PHILLVIN GUACHIN v Pendakwa Raya

Case Significance

Illustrates the operation of section 128 of the Customs Act 1967: the time limits and protections attaching to seized goods are engaged only where the claimant first gives the prescribed written notice asserting ownership and claiming the goods; absent such a claim, a motion to quash the charge and seizure on timing grounds fails.

This High Court decision concerns a notice of motion to quash a criminal charge and to invalidate a customs seizure under the Customs Act 1967. The applicant, a natural person referred to here by role, had been detained with two others and an Isuzu lorry on suspicion of transporting prohibited goods — cartons of contraband cigarettes — and was charged under section 135(1)(e) of the Act. The prosecuting authority is the Public Prosecutor. The applicant sought to have the charge set aside as defective and the seizure declared invalid.

The applicant's central argument was one of timing. A seizure notice was issued under section 128(1) of the Customs Act 1967 on 18 January 2025, but the charge was not filed until 26 February 2025 — some 39 days later. The applicant contended that section 128 requires any prosecution to be initiated within 30 days of the seizure notice, that this limit is mandatory, and that a prosecution commenced nine days out of time rendered both the seizure and the ensuing proceedings null and void.

The court rejected the motion. Its reasoning turned on the statutory scheme for claiming seized goods. Under section 128 of the Customs Act, a person asserting an interest in seized goods must give the customs department written notice claiming that he is the owner, that the goods are not liable to forfeiture, and that he claims them; only then does the timing machinery — including reference of the matter to a Magistrate under section 128(3) — engage in his favour. On examining the affidavit in support of the motion, the court found that the applicant had not averred having made any such written claim to the seized goods under section 128(1) to (2), nor exhibited any such notice. Without a valid written claim, the applicant could not rely on the section 128 timeline to defeat the seizure or the charge. The court held that the reasons advanced justified neither relief on the facts nor on the law, and dismissed the motion.

The judgment is a useful illustration of the operation of section 128 of the Customs Act 1967: the protections and time limits attaching to seized goods are engaged only where the claimant has first given the prescribed written notice asserting ownership and claiming the goods.