Adherence to the rule of law: Analysing the FC decisions of Suriwong and Rosli Jendut

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Adhesion to the law

The FC has recently released 2 Grounds of Judgment in close succession (07 and 08 july 2026)  [Suriwong v Menteri Kewangan Malaysia & 2 ors [Civil Appeal No.:01(f)-31-10/2024(W)] and Rosli Jendut & 6 ors v Agrobest & 2 ors [Civil Appeal No.:02(f)-33-07/2025(C)].

Both cases are attached here:

1.       Suriwong v Menteri Kewangan Malaysia & 2 ors [Civil Appeal No.:01(f)-31-10/2024(W)

2.       Rosli Jendut & 6 ors v Agrobest & 2 ors [Civil Appeal No.:02(f)-33-07/2025(C)

In the former, the decisions of both the HC and CA were set-aside.

In the latter, the HC’s decision was reinstated and the CA was reversed.

In this article, I analyse several key observations made by the FC. These are the key takeaways:

a.       The Government is obligated to act in act in accordance with the law of the land. It cannot usurp and unilaterally demarcate matters without first adhering to due principle (Suriwong);

b.       A Notice of Cross-Appeal is available when the unsuccessful party appeals against the entire decision (Rosli Jendut); and

c.       A discussion on usufructuary rights of Orang Asli individuals.

These decisions also indicate that the Courts are moving towards a modern, holistic approach as to the law and legality. They are not beholden to the chains of the past and the Courts are approaching jurisprudence with an international flair.  

At first blush, Suriwong appears to be a rather humdrum affair involving taxes.

However, delve a little deeper and its true brilliant hues may be discerned.

The facts of Suriwong

Suriwong was a supplier of building materials. In 2016, it imported cellulose cement fibre from 2 companies in Thailand (TPI Polene and Shera).

Suriwong appointed a tax agent that advised it on a tax code. This was pursuant to a Harmonised System code (HS Code) under the Customs (Anti-Dumping Duties) Order, a piece of subsidiary legislation enacted under the Customs (Anti-Dumping Duties) Order 2014.

What is dumping?

Whilst most would equate dumping to rubbish, its legal definition is different. Dumping here involves importing merchandise into Malaysia at a price less than its normal price in the domestic market of the exporting country.

To use an example, imagine that an apple is sold for RM2 in South Africa. If it is exported to Malaysia and sold at RM1, that would constitute dumping.

The jurisprudence behind dumping is succinctly captured by Vazeer Alam FCJ in paragraphs 5.1-5.7 of the Judgment. In short, dumping mechanisms were enacted to promote competition and to avoid the “killing-off” of a domestic market by the introduction of cheap imports.

The notices received by Suriwong

As above, Suriwong imported boards from 2 companies (TPI Polene and Shera).

Shera was a company specifically named in the Anti-Dumping Schedule as being a company that would attract 31.14% duty. However, TPI Polene was not named.

The tax agent Suriwong appointed advised them that no duty was chargeable for the TPI Polene boards (para. 5.8).

Subsequently, the Customs (R3) conducted an audit on Suriwong. It issued notices to the effect that TPI Polene’s boards would attract duty at the rate of 31.14% (under Others in the Schedule).

The HC and CA: Suriwong is unsuccessful

Dissatisfied, Suriwong went through the internalised appeal process. This was completely dismissed without any grounds.

Suriwong then took out JR and challenged the Minister’s decision. The HC dismissed the JR and held that the TPI Polene boards would come under “Others” (thereby attracting 31.14% duty).

The CA affirmed the HC’s decision. The CA also made a finding that the issue of illegal imposition of duty was not included in the JR Statement filed by Suriwong (para. 7-8).

The FC reverses both the HC and CA and sets-aside the Bill of Demand issued

Dissatisfied, Suriwong appealed to the FC. Suriwong’s questions of law are contained at para. 8 but in gist, they may be summarised as follows:

The legislative mechanism under the CADD Act outlined a scheme within which the operations of a company would be termed “dumping”. This would necessitate the Respondents (i.e., the Government) to carry out investigations and ensure that the price in the local market is actually lower than the export price. In Suriwong’s case, this has not been done. As a consequence, could the 31.14% rate be imposed writ large? (paraphrased)  

The FC answered this with a resounding “NO”.

In an illuminating judgment, the FC accepted the Appellant’s submissions (para. 13-16). The FC carefully analysed Article VI of the GATT (General Agreement on Tariffs and Trade, to which Malaysia is a signatory) and determined that a finding of anti-dumping could only be made when the key criteria listed in GATT had been satisfied (see para. 14, the various GATT Articles listed).

As GATT had provided a “comprehensive and detailed process of inquiry and investigation where the “normal value” and the “export price” would be determined”, it was wrong for the Government to have acted as it did.

