Ma Hoa Trading Co. Ltd v Public Prosecutor

Appellant(s): Ma Hoa Trading Co. Ltd

Respondent(s): Pendakwa Raya

• YA Dato' Lim Chong Fong
• YA Datuk Noorin binti Badaruddin
• YA Datuk Mohd Radzi Bin Abdul Hamid

• The respondent initially seized 21 containers of cigarettes from the Container Yard in the Free Zone of Port of Tanjung Pelepas, Johor, for an alleged offence under the Trademarks Act 2019 (TMA).
• Subsequently, the respondent applied to the Sessions Court under section 47 of the Trade Description Act 2011 (TDA) to forfeit the cigarettes for an alleged offence under section 5(1)(c) read with section 6(1)(g) of the TDA, pertaining to false trade description.
• The cigarettes were consigned by the appellant from Vietnam to a consignee in the Philippines, with Songkhla, Thailand, as the next port of discharge, indicating they were bona fide goods in transit and transshipment, not intended for importation into Malaysia.

• Whether the appellant was a person who exposed the cigarettes for supply or had possession, custody, or control of the cigarettes for supply in Malaysia under section 5(1)(c) of the TDA.
• Whether the cigarettes, being bona fide goods in transit and transshipment, can be subject to seizure and forfeiture enforcement under section 47 of the TDA.
• Whether the High Court erred in equating ownership with possession, custody, and control for supply, without evidence of intent to supply in Malaysia.

• The Court unanimously allowed the appeal, setting aside the High Court's decision and affirming the Sessions Court's order to release the cigarettes to the appellant.
• The Court held that there was no evidence the appellant exposed the cigarettes for supply or had possession, custody, or control for supply *in Malaysia*, as "supply" under the TDA implies a commercial activity intended for the Malaysian market.
• The Court further ruled that bona fide goods in transit are excluded from seizure and forfeiture under the TDA, aligning with the spirit of section 82(8) of the TMA and Malaysia's TRIPS obligations, unless they become "unaccustomed goods" under the Customs Act.