IN THE MAGISTRATE COURT OF MARAN

IN THE STATE OF PAHANG DARUL MAKMUR

CRIMINAL TRIAL NO 83-64-02/2013
PUBLIC PROSECUTOR
v.
GOH ENG SING

GROUNDS OF JUDGMENT

BACKGROUND
[1]

The accused in this case is charged with an offence under

section 135 (1) (e) of the Custom Act 1967, for conveying
prohibited goods, i.e. cigarettes on 13 June 2013, around 4.30
5a.m.

near Pasar Borong Bandar Jengka, Pahang Darul Makmur.

PROSECUTIONS CASE
[2]

Based on information on activities of smuggling illegal

cigarettes, on 13th of June 2012, Sufian bin Mohammed Yusof

10(SP3)

led a team of four, together with Munirah Binti Mohd Gaus

(SP4), Muhammad Fairul Nizam bin Rizwan (SP5) and one Hamidin
(driver), to make an observation to espy a vehicle suspected to be
used in conveying illegal cigarettes. The observation started
around 1.30 A.M. at the side of Jalan Ulu Jempol-Bandar Tun
15Razak,

near Pasar Borong Jengka.

1

[3]

Around 4.20 am, the suspected vehicle, a white HICOM lorry

with registration number WQW 9428 was seen and spotted. It was
driven by one Chinese guy. The team tailed the lorry which
brought them to Pasar Borong Jengka. They found the aforesaid
5lorry

parked at the parking lot of Pasar Borong Jengka. It was then

4.30 a.m. in the morning.

[4]

The Custom Officers (SP3, SP4 and Hamidin) surrounded the

lorry. The rear door was found opened and in few moments, one
10Chinese

guy approached them. He introduced himself as the

driver of the lorry. His name is Goh Eng Sing, the accused in this
case. He informed the Custom Officers that the lorry belonged to
his employer. At that time, SP5 was not at the scene, since he was
assigned to conduct checking unto other premises at Pasar
15Borong.

[5]

SP3 then directed SP4 to conduct search on the lorry. SP4

found baskets and plastic bags which contained cigarettes, piled

under chunks of frozen meats and vegetables. Those cigarettes
20are

suspected to be illegal cigarettes, which are as follows;

60 cartons x 10 packets x 12 sticks cigarette Gudang Garam Surya
28 cartons x 10 packets x 20 sticks cigarette Premium International
21 cartons x 10 packets x 20 sticks cigarette Canyon (Merah)

25

20 cartons x 10 packets x 12 sticks cigarette Minna

49 cartons x 10 packets x 12 sticks cigarette Gudang Garam Nusantara

(H)
41 cartons x 10 packets x 12 sticks cigarette Gudang Garam Nusantara
(M)
2 cartons x 10 packets x 12 btang cigarette Bokormas

7 cartons x 10 packets x 20 sticks cigarette Pine Prime (H)

14 cartons x 10 packets x 20 sticks cigarette Pine Prime (M)
19 cartons x 10 packets x 20 sticks cigarette John (M)
18 cartons x 10 packets x 20 sticks cigarette League (H)
7 cartons x 10 packets x 20 sticks cigarette Modeng

10

5 cartons x 10 packets x 20 sticks cigarette Halftime 5

1 cartons x 10 packets x 20 sticks cigarette Paradox
30 cartons x 10 packets x 20 sticks cigarette League Virginia
39 cartons x 10 packets x 20 sticks cigarette League (M)
10 cartons x 10 packets x 16 sticks cigarette L.A Lights

15

[6]

Upon direction of SP3, SP4 took photographs of the location

and the items discovered. These photographs were exhibited and

marked as P20A until P20E. The accused, together with the lorry
20and

the items were escorted to Bandar Jengka Police Station,

where a police report was lodged by SP4. The report numbered

Bandar Jengka Report No. 001138/12 and it was tendered in Court
and marked as P22.

[7]

The raiding team together with the accused, the seized

items and the lorry then headed to the office of Enforcement Unit,
Royal Custom of Malaysia, Kuantan Pahang. There, the seized
lorry, the seized items together with the police report were
5handed

over to the investigating officer, Mohd Sani bin Abd

Rahman (SP8) and a handing over list (P19) was prepared to that
effect.
[8]

Inspection unto the seized items was done by the raiding

team. SP4 took photographs of the seized items one more time.
10Those

[9]

photographs were exhibited as P20F-P20AF.

The seized cigarettes were counted by SP5, witnessed by the

Investigating Officer (SP8) and the accused. A search list (P17)

was prepared by SP5, who had handed it over to SP3, who later
15issued

Notice of Seizure (P18) to the accused.

[10] SP8 then sent the seized items to be kept at the store, with a
Handing Over List (P10). Those were received by the storekeeper,
Zulkurnai bin Mohd Hassan (SP1). SP1 is the one who brought the
20lorry

and seized items to the Court on the 1 st day of trial.

