in the circumstances set out, that is unless he proves on a balance of probabilities that he could not have reasonably known of the prohibition; (3) it is sufficient for the prosecution to prove that the goods were of the description mentioned in the prohibition in order to show that the importation was contrary to the prohibition. The burden then shifts to the accused to establish on a balance of probabilities that he did not know of the prohibition and could not have reasonably known of the prohibition; (4) the exception to the rule against ignorance of law as a defence should not be extended beyond the cases where the accused could not possibly have known of the existence of the law he had offended against.

Public Prosecutor v Koo Cheh Yew & Anor [1980] 2 MLJ 235 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

The appellant had been convicted of the offence of importing prohibited goods, to wit, rice. The goods were found on a vessel which had arrived at the port of Melaka. In his defence the appellant had alleged that the rice was bona fide in transit and that he did not know that a licence was required for bringing it into the Federation. The learned President of the Sessions Court rejected the plea that the goods were in transit and also held that 'knowledge' was not relevant to the offence under s 135 of the Customs Act 1967 (Act 235).

Held: (1) on the facts the learned President was justified in holding that the goods were not bona fide in transit; (2) the learned President was wrong in holding that guilty knowledge was not relevant but on the facts before him the learned President would not have accepted on a balance of probabilities the appellant's story that he did not know that a licence was required for bringing the rice into the Federation, therefore the appeal must be dismissed.

Suthon Kavsonthi v Public Prosecutor [1975] 1 MLJ 154 High Court, Malacca (Ibrahim J).

The two appellants were charged with being knowingly concerned in conveying prohibited goods, to wit, 50 bags of rice which could not be imported except under licence, with intent to evade the prohibition applicable to such goods, an offence contrary to s 131(1)(e) of the Customs Ordinance 1952. As regards the question of whether the rice was prohibited goods, the prosecution had to prove that it had been brought at some time from outside Malaysia and that there was no licence for its import, and to do so they were entitled to invoke the assistance of s 115 of the ordinance. The effect of s 115 was that there was cast on the accused the burden of proving either that the rice had not been brought from outside Malaysia or that its import was under licence. The prosecution had to prove also that each of the accused knew that the rice was prohibited goods, in the sense that it had been imported without a licence. As to this, there was a presumption in favour of the prosecution under s 131(2) of the ordinance. On the evidence adduced and with the aid of the provisions of ss 115 and 131(2) of the ordinance, the prosecution had made out against the accused a case which if unrebutted would warrant their conviction. The learned President therefore called upon them to enter their defence. The defence was a simple one, namely that the rice had not been brought from outside Malaysia. The learned President found that the accused had not discharged the burden of proof under s 115, nor had they been able to satisfy the court to rebut the presumption under s 131(2). He found them guilty, convicted and fined each of them RM5,000 or nine months' imprisonment in default, and forfeited the lorry and the rice. He was upheld by Yong J, who subsequently on the application of the accused, under s 66 of the Courts of Judicature Act, reserved the following question of law for the decision of the Federal Court: 'Whether the quantum of proof on an accused person to discharge the onus placed on him by s 115 and/or s 131(2) of the Customs Ordinance 1952, should be: (a) to the satisfaction of the court, or (b) on the balance of probabilities, or (c) to raise a reasonable doubt.'

Held: (1) where an enactment expressly provides that a particular fact shall be presumed or deemed to exist 'unless the contrary is proved' it is unnecessary for the defendant to prove whatever he has to prove beyond reasonable doubt, for all that he has to do is to satisfy the court on a balance of probabilities that it is more likely than not that the fact which he seeks to prove or disprove exists or does not exist, as the case may be. In other words, the burden which lies on him is the same as that which lies on a successful party in civil proceedings; (2) the distinction between 'satisfaction on a balance of probabilities' and 'satisfaction beyond reasonable doubt' is well established in the law, since the courts always stress, when the onus of proof is on the accused (for example, where he raises the defence of insanity, or where some statute puts the onus on him) that he need satisfy the jury only on the balance of probabilities, which is lesser than the onus on the prosecution, namely satisfaction beyond reasonable doubt. Taking the words 'satisfaction of the court' to mean 'satisfaction on the balance of probabilities' it would seem clear that question (a) in this reference can be equated with question (b); (3) the mere expression 'to the satisfaction of the court' is unsatisfactory when referring to the degree of proof required of a defendant in prosecutions under the Customs Ordinance; (4) in order to rebut the presumption under s 131(2) of the Customs Ordinance the accused in the present case had to prove on the balance of probabilities that the 50 bags of rice did not come within the category of 'dutiable' or 'uncustomed' or 'prohibited' goods; (5) under s 115 of the Customs Ordinance the fact that the rice in question had not been lawfully imported is presumed unless the contrary is proved, although the section does not say so in so many words; (6) the quantum of proof required of a defendant is the same whether it is a question of introducing evidence to rebut a presumption or introducing evidence to prove that which is required to be proved. The quantum of proof in either case is proof on the balance of probabilities as in civil proceedings; (7) in this case the learned President probably misdirected himself in applying Public Prosecutor v Fatimah [1960] MLJ 109. The effect of that would therefore be that he had failed to direct his mind properly on the law as to quantum of proof placed on the defence in such a case as the instant one. However, that failure to direct his mind properly on the question of law had not occasioned any substantial miscarriage of justice because he had rejected the evidence of each of the witnesses produced by the defence in toto and in so doing had applied the correct principle.

