Pendakwa Raya [Jabatan Kastam Diraja Malaysia (KDRM)] v ONG BOON SIONG

Case Significance

Illustrates how an accused can rebut the customs statutory presumption of knowledge on a balance of probabilities, and the appellate court's reluctance to disturb a sound acquittal, especially where the prosecution's submissions are deficient.

This High Court decision at Muar concerns an appeal by the prosecution, brought on behalf of the Royal Malaysian Customs Department, against a magistrate's decision to acquit an accused of a customs offence. The accused had been charged under seksyen 135(1)(d) Akta Kastam 1967 (section 135(1)(d) of the Customs Act 1967) with knowingly being concerned in loading prohibited goods, described as rokok putih (white cigarettes), valued at RM21,600, onto a motorcar. At the close of the prosecution case the magistrate had discharged and acquitted the accused, and the prosecution appealed; the High Court earlier ordered the accused to enter his defence, which cast on him the burden of rebutting the statutory presumption under section 135(2) of the Customs Act 1967 on a balance of probabilities. The accused's defence was that he had no knowledge of the prohibited goods: he had been asked by his employer to drive the employer's car, was directed to park it behind a restaurant, leave it unlocked with the keys inside, and overheard his employer instructing others by telephone to load goods into the car. His account was corroborated by a friend who had followed him and was at the restaurant, and it emerged that the car did not belong to the accused but to another named person whom Customs had failed to locate or investigate. The court also considered the significance of the words minta settle (asking to settle) uttered by the accused during the raid, and drew on authority that such words need not refer to the prohibited goods. A further difficulty was that the prosecution had failed to file complete written submissions despite extensions and had not served them on the accused, depriving the court of the prosecution's reasons for attacking the magistrate's findings. On a maximum evaluation of the whole of the evidence, the court held that the prosecution had failed to prove the charge beyond reasonable doubt and that the accused had rebutted the presumption on a balance of probabilities, so that the magistrate had reached a correct decision. Finding the appeal without merit, the court dismissed it and upheld the acquittal. The judgment is a useful illustration of how an accused may rebut the customs statutory presumption of knowledge and of the appellate court's reluctance to interfere with a sound acquittal.