The FC further held that “It does not give the Government carte blanche to impose anti-dumping duties as a matter of executive policy” (para. 18). The processes of the Government to do so were also discussed by the FC (para. 19-24). The FC concluded that the decision to impose the maximum duty of 31.14% under the “Others” category was wrong in law (para. 25).

In concluding, the FC declared that the Bill of Demand was null and void. The FC also ordered costs of RM100,000 against the Respondents, with a further order that any duty that had been paid would have to be refunded to Suriwong.

Interestingly, the FC did not discuss the “insufficient Statement” that had been latched-on and utilised by the CA. It is possible that the utter illegality of the Respondents’ conduct necessitated that the FC nip this in the bud (see the discussions on the Statement in Acexide Technology v Chang Heng Keong and Woon Kim Choy, which was released just a few days before Suriwong).

Key takeaways

The most crucial takeaway here would be that the Government is not at liberty to act as it pleases. The FC closely scrutinised the workings of the Act (and the appurtenant orders and international treaties) to ensure that the Government was not at liberty to act as it pleased;  it would have to act lawfully.

This is not to say the duty rate of 31.14% could not be imposed; it most certainly could have been. However, to do so, the Government would firstly have to demonstrate that it had investigated the issue and made a determination that there was a dumping scenario. It’s not a free-for-all to designate as you please.

osli Jendut v Agrobest

Soon after Suriwong, the FC released Rosli Jendut v Agrobest. This case involved Orang Asli (aboriginal peoples’) burial grounds that had been desecrated and destroyed to build a prawn farm. The facts are tragic and they read as follows:

a. ABSF International received a 30-year lease to develop a prawn farm on 700 acres of land. Its wholly-owned subsidiary is Agrobest (R1);

b. These lands also encompassed a Kampung Orang Asli Batu 20 (KOA Batu 20) which contained the burial grounds of the Orang Asli;

c. Agrobest began negotiating with the OA for a settlement but nothing was finalised;

d. One fine day, Agrobest (upon instructing its contractor, R3) took a bulldozer and began wantonly destroying and desecrating the OA gravesite;

e. A suit was brought by the OA against Agrobest (D1), its public relations manager (D2) and the contractor (D3). The HC agreed and granted them general damages of RM20,000. The HC did not grant special damages;

f. The Defendants appealed against the whole decision of the HC. The Plaintiffs cross-appealed against the refusal of special damages;

g. The CA reversed the HC. The CA held that the Plaintiffs had no locus standi to sue. The CA further held that the Plaintiffs should not have cross-appealed but instead, have filed a fresh Notice of Appeal.

The Federal Court

Dissatisfied, the Appellants moved the CA. They obtained leave on 14 questions of law.

I won’t go through each and every one but in gist:

The Notice of Cross-Appeal was correct

The NOCA was correctly filed. As the Defendants appealed against the “whole decision”, this would necessarily also involve the decision of the HC to dismiss the Plaintiffs’ claim for special and exemplary damages. As such, the Plaintiffs correctly filed a NOCA.

The FC added that the rules are to be hand-maidens of the law and not a jealous mistress (para. 38).

The FC concluded with a word of advice:

Suffice for us to say by word of advice that when in doubt as to whether to file a Notice of Appeal or a Notice of Cross Appeal, the safer route to follow would be to file a Notice of Appeal and to state clearly exactly what part of the trial judge’s decision or findings the appeal is brought. This is particularly so when the Notice of Appeal filed by the other side first is neither here nor there as in it cannot be an appeal against the whole of the decision of the trial court as certain decisions were in its favour.

The Appellants had proven their locus

The FC then dedicated several paragraphs to the fact that the Appellants had satisfied the burden of evidential proof and their relationship to the deceased. This was discussed at paras. 42-57.

Usufructuary rights and “soft law” in the form of UNDRIP

The most interesting part of this judgment comes from a discussion on “usufructuary rights”. In gist, the law recognises the OA as being a special, protected class that have usufructuary rights over land. As such, whilst a land title may state Mr A owns the land, the OA have a special right to harvest food, produce and have gravesites on the land (para. 60-66). This right would only be extinguished by the payment of compensation (para. 63-103).

The FC also noted that Malaysia, being a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) would be a distillation of common law rights of indigenous peoples (para. 96-103).

In the circumstances, the FC allowed the appeal and reinstated the HC’s decision.

Key takeaways

An interesting point about the NOCA has been made and practitioners must note the same.

Crucially, the FC recognised the rights of the OA and that the same could not be run over roughshod. The rights of the OA were maintained and any developer worth his/her salt would do well to respect the same.

These decision (read together with Acexide Technology) demonstrate that the FC is developing Malaysian law in a harmonised, rational and modern manner. It is not beholden to dusty law books and chained to the past (when Courts used to emphasise the right to development at the expense of individuals and the environment).

Whilst the country still has a long way to go, these are positive developments for nationhood.

GAVIN JAYAPAL

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