Ng Eng Kooi & Anor v Public Prosecutor [1970] 1 MLJ 267 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Gill FJJ).

This was an appeal against the conviction of the appellant on two charges under the Customs Act 1967 (Act 235) of (i) knowingly being in possession of prohibited goods under s 135(1)(d) of the Customs Act 1967, and (ii) knowingly being concerned in dealing with uncustomed goods under s 135(1)(e) of the Customs Act 1967. The appellant in his defence had stated that he obtained the walkie talkies, the subject of the charges, in Singapore and that he had been allowed to bring the goods into Malaysia with him in the bus in which he was travelling as a passenger. On arriving at Malacca he went to see the chief police officer with the object of selling the walkie talkies to the police. The appellant was told that the police got their walkie talkies from their headquarters and that he should if he wanted to sell them, try some local shop. Neither the appellant nor his witness was cross-examined by the prosecution.

Held, allowing the appeal: (1) as regards the first charge under s 135(1)(d) of the Customs Act 1967, the learned President in this case had not adequately considered the import and significance of the word 'knowingly' in the definition of the offence and had not directed his mind at all to the absence of cross-examination of the appellant and his witness and to the quantum of proof which the law requires an accused person to rebut a statutory presumption; (2) the second charge under s 135(1)(e) of the Customs Act 1967 required not only knowledge but an intent to defraud the government of the duty payable or to evade any prohibition under the Act or to evade the prohibition applicable to the goods concerned and in this case the prosecution had not shown that the appellant has such knowledge or intent.

Wolfgang Pzetzholdt v Public Prosecutor [1970] 2 MLJ 195 High Court, Malacca (Sharma J).

The accused was charged with knowingly being in possession of prohibited goods, to wit, 95 pieces of foreign gold coins valued at RM14,745 such goods being goods the import of which was prohibited except under and by virtue of an import licence issued by the Comptroller General of Customs. At the conclusion of the case for the defence, the learned Senior President, Sessions Court, Alor Star, acquitted and discharged the accused but made an order of forfeiture of the gold coins under s 127 of the Customs Act 1967 (Act 235). On appeal by the Public Prosecutor.

Held, dismissing the appeal: (1) the learned President was justified on the facts in holding on a balance of probabilities that the accused had no knowledge that the articles were prohibited; (2) as the exhibits were prohibited goods, the learned President was correct in ordering their forfeiture.

Public Prosecutor v Lee Wye Kheng [1978] 1 MLJ 38 High Court, Alor Star (Syed Agil Barakbah J).

This was an appeal against the decision of a district judge who found the appellant guilty of: (i) importing prohibited goods, to wit, gold, an offence under O 2(1) of the Prohibition of Imports Order 1950; (ii) concealing the prohibited goods, an offence under s 116(1)(i) of the Customs Ordinance 1960. On the appeal it was argued, inter alia: (a) the district judge had misdirected himself in law upon the burden of proof required of the appellant to discharge the onus placed upon him by law; (b) the district judge erred in law in admitting evidence that the appellant attempted to bribe the two customs officers when they were conducting a search of his cabin, which evidence was highly prejudicial to the appellant and should not have been admitted as the appellant had been acquitted on the charges under the Prevention of Corruption Ordinance which had earlier been withdrawn; (c) the sanction for the prosecution of the appellant was invalid as it was given by a person who had since signing it ceased to be an Assistant Comptroller of Customs.

Held, dismissing the appeal: (1) in this case it was clear from the grounds of decision the district judge correctly adopted the principle of the balance of probabilities as a test for deciding the onus on the appellant; (2) assuming that an accused person can rely on issue estoppel in a criminal case, issue estoppel did not arise in this case as the acquittal was consequential on the withdrawal of the charge by the prosecution and not because the court had made certain findings of fact in favour of the appellant; (3) the sanction issued in this case remained effective and was not spent, despite the fact that the officer who signed the sanction had ceased to be an Assistant Comptroller of Customs; (4) the appeal against conviction must therefore be dismissed, but the district judge had erred in directing that the appellant suffer imprisonment of one year in default of payment of fine of S$10,000 on the first charge and therefore the terms of imprisonment to be suffered by the appellant in default of the payment of the fine of S$10,000 on the first charge and the fine of S$5,000 on the second charge should be varied to one of six months on the first charge and one year on the second charge.

Yau Tin Kwong v Public Prosecutor [1970] 1 MLJ 159 High Court, Singapore (Chua J).

This was an appeal against the convictions of the appellants under s 131(1)(a) of the Customs Ordinance 1952 for being concerned in importing prohibited goods, to wit, 72 pigs. By reason of the existence of swine fever the Menteri Besar of Johore had made an order under s 36(1) of the Animals Ordinance 1953 prohibiting the removal into and out of the state of any swine.

Held: (1) as the order of the Menteri Besar in this case did not prohibit the importation or exportation of goods, the pigs in this case were not 'prohibited goods' within the meaning of the Customs Ordinance 1952; (2) the convictions must therefore be quashed and the appellants retried on a proper charge under the Animals Ordinance 1953.

