The plaintiff, a Cook Islands company, owned the MV Chita 2. In 2021, while the vessel was sailing from Batam, Indonesia, to Yangon, Myanmar, carrying a cargo of cigarettes, it was detained by the Malaysian authorities. The plaintiff asserted that at the time of detention, the vessel was in international waters, ie within the Traffic Separation Scheme (TSS) area, and was exercising its right of innocent sea passage. Accordingly, the vessel's detention was illegal and mala fide because the defendants had no jurisdiction under the United Nations Convention on the Law of the Sea 1982 (UNCLOS) over any vessel passing through the TSS, including the MV Chita 2.

The plaintiff sought the release of the vessel, its crew, and cargo; compensation for their wrongful detention; and compensation for the loss caused to the plaintiff as a result of the detention.

The defendants argued that the detention was lawful, as it was based on intelligence information that the vessel was suspected of carrying contraband in the form of unregistered cigarettes for distribution in Malaysia. In addition, at the time of the detention, the vessel was within Malaysian waters, ie 3 nm SW of Pulau Kukup, Pontian.

Held: Judgment for the defendants.

1) Does the TSS area constitute international waters over which the defendants have no jurisdiction?

Although the TSS area constitutes international waters, the TSS also overlaps with Malaysian waters. It was admitted that the vessel was in the TSS area within Malaysian waters when it was detained.

2) As the vessel was within the TSS area, did this amount to innocent passage, and did the defendants lack jurisdiction to detain it?

Articles 17 and 18 UNCLOS state that all vessels passing through international waters are entitled to enjoy innocent passage. However, art 19 UNCLOS states that innocent passage can only be enjoyed as long as the vessel does not engage in, among other things, activities that are contrary to the laws of the coastal State or affect the peace and security of that State.

In addition, art 21.1.h UNCLOS allows coastal States to enforce domestic law against vessels exercising innocent passage for the purpose of preventing violations of their customs, fiscal, immigration, or sanitary laws and regulations.

Therefore, even though the vessel was in a TSS within Malaysian waters, the defendants were entitled to detain a vessel suspected of violating such laws and regulation.

3) Was the detention of the vessel, its crew, and cargo lawful as alleged by the defendants?

The Malaysian authorities received intelligence information regarding smuggling of contraband believed to be carried by the MV Chita 2. At 19h30, they detected the vessel in the TSS area and tried to intercept it by turning on their beacon light, sounding the Police siren, and stating that they were the Police by using a loud hailer in both Malay and English. However, the vessel refused to stop and even changed its course towards international waters from its original position heading SW of Pulau Kukup, Pontian. After chasing the vessel for approximately 45 minutes, it was successfully detained in Malaysian waters.

Based on these facts, the detention of the vessel and its crew was prima facie lawful, because the authorities had a reasonable suspicion that the vessel was violating customs laws.

4) Was the detention of the crew from 8-12 March 2021 legal?

The crew were remanded by the Police under the Immigration Act, subsequently charged in the Magistrate's Court under s 135(1)(a) of the Customs Act, and found guilty. The Magistrate also ordered all the confiscated contraband cigarettes to be forfeited to the Government. However, the crew filed an appeal with the Johor Bahru High Court in relation to their conviction and sentence. On 15 October 2023, the Court allowed the appeal and acquitted them of the charges. The Court also ordered that the vessel be returned to its rightful owner. However, the order of forfeiture of the cigarettes was upheld.

Because no remand order was issued by the Magistrate until the crew were redetained under the Customs Act on 12 March 2021, they were unlawfully detained from 8-12 March 2021. It is clear that the detention of the crew after the 24-hour period was unlawful.

However, the crew's action for wrongful detention and wrongful arrest is a personal action which should have been brought by the crew themselves and not by the plaintiff, which lacks locus standi to bring this action on behalf of the crew. There is no documentary evidence to show that the crew are the plaintiff's employees. The crew wages list and invoices were issued by Ink Marine Co, and not by the plaintiff.

Finally, the plaintiff demands USD 1,406,500 for its losses in the form of loss of income, loss of cargo, the crew's monthly wages, and other costs. There is no documentary evidence submitted by the plaintiff to support and justify this amount. The plaintiff is not entitled to compensation.