[11] SP8 did withdraw samples of cigarettes from the store. On

15.6.2013, two (2) packets of cigarettes, with a covering letter
(P13) were sent to the Department of Chemistry to be analyzed.
25The

samples were sealed in a packet marked as A which was

exhibited to this Court as P15.

4

[12] Chemist Report (P14) confirmed the samples sent for

analysis are cigarettes containing tobacco. Upon receipt of the
Chemist Report, SP8 prepared an application to Classification,
5Tariff

and Drafting Branch, Technical Service Division, Royal

Custom of Malaysia, Putrajaya for classification of seized items. A

reply (P30) dated 5.11.2012, stated that the seized item are
suitable to be classified under GIR 1, under tariff code 2402.20
900 (PDK 2007) as cigarettes containing tobacco.
10

[13] Similarly, the seized lorry was also sent to Department of

Chemistry to inspect its chassis and engine number. A covering
letter was sent together with the lorry P11B. Report on the result
of the chemical analysis made unto the lorry was exhibited as
15P27.

[14] SP8

then

made

an

application

to

Road

Transport

Department, to find out the owner of the lorry. Road Transport

Department replied via a letter, exhibited as P38, which stated
20that

the owner of the said lorry is Perniagaan Yun Seng, with

address at No 76, Sungai Jerik, Jerantut, Pahang. It is further

discovered that the owner of the enterprise is one Pang Yun Seng
(SP7).
25[15]

Statement

from

SP7

was

recorded

by

SP8,

who

acknowledged his company ownership towards the lorry and the

5

lorry is used in daily operation of his company. He is brother inlaws to the accused.
[16] SP8 then sent an application via a letter (P23) together with
517

packets of cigarettes to Valuation Branch, Technical Service

Division, Royal Custom Department of Pahang, seeking valuation

of the seized cigarettes. Valuation Report (P24) was issued by one
Zahir Bin Abdul Rahman (SP6) from the aforesaid Division,
detailing the valuation of the value of the cigarettes to be at
10RM5,003.60

and

calculation

of

tax

which

amounted

to

RM30,300.26. The valuation was done using kaedah anjal,

where the subsisting data price in the system is used to
determine the price of those cigarettes. Later, the cigarettes were
returned back to SP8.
15

[17] Further analysis was made to determine whether the seals

found on the cigarette packs are genuine or otherwise. SP8 sent 2
cartons (20 packets) of cigarettes JOHN with a covering letter
(P36) and to Syarikat Lembah Sari Sdn Bhd, whose business is
20supplying

the aforesaid seal, which is attached to each and every

pack of cigarettes produced locally and the tax is duly paid. Initial
Confirmation Report of the Security Ink (P34) confirmed that the
seal found on the packs of cigarettes sent for analysis turned out
to be counterfeit.
25

WHETHER THE PROSECUTION HAS MADE OUT A PRIMA

FACIE CASE?
[18] Section 135 (1) (e) of Custom Act 1967 states;
5

(1)Whoever

(e) is in any way knowingly concerned in conveying, removing,

depositing or dealing with any dutiable, uncustomed or prohibited

10

goods with intent to defraud the Government of any duties thereon,

or to evade any of the provisions of this Act or to evade any
prohibition applicable to such goods;
shall be guilty of an offence shall be guilty of an offence and shall, on

15

conviction(i) in the case of goods included in a class of goods appearing in

an order made under subsection 11(1)-

20

(aa) be liable for the first offence to a fine of not less than ten
times the amount of the customs duty or fifty thousand ringgit,
whichever is the lesser amount, and of not more than twenty
times the amount of the customs duty or one hundred thousand
ringgit, whichever is the greater amount, or to imprisonment for

25

a term not exceeding three years or to both; and

[19] Thus, whether the seized items fall under the definition of
prohibited goods spelt out in the aforesaid section? Section 2 of
Custom Act 1967 provides;
30

"prohibited goods" means goods the import or export of which is

prohibited, either absolutely or conditionally by an order under section
31 or by any other written law.

5Whereas

section 31 of the Act provides;

(1) The Minister may, by order(a) prohibit the importation into, or the exportation from
Malaysia or any part thereof, either absolutely or conditionally, or
from or to any specified country, territory or place outside
Malaysia, or the removal from one place to another place in

10

Malaysia of any goods or class of goods;

[20] By the order of the Minister, import of cigarettes into

Malaysia, save for commercial free area, must comply with
15regulations

and conditions spelt out in Customs (Prohibition Of

Imports) Order 2008 (PU(A) 86/2008). Rule 6(1) of the Order

reads;
Subject to subparagraph (2), the importation into Malaysia of goods
specified in columns (2) and (3) of Part II of the Fourth Schedule,
20

originating from the countries specified in column (4) of the said

Schedule is prohibited, except in the manner provided for in column
(5) of the Schedule.