Goh Ah Tin & Ors v Public Prosecutor [1970] 1 MLJ 173 High Court, Johore Bharu (Syed Othman J).

The applicant company had been convicted of the offence of knowingly being in possession of certain prohibited goods and had been fined RM1,620. Its appeal against conviction was dismissed by the High Court. Thereupon application was made by the company to refer the following questions of law to the Federal Court: (i) whether a limited company charged under s 135(1)(d) of the Customs Act 1967 (Act 235) can be guilty of such criminal offence without proof of mens rea of its agent or officers; (ii) if the answer to (i) is in the negative, whether it is relevant to consider the relative importance of the agents or officers of the limited company whose knowledge is to be imputed to the company.

Held: (1) as mens rea was essential for proof of guilt in this case, the limited company could not be guilty of the offence without proof of mens rea of its agents or officers; (2) the persons whose knowledge would be imputed to the company would be those who were entrusted with the exercise of the powers of the company; (3) (per Ong CJ and Ong Hock Sim FJ, Gill FJ dissenting) although the questions referred had been rightly answered by the learned judge who referred the case to the Federal Court, the Federal Court could exercise its power of review and interfere with the decision of the learned judge, if it was satisfied that that decision was wrong.

Yue Sang Cheong Sdn Bhd v Public Prosecutor [1973] 2 MLJ 77 Federal Court, Kuala Lumpur (Ong CJ, Gill and Ong Hock Sim FJJ).

Public Prosecutor v Sim Moh Ee [1946] MLJ 88 High Court, Johore (Laville Ag J).

See CUSTOMS AND EXCISE, Vol 6, para 162.

In this case, the accused were convicted for conveying dutiable liquor the total duty on which was RM34,803.26. Under s 114(i) of the Customs Enactment (No 5 of 1936), the liability on conviction is to fine not less than six times the amount of the duty or five thousand dollars whichever is less.

Held: where as in this case the result of six times the duty is an amount greater than RM5,000 then the lowest fine that can be imposed is RM5,000.

Cheng Seng & Ors v Public Prosecutor [1949] MLJ 65 High Court, Malacca (Callow J).

The appellant pleaded guilty to two offences under s 126(91)(g) of the Customs Act (Cap 36) of being knowingly concerned in fraudulent evasions of customs duty on 13 March and 13 May 1986. The duty evaded in respect of the two charges to which the appellant pleaded guilty was RM1,500 and RM128. The penalty provision in s 126 that is relevant to the offence committed by the appellant appears in sub-s (91)(i) and reads as follows: 'Penalty: (i) in the case of uncustomed goods, such goods being dutiable goods, be liable for the first offence to a fine of not less than 6 times the amount of the duty or RM40,000 whichever is the lesser amount, and of not more than 20 times the amount of duty or RM40,000 whichever is the greater amount and for the second or any subsequent offence to imprisonment for a term of two years. Provided that when the amount of duty cannot be ascertained the penalty may amount to a fine of RM40,000.' The magistrate fined the appellant RM20,000 on the first charge and RM8,000 on the second charge. He ordered that the appellant serve six months' imprisonment in default of payment of the fine in each instance. The appellant contended that the fines were excessive in that the magistrate calculated them on a wrong basis. An examination of the record shows that in calculating the minimum amount of the fine in each instance, the magistrate applied a multiplier of 6 to the amount of duty assessed and not to the amount of duty evaded. The appellant submitted that in order to arrive at the minimum and maximum figures on which the fine is to be assessed, a court is obliged to apply the multipliers 6 and 20 to the amount of duty evaded.

Held, allowing the appeal: (1) 'the amount of the duty' referred to in the penalty provision in sub-s (91)(i) must refer to the duty evaded or attempted to be evaded and not to the total amount of the duty assessed on the goods in question; (2) the fines imposed by the learned magistrate were set aside. Fines of RM15,000 and RM1,300, in default four months and one month of imprisonment respectively, were imposed.

Tan Kee Tai v Public Prosecutor [1988] 1 MLJ 10 High Court, Bandar Seri Begawan (Macdougall J).

In August 1991, the defendants imported from Belgium into Singapore 950 cartons of cigarettes with a total invoiced value of US$227,430. The cartons were unloaded into the Keppel Free Trade Zone on 15 August 1991. The cigarettes were not meant for retail in Singapore. The cartons of cigarettes were placed in a container and, on 17 August 1991, were produced to a customs officer at the customs checkpoint at PSA Outgate 2. There the container was sealed with a customs seal and locked with a customs padlock. It was then trucked out of the checkpoint and parked on a public road fronting the defendants' licensed warehouse. Condition A7 of the relevant clearance permit stated that goods removed but not exported/transhipped or bonded in a licensed warehouse or received by the claimant of duty exemption on the same day were to be kept only in a customs transmit bond or a place approved by the proper officer of customs. On 19 August, the defendants discovered that the customs seal affixed to the container was missing and the padlock, cut. When the container was opened in the presence of police and customs officers, 409 cartons of cigarettes were found to be missing. The defendants subsequently pleaded guilty to a charge of breaching condition A7 of the cargo clearance permit, an offence pursuant to s 139 read with s 27(1)(c) of the Customs Act (Cap 70) (the Act). The Director General of Customs subsequently demanded from the defendants customs duty on the missing cigarettes on the basis that the missing cigarettes were deemed to have been imported. It was argued that, by breaching condition A7, the defendants had effectively removed the goods from customs control and, in view of this breach, the cigarettes became uncustomed goods by virtue of s 3(1) of the Act. The defendants argued that there was nothing in the Act which imposed any liability on the defendants to pay customs duty on goods lost by theft. There was no suggestion that the defendants had been guilty of anything but negligence in their breach of condition A7. The only issue before the court in this application was whether the defendants were liable in such circumstances to pay customs duty.

