Supreme Court
Appeal No. 1 of 1980
31st July, 1980.
Barrington-Jones, J.

H. Elrington, Esq., for the Appellant
G. Godfrey, Esq., for the Respondents

Inferior Court of Appeal - Customs Regulation Act
- Dealing with uncustomed goods - Elements of
charge - Onus of Proof required of the prosecution
and the defence.

J U D G M E N T

This is an appeal by the Crown against the dismissal of charges against the four Respondents by the learned magistrate, Cayo Judicial District, on the 25th February, 1980 and whilst the precise charge laid against the Respondents is not disclosed in the record the charge and particulars are to be found in the opening paragraph of the learned magistrate's Reasons for Decision viz: -

Charged with fraudulent evasion of duty contrary to Section 114(1) (g) of Chapter 36 of the Laws of Belize. Particulars: That on the 23rd July, 1979, the four defendants at the Western Border Station (Cayo) were knowingly concerned in the fraudulent evasion of customs duty on 157 sheets - 12' 26 gauge corrugated roofing valued at $3,200. 100 vehicle tyres - 26 tyres 700 x 15 x 6; 12 tyres 750 x 16; 19 tyres 735 x 14; 23 tyres 855 x 15; 20 tyres 855 x 15 valued at $8,000 all to the value of $15,056.40.

The original grounds of appeal filed by the Crown complained that the magistrate's decision was unreasonable or could not be supported having regard to the evidence.

Leave was given at the hearing to argue an additional ground, i.e., that the decision was erroneous in point of law in that the learned magistrate misdirected himself as to the burden of proof imposed on the defendants by Section 124 of the Customs Ordinance, Chapter 36 of the Laws of Belize.

Mr. Elrington said the appeal was based both on law and fact and urged this Court to set aside the adjudication made by the learned magistrate and order a new trial. It was his submission that the learned magistrate had come to wrong conclusions on the facts and that he had misdirected himself on the law in reaching his final adjudication. Mr. Godfrey on the other hand submitted that the learned magistrate had reached correct and proper findings of fact and that he had not misdirected himself on the law, and he urged that the adjudication of the lower Court remain undisturbed.

Fortunately for this Court the learned magistrate has annexed comprehensive Reasons for Decision and from those reasons it becomes quite evident how the learned magistrate reached his conclusions both as to the law and the facts.

In regard to the charge: Section 114(1) (g) provides -

"Every person who ……………………… is in any way knowingly concerned in any fraudulent evasion of any duties of customs, or the laws and restrictions of the Customs relating to the importation, unshipping, landing and delivery of goods, or otherwise contrary to the customs law, shall be guilty of an offence …………"

In support of the charge the Crown called Albert Elrington who is the Senior Customs Examiner at the Western Border Station. This witness gave evidence of observing the border on the 22nd July, 1979 and later crossing the border on foot into Melchor where he saw Perez's pick-up being loaded with zinc and tyres by Pech and Solis. He later picked up P.C. McCullock and apparently they both observed the Western border station from some 200 yards away. Later McCullock left Elrington who then proceeded to a position about 170 yards from the border station. And he says that at about 1:30 a.m. on the 23rd July, 1979 he saw a white Ford pick-up come from the Melchor side of the border and to the Customs barrier. He says that the barrier was closed but that someone came out and opened the barrier and the vehicle proceeded on to the Benque Viejo road towards where Elrington was stationed. He says that at this stage he got into his vehicle and flicked his lights and tooted his horn, that the pick-up slowed down but did not stop, and then increased its speed. Elrington says that he then gave chase and eventually the pick-up came to a stop and he says it was the pick-up that he had seen earlier to the Melchor side of the border. He said that it was being driven by Pech and that Solis was with him. Elrington said that Pech told him that the truck was not for him but for Oscar Perez and that they should go to speak to Perez.

It appears that on Elrington's instructions the truck was driven to Benque Viejo Police Station where Elrington instructed P.C. McCullock to detain Pech and Solis. Elrington said that Pech told him at that time that the goods were for Oscar Perez and that he was only the driver and that the arrangements were made by Perez to cross the border. The vehicle was then checked and found to contain the items which are the subject of the charge.

The second witness was Woman Sgt. Henry who gave evidence of taking a statement from the Respondent Pech.

The third witness was P.C. McCullock who gave evidence of assisting Elrington on the night of the incident and taking Pech and Solis into custody, and his evidence corroborated that of Elrington regarding their earlier observation at the border and of what took place after the vehicle was taken to the Police Station.

The fourth witness was P.C. Jorge Manzanero and he gave evidence of taking a statement from the Respondent Solis.

The Crown then closed its case and it was at this stage that Mr. Godfrey submitted that the Respondents had no case to answer. The Magistrate after hearing the Prosecutor held that the Respondents did have a case to answer.

Here I think that I must assume that the learned magistrate was mindful at that stage that it was for the prosecution to establish a prima facie case on the 1st and 2nd element of the charge viz:

(1) that the goods in question were dutiable goods; and

(2) that the Respondents were knowingly concerned in the fraudulent evasion

and that having established a prima facie case on those two elements the onus then shifted to the Respondents in regard to the 3rd and 4th elements of the charge viz:

(3) that the goods were uncustomed; and

(4) that the Respondents knew the goods to be uncustomed.

The Defence first called Cpl. D. Vaughan who told the Court that he had visited the vicinity of the house and restaurant of Perez in Benque Viejo between 8:30 p.m. and 9 p.m. on the 22nd July and had observed a small white Ford truck in the street in front of the house owned by Perez being loaded by two Spanish descent fellows. The witness said that he spoke to Perez and noted that the vehicle contained zinc and that they were loading what looked like tyres into the vehicle. The witness said that he did not recognize the two fellows in Court and further said that he had later seen the same vehicle in the Police Compound on the 23rd July, 1979. He said that the things he saw at the Station looked the same as the goods he had seen being loaded on the 22nd July. The witness said that he had not reported what he had seen on the 22nd July, 1979.