[21] Fourth Schedule, part II (amended by P.U. (A) 116/2009]) of

the said subsidiary legislation provides;
25

Fourth Schedule
8

Part II
(Goods which may not be imported into Malaysia and movement of goods from free
commercial zone
to the Principal Customs Area, Labuan, Langkawi and Tioman except in the manner
provided)
(Not applicable to free commercial zones)

(1)

(2)

Item Description
No.
1.

of Goods
Cigarettes

(3)

(4)

(5)

Heading

Country

Manner of Import

/Subheading
2402.20
900, All countries

All importers shall comply with the health

2402.90 200

warning on cigarette packaging:

(1) (omitted)
(2) (omitted)
(3) Tax stamp:
(1) On each packet of cigarette there shall
be affixed a tax stamp as approved by the
Director General of Customs.

5[22]

It is the evidence of SP3 that the packets cigarettes have no

MY mark, no health warning and the tax stamp is absent and

some turned out to be counterfeited.

The Chemist (SP2) who

prepared Chemist Report (P14), confirmed the samples sent are

cigarettes containing tobacco.
10

[23] Clearly there is tax to be imposed on imported cigarettes

and to be paid to the Director General of Custom, before it can be
sold or circulated. Initial Confirmation Report of the Security Ink
(P34) from Syarikat Lembah Sari Sdn Bhd, confirmed that the seal
5(tax

stamp) found on the packs of cigarettes turned out to be

counterfeit. Thus, the cigarettes found had not been paid any tax,
a manner that should be complied with before it can be imported.
It is therefore prohibited goods.

10Actus

Reus

[24] Based on the evidence of SP3, SP4 and SP5, the accused was
the driver of the lorry which headed towards Pasar Borong Jengka,
and later upon inspection, illegal cigarettes were discovered on
the said lorry. Evidence of SP7, the owner of the lorry, cum, the
15employer

confirms that the accused, his employee was the only

person authorized to drive the said lorry. The lorry was never let
to be rented. The control of the said lorry on that morning solely
rest with the accused. The prohibited goods were found inside the
said lorry. I am satisfied that the element of conveying or
20dealing

is successfully proved by the prosecution.

Element of Knowledge

10

[25] The accused was found driving the lorry, heading towards
Pasar Borong Jengka. Evidence of SP3 states that
Rokok dijumpai dalam bakul-bakul dan beg plastic, diapit oleh
bungkusan-bungkusan daging sejuk...
5[26]

Evidence of SP4 confirms the finding, as she said

Selepas itu, ketua pasukan bagitahu tujuan kedatangan. Kami buat
pemeriksaan atas lori. Kami jumpa rokok dalam bakul & beg plastik,
diapit oleh daging sejuk beku.

[27] Mens rea requires proof of knowledge. It is settled that

10knowledge

could not be proven by direct evidence but by

inference from surrounding circumstances and that conduct is

highly

material

for

purposes

of

drawing

an

inference

on

knowledge (see Chan Pean Leon v. PP [1956] MLJ 237). On

this point, I refer Tong Peng Hong v. PP [1955] 1 MLJ 232 at p
15233,

where Thomson J, observed:

If something be found, for example, in a bag which I am carrying or in
a box to which I hold the key it is extremely reasonable to suppose,
unless I produce some satisfactory evidence to the contrary, that I
know all about it...

20[28]

As to the manner how the cigarettes were packed and found,

I remind myself the words of Gopal Sri Ram JCA (as His Lordship
then was) in Teh Hock Leng v. PP [2008] 4 CLJ 764 when His
Lordship pointed out that;

11

Turning to the facts of the present instance, we agree with the learned
trial judge that the method employed to bring the drugs in question
from Thailand into Malaysia was done in a most cunning fashion to
escape detection by the authorities. The method employed to
convey or transport a drug may sometimes furnish evidence of

knowledge. For example, an attempt to carefully conceal a

drug may indicate an intention to avoid detection and thereby
point to knowledge.

[29] In PP v Abdul Rahman Bin Akif [2007] 5 MLJ 1 FC, at

10page

11, Arifin Zakaria FCJ (as His Lordship then was) made an

observation as follows;
Applying the observations set out in the authorities cited above to
the facts in the present case, the irresistible inference that may be
drawn in the circumstances is that the respondent all along knew
about the drug found in the car. The fact that they were found hidden

15

under the seats of the car and wrapped in Chinese newspaper would
not assist him to negate such an inference.

[30] It is my finding that the accused was the one who drove the
lorry, heading towards Pasar Borong Jengka. No one else was with
20him.

The illegal cigarettes were found in the said lorry, concealed

under piles of frozen meat. Evidence of SP7 stated that the lorry
was never rented out and the accused was the only driver.
Applying the observations set out in the authorities cited above to
the facts in the present case, an irresistible inference may be
25drawn

in the circumstances that the accused knew about the

existence of the illegal cigarettes found in the lorry. Therefore the

mental element of knowledge is fulfilled.
12

Whether there is break in the chain of evidence?