Held, dismissing the plaintiff's application: (1) there was no evidence to conclude that the defendants had removed the goods from customs control. An act of negligence by the defendants in not strictly adhering to condition A7 and in leaving the container outside their premises with the padlock and seal in place did not warrant an extreme inference that the goods were removed by the defendants from customs control; (2) under s 10(1) of the Act, customs duties were payable on any goods imported into the customs territory. Under the Act, to 'import' was to bring or cause to be brought into the customs' territory goods liable to duty by any means from any place. There was no act of importing in this case since the goods which were under customs control at the relevant period were stolen before they could be sold or transhipped. To tax the defendants in such circumstances, the customs had to establish either wilful removal of the goods by the defendants or some collusion on their part. Since neither of these were established, the defendants were not liable to pay duty on the stolen goods.

Attorney General v Transmax Marketing Pte Ltd [1996] 2 SLR 179 High Court, Singapore (Rubin J).

The principal point raised in this appeal was that the amendment to s 15 of the Opium and Chandu Rules 1948 by the Opium and Chandu (Amendment) Rules 1948 was invalid, as the amending rule was stated to be made 'with the approval of the Governor' and not with the approval of the Colonial Secretary, who takes the place of the Deputy Chief Civil Affairs Officer, who is specified in s 22 of the Opium and Chandu Proclamation.

Held: (1) there is nothing to prevent the Governor himself exercising approval even where such approval has been delegated to the Colonial Secretary by legislative act and in this case it was clear that the Colonial Secretary must himself have approved the rule prior to its formal submission to the Governor and subsequent publication in the gazette; (2) the amending rule therefore had received the requisite approval prior to publication in the gazette.

Ong Ah Kim v R [1949] MLJ 77 High Court, Singapore (Gordon-Smith Ag CJ).

Au Ah Lin v Public Prosecutor [1963] MLJ 365 Federal Court, Kuala Lumpur (Thomson LP, Wee Chong Jin CJ (Singapore).

See CUSTOMS AND EXCISE, Vol 6, para 214.

The Supreme Court in this case discussed: (1) the legality of search by customs officers; (2) whether the offence of importing or attempting to import can be committed before the vessel actually enters a port.

R v Cheu Chin Hin [1946] SCR 14 Supreme Court, Sarawak

The appellant was charged for destroying the contents of a tin to prevent seizure by customs, an offence under s 78(c) and punishable under s 78(i) of the Excise Act. She was also charged for keeping an apparatus for distilling intoxicating liquor, to wit, one complete still, an offence under s 17(1) and punishable under s 74 of the said Act. Her husband had admitted that the still belonged to him.

Held: (1) the essence of the offence was destruction of the contents of such receptacle, container or package to prevent seizure. It was not necessary to adduce evidence as to the nature of the contents of the vessel, etc. It was sufficient for the prosecution to establish the destruction of the contents to prevent seizure; (2) the witness (husband) was within his rights in claiming protection of s 132(2) of the Evidence Ordinance and there was no reason for him to be regarded as unworthy of credit.

Chua Ah Moy v Public Prosecutor [1965] 4 MC 58 High Court, Malacca (Ismail Khan J).

R v Baichand [1952] MLJ 229 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 59.

Under the provisions of s 22 of the Customs Enactment 1920 a locked door may not be broken unless there is resistance, and seizure of goods is tortious unless it is proved that they were prohibited or that duty had not been paid. The provisions for search, seizure and forfeiture under ss 22, 23, etc and duties regarding custody of seized articles considered.

Chief Secretary to Government v Soo Choon Wee [1923] 3 FMSLR 126 Court of Appeal, Federated Malay States (Woodward CJC and Reay JC).

In this case, a motor vehicle had been seized by the customs as the goods found in it were alleged to be 'intoxicating liquor'. There was no prosecution. Notice was given of the seizure under s 83(3) of the Liquors Revenue Ordinance (SS Cap 225) and the appellant claimed the vehicle. An inquiry was held and the learned magistrate found as a result of the inquiry that an offence under the ordinance had been committed and that the vehicle was used in connection with the offence. He therefore made an order for forfeiture. At the trial, a certificate from the Chief Chemist was admitted to show that the bottles found in the car contained intoxicating liquor.

Held: the certificate was not admissible as s 427 of the Criminal Procedure Code (Cap 21) is limited in its scope to an inquiry, trial or other proceeding under the code, and therefore the order of the magistrate must be set aside.

Toh Kim Soo v R [1954] MLJ 235 High Court, Singapore (Murray-Aynsley CJ).

In this case the owner of the vessel was charged under s 131(1)(a) of the Customs Ordinance. On the trial being postponed he applied for the vessel to be released. The court ordered the release subject to its production at the trial and upon surety and security being furnished. The prosecution applied for revision.

