Public Prosecutor v Trans-Coastal Sdn Bhd and another appeal [2024] 6 MLJ 257

Court  of Appeal (Putrajaya)

Failure to Comply with Court Order

1. After a full trial, the Magistrates’ Court acquitted and discharged Trans-Coastal Sdn Bhd (“TCSB”) on two separate charges under paragraph 133(1)(a) of the Customs Act 1967 (“CA”) for making incorrect declarations regarding the contents of two sealed containers shipped from Vietnam to Port Klang. When the containers arrived, Customs officers seized them and, upon breaking the seals, discovered that they did not contain the declared items of “window frames” and “high pressure cleaner,” but were instead filled with several boxes of branded lager beer.
2. As the two charges were tried separately, they resulted in two different outcomes, leading to two separate appeals. Appeal 180 concerned the Prosecution’s challenge against the High Court’s decision affirming TCSB’s acquittal. Appeal 231, on the other hand, involved TCSB’s challenge against the High Court’s ruling which had recorded a conviction and imposed a fine of RM30,000.
3. The evidence showed that the goods had been sealed in Vietnam by the shipper, preventing tampering. For the purpose of preparing the bill of lading, the shipper’s agent informed the local representative that one container carried window frames and the other high pressure cleaners. Relying on this information, TCSB made its declarations in the Customs manifest.
4. In Appeal 180, the prosecution contended that paragraph 133(1)(a) created a strict liability offence, meaning it only needed to prove that the declaration was incorrect to secure a conviction. In Appeal 231, however, TCSB argued that it had no practical means of verifying the contents of the sealed containers and that treating paragraph 133(1)(a) as imposing strict liability, without regard to its lack of fault, would be inconsistent with the Federal Constitution.

1. Whether TCSB’s offence was a strict-liability offence under paragraph 133(1)(a) of Customs Act 1967.

1. Whether TCSB’s offence was a strict-liability offence under paragraph 133(1)(a) of Customs Act 1967.

1. Under paragraph 133(1)(a) of the Customs Act 1967, the prosecution is only required to establish two essential elements: first, that the accused made a declaration under the Customs Act; and second, that such declaration was untrue or incorrect in any respect. This principle was laid down in Ahmad Abdul Rashid & Anor v Public Prosecutor [1982] CLJ Rep 383; [1982] CLJ 417, where Mohd Yusof Abdul Rashid J held that these two elements alone were sufficient for conviction. Similarly, in Public Prosecutor v Yong Nam Seng & Anor [1964] MLJ 85, Azmi J (as he then was) confirmed that it was enough for the prosecution to prove the making of a declaration and its incorrectness, without more.
2. The Court of Appeal in Public Prosecutor v Trans-Coastal Sdn Bhd and another appeal [2024] 6 MLJ 257 affirmed that paragraph 133(1)(a) and section 52 of the Customs Act 1967 create strict liability offences, meaning that the prosecution is not required to prove intent or knowledge. However, the Court of Appeal stressed that strict liability does not extinguish the availability of valid defences. A shipping agent like Trans-Coastal Sdn Bhd (TCSB) may raise the defence that it relied entirely on information supplied by the consignor and had no reasonable means to verify the actual contents of sealed containers. To deny such a defence would cause prejudice and injustice, as it would impose impossible obligations inconsistent with international shipping practices.
3. The Court of Appeal placed weight on industry norms such as the use of the notations “Said to Contain” (STC) and “Shipper’s Load, Stowage and Count,” which appear in bills of lading and are internationally recognised as disclaimers of liability for sealed container contents. These practices were discussed in The ‘Axel Maersk’; Atlas Electronics (Mal) Sdn Bhd v MV ‘Axel Maersk’ & Ors [1980-1981] 1 SLR 467; [1980] 1 MLRH 80, where Rajah J accepted that carriers have no means of inspecting sealed containers; QEL Shipping Services Sdn Bhd v Syed Embramsha & Co [2015] 1 LNS 1134, where the court recognised that shipping agents cannot be held responsible for verifying sealed cargo; and The ‘American Astronaut’; Owners & Ors v Kian Hin Hang (Pte) Ltd [1979] 2 MLJ 220 (CA, Singapore), where Wee Chong Jin CJ explained that these notations are recognised globally as excluding carrier liability for container contents.
4. On the facts, the Court of Appeal found that TCSB’s officer, DW2, had credibly testified that he completed the Customs Form K4 declaration in good faith based on information from the consignor’s agent in Vietnam. He was also present when Customs officers broke the seals and confirmed that they had not been tampered with. The trial judge accepted this evidence, and the Court of Appeal stressed that findings of fact made by a trial judge should not be disturbed unless there are compelling reasons, citing Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; [1969] MLRA 382 and Public Prosecutor v Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393; [2005] 2 MLRA 590.
5. Accordingly, in Appeal 180 (the Prosecution’s appeal), the Court of Appeal dismissed the appeal, holding that TCSB’s declaration was made bona fide and that the defence had successfully raised reasonable doubt under section 119 of the Customs Act 1967, which permits the accused to be acquitted once credible evidence shifts the evidential burden. In Appeal 231 (TCSB’s appeal against conviction), the Court of Appeal allowed the appeal, set aside the conviction and fine imposed by the High Court, and ordered the fine refunded.

1. The Court of Appeal dismissed Appeal 108, and allowed Appeal 231. 
2. The Court of Appeal ordered for conviction and fine imposed on TCSB to be set aside and fine paid by TCSB to be refunded.