[31] Counsel for the defence submits that the raiding team seized
6 cartons (60 packets) of Rokok John Putih. However only 59
5packets

were exhibited in Court, implying one packet of Rokok

Putih John from exhibit P6(a) went missing. Hence there is a

break in the chain of evidence.
[32] The Defence submits that, a simple calculation, based on
SP8 evidence, shows that a packet of Rokok John went missing,
10and

the calculation is as follows;

36 packets

2 packets
analysis.

P6 (a) - brought to Court by SP1, the storekeeper.

P16 - withdrawn from the store and sent for chemical

20 packets

P36 - withdrawn from the store and sent to Lembah Sari Sdn

+ 1 packet

P32 - withdrawn from the store and sent to Technical Service

Bhd

[33] The argument has its root in the discrepancy between the
evidence of the storekeeper (SP1) and the evidence of the
investigating officer (SP8). SP1 who brought P6 (a) to the
15Court

states that there are 4 cartons (40 packets) of Rokok John

Putih, whereas SP8 states that P6 (a) consists of 3 cartons and

6 packets (or 36 packets) of Rokok John Putih.
[34] On my own motion, I personally made physical counting of
P6 (a) which was tendered to the Court. It is neither 4 cartons
13

(40 packets) as said by SP1, nor 36 packets as said by SP8. The

physical counting shows that the actual quantity of P6 (a) is 37
packets and consequently, there should be change to the
calculation, as follows;
5
37 packets
storekeeper.
2 packets
analysis.
20 packets

P6 (a) - brought to Court by SP1, the

P16 - withdrawn from the store and sent for chemical
P36 - withdrawn from the store and sent to Lembah Sari Sdn

Bhd

[35] Being so, there is no missing packet as claimed by the

Defence and accordingly, it is my finding that there is no break in
the chain of evidence as all the seized items were properly
10brought

and marked as exhibits before the Court.

Whether an Indonesian worker must be called to give

evidence?
[36] Existence
15prosecution

of

an

Indonesian

worker

was

put

to

the

witnesses. The raiding team (SP3, SP4 and SP5)

denied presence of this Indonesian worker and refuted the fact

that the said worker was in anyway spotted, what more arrested
on the day when the accused was detained.

14

[37] SP7 owns Perniagaan Yun Seng which is the business of

importing meat, is the employer of the accused. He owns the
lorry. It is also a fact that SP7 is brother in law to the accused.
[38] In his evidence, SP7 told the Court that he is running a
5business

of importing meat and he has one Indonesian employee

who is assigned to take care of his store. This Indonesian workers

daily routine starts early in the morning, where he will load the
lorry at the store, accompany the accused to Pasar Borong and
unload the goods when they reach Pasar Borong. According to
10SP7,

the accused role is purely as a driver. When he was asked

about the whereabouts of this Indonesian guy, SP7 simply said he

does not know. He admitted that he was neither at the scene
when the arrest on the accused took place nor he was sure
whether this Indonesian worker was present at the time of the
15arrest.

[39] Apart from evidence of SP7, there is nothing to suggest there

is Indonesian worker was at the scene when the accused was
arrested. SP7 had not even named this Indonesian worker in his
evidence. It is my view that the there is no duty on the part of the
20prosecution

to call this Indonesian worker whose name and

whereabouts are unknown. This will be discussed in a greater

length later at the end of the defence case.
[40] On another note, the existence of this Indonesian guy was
briefly introduced during the prosecution case. To my mind, it
25does

not negate my finding that the accused was conveying

15

prohibited goods on the day he was arrested and he had

knowledge of doing so.
[41] At the end of prosecutions case, I direct my mind to the test
spelt out in PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457;
ask yourself the question: If I now call upon the accused to make his

defence and he elects to remain silent am I prepared to convict him on

the evidence now before me? If the answer to that question is "Yes",
then a prima facie case has been made out and the defence should be
called.
10

[42] I asked myself the aforesaid question. I find myself in the

position of convicting the accused should he elect to remain
silent. Therefore it is my view that a prima facie case was
successfully made out against the accused. I therefore order the
15accused

to enter his defence.

DEFENCE CASE
[43] The accused elected to and gave a statement under oath. He
told the Court that he has been driver for Syarikat Perniagaan Yun
20Seng

for a year. His starts his daily routine by riding his

motorcycle to the company store at Sungai Jerik, picks up key of

the lorry and around 3 - 4 a.m, he will be heading to Pasar Borong
Jengka with an Indonesian worker (budak Indon). He will take his
coffee when he reaches Pasar Borong Jengka and later take his
16

rest and nap until it is about 8.00 a.m. After that he will drive back
to the store with the Indonesian guy, put back the key and leave
for home. In his statement, there are three workers employed by
Syarikat Perniagaan Yun Seng, one Indonesian worker, one Atan
5(SD2)

and he himself. The Indonesian worker lives at the store,

where the lorry key is kept and he is known as Jack. The

accused keeps emphasizing that his role is only as a driver since
the Indonesian worker has no driving license. He told the Court
that when he reaches Pasar Borong, he would leave the lorry with
10the

key inside it, before taking his coffee, leaving Jack to unload

the goods from the lorry.