Held: to detain a vessel indefinitely, merely because it had been seized, may (notwithstanding the provisions of s 124 of the Ordinance) cause severe loss and even irreparable damage to an innocent owner when the prosecution eventually turned out a fiasco. The court had to be vigilant at all times to see that the rights of the citizen suffered no unnecessary encroachment or erosion, and the instant case was one where the boat-owner should not be prejudged guilty, even though the master or chinchew of the boat had committed an offence. Section 407(ii) of the Criminal Procedure Code, in plain terms, included interim orders. Accordingly the order of the learned President was right and ought to be affirmed.

Public Prosecutor v Tan Aik [1965] 4 MC 56 High Court, Kuala Lumpur (Ong Hock Thye FJ).

The Spirit Farmer has authority under s 25 of the Excise Ordinance IV of 1870 to limit, by the permit he issues for the removal of spirits, the hours within which the removal shall be made; and any removal outside those hours is a removal without a permit and an offence under the section.

Spirit Farmer v Tok Kim Tong (1889) 2 SLJ; 4 Ky 546 High Court, Straits Settlements (Wood Ag CJ).

Held: duplicity of charges is an irregularity, not an illegality, and is cured under s 419 of the Criminal Procedure Code 1926, provided that such irregularity has occasioned no failure of justice. The knowledge of a person charged with an offence under s 111(f) of the Customs Enactment 1923 can generally only be deduced from his conduct, but the conduct of the defence may also be considered.

Lee Chin Kee v Public Prosecutor [1935] MLJ 157 High Court, Federated Malay States (Thomas CJ).

This was an appeal from the Sessions Court, Kuala Lumpur, against the conviction and sentence of the appellant for contravening s 114(1)(e) of the Customs Enactment. One of the grounds of appeal was that the statements made by the appellant to the customs officer was wrongly admitted in evidence.

Held: (1) statements made to a customs officer in the course of an interrogation and investigation under s 126 of the Customs Enactment 1936 are admissible in evidence; (2) in this case, the fact that the statements were recorded through the interpretation of a prosecution witness so detracted from the value with which the statements can be assessed that they should have been disregarded; (3) on the facts of the case, there was insufficient evidence apart from the statements and therefore the appeal must be allowed.

Chong Chin Yuan v Public Prosecutor [1949] MLJ 262 High Court, Kuala Lumpur (Callow J).

Held: (1) customs officers are not subject to the same limitation as are police officers carrying out investigations under Chapter XIII of the Criminal Procedure Code: Public Prosecutor v Soh Tuan Cheung & Ors [1949] MLJ 261; Chye Ah San v R [1954] MLJ 219 followed; (2) the various statements made by the accused were confessions as defined in s 17(2) of the Evidence Ordinance No 32 of 1956; (3) a statement made by a person to a proper officer of customs is not, by reason only of the provisions of s 91 of the Customs Ordinance, inadmissible at that person's trial: Bong Kam Seng v R [1949] SCR 12 followed: Chye Ah San v R [1954] MLJ 217 not followed on this point. The statements here made to the customs officers were admissible. Observations on the admissibility of a customs officer's evidence who acts under s 91, recording in writing, when possible, the questions which he asks and the answers given to such questions. Decision of magistrate affirmed.

R v Elli bin Sulaiman & Anor [1957] SCR 61 Supreme Court, Sarawak, North Borneo and Brunei.

Goh Yin Guan v Public Prosecutor [1967] 1 MLJ 113 High Court, Ipoh (MacIntyre J).

See CUSTOMS AND EXCISE, Vol 6, para 30.

Where a person in authority, such as an excise officer, says, not that the accused is not bound to say anything but, quite the reverse, that he is bound to say everything, it is impossible to look upon the statement so obtained as being voluntary (R v Santokh Singh [1933] MLJ 178 followed). The maxim nemo tenetur seipsum accusare in this country is enforced in a different way from that in England. In England a witness in a court of law is not bound to answer questions which may tend to criminate him. In Malaya under the Evidence Ordinance a witness is bound to answer all questions even though they may tend to criminate him, but if he is forced to answer such questions then no proceedings can be taken against him based upon his answers except proceedings for perjury. Section 51 of the Excise Enactment has reference to information regarding the activities of other persons and does not include self-incriminatory statements regarding the activities of the person from whom the information is sought. Section 51 does not intend to abrogate the general maxim nemo tenetur seipsum accusare, but was intended to be read subject to that maxim: its purpose and intention are to obtain information in regard to the activities of persons other than the person interrogated. If in the course of obtaining such information the person interrogated makes admissions amounting to a confession then such admission cannot be used in evidence against him. The information so obtained is intended to be used in the same way as evidence obtained under s 124 of the Criminal Procedure Code, as a starting point for collecting evidence aliunde of offences thus disclosed to have been committed. An excise officer when carrying out his duties of enforcing the law is in a very similar position to that of a police officer in England. Apart from any specific provision of the Enactment there is no reason why such an officer should not ask questions from persons whether suspected or not from whom he thinks useful information can be obtained, as laid down in the Judges' Rules; and as neither s 124 of the Criminal Procedure Code nor ss 25 and 26 of the Evidence Ordinance apply to customs or excise officers there is nothing in law to prevent the answers given to them by a person subsequently accused of an offence from being used in evidence provided the court is satisfied that those answers were voluntarily given. Where there is a breach of the Judges' Rules the trial court can in its discretion refuse to admit the statement (R v Bass [1953] All ER 1064 followed). Whether or not an accused person has confessed it remains the duty of the prosecution to place all the material evidence before the court with the proviso that they are not compelled to call witnesses whom they have good reason to think are not witnesses of truth or are likely to be hostile; and when such witnesses are not called they should usually be offered for cross-examination, unless there is some good reason for not doing so.

