A Vietnamese company has successfully secured the release of 21 containers of cigarettes worth RM42 million which were seized by the domestic trade and consumer affairs ministry’s enforcement division at the Tanjung Pelepas port in Johor five years ago.
In a unanimous decision, the Court of Appeal ordered that the goods be returned to Ma Hoa Trading Co Ltd, ruling that the consignment was exempt from forfeiture under Section 82 of the Trademarks Act.
Justice Lim Chong Fong, delivering the broad grounds of judgment, said that the consignment was in transit and therefore protected under two international treaties – the Paris Convention and the TRIPS Agreement – which Malaysia has ratified.
“We find that the goods are exempted from forfeiture because they were in transit,” Lim said.
“The appeal is allowed and the decision of the High Court is set aside. The decision of the sessions court is reinstated.”
Also on the panel hearing the appeal were Justices Noorin Badaruddin and Radzi Abdul Hamid.
In his ruling, Lim said the High Court had committed a “misdirection” and was “plainly wrong” in ordering forfeiture of the goods despite the cigarettes being prima facie counterfeit and in breach of the Trademarks Act 2019.
Ma Hoa was the supplier or consigner of the cigarettes to be transported to the Philippines and Timor Lester via transhipment to Malaysia and South Thailand.
In May 2020, the ministry’s enforcement officers, relying on Section 47 of the Trade Descriptions Act 2011, seized the containers from a yard in the port’s free trade zone following a complaint from the cigarettes’ Singapore-based trademark holder.
Ma Hoa sought the release of the items.
Following an inquiry, the sessions court ordered that the cigarettes be returned, but the High Court allowed the enforcement division’s appeal, giving rise to the present proceedings.
Lawyers PS Segaran and S Kandasamy appeared for Ma Hoa while deputy public prosecutor Atiqah Abdul Karim appeared for the prosecution.
