Republic v Chen Jian Ping [2016] NRDC 14; Criminal Case 153 of 2013 (23 March 2016)

IN THE DISTRICT COURT OF NAURU
CRIMINAL JURISDICTION

Criminal Case No. 153 of 2013

REPUBLIC

V

CHEN JIAN PING

Date of hearing: 21 March 2016
Date of Ruling: 23 March 2016

Mr. Livai Sovau for the Republic
Mr. Vinci Clodumar for the defendant

Ruling on No Case to answer Submission

1. The defendant is charged with 1 count of making a false declaration contrary to section 243(4) (a) of the Customs Act 2014. Section 243(4)(a) of the Customs Act 2014 reads:
   

"A person commits an offence who:

(a) makes a false declaration under the Act knowing it to be false"[1]

The particulars of the offence charged read:

"Chen Jian Ping between the 15 September 2015 and the 14 October 2015 at Nauru made a false declaration under the Customs Act 2014 in declaring the description and statement of goods in Bill of lading No. MATCAN 000349 from China Containing only sanitary napkins, commodity and other mixed general good which he knew to be false as it also contained 1009 sleeves of Chinese cigarettes"[2]

2. The defendant is also charged with 1 count of defrauding the revenue of customs contrary to section 252(1) (a) of the Customs Act 2014. Section 252(1)(a) of the Customs Act 2014 reads:
   

"A person commits an offence who does any act or omits to do any act for the purpose of evading, or enabling any other persons to evade, payment of duty or full duty on goods"[3]

The particulars of the offence read:

"Chen Jian Ping between the 15 of September 2015 and 14 October 2015 at Nauru omitted to declare to the department of customs and revenue that he was importing 1009 sleeves of Chinese cigarettes which were dutiable to evade payment of tax on the said cigarettes"[4]

3. The evidence in this matter comprised the following documents tendered by consent:
   
   1. CUSTOMS DLARATION OF IMPORTS(DUTIABLE)[5]
   2. BILL OF LADING NO MATCN000349[6]
   100. Commercial invoice numbers

15006161,15006162,15006163,15006164 and 15006165[7] all dated 6 June 2015

4. Commercial invoice number 15006166 dated 6 June 2015.
   

4. The audio recording of the interview between Mr. Richard Brenan, Mr. Asterio Appi and the defendant was admitted by the court with the court noting that it will give what weight it can to the contents of the interview in terms of the weight to be given.
   
5. The prosecution also called five witnesses and then closed its case. Following the close of the prosecution case Mr. Clodumar filed a no case to answer submission.
   

THE AUDIO RECORDING OF THE INTERVIEW BETWEEN THE DEFENDANT, MR RICHARD BRENAN AND THE DEFENDANT ON THE 14 OCTOBER 2015.

6. I have listened to the audio recording admitted by the court into evidence. It is not disputed that the interview was conducted by Mr. Richard Brenan, with Mr. Asterio Appi as the interpreter and the defendant on the 14 October 2015. At least three languages have been used interchangeably in the audio recorded interview. English, Nauruan, Chinese Mandorin and Nauru-English-Pidgin (broken English) used to communicate with members of the Chinese Community in Nauru. To be able to consider what weight to be given at all to the evidence as contained in the audio record, one must be able to understand the whole of the conversation that took place between Mr. Brennan, Mr. Appi as interpreter and the defendant including those spoken in Nauruan, Chinese Mandorin and Nauru-English-Pidgin (broken English).
   
7. The prosecution has not provided the court with a transcription of the audio record of the interview nor a translation of the content of the audio record from the languages spoken. It is not for this court to go out of its own way to find someone to translate the contents of the audio recording which is a prosecution document. The duty is on the prosecution to have the translation of the contents of the audio record of the interview done, certified and presented to the court. This has not been done. So despite admitting the said audio as part of the evidence, I attach no weight to the contents of the audio recording for the simple reason that I do not speak Nauruan, Chinese Mandorin and Nauru-English –Pidgin. And even if I speak Chinese Mandorin or Nauruan or pidgin, the language of the court is English or Nauruan. One would have expected the prosecution to take the necessary step to have a transcription and translation of the audio from the languages spoken into English. And it is not open to this court to only take into account parts of the recording spoken in English and disregard the parts that are not spoken in English.
   