Chye Ah San v R [1954] MLJ 217 High Court, Penang (Spenser-Wilkinson J).

Koh Jok Sim v Public Prosecutor [1966] 2 MLJ 50 High Court, Kota Bharu (Abdul Aziz J).

See CUSTOMS AND EXCISE, Vol 6, para 159.

This was an appeal by the appellant against his conviction on two charges under the Customs Ordinance 1952 of fraudulent evasion of customs duty and of failing to declare dutiable goods. On appeal it was argued, inter alia, that (i) the statement of the appellant to the customs officers was wrongly admitted in evidence as no caution had been administered to him before he made the statement; (ii) the learned President had misdirected himself in law and in fact in holding that the prosecution had proved fraudulent intent.

Held, dismissing the appeal: (1) the statement made by the appellant to the customs officer was admissible in evidence, despite the failure to administer the caution; (2) the conviction of the appellant on both charges must be upheld, because of his own admission that he had the goods, his failure to have the goods for production on arrival for the payment of customs duty; his failure to comply with the provisions of the Customs Ordinance as to the declaration of dutiable goods and the fact that the goods were concealed.

Abu Bakar bin Nazmeer v Public Prosecutor [1970] 2 MLJ 216 High Court, Penang (Ong Hock Sim J).

The appellant had been convicted of importing dutiable goods on which duty had not been paid. On appeal, one of the grounds of appeal was that a statement to a customs officer by the appellant had been wrongly admitted in evidence. It was argued that the statement was not admissible under s 24 of the Evidence Ordinance 1950 and that there was a breach of the Judges' Rules in obtaining the statements of the appellant.

Held, dismissing the appeal: (1) 'customs officers' are not police officers for the purposes of ss 25 and 26 of the Evidence Ordinance; (2) there was no evidence in this case to show that the statements had been made as a result of any inducement, threat or promise and therefore the statements were not inadmissible under s 24 of the Evidence Ordinance; (3) there is no rule whether by law or practice which requires a customs officer in this country to follow the Judges' Rules framed by the judges in England; (4) (per curiam) in giving his grounds of judgment the learned magistrate (or the learned President) should briefly state the matters both of fact and law which he considered, the care which he exercised in considering those matters, and the extent and nature of doubt, if any, created in his mind. He should discuss the evidence and the probabilities arising from the circumstances of the case. The reasons for his findings should be stated. The grounds should indicate that he had in fact applied his mind to the evidence produced in the case.

Chua Beow Huat v Public Prosecutor [1970] 2 MLJ 29 High Court, Malacca (Sharma J).

In this case the appellant was charged with having possession of 377 tahils 6 chis of opium, an offence punishable under s 3(3) of the Opium and Chandu Proclamation. During the course of the trial a statement made to a senior customs officer which amounted to a confession by the appellant was admitted in evidence. The appellant's counsel contended that customs officers are police officers and therefore the statement made by the appellant was inadmissible.

Held: customs officers are not police officers, although in a sense the activities of all government officers engaged in enforcing the law are police duties and it is entirely contrary to the ordinary use of language to describe officers so engaged as police officers.

Man Woo v R [1951] MLJ 20 High Court, Singapore (Murray-Aynsley CJ).

The appellant was charged under ss 17(1) and 75(1)(a) of the Excise Act 1961. The evidence for the prosecution depended largely on statements made by the appellant to a revenue officer. It also included findings by an analyst as to the nature of the contents of a number of receptacles found on the premises. That evidence made out that the contents were excisable liquor. There were two grounds of appeal: (i) the evidence of the revenue officer as to the statements made by the appellant was wrongly admitted contrary to s 24, Evidence Ordinance 1950; (ii) there was no compliance with the provision of s 61 of the Excise Act.

Held: (1) the admissibility of the evidence was a question of fact which rested on questions of credibility. In this case the questions of credibility were decided against the appellant by the learned magistrate and there is no authority to justify the appellate court in interfering; (2) s 61 of the Excise Act does not require that samples be taken of the contents of every package or container which is in question. The samples should be 10% of the packages or containers and when that is done the presumption mentioned in the section as to the contents of all the packages arises. The section does not require the taking of any particular quantity. The words 'ten per centum' refer to the packages, not to the contents of each package.

Au Ah Lin v Public Prosecutor [1963] MLJ 365 Federal Court, Kuala Lumpur (Thomson LP, Wee Chong Jin CJ (Singapore).

Khoo Tam Seng v Public Prosecutor [1970] 1 MLJ 5 High Court, Kuala Lumpur (Abdul Aziz J).

See CUSTOMS AND EXCISE, Vol 6, para 78.

