High Court says Home Ministry’s seizure of 172 Swatch’s Pride watches ‘illegal’, orders return within 14 days

KUALA LUMPUR (Nov 25): The High Court today ordered the Home Ministry to return all 172 seized Swatch-branded watches worth over RM64,000 — which were linked to Pride, otherwise known as the lesbian, gay, bisexual and transgender (LGBT) rights movement — to Swiss watchmaker’s local company Swatch Group (Malaysia) Sdn Bhd.

High Court judge Datuk Amarjeet Singh Serjit Singh said the Home Ministry’s search of Swatch stores in May 2023 and seizure of the Pride watches were illegal.

“So in the instant case, the search was made without warrant and the search is illegal, and therefore any seizures made as stated in notices of seizure is illegal,” the judge said before granting the court order to quash the Home Ministry’s May 2023 notices of seizure of the watches.

The judge also noted that the Home Ministry had banned the Pride watches only after the seizure, which meant that Swatch Group was not breaking any law when the ministry seized the watches.

“The prohibition in this case was issued after the seizure, therefore at the time of the seizure, the applicant did not contravene any law, any order. As a consequence, an order is made that all the watches seized are to be returned within 14 days of the date of this order,” the judge added.

While the judge did not make any court order for the government to pay compensation to Swatch Group, he said that the company is free to apply for compensation if the watches that are returned are damaged in any way.

The judge also said the seized watches meet the requirements of Printing Presses and Publications Act (PPPA) 1984’s Section 7, saying: “Therefore, the declaration that it does not meet the requirement is not granted.”

Although Swatch Group did not seek a declaration on Section 7, the High Court’s decision would mean that the seized Pride watches fall within the Home Minister’s powers under Section 7 to control ‘undesirable publications.’

Under Section 7, the Home Minister may order for absolute or conditional prohibitions of the “printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession” of publications with contents that are or likely to be prejudicial to public order, morality, security, public interest or national interest; or likely to alarm public opinion; or are or likely to be contrary to any law.

The judge did not make any order for legal costs to be awarded to Swatch Group.

Earlier this morning before the High Court delivered its decision, Swatch Group’s lawyer Nizam Bashir informed the court that the company had filed a supplementary affidavit to bring to the court’s attention about an “interview where the highest member of the executive took the position that the respondents were wrong”, without naming this government official.

But the High Court judge said he would not look at the affidavit, as his decision will be made on the points of law that were argued by Swatch Malaysia and the Attorney General’s Chambers in this case.

The judge had also said that such remarks by the executive would not amount to an order which can be enforced, and Nizam had also confirmed that the High Court would not be bound by how the government interprets the law.

In the supplementary affidavit filed by Swatch Group on October 11 this year, the company highlighted journalist Mehdi Hasan’s exclusive interview with Prime Minister Datuk Seri Anwar Ibrahim which was aired online on October 4, 2024.

In Swatch Group’s transcript of an excerpt of the interview, Mehdi had asked about the government’s raid of Swatch stores and seizure of the Pride watches, with Anwar saying he disagreed with the action: “I disagree with the action. We have told them. There was no order. I mean, this is a decision taken by the particular department, and I think they are overreacting.”

Two representatives from Swatch Group were present in the courtroom when the High Court’s decision was delivered.

When met outside the courtroom, Swatch Group’s two representatives, as well as the company’s lawyers Nizam and Kee Hui Yee did not comment on the High Court’s decision.

When met by reporters at the court complex, federal counsel Mohammad Sallehuddin Md Ali confirmed that he will have to seek instructions on whether the government would be filing an appeal at the Court of Appeal against today’s decision.

Between May 13 and 15, 2023, Home Ministry officers raided 16 Swatch stores nationwide and seized the 172 watches which featured nine designs.

Out of the 172 seized watches, 143 units featured six designs from its Pride collection launched on May 4, 2023 and advertised on Swatch’s website since that date, while 29 units featured three other designs from the previous years’ Pride collections on sale in Malaysia since June 2, 2022.

On June 24, 2023, the Swatch Group (Malaysia) Sdn Bhd filed the lawsuit via a judicial review application at the High Court here.

It named the four respondents as the Home Ministry chief secretary, the Home Ministry’s enforcement division’s secretary, the home minister and the Malaysian government.

In the lawsuit, Swatch Group sought several court orders, including an order to quash the Home Ministry’s seizure notices in May 2023 for the 172 watches worth RM64,795, a court order for all the seized watches to be returned within five days of the order, and court order for compensation.

Swatch Group also sought these court orders: a declaration that Section 16(2) of the Printing Presses and Publications Act (PPPA) 1984 only authorises the Home Ministry’s officers to search Swatch’s stores in “exigent circumstances” or urgent circumstances, and an order to quash the Home Ministry officers’ decisions and actions on the searches of Swatch stores and seizures of the watches.

On August 10, 2023, the Home Ministry gazetted its August 9, 2023 ban or prohibition order, saying that the import, production, sale, circulation, distribution or possession for such purposes of Swatch watches with “LGBTQ+” “which is likely to be prejudicial to morality is prohibited throughout Malaysia”.

LGBTQ+ refers to Lesbian, Gay, Bisexual, Transgender, Queer and + Plus (LGBTQ+). — Malay Mail