EVIDENCE IN RESPECT OF COUNT 1

8. Identified in the particulars of Count 1, is Bill of Lading No. MATCAN 000349 (Exhibit PE3). Exhibit PE 3 is prepared by the shipper Rong Bang (HK) Development Limited. Not the defendant.
   
9. Exhibit PE3 consists of Invoice no. 15006161,15006162,15006162,15006163,15006164 and 15006165 all dated 6 June 2015 describing in detail the goods summarized in the Bill of lading (Exhibit PE2) and the goods described in the Customs Declaration of imports (Dutiable) form (Exhibit PE1).
   
10. Mr. Clifton Dabwadau's evidence that his name and the name of his company Clifton's Imports have been used as a conduit by the defendant to import the goods is not disputed by the defendant.
    
11. Ms. Chantell Bill's evidence that she attended to the defendant on the 15 September 2015, where he presented to her the Bill of Lading, (Exhibit PE2), the commercial invoices (Exhibit PE3) and the Customs Declaration of Imports (Dutiable) (ExhibitPE1) is not disputed. Ms. Bill also gave evidence that she did ask the defendant if he was importing cigarettes or alcohol and the defendant told her no. This aspect of Ms. Bill's evidence is not disputed by the defence.
    
12. The defendant signed the Custom Declaration of imports (dutiable).[8] The 1009 sleeves of cigarettes do not appear in the commercial invoices comprised in exhibit PE3 which was given to Ms. Bill on the 15 September 2015 when the defendant made the declaration. The 1009 sleeves of cigarette do not appear in the list of goods declared by the defendant when he signed the Custom Declaration of imports (dutiable) form. When the container containing goods imported by the defendant was opened by officers on the 14 October 2015, 1009 sleeves of cigarettes were found in the said container containing the goods imported by the defendant. On the evidence it is not disputed that the 1009 sleeves of cigarettes were not declared by the defendant when he made the declaration by way of signing Customs Declaration of imports(dutiable)[9]
    
13. The particulars of the offence read:
    

"Chen Jian Ping between the 15 September 2015 and the 14 October 2015 at Nauru made a false declaration under the Customs Act 2014 in declaring the description and statement of goods in Bill of Lading No. MATCAN000349, from China containing only sanitary napkins, commodity and other mixed general good which he knew to be false as it also contained 1009 sleeves of Chinese cigarettes" emphasis mine.

14. Bill of Lading No. MATCAN000349[10] as particularized in the particulars of the offence is prepared by the shipper Rong Bang (HK) Development Limited. Not the defendant. The Bill of lading is not even signed by the defendant. In my view the only document that could form a basis for a charge and may be particularized in the particulars of the offence is the Customs Declaration of Imports (Dutiable) form.[11] On the evidence it is exhibit PE1. Whilst the information contained in the Bill of lading and the commercial invoices could be used to form the basis of providing information to make a declaration in the customs declaration of imports (dutiable) form, the form which carries the declaration is the Customs Declaration of Imports (Dutiable) form. This had not been particularized in the particulars of the offence charged against the defendant. The failure to particularize this document in the particulars of the offence is not fatal. It is the prosecution's act of particularizing the wrong document in summarizing the offence charged that is fatal.
    
15. On the evidence there is only one declaration made and signed by the defendant on the 15 September 2015. He cannot be held responsible for the information contained in the bill of lading because that is prepared by the shipper in this case Rong Bang (HK) Development Limited.
    
