1. ) LIEVON A/L CHING 2. ) NITTHIRA RATTHANAPHAN A/P PERAT JUN

1. ) LIEVON A/L CHING 2. ) NITTHIRA RATTHANAPHAN A/P PERAT JUN

Prosecution failed to establish a prima facie case because evidence indicated seized liquor was brewed and packed locally (not imported) so the crucial element that goods were prohibited imports was not established; the charge was also defective and ambiguous by alleging subahat without specifying which mode under abetment provisions, causing prejudice to accused. The burden which may have shifted under s119 was effectively discharged by prosecution's own evidence. Consequently it was unsafe to call accused to defend and they were discharged without being called to enter defence.

Citation
AQ-83-71-06/2021 (Mahkamah Majistret)
Parties
Prosecution: PENDAKWA RAYA; Accused: LIEVON A/L CHING; Accused: NITTHIRA RATTHANAPHAN A/P PERAT JUN
Court
Magistrates' Court
Jurisdiction
Malaysia
Judgment Date
27 December 2022
Case Number
AQ-83-71-06/2021 (Mahkamah Majistret)
Procedural Posture
Criminal Customs Offence / Close of Prosecution Discharged Without Calling Defence (no Prima Facie Case)
Outcome
Accused discharged and acquitted without being called to enter defence
Legal Topics
Smuggling, Prohibited Goods, Prima Facie Test, Statutory Presumption, Joint Intention and Abetment, Charge Drafting Defects
Source Language
Malay/English
Criminal Law Customs Law Evidence Law Smuggling Prohibited Goods Prima Facie Test Statutory Presumption Joint Intention and Abetment +1 more

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Parties

PENDAKWA RAYA

Prosecution

LIEVON A/L CHING

Accused

NITTHIRA RATTHANAPHAN A/P PERAT JUN

Accused

Procedural Posture

Criminal Customs Offence / Close of Prosecution Discharged Without Calling Defence (no Prima Facie Case)

Legal Issues

  1. 1 Whether prosecution proved a prima facie case under section 135(1)(e) Customs Act 1967
  2. 2 Whether seized goods constituted prohibited imports
  3. 3 Whether the charge was defective by alleging subahat without specifying mode under sections 34/107/109 Penal Code

Ratio Decidendi

Prosecution failed to establish a prima facie case because evidence indicated seized liquor was brewed and packed locally (not imported) so the crucial element that goods were prohibited imports was not established; the charge was also defective and ambiguous by alleging subahat without specifying which mode under abetment provisions, causing prejudice to accused. The burden which may have shifted under s119 was effectively discharged by prosecution's own evidence. Consequently it was unsafe to call accused to defend and they were discharged without being called to enter defence.

Court Disposition

Accused discharged and acquitted without being called to enter defence

Orders

  • Seized liquor, chemical samples and evaluation samples returned to original owner
  • Honda Jazz PNU8433 and keys returned to original owner