[44] On the day he got arrested, he was doing his daily routine as
mentioned above, except when he went back from having his
coffee, he found the lorry was surrounded by the Custom Officers
15who

told him that there are cigarettes in the lorry. He said he has

no idea about the existence of the cigarettes in the lorry. He was

brought by a Custom Officer to a coffee shop to sign a letter. He
admits that he signed a letter which is Notice of Seizure (P18) and
he did so (the signing) out of responsibility as driver of the said
20lorry.

At that point of time, he had not informed his employer

(SP7). He said at that time - Otak sudah kosong, ada rasa takut.
He told the Court that Jack was not seen or found thereafter.
[45] He was then brought to police station and later to the
Custom Department headquarter at Kuantan. His brother and his

17

employer came to bail him out and Jack was not there. He said he
had never seen cigarettes on the lorry.
[46] During cross examination, he admits that once in a while,
apart from being driver, he did take care of the stall at Pasar
5Borong.

He agreed that he should have inspect the lorry before he

starts driving. He admits that he had never told the investigating

officer anything about the Indonesian worker Jack. He had not
seen Jack ever since. Something which is more important, he
admitted that until the day he testified in Court, he had never
10brought

up anything about Jack.

[47] Abdul Khalid Bin Abdullah (SD2) is a worker with Syarikat

Perniagaan Yun Seng. He is also known as Atan. He is in charge of
selling meats at the stall, at Pasar Borong Jengka. In another
word, he is colleague to the accused. He testifies that the accused
15role

is only driving the lorry. Jack is in charge of unloading the

goods from the lorry. When he was asked about the arrest of the
accused and presence of the Custom officers, he said he could not
recall what happened on that day as he was busy with the
customers. He said only after half an hour he realized that the
20accused

was arrested and he had no opportunity to sneak a peek,

as he was engaged with the customers. And from that day

thereon, he had not seen Jack.
[48] During cross examination, SD2 admits that he had not seen
the accused before the arrest took place, at the time of the arrest
25took

place and after the arrest took place. He knew about the
18

arrest after being told by others. He had not seen Jack on the said
day, though he did saw Jack before that day. When put to him,
whether he would agree that he has no knowledge of what
happened on that day, he expressed his agreement. He told the
5Court

that Jack had been working for 5 to 6 months and Jack

suddenly disappeared on the day the arrest took place.

[49] Ridzuan Bin Mohd Yusof (SD3) is working at a fish stall at
Pasar Borong Jengka. His stall is side by side with the meat stall
where SD2 works. He knew the accused but not too close. When
10asked

about Jack, SD3 testifies that Jack is an Indonesian worker,

who has been working for at SD2s stall for 5 to 6 months. Jack did
come to Pasar Borong every day. To his knowledge, Jack was not
stationed at the stall, but rather in charge of the lorry affairs. Only
after three or four days, SD3 was told by SD2 about the accused
15being

arrested. During cross-examination, he agreed that he

neither see the accused nor Jack on the day the accused got
arrested. He later admitted that he gave different answer when
asked earlier, that he saw those two that morning, because he
was nervous.
20SUBMISSION

OF THE DEFENCE

[50] It is submitted that;

a) The earlier submission on break in the chain of evidence is
reitrated, for there is a packet of Rokok John went missing.

19

b) There was an Indonesian worker, known as Jack who

would be responsible for loading and unloading the lorry
from the store and it is incumbent upon the prosecution to
produce this Indonesian worker to testify in Court.
c) The accused had no knowledge of the cigarettes being in

the lorry as he was only driver of the lorry.

Break in chain of Evidence
[51] This was discussed earlier at the end of prosecution case.
The alleged missing packet is not missing as in my finding above.
10Duty

to call Jack, the Indonesian worker and his existance

[52] The Defence submits that it is incumbent upon the

prosecution to produce this Indonesian worker to testify in Court
and failure to do so, the Court should invoke adverse inference
under sec 114g of Evidence Act 1950 against the prosecution
15case.

[53] SP7 is the first person to testify that there was an Indonesian
worker, who is working for him. This Indonesian worker was
entrusted to take care of the store and the lorry. Aftermath the
arrest, SP7 had not seen the Indonesian worker.
20[54]

The accused in his evidence elaborated that the Indonesian

worker lived at the store, who will accompany him to Pasar

Borong and do the loading and unloading of goods unto and out of
20

the lorry. He is the first person to name the Indonesian worker as

Jack.
[55] Abdul Khalid Bin Abdullah @ Atan (SD2) told the Court that
Jack is his colleague. Jack will come to Pasar Borong with the
5accused

and his role is to load and unload goods from the lorry.

