Written by: Averroes
(1.0) Introduction
Since the Hari Raya celebration is coming, where everyone would dress in their dazzling Baju Kurung and Baju Melayu, we are also forgetting one important thing. During Ramadan, the devils and satans are chained from influencing humans from committing gluttonous acts and debacuhery.
As Hari Raya meets a new day, those creatures are unleashed and have come to influence humanity again. This time, the devils have possessed certain people to disturb the peace that Ramadan had prospered through.
They whisper into our ears to blow our own fingers, cause a scene, pollute the air, burn down houses and trees, deafen our neighbours ears and ultimately waste our money for temporary entertainment. Possibly, even cause heart attacks and insomnia, popping the firecrackers during midnight while everyone is asleep.
That's ridiculous! That's a great way to start Hari Raya, what could possibly go wrong? Well, ehm... there are always empty football fields or parks to pop those firecrackers. Seriously...
The General Operations Force (GOF) seized 240 packages of fireworks near Tumpat and Pasir Mas, after they saw a man act suspicious inside a car. The man sped off and the police chased after him. In total, the whole firecrackers amounted to RM7000, smuggled from Thailand.
The GOF also arrested a man possessing firecrackers and fireworks, which amounts to RM50,000. The suspect was driving a car as he was stopped and as he was being checked, there were several boxes and gunny sacks containing them.
Checking the man's house, more of the contraband were seized. Again, they were smuggled from Thailand through an illegal jetty along the border, especially around Pasir Mas.
(2.0) Legal Analysis
(2.1) Prohibited Goods under the Customs Act 1967
Under Malaysian law, especially as under section 135(1)(e) of the Customs Act 1967 (the Act), we are not allowed to "knowingly convey, remove, deposit, deal with prohibited goods with intent to defraud the Government of any duties, evade any provisions of the Act or evade prohibition to such goods."
This means, firecrackers and fireworks are prohibited goods and they are prohibited either absolutely or conditionally by order of the Minister as under section 31 of the Act to be imported or exported.
This law may be a continuance of the Customs Ordinance 1952 (the Ordinance) which is a pre-Merdeka law as the provision under section 131(1)(e) of the Ordinance is the same as the Act.
In Public Prosecutor v Chi Ah Kow & Ors [1963] 1 MLJ 122, the respondents were charged for knowingly conveying in a lorry 141,200 packets of firecrackers (prohibited goods). It was done to evade prohibition order (L.N. 624 - Customs (Prohibition of Imports) Order 1954.)
The accused was acquitted, because he did not know of the content and was just a lorry attendant and that presumption was rebutted as under section 131(2) of the Act.
On appeal, the court reconsidered the Saminathan v Public Prosecutor [1955] MLJ 121 case that, accused had to prove he had no knowledge of the goods, were uncustomed, or adduce evidence to fact that he had no knowledge of the goods, so probable that a prudent man ought, under the circumstances of the case, act upon the supposition that the fact exists.
In Public Prosecutor v Tang Cheng Chai [2010] 1 MLJ 732, customs officers spotted a lorry driven by accused and told him to stop. They requested the accused to open the padlock rear of the lorry. Later, 85 boxes of firecrackers and fireworks were found inside.
The prosecution relied on section 135(2) of the Act, that it is presumed that a person has knowledge of prohibited goods, unless balance of probabilities prove to the contrary. However, the accused said he had no knowledge of the firecrackers and fireworks. He said he thought that they were prawn crackers.
The accused was acquitted, because the lorry was rented and he did not know what was inside. The prosecution appealed and the accused is found guilty as the accused have not properly raised the burden of balance of probabilities for knowledge.
Not exclusive possession which is only for the Dangerous Drugs Act 1952.
The magistrate also misdirected herself when she treated both balance of probabilities and beyond reasonable doubt as the same. The accused is then fined RM50,000 and default six months imprisonment.
