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

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

The High Court upheld the Magistrate's acquittal because the charge was fatally defective/confusing (mixing s.34 common intention with 'bersubahat' without specifying which limb of abetment under s.107), thereby prejudicing the accused; however, on the evidence that the seized liquors bore 'Malaysia Duty Not Paid' markings and were concealed in the vehicle used to convey them, the Court was satisfied an offence under the Customs Act had occurred for purposes of s.127 and ordered forfeiture of the goods and the vehicle to the Government notwithstanding the absence of convictions.

Citation
AB-41LB-1-01/2023 (Mahkamah Tinggi)
Parties
Prosecutor/appellant: Pendakwa Raya; Accused: Lievon a/l Ching; Accused: Nitthira Ratthanaphan a/p Perat Jun
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 December 2023
Case Number
AB-41LB-1-01/2023 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal (high Court) / Judgment on Appeal Against Magistrate's Acquittal and Disposal of Exhibits
Outcome
Appeal dismissed in part: acquittal and discharge of accused upheld; seized goods and vehicle forfeited to the Government of Malaysia
Legal Topics
Forfeiture of Exhibits, Dutiable Goods, Charge Drafting/duplicity, Abetment (s.107) Vs Common Intention (s.34), S.127 Customs Act Forfeiture Without Conviction, S.407 and S.406 a CPC Disposal of Exhibits
Source Language
Malay/English
Customs Law Criminal Law Criminal Procedure Evidence Forfeiture of Exhibits Dutiable Goods Charge Drafting/duplicity Abetment (s.107) Vs Common Intention (s.34) +2 more

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Parties

Pendakwa Raya

Prosecutor/appellant

Lievon a/l Ching

Accused

Nitthira Ratthanaphan a/p Perat Jun

Accused

Procedural Posture

Criminal Appeal (high Court) / Judgment on Appeal Against Magistrate's Acquittal and Disposal of Exhibits

Legal Issues

  1. 1 Whether the criminal charge was fatally defective/duplicious causing prejudice and justifying acquittal
  2. 2 Whether seized liquors and vehicle could be forfeited to the Government despite acquittal
  3. 3 Whether the seized goods were 'prohibited/imported' or locally manufactured and effect on presumptions under s.135 Customs Act

Ratio Decidendi

The High Court upheld the Magistrate's acquittal because the charge was fatally defective/confusing (mixing s.34 common intention with 'bersubahat' without specifying which limb of abetment under s.107), thereby prejudicing the accused; however, on the evidence that the seized liquors bore 'Malaysia Duty Not Paid' markings and were concealed in the vehicle used to convey them, the Court was satisfied an offence under the Customs Act had occurred for purposes of s.127 and ordered forfeiture of the goods and the vehicle to the Government notwithstanding the absence of convictions.

Court Disposition

Appeal dismissed in part: acquittal and discharge of accused upheld; seized goods and vehicle forfeited to the Government of Malaysia

Orders

  • Acquittal and discharge of First and Second Accused upheld
  • Seized liquors (dutiable goods) forfeited to the Government of Malaysia pursuant to Customs Act 1967 s.127