According to him, the accused was just a driver. When put to him
during cross examination, he agreed that he has no idea what
happened on that very morning and he admitted he had no idea
who Jack is, yet he said that Jack does exist.
10[56]

Ridzuan Bin Mohd Yusof (SD3) testifies that his stall is beside

SD2s stall. He knew there was an Indonesian worker by name of

Jack who was in charge of lorry affairs of the neighbouring stall.
[57] On this issue, the law as found in the case of Alcontara
Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705,
15requires

the prosecution to check on whether the appellant's

version of the facts as they appeared in his cautioned statement,

is true or false. In that case, the accused was charged under sec
39B of Dangerous Drugs Act 1952. He claimed that he sold
keropok (prawn crackers) for a living, that at the time of his arrest
20he

honestly believed that he was conveying keropok, that he did

so at the behest of a certain Che Mat for a fee of RM300 which

had been paid and was in his pocket and that this money was
amongst the various items seized by the police. He was convicted
by the trial Judge. The Federal Court in quashing the conviction,
25commented

on the defence raised by the accused. Though it was

21

not without flaws, it was entirely consistent with his cautioned

statement made to the police on the day after his arrest, for in it,
he had mentioned Che Mat, and a telephone number which he
claimed was Che Mat's, but he was unable to give Che Mat's
5residential

address. However, he had offered to lead the police to

Che Mat's place of abode but the police had not given him the
opportunity to do so.
[58] Reverting back to the case before me, firstly, the accused
admitted that he had never told the investigating officer anything
10about

the Indonesian guy Jack. The first time he told his story

about Jack is when he took up the stance and testified under oath.
[59] Secondly, SP7 did mention about the Indonesian worker and
yet he is a prosecution witness. SP7 had not named this
Indonesian worker and the Defence had fullest opportunity to
15unveil

the identity or further particulars of the Indonesian worker

during cross examination to discredit prosecution case, but had

not done so. Furthermore, apart from being employer, he is also
brother in law to the accused. He might be an interested witness.
[60] In Timhar Jimdani Ong & Anor V. PP [2010] 3 CLJ 938,
20the

Federal Court observed;

The trial judge also found that DW4's evidence to be consistent with
that of PW3 and PW4, even though the defence treated DW4 as a
hostile witness and allowed the defence to cross-examine its own
witness. On this aspect the learned judge made a ruling by stating

25

that:
22

I do not find him (DW4) to be a wholly dishonest witness

unworthy of any credit. I find no sufficient reason to reject the
whole of his evidence even though he was hostile to the defence.
The court can still rely on parts of his evidence if the Court is
satisfied that they are the truth.

We find that the learned trial judge's treatment of DW4's evidence as

correct in law. It is evident from that passage of the judgment, the
learned trial judge had not impeached the credit of DW4. His evidence
will thus be assessed and weighed like that of any other witness,
10

although there may be doubts on the accuracy of his memory (see

Muthusamy v. PP [1947] 1 LNS 71 HC). At the end of the defence
case, it is thus left entirely to the trial court to make a finding
on the veracity of that witness and whether to wholly reject or
accept in part the testimony of that witness having seen and

15

heard him. (see PP v. Tan Chye Joo & Anor [1988] 1 LNS 174 HC).

[61] Based on the case cited above, I accepted SP7 evidence on

the ownership of the lorry and on employment of the accused in
his company. However, his evidence as to the Indonesian worker,
for the significant role of the worker in taking care of the store
20where

the goods and lorry key are kept, yet the lack of particulars

as to the identity, and the mysterious manner of his

disappearance, I am unable to believe that part of SP7 evidence.
[62] Thirdly, SD2 and SD3 evidences are similar on four points.
They testify that, first, there was an Indonesian worker by the
25name

of Jack. Second, Jack had been working for 6 months at

Perniagaan Yun Seng. Third, he was in charge of the lorry and

fourth, he suddenly disappeared after the accused got arrested.
23

[63] SD2 was doubtful whether the accused is working with the
same employer as him. He who can be considered as colleague to
the accused could not recall what really happened on that day as
he was busy with the customers. He agreed that he had given
5different

answer during examination-in chief (he did not see Jack

before the arrest took place) and the one he gave during cross
examination (he did see Jack before the arrest took place). He
later agreed that he has no idea what happened on that very
morning and he admitted he had no idea who Jack is, but insisted
10that

Jack does exist.

[64] SD3 on the other hand, knew about the accused being
arrested only after three or four days and he neither saw the
accused nor Jack on the day the accused was arrested. He even
admitted that he had not seen Jack and the accused that morning.
15[65]

On the duty of the prosecution to produce Jack, I must

distinguish the case of Alcontara with this case. In Alcontara,

the accused had told about Che Mat at the earliest opportunity he
had and such was recorded in his cautioned statement and the
Police had failed to check its veracity. He even offered to lead the
20police

to Che Mat's place but the police had not given him the

opportunity to do so. In the present case before me, the accused

had not told the arresting officer neither the investigating officer
about Jack. He admitted he first raised it when he testified in
Court.