In a prosecution for being in possession of toddy to which water has been added, an offence under reg 92 and s 67 of the Excise Enactment, it is unnecessary to prove mens rea in order to secure a conviction under the section, the prohibition contained in reg 92 being an absolute one.

Rowland v Public Prosecutor [1940] MLJ 131 High Court, Federated Malay States (Cussen J).

The respondent was charged in that being a licensee and a person employed by the government for the sale of toddy he had in his possession toddy to which water had been added. At the trial the learned magistrate acquitted the respondent on the ground that the toddy was overnight toddy and not intended for sale to the public and therefore not within the scope of r 92 of the Excise Rules 1923 which he held was meant to cover toddy which is for sale to the public. The Public Prosecutor appealed.

Held: (1) the wording of r 92 of the Excise Rules is clear and unambiguous and contained no exception in favour of overnight toddy nor of any other toddy that is not for sale to the public; (2) if the respondent was in possession of toddy to which water had been added, he was guilty of a contravention of r 92.

Public Prosecutor v Raja [1949] MLJ 97 High Court, Kuala Lumpur (Spenser-Wilkinson J).

This was an appeal against the conviction of the appellant on a charge of possession of toddy to which water has been added. The appellant was the holder of an excise licence for the sale of toddy by wholesale. The evidence was that at about 5.20 pm on 14 March 1955, officials of the customs department, one of whom conducted the prosecution at the trial, visited a retail shop for the sale of toddy. This shop obtained its wholesale supplies from the accused. The shop was closed but on entering it two pint bottles were found contained in a movable box which was closed and sealed with a seal bearing the initials 'VK' which are the initials of the accused. A portion of the toddy in the two pint bottles was removed and on analysis was subsequently found to contain not less than 9% of added water. On these facts, the learned magistrate convicted the appellant.

Held: there was no evidence to show that the toddy found was in the possession of the appellant and therefore the conviction must be set aside.

Kalimuthu v Public Prosecutor [1955] MLJ 187 High Court, Ipoh (Thomson J).

Rule 92, made under the Excise Rules 1923, which reads as follows: 'No licensee and no person employed by the government for the sale of toddy shall have in his possession whether upon licensed premises or elsewhere any toddy to which there has been added any water, alcohol or sugar' only applies to holders of retail licences.

Ramayah v Public Prosecutor [1931-32] FMSLR 107 High Court, Federated Malay States (Burton J).

When an accused is charged with selling toddy without a licence the onus of proving the existence or non-existence of licence rests upon the person licensed, not upon the Crown.

R v Sivaprakasam [1938] MLJ 217 High Court, Straits Settlements (McElwaine CJ).

Oh Eng Thye v Public Prosecutor [1954] MLJ 1 High Court, Malacca (Bellamy J).

See CUSTOMS AND EXCISE, Vol 6, para 142.

Public Prosecutor v Saminathan & Ors [1954] MLJ 162 High Court, Muar (Storr J).

See CUSTOMS AND EXCISE, Vol 6, para 32.

Saminathan & Ors v Public Prosecutor [1955] MLJ 121 High Court, Kuala Lumpur (Buhagiar J).

See CUSTOMS AND EXCISE, Vol 6, para 33.

The appellant had been charged and convicted for being knowingly concerned in conveying uncustomed goods with intent to defraud the government of the duties thereon, an offence under s 135(1)(e) of the Customs Act 1967 ('the Act'). He was fined RM50,000, in default, six months' imprisonment. He appealed against both conviction and sentence on the grounds, inter alia, that: (i) the magistrate was wrong in holding that the goods were uncustomed goods; (ii) the magistrate failed to consider whether the appellant had discharged the onus that he had no knowledge that the goods were uncustomed goods; and (iii) the magistrate had erred in finding that there was intention by the appellant to defraud the government.

Held, dismissing the appeal: (1) and that the accused knew the goods were uncustomed goods. As for the second element, ie that the goods were uncustomed goods, s 119 did not raise any presumption but merely shifted the burden onto the accused to show that duty had been paid on the goods. As for the third element, the prosecution could invoke the rebuttable presumption in s 135(2) of the Act to prove knowledge; (2) the prosecution had relied on s 119 of the Act to prove the goods were uncustomed and the appellant had failed to discharge the burden on him by showing that the goods were not imported or that the duties thereon had been paid. The first ground of appeal was therefore dismissed; (3) the appellant had failed to rebut the presumption of knowledge raised by s 135(2) of the Act as the magistrate, who had the opportunity of observing the demeanour of the appellant, did not believe his evidence. Therefore the second ground also failed; (4) it was clear the appellant had deliberately assisted in the evasion of customs duties on the said goods. The amount of goods conveyed was substantial and, as a reasonable man, he would have known that the duty on them would also be substantial. Hence, it was reasonable to conclude that the appellant had intended to defraud the government; (5) the ingredients of the charge under s 135(1)(e) of the Act were, firstly, that the accused was knowingly concerned in conveying uncustomed goods and, secondly, in doing so he had intended to defraud the government. In order to establish the first ingredient, the prosecution had to prove that there was a conveyance of the goods by the accused; that at the time of such conveyance, the goods were uncustomed goods;as regards sentence, there was nothing to show that the magistrate had applied the wrong principles nor had she imposed an excessive fine in the circumstances. The appeal against sentence was also dismissed.