(2.2) Tort of Private Nuisance
In Tunku Norella Suriani bt Tunku Yusoff & Ors v Kumpulan Sierramas (M) Sdn Bhd & Anor [2011] 9 MLJ 1, plaintiffs and defendants were house owners in Sierramas West housing estate. They signed the DMC as condition precedent to purchase houses.
The DMC was to develop the estate into a well-planned, regulated and exclusive housing estate, harmonious with the natural landscape and environment. However, the plaintiff allege that the plaintiffs committed private nuisance by interfering with their quiet enjoyment of their land.
Court found through several witnesses and under the Hunter v Canary Wharf Ltd [1997] 2 All ER 426, there are three forms of nuisances which are;
(i) Encroachment on neighbour's land
(ii) Direct physical injury to a neighbour's land
(iii) Nuisance by interference with a neighbour's quiet enjoyment of his land
First: These were regular and frequent open burning of prayer offerings, causing ash and smoke blown into neighbouring houses.
Second: Creating loud, sharp sounds akin to letting off fire-crackers
Third: Premises used more than a single family residential purpose
Fourth: Allowing visitor vehicles to park in an obstructive flow of traffic
Fifth: Prayer altar that is obstructive
However, court found that there was no evidence of the fire-crackers sound, but they did find that there were the smoke and ashes blown as well as a prayer altar obstructing.
The smoke and ashes had an unpleasant and noxious smell that was blown into neighbours land, causing interference with their quiet enjoyment of their land.
This is illustrated as in Court of Appeal in Arab Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors [2003] 1 MLJ 567, accepted that 'smoke from a neighbouring factory' amounts to nuisance.
Therefore, firecrackers could cause obnoxious smoke and smell and loud noises which affects the quiet enjoyment of land. However, evidence must be adduced in order to prove such allegations.
(2.3) Explosives Act 1957 (EA 1957) and Minor Offences Act 1955 (OA 1955)
According to section 7 and 8 the EA 1957, it is illegal to own, sell, play with illicit fireworks and we may face a maximum of seven years' jail or a fine not more than RM10,000 or both upon conviction.
Another similar offence is through section 3(5) of the OA 1955, whereby playing with illegal fireworks could lead to a maximum one month's jail or a fine of RM100 or both.
The only firecrackers allowed are the 'Happy Boom' and the 'Pop-Pop'. However, even these innocent firecrackers require a permit from the respective district police headquarters (IPD), even if they do not contain any explosive chemicals.
This was at least according to Bukit Aman CID director Abd Jalil Hassan.
(3.0) Conclusion
To conclude, there are better ways to celebrate Hari Raya rather than making a huge commotion or cause these huge sonorous sounds that would affect other people. Firecrackers are not part of the Malay culture, even Islam for that matter and Hari Raya should be day for us to strengthen our family bond and visit relatives and friends.
Maybe non-hazardous firecrackers would do the trick, not those cannon-like firecrackers!
(4.0) References;
Sharifah Mahsinah Abdullah (March, 2022) Smugglers start to bring fireworks to Kelantan. https://www.nst.com.my/news/crime-courts/2022/03/784963/smugglers-start-bring-fireworks-kelantan
Sharifah Mahsinah Abdullah (April, 2022) Firecrackers and fireworks worth RM50,000 seized. Retrieved from, https://www.nst.com.my/news/crime-courts/2022/04/786169/firecrackers-and-fireworks-worth-rm50000-seized
Bernama (February, 2022) Most fireworks, firecrackers still banned, says cops. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/02/12/most-fireworks-firecrackers-still-banned-say-cops/
TheStar (February, 2022) There's still a ban on fireworks, public told. Retrieved from, https://www.thestar.com.my/news/nation/2022/02/13/theres-still-a-ban-on-fireworks-public-told#:~:text=KUALA%20LUMPUR%3A%20The%20police%20have,Abd%20Jalil%20Hassan%20(pic).
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