24

[66] On another score, I do not believe that Jack does exist. SP7
did not name the Indonesian worker who he entrusted with the
safekeeping of the store, the lorry and the key. The accused had
not told the investigating officer about Jack and he had done so
5only

when he got into the witness stance. SD2 and SD3 are not

credible witnesses for too many inconsistencies in their

evidences. All of them concluded their stories with mysterious
disappearance of Jack.
[67] The defence is heavily relying on this Jack and yet his
10identity

remains mystery and he is nowhere to be found. I remind

myself the words of Samsudin Hassan, JC in the case of Go Yu

Kin lwn Pendakwa Raya [2013] 7 MLJ 293 where His Lordship
aptly observed;
Tidak ada sebiji bukti sokongan pun yang boleh mengesahkan
15

penafian perayu tersebut. Perayu semata-mata menyalahkan 'Ah Boy'

melakukan kesemua kesalahan ini tetapi malangnya 'Ah Boy' tidak
dipanggil pun untuk memberi keterangan menyokong penafian
tersebut. Barang diingat prinsip yang diputuskan dalam
kes Balachandran v Public Prosecutor [2005] 2 MLJ 301 bahawa while

20

one is the legal burden on the prosecution to prove its case beyond
reasonable doubt the other is the evidential burden on the accused to
raise a reasonable doubt...

Element of knowledge
[68] The Defence submitted that the prosecution had failed to
25prove

knowledge on the part of the accused. This had been

25

elaborated earlier at the end of prosecution case and I find

nothing to disprove such finding at the end of defence case.
WHETHER THE DEFENCE HAD SUCCESSFULLY RAISED A
REASONABLE DOUBT?
5[69]

I direct my mind to the proposition laid down in PP v. Saimin

& Ors [1971] 1 LNS 115, where Sharma, J observed;

A reasonable doubt must be a doubt arising from the evidence or want
of evidence and cannot be an imaginary doubt or conjecture unrelated
to evidence.
10[70]

It is my finding that the prosecution had successfully made

out a prima facie case. To win his acquittal, it is incumbent upon

the accused to cast a reasonable doubt to the prosecution case.
[71] The accused is the one who introduced Jack during the trial,
and had not revealed anything about Jack during investigation. He
15failed

to convince the Court that Jack is not a mere imaginary

character. He then blamed the prosecution for not bringing Jack to

testify.
[72] In considering whether the accused had cast a reasonable
doubt to the prosecution case, I find the following excerpt of Mat
20v

Public Prosecutor [1963] 1 MLJ 263 is relevant to this case;

If you do not accept or believe the accused's explanation, do not
convict but consider the next steps below.
(a)
26

(b)
(c)
(d) If you do not accept or believe the accused's explanation and that
explanation does not raise in your mind a reasonable doubt as to his
5

guilt Convict.

[73] In the result, having considered the veracity of the witnesses in the
light of the case as a whole and for the reasons I have given, I am satisfied
beyond any reasonable doubt that the accused is guilty of the offence as
charged.
10SENTENCING

[74] In his mitigation, the accused pleas are:

i) He is married, with 3 children aged 6, 3 and a newborn.
ii) His wife is not working.
iii) He is 37 years old.
15

iv) This is his first offence.

v) He seeks that only a minimal fine to be imposed.
[75] The prosecution seeks heavy sentence to be imposed and submits;

i) The offence is a serious offence.

27

ii) The number of offences related to smuggling of illegal cigarettes

increases by 63% in 2012.
iii) From June December 2012, there were 86 arrest cases on
activity of selling illegal cigarettes.
5

iv) Such illegal activity had caused RM2 billions of loss in terms of
tax to the country.
v) The Government had imposed 172% tax on cigarettes and later
increased it to 250% with a minimum price of RM7.00 per packet
of cigarette. Such was done to curb smoking habit among

10

Malaysian citizens. Nonetheless, the steps taken are bound to

fail since there are cheaper alternatives. A packet of illegal
cigarettes is sold at far more cheaper price, which is between
RM2.50 RM3.00.
vi) In balancing interest of the public and seriousness of the

15

offence, the prosecution seeks a deterrent sentence to be

imposed.
vii)In the light of the seriousness of the offence, prosecution seeks
that maximum fine together with a custodial sentence to be
imposed, so it will deter others and at the same time, sending

20

the right message to the public at large that the offence is a

serious one.
DECISION

28

[76] First and foremost, I should consider the public interest. The
sentence must not only rehabilitative to the accused but also deterring the
public from committing the same in the future (see R v. Ball 35 Cr. App R
164). The courts do not have to reflect public opinion. On the other hand
5courts

must not disregard it. Perhaps the main duty of the court is to lead

public opinion (see Reg V Sargeant [1974] 60 Cr App R 74)

[77] The accused is this case claimed trial, thus disentitle him 1/3 discount
held in Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1987]
2 CLJ 405.
10[78]

