The accused, the captain of the ship Selina, was charged under s 20(1) of the Control of Supplies Act 1961 (the Act) for smuggling diesel. The unrepresented accused pleaded guilty to the charge and was fined MYR 100,000 and sentenced to 6 months imprisonment by the Sessions Court Judge. The Court also ordered that the Selina be confiscated. The accused filed an appeal against the sentence to the High Court. The High Court refused the appeal and affirmed the sentence imposed by the Judge below. The accused applied for a revision.

Held: Revision allowed in part.

The Sessions Court Judge had mentioned 'penjara sehingga tiga tahun' ahead of 'denda tidak melebihi RM100,000'. Although the provision provided that both sentences could be imposed together, the sentencing Judge must follow strictly the wording of the law. The provision provided for a penalty of a fine first. It was only in default of payment of a fine that the imprisonment sentence could be imposed. The Court could still hear the appellant’s complaints under its power of revision, more so when the accused was unrepresented during the trial below and the appeal was only confined to sentencing.

The seizure of the diesel under the Act was different to seizure of dangerous drugs under the Dangerous Drugs Act. The accused, being the captain of the vessel, knew the exact nature of diesel due to the fact that diesel was used as fuel for the type of vessel he piloted. The accused had further admitted his guilt and he understood the nature and consequences of his plea. Thus, the Sessions Court was correct in law to convict the accused.

On a proper construction of s 26(1) of the Act, only the property of the accused can be confiscated. The Selina should therefore be released to its owners. However, the Deputy Public Prosecutor applied for a stay to keep the ship under custody for another hearing in the Sessions Court in respect of other charges. The stay should be allowed because the ship is foreign-flagged and once released there is a strong possibility that it will sail away from Malaysia’s territorial sovereignty. The possibility is fortified by the fact that the ship is currently detained in Johor waters adjacent to the Strait of Singapore. Internationally, the Strait of Singapore is considered part of the larger Straits of Malacca which is categorised as a strait used for international navigation under UNCLOS. Malaysia is a signatory to the Convention. For this category of strait, the navigation regime of transit passage applies (see arts 37 and 38.1 of the Convention). Ships plying the straits enjoy non-suspendable, innocent, uninterrupted and unimpeded passage. It is in the best interest of future cases in which the Selina is involved that the vessel is kept under custody pending the hearing of those trials.