Sing v Receiver-General [1890] FJLawRp 3; [1876-1897] 1 FLR 230 (6 November 1890)

[1890] 1 FLR 230

SUPREME COURT OF FIJI

Appellate Jurisdiction

SURAT SING

v

THE RECEIVER-GENERAL.

1890 Nov. 4, 6

Appeal - Customs Ordinance 1881, ss. 71, 98 - Schedule to Ordinance XIII. of 1888 - Conviction - Forfeiture of dutiable goods.

On a conviction under s. 71 of the Customs Ordinance 1881 imposing a fine and imprisonment for being improperly in possession of dutiable goods, and also involving forfeiture of such goods to the Crown.

Held, that such order of forfeiture should not be stated in the conviction, the proceedings for forfeiture being a separate and subsequent proceeding.

Semble, that the nature of the dutiable goods should be specifically mentioned both in the information and in the conviction, though its absence may not be sufficient ground for setting aside the conviction.

This was an appeal from the decision of the Chief Police Magistrate at Suva whereby, in certain proceedings taken by the Customs authorities under s. 71 of the Customs Ordinance XVI. of 1881, he had adjudged the appellant to pay a fine of 25l., or in default thereof to be imprisoned for three months, for having certain dutiable goods in his possession on the 7th July last, and had also ordered the forfeiture of the goods to the Crown. From the evidence it appeared that the goods were seized under a search warrant at the house occupied by the accused at Naitasiri, and consisted principally of certain pieces of cloth, a dozen linen caps (all new), sixteen pounds of tobacco and a small quantity of opium.

Mr. Irvine, for the appellant, raised several technical objections against the conviction, the more important ones being that the forfeiture of the goods under s. 71 of Ordinance XVI. of 1881 was a constituent part of the punishment awarded by the magistrate and, as such, should have been stated in the conviction, on the authority of certain cases quoted in Paley on Summary Convictions, and this not having been done the conviction should be quashed. He also submitted that the articles seized should have been specifically set out in the conviction, as otherwise, a fresh prosecution might be taken in respect of the same offence, and upon this ground therefore the conviction was bad in law. He further contended that, upon the merits, the conviction was against the weight of evidence, and that inasmuch as the articles seized could all be accounted for as personal luggage suitable to the condition of the accused they were not subject to duty, being exempt therefrom under the schedule to Ordinance XIII. of 1888.

The Attorney-General (Mr. Udal) for the respondent, contended that the forfeiture of the goods was not such a constituent part of the penalty as would make it come within the decision of the cases mentioned by Paley. The forfeiture being specifically decreed by s. 71 of the Customs Ordinance 1881, the stipendiary magistrate need only record in the conviction - which was the mere formal drawing up of his decision or judgment - the punishment within which he had a discretion, namely, the amount of fine or imprisonment, and could order the forfeiture of the goods apart from the conviction altogether; and further, that it did not invalidate the conviction because in giving judgment the magistrate might have adjudged the goods to be forfeited. With regard to the objection that the goods should have been specifically mentioned in the conviction, no such danger as that suggested by the appellant could possibly exist, inasmuch as s. 71, which made the mere possession of dutiable goods an offence, ordered such goods, on conviction of the accused, to be forfeited; and, the magistrate having no discretion in the matter, the Crown forthwith obtained possession of the articles and no further prosecution could, therefore, be undertaken by any one in respect of them. On the merits the magistrate was right in convicting; and, on such a point, as he had all the materials for a decision before him, his conclusion on the evidence should not be lightly upset. He cited several cases to show that the definition of "personal luggage" could not be held to cover such things as had been seized in this case.

Mr. Irvine, in reply.

On the conclusion of the arguments his Honour reserved his decision, and on the 6th November, delivered judgment as follows:-

H.S. BERKELEY, C.J. The first ground of appeal, viz., that there was not sufficient evidence upon which to convict, I dismiss at once, as I am of opinion that there was sufficient evidence. I come to the same conclusion as to the objection that there was no mens rea in what the accused did; the stipendiary magistrate had all the evidence before him and had every opportunity of judging as to this. Next, as to the technical objection that has been raised, namely, that the conviction did not set out the punishment for the offence of which the accused had been found guilty. As a proposition of law I should hold that whatever formed a constituent part of the punishment inflicted must be contained in the conviction. The question is whether the conviction contained all the punishment the stipendiary magistrate could inflict.

[His Honour referred to Paley on Summary Convictions (6th ed., p. 283) and the case of Whitehead v. The Queen⁽¹⁾ there cited.]
(1) 7 Q.B. 382.

The test is whether the stipendiary magistrate has inflicted the punishment authorised by law.

[His Honour referred to s. 71⁽²⁾ of Customs Ordinance XVI. of 1881.]
(2) S. 71 is as follows:-

"It shall be lawful for any Stipendiary Magistrate on sworn information laid by the chief officer of Customs at any port or by any other officer of Customs deputed by such chief officer of Customs to issue a search warrant to enable any officer of Customs to enter upon and search any premises named in such warrant and to enable such officer of Customs to break open any place box case safe compartment or any receptacle whatever in which any dutiable goods could be concealed should the owner or occupier of such place or the owner of such box case safe compartment or other receptacle as aforesaid not open the same without delay or hindrance to the said officer of Customs, and such officer of Customs may seize and remove to a Custom House or to a Government bonded warehouse any goods on which such Customs officer has reasonable grounds for believing that no duty has been paid or insufficient duty has fraudulently been paid and the person in whose possession any such goods were found or the occupier of any house or of any premises in or on which any such goods may be found if the said goods were not found in the possession of any person other than such occupier and unless such occupier can show that the goods aforesaid were in the possession of some person other than himself shall unless it is proved to the satisfaction of the Stipendiary Magistrate that all duties leviable en such goods have been paid be liable to a penalty not exceeding two hundred pounds nor less than twenty-five pounds and in default of payment to imprisonment not exceeding six mouths nor less than one month and any such goods as aforesaid shall be forfeited to the Crown."

There the punishment to be inflicted by the stipendiary magistrate is limited to fine and imprisonment. The forfeiture of the goods is a legal consequence following on the conviction, and I do not think it competent for an order of forfeiture to be made in the same proceeding. It should be a separate proceeding, and an application to forfeit should be made on production of the conviction. The stipendiary magistrate was, therefore, right not to include the forfeiture of the goods in the conviction. As to the objection that the conviction was bad for want of certainty and that the goods should have been mentioned specifically in the conviction, I am of opinion that they ought to have been so mentioned both in the information and in the conviction, but I do not think that the absence of that is a sufficient ground for setting aside the conviction. Convictions under the Customs Ordinance 1881 stand on a different footing from ordinary convictions.

[His Honour referred to s. 98⁽¹⁾ of that Ordinance.]
(1) S. 98 is as follows:-

"Any information laid before any Stipendiary Magistrate for any offence committed against or forfeiture incurred or for the satisfying of any bond or security under this Ordinance may be in the form and to the effect that the circumstances of each ease require and no information summons conviction or warrant or forfeiture shall be held void by reason of any defect therein and no person shall be entitled to be discharged out of custody on account of such defect provided it if he alleged in the warrant that the said person has been convicted of an offence n aforesaid and provided it shall appear to the Court before which such warrant is returned that such conviction proceeded on good and valid grounds."

I am of opinion that the conviction is made on good and valid grounds in this case, and that therefore the appeal must be dismissed and with costs.

Appeal dismissed with costs.