Lau Kieng Chung v Public Prosecutor [1993] 3 MLJ 295 High Court, Sibu (Steve Shim J).

Yap Yoon Lin v R [1954] MLJ 59 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS & EXCISE, Vol 6, para 28.

Muhidin bin A Kader v Public Prosecutor [1948] MLJ 35 High Court, Malayan Union (Jobling J).

See CUSTOMS AND EXCISE, Vol 6, para 29.

Goh Yin Guan v Public Prosecutor [1967] 1 MLJ 113 High Court, Ipoh (MacIntyre J).

See CUSTOMS AND EXCISE, Vol 6, para 30.

Lim Kim Chai v Public Prosecutor [1963] MLJ 26 High Court, Johore Bahru (Adams J).

See CUSTOMS AND EXCISE, Vol 6, para 31.

Lee Chin Kee v Public Prosecutor [1935] MLJ 157 High Court, Federated Malay States (Thomas CJ).

See CUSTOMS AND EXCISE, Vol 6, para 205.

Lim Yu Leong v Public Prosecutor 1 JLR 21 High Court, Batu Pahat (Reay J).

See CUSTOMS AND EXCISE, Vol 6, para 37.

Wolfgang Pzetzholdt v Public Prosecutor [1970] 2 MLJ 195 High Court, Malacca (Sharma J).

See CUSTOMS AND EXCISE, Vol 6, para 188.

Public Prosecutor v Soh Tuan Cheung & Ors [1949] MLJ 261 High Court, Kuala Lumpur (Taylor J).

See CUSTOMS AND EXCISE, Vol 6, para 154.

Wong Kok Wah v R [1955] MLJ 46 High Court, Penang (Spenser-Wilkinson J).

See CUSTOMS AND EXCISE, Vol 6, para 165.

Lee Guek Hon v Public Prosecutor [1953] MLJ 17 High Court, Johore Bahru (Buhagiar J).

See CUSTOMS AND EXCISE, Vol 6, para 166.

A party of customs officers saw four persons unloading goods from a lorry. The four persons disappeared upon seeing the customs officers. The goods were seized on the suspicion that customs duties had not been paid. The respondent subsequently showed up at the scene and admitted to a customs officer that he was the owner of the goods seized. The respondent and another person were charged with conveying uncustomed goods, an offence under s 135(1)(e) of the Customs Act 1967. The magistrate acquitted and discharged both the respondent and the other accused person at the end of the prosecution case without calling for their defence. The prosecution only appealed against the respondent's acquittal. The prosecution contended, firstly, that the respondent's admission that he was the owner of the goods meant that he had admitted possession of those goods which was an offence under s 135(1)(d) of the 1967 Act. The prosecution therefore argued that the magistrate should have amended the charge to one under s 135(1)(d) of the 1967 Act. The prosecution relied, lastly, on s 119 of the 1967 Act which provided that the accused should have the burden to prove that customs duties on the goods had been paid.

Held, dismissing the appeal: (1) ownership was not synonymous with possession; (2) the respondent's admission was made after the goods had been seized. By then, the goods were already under the control of the customs officers because under s 2(2) of the 1967 Act, the goods could not be removed except with the permission of the proper customs officer. In the circumstances before the respondent's arrival at the scene and before his admission, he had parted with possession of the goods; (3) it was not the intention of Parliament to enable the authorities to pick on anyone in the street found carrying any goods of a class dutiable on import or export and demand from that person to produce proof of payment of duties and failing which, to charge him in court and make him prove that he had paid duties on those goods. Before any person was asked to show proof of payment of duties, there had to first be evidence that the goods were being imported into the country or that they were being exported out of the country; (4) in this case, before the burden of proof shifted to the respondent pursuant to s 119 of the 1967 Act, there had to first be evidence that the goods were subject to customs duties. For the goods to be subject to customs duties, there had to be evidence that the goods were imported into the country. There was, however, no such evidence in this case; (5) there was thus no evidence of any breach of the 1967 Act or of any subsidiary legislation made thereunder so as to make the goods uncustomed. The question of the forfeiture of the lorry therefore did not arise.

Public Prosecutor v Chieng Ung Kai [1993] 1 MLJ 21 High Court, Sibu (Abdul Kadir J).

Pang Po & Anor v Public Prosecutor [1962] MLJ 294 High Court, Kuala Lumpur (Suffian J).

See CUSTOMS AND EXCISE, Vol 6, para 168.

Tan Boon Teck v Public Prosecutor [1950] MLJ 44 High Court, Muar (Laville J).

See CUSTOMS AND EXCISE, Vol 6, para 170.

Loh Chak Wan v Public Prosecutor [1939] MLJ 84; [1937-38] FMSLR 68 High Court, Federated Malay States (Thomas CJ).

See CUSTOMS AND EXCISE, Vol 6, para 169.

Chee Shih Kwang v Public Prosecutor [1955] MLJ 126 High Court, Kuala Lumpur (Buhagiar J).

See CUSTOMS AND EXCISE, Vol 6, para 171.

Public Prosecutor v Tay Yew Lia [1957] MLJ 17 High Court, Muar (Good J).

See CUSTOMS AND EXCISE, Vol 6, para 172.