Demand of cheaper cigarettes is always there, thus activities of

selling illegal cigarettes is profitable. The minimum fine provided by the law
is RM50,000 or 10 times of the value of the seized items, whichever is
higher. I must take Judicial Notice that it is not an easy task to apprehend
individuals involved in this kind of activity. This is evident by the fact that the
15raiding

team (SP3, SP4 and SP5) in this case had sacrificed their time and

waited at the side of Jalan Ulu Jempol-Bandar Tun Razak at odd hours
of 1.30 a.m. and the accused passed that road at 4.30 a.m. Fine
per se would not reflect the seriousness of this offence, which
causes loss to the Country in terms of tax. In Hossain (M) v. PP
20[2008]

7 CLJ 560, Hamid Sultan, J, observed;

The sentences of fine and imprisonment were imposed to reflect the

gravity of the offences committed. The offences related to being in
possession of a fake passport should not be viewed lightly as it
facilitated the movement of an otherwise unauthorised person in the
25

country.

29

In R v. Markwick [1953] 37 Cr App R 125, Lord Goddard CJ observed:

"persons of means should not be given the opportunity of buying their way
out of prison."
[79] On the mitigation made by the accused, I find the following
5passage

from PP v Teh Ah Cheng [1976] 2 MLJ 186 is relevant,

where Abdoolcader, J observed:

The respondent also puts forward in his plea in mitigation the fact that
he is employed and supports an aged mother and step-brothers. He
should of course have thought of this before committing the offences
10

and not after; he is in fact pleading hardship arising from the

consequences of his own acts and I would reiterate what I had
occasion previously to observe in another case that an offender should
not expect to excite or harness any sympathy on an ipse dixit by
taking the stance of the impetuous youth who killed his parents with

15

an axe and then pleaded in mitigation that he was an orphan.

[80] Y.A Mohd Hishamuddin bin Mohd Yunus had once reminded Session
Court Judges and Magistrates with his words in Pendakwa Raya v Abd
Rahman bin Md Kassim [1995] MLJU 210:
Dalam membincangkan soal kepentingan awam, saya rasa wajar jika saya
20

mengambil kesempatan di sini untuk membuat teguran secara umum kepada

Majistret-Mjistret dan Hakim-Hakim Mahkamah Sesyen berkaitan dengan
menjatuh hukuman apa yang mengecewakan ialah masihnya terdapat
setengah Majistret-Majistret atau Hakim-Hakim Mahkamah Sesyen yang tidak
begitu perihatin tentang kepentingan awam. Kadangkala apa yang saya

25

perhatikan ketika meneliti alasan penghakiman mereka ialah, walaupun Majistret

atau Hakim Mahkamah Sesyen berkenaan akan menyatakan dalam
penghakimannya bahawa dia menyedari betapa perlunya supaya hukuman yang
30

berkesan dijatuhkan, tetapi apabila menjatuhkan hukuman, jelas sekali kelihatan

bahawa Majitret atau Hakim berkenaan teragak-agak untuk menjatuhkan
hukuman yang benar-benar berat dan bersifat pencegah. Dalam lain perkataan,
apa yang mereka katakan dalam alasan penghakiman mereka itu adalah rhetoric
5

atau lip service semata-mata. Sikap begini mestilah dihapuskan.

[81] After considering the mitigation made by the accused, the submission
of the prosecution and the principles of sentencing adumbrated above, I am
of the view that combination of custodial sentence and fine is appropriate
for this case. Thus the accused is accordingly convicted and I order that;
10

1) The accused is to be imprisoned for a term of 3 months from the date

of his conviction.

2) Fine of RM75,054.00 (RM5,003.60 x15) to be imposed and in the

15

default of the payment, the accused is to be imprisoned for a term of

12 months.

3) The seized items (including the lorry) to be forfeited in accordance

with section 127 (1A) of the Custom Act 1967.
20

[82] The offender seeks stay of execution of the whole sentence and gives
undertaking to the Court to file Notice of Appeal.
31

[102] I allow the offenders application for stay of execution of the custodial
sentence only, with security set at RM20,000 with one surety, in
accordance with section 311 of Criminal Procedure Code.

5And

I so order.

Dated 4th of April 2014

MUHAMMAD NOOR FIRDAUS BIN ROSLI

Senior Assistant Registrar
Subordinate Court of Malaya
Kuantan, Pahang
(Acting as Magistrate,
Magistrate Court of Maran
Padang Darul Makmur)

Counsel for
Shafee
the Prosecution:

Tuan Mohd Khairuddin Niesha Bin Mohd

Bahagian Penguatkuasaan
Jabatan Kastam DiRaja Malaysia Negeri
Pahang,
Tingkat 1, Wisma Kastam, Jalan Bank,
25700 Kuantan
Pahang Darul Makmur

32

Counsel for
the Defence:

En. Bong Chong Fook (Richard Bong)

Puan Surina Suhaimi
Messr Bong & Co
No. 24, Tingkat 1, Bangunan Lee
Jalan Tengku Bakar
28000 Temerloh
Pahang Darul Makmur

33