Singh v Reginam [1978] FJSC 25; Criminal Appeal 002 of 1978 (14 April 1978)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2 OF 1978

HARI DALIP SINGH
s/o Dalip Singh
Appellant

v

REGINAM
Respondent

JUDGMENT

The appellant was on the 16th November, 1977 convicted by the Magistrates Court, Suva of the offence of Being in Possession of Smuggled Goods contrary to section 206(d) of the Customs Ordinance and was fined $100. He appeals against conviction.

There are three grounds of appeal.

"(a) That the learned trial Magistrate erred in law when admitting hearsay evidence of the origin of the manufacture of the alleged smuggled cigarettes.

(b) That the learned trial Magistrate erred in law in putting the onus of proof and the standard of proof of the origin of the cigarettes on the accused.

(c) That there was no evidence of the goods having been smuggled and the learned trial Magistrate erred in law in arriving at the conclusion that the goods "were imported unlawfully"."

Mr. Rasheed for the appellant dealt with all three grounds together. His main argument was that the learned trial Magistrate had admitted evidence of marking on the alleged packets of cigarettes and he quoted Myers v. The Director of Public Prosecutions (1964) 2 All E.R. 881 and Patel v. Comptroller of Customs (1965) 3 WLR 1221. Both these cases dealt with hearsay evidence the latter one being a Fiji Customs case which went to the Privy Council and, as in the instant case was concerned with markings on goods.

Both these cases ante date the Customs Ordinance which came into operation on 2nd September 1968 and now have no application in any criminal proceedings relating to the Customs by virtue of section 184 of the Customs Ordinance which is as follows:

"In any criminal proceedings relating to the Customs the provisions of section 4 of the Evidence Ordinance shall apply to markings contained on goods, bags, boxes or containers as though such marks were statements contained in documents and the goods, bags, boxes or containers were documents."

There was clear evidence accepted by the learned trial Magistrate that the Dunhill Cigarettes in question bore markings indicating the cigarettes were not manufactured in Fiji. There was also the evidence of Mr. R.B. Pitts, the Operations Manager of the Central Manufacturing Company, the only Fiji manufacturer of local Dunhill Cigarettes, which established that the cigarettes in question were not of local manufacture. The prosecution established a prima facie case that the cigarettes had been sold by Korean fishermen to a market vendor from whom the appellant purchased the cigarettes and that the cigarettes were not of local manufacture.

Section 179(2) of the Customs Ordinance throws the burden of proof on an accused (inter alia) to establish that goods have been lawfully imported into Fiji. The appellant was unable to discharge this burden.

Mr. Rasheed argued that there was no evidence that the Korean fishermen had not lawfully imported the cigarettes. Quite apart from section 179(2) of the Customs Ordinance the 108 cartons each containing 200 cigarettes were very considerably in excess of the quantity which overseas seamen would be permitted to possess without payment of Customs duty. Regulation 104 of the Customs Regulations 1968 permits seamen for their own consumption on board a ship to have in their possession 25 grams of tobacco a day while in port.

While the Customs officers in practice would not concern themselves with a packet of cigarettes brought ashore by a seaman for his own consumption although strictly not legally entitled to do so, they would be concerned about a carton of 200 cigarettes.

The bringing ashore of 108 cartons raises a very strong inference of smuggling.

I have considered Mr. Rasheed's arguments and the record. There was considerable evidence which the appellant did not rebut that the cigarettes were not of local origin and had been unlawfully imported into Fiji. The offence was established by the prosecution and the learned Magistrate properly found the appellant guilty of the offence.

The appeal is dismissed.

R.G. Kermode
JUDGE

Suva,
14th April, 1978.