16. Again with regard to the particulars of the offence charged it reads:
    

"Chen Jian Ping between the 15 September 2015 and the 14 October 2015 at Nauru made a false declaration under the Customs Act 2014 in declaring the description and statement of goods in Bill of Lading No. MATCAN000349, from China containing only sanitary napkins, commodity and other mixed general good which he knew to be false as it also contained 1009 sleeves of Chinese cigarettes"[12] emphasis mine

17. In terms of the framing of the charge in relation to the date that the offence is said to have been committed by the defendant, the operative phrase in this case is "between the 15 September 2015 and 14 October 2015". On 15 September 2015, the defendant signed and presented the Customs Declaration of Imports (Dutiable) from at the customs office. On 14 October 2015 the container containing the goods imported by the defendant was inspected by officials from the customs department and it was found that 1009 sleeves of Chinese cigarettes which were not declared by the defendant were also in the said container.
    
18. "The use of the words "Between.... And ... signifies 'prima facie' a continuing offence between those specified dates....Therefore to charge a defendant with 'between the second day of March 1994 and the sixth day of March 1994...signifies that the offence was committed on the third, fourth and fifth days of March 1994."[13]
    
19. So the case for the prosecution in terms of how the charge is framed and presented is that the defendant had committed the offence of making a false declaration every day from the 16 September 2015 to the 13 October 2015. There is no evidence to show that the defendant had signed any Customs Declaration Imports (Dutiable) form every day from the 16 September 2015 and continued to do so every day until the 13 October 2015. There is evidence that the defendant had signed a false declaration on 15 September 2015. But that is outside of the ambit of the prosecution case as per the amended charge filed by the prosecution with the court on 19 March 2016. I therefore find that the defendant has no case to answer for the charge of making a false declaration under the Customs Act 2014. The charge of making a false declaration against the defendant is dismissed and the defendant is acquitted.
    

COUNT 2: DEFRAUDING THE REVENUE OF CUSTOMS

20. The bill of lading shows that the goods were shipped on board Ocean Vessel/Voyage NO. XIEHANG908V150619 at HUANGPU, CHINA on 21 June 2015. No cigarettes were listed in the goods described in the Bill of lading. On the 15 September 2015, the defendant signed the declaration without declaring the 1009 sleeves of cigarettes. Exhibit PE3 the invoices first presented to customs on 15 September 2015, did not include any invoice for cigarettes. But. On the evidence it is clear that the defendant approached the Ms. Bill a day after the container containing the goods imported by the defendant was opened and it was discovered there were 1009 sleeves of cigarettes in the container to see if he could declare the cigarettes. He also presented to the customs office, exhibit PE4 which is an invoice dated 6 June 2015 for the cigarettes on 14 October 2015. Mr. Clodumar's submission that no cigarettes was physically produced in court and that no evidence was led by the prosecution to link the defendant to the cigarettes contradicts the contents of exhibit PE4 the invoice describing the cigarettes and presented to the customs office on 14 October 2015 by the defendant. There is evidence at this stage of the proceedings to show that the defendant did not declare the 1009 sleeves of Chinese Cigarettes. I find that the defendant has a case to answer for the charge of defrauding the revenue of customs.
    

23rd day of March 2016

Emma Garo
Resident Magistrate

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^[1] Section 243(4)(a) of the Customs Act 2014
^[2] Particulars of the offence charged as contained in the ammended charge filed with the court on the 19 March 2016
^[3] Section 252(1)(a) of the Customs Act 2014
^[4] Particulars of the offence charged as contained in the charge filed with the court on the 15 October 2015
^[5] Exhibit PE1
^[6] Exhibit PE2
^[7] Exhibit PE3
^[8] Exhibit PE1
^[9] Exhibit PE1
^[10] Exhibit PE2
^[11] Exhibit PE1
^[12] Particulars of the offence charged as contained in the amended charge filed with the court on the 19 March 2016
^[13] Criminal Law in Nauru, Gibson: Topic on Charges Paragraph [6.2]