The second witness for the Defence was Oscar Perez who said that on the morning of the 22nd July, 1979 he was at his house supervising the loading of his truck and recalled Cpl. Vaughan stopping and speaking to him for a short while. The witness said that he later arranged with the Respondent Pech to take the vehicle with the loaded goods to Belize City and that Pech said that he would find the Respondent Solis to go with him.

The third witness for the Defence was Augustine Yacab who is an agricultural quarantine officer at the border. It was this witness's evidence that he was on duty on the 22nd/23rd July, 1979 for some eight hours. The witness averred that no vehicle crossed the border during the period 11 p.m. to 2 a.m. on the 22nd/23rd July. He further said that Customs Officer Eiley and P.C. Dawson were also with him on duty at the border.

In cross-examination the witness admitted that he slept from about 11:30 p.m. to 12 midnight and that he did not wake up until about 4 a.m. to 5 a.m. He agreed that he could say whether a vehicle passed over the border up to midnight but could not say if one passed over whilst he was asleep.

This witness said that he saw a white pick-up at the border and he heard the Respondent Pech tell Eiley that he was going to Melchor. He said that he did not see Pech receive immigration permission from P.C. Dawson to go over the border. He said that the barrier was closed and locked some minutes after 11 p.m. on the 22nd July.

The witness in further cross-examination said that the pick-up did not pass through the border that night after he had seen it on the Belize side of the border. In re-examination he said that the Respondent Pech went across the border that night.

The fourth witness for the Defence was Hubert Eiley, and it was his evidence that he went on duty at about 4 p.m. on the 22nd July, 1979 and remained on duty until 8 a.m. on the 23rd July. He confirmed that the Respondent Pech came to the border in a white pick-up and that Pech went over the border with his permission. The witness did not recall if Pech returned. The witness said that he did not get along with his superior P.W.I. He said that P.W.I. had promised to punch him and had threatened him with discharge or a transfer. This witness concluded by saying that he did not see any vehicle go through the checkpoint that night.

The fifth witness was the Respondent Pech and he confirmed that Perez had asked to make a trip for him and confirmed that he would seek out Solis to assist him on this errand. He said that he drove the vehicle to the border and parked it there and confirmed Eiley's evidence that he went across the border after telling Eiley that he was going to Melchor. The witness said that he found Solis at the border and that they then returned to the border and drove the vehicle back towards Benque but that they were stopped outside Benque by P.W.I., and he confirmed P.W.I.'s evidence that they were then taken to the Police Station in Benque where the vehicle was placed in the Police Compound and where he and Solis were taken into custody. It was Pech's evidence that P.W.I. accused them of smuggling and that he denied it. He said that P.W.I. then asked where the goods loaded in the vehicle had come from and he had replied that he thought they were from Guatemala.

The Respondent Solis elected to remain silent. That closed the case for the Defence. After the addresses from Counsel for the Defence (Mr. Godfrey) and the Prosecutor, the learned magistrate found all the Respondents not guilty as charged.

In an un-numbered Criminal Appeal Norman Lainfiesta v. Cpl. Austin Arnold decided on the 25th May, 1966 Graham J. (as he then was) also dealt with an appeal against a conviction under Section 114(1) (g) of the Customs Regulations, and quoting from page 4 of the judgment the Judge said: -

"Referring to this section (114) under which the defendant was charged, and section 124 of the same Ordinance which deals with the onus of proof in certain circumstances, both Counsel submitted that these sections were in terms similar to sections 186 and 259 respectively of the United Kingdom Customs Consolidation Act 1876, and they cited the cases of R v Cohen (1951) 1 All E.R. 203 … and Sayce and Coupe (1952) 2 All E.R. 715… The submission is substantially correct with regard to section 124 of the Ordinance, but section 114 differs from the United Kingdom legislation in the important absence of the requirement of 'intend to defraud' in the offences of knowingly harbouring uncustomed goods …. The offence of being knowingly concerned in the fraudulent evasion of customs duties (paragraph g…) is, however, substantially the same in the Ordinance as in the Act. Subject to this the judgments in Cohen and Sayce v Coupe are authorities as to the principles to be applied in regard to onus of proof in similar cases, though it must be borne in mind that neither dealt with the offence of being knowingly concerned with fraudulent evasion of customs duties.

The legislature of the territory has enacted the two other offences in terms of stricter liability. It is therefore to be noted that, where there is room for choice, if the prosecuting authorities bring a charge under paragraphs (e) or (f) of the section then, unlike the position in Britain, there is no statutory requirement to prove an 'intent to defraud' but if they frame a charge under paragraph (g) of the section the fraudulent element must be proved."

At page 5 of his judgment, the learned Judge goes on to say: -

"In R v Cohen, the defendant was charged on indictment with knowingly harbouring uncustomed goods, mainly Swiss watches. That charge would be equivalent of a charge under section 114(e) of Chapter 36 of our laws with the added ingredient of an 'intent to defraud'. He was convicted and the principal ground of appeal was that the judge had misdirected the jury on the onus of proof. The Court of Criminal Appeal expressly took the opportunity to give such a judgment as might prove of assistance to inferior courts. Under the legislation in this territory the offences are dealt with summarily by the Magistrate and the principles set out in Cohen's case are important as giving guidance both to the prosecuting authorities and to the magistrates on what are the ingredients for establishing the offence and by whom these must be proved.

The case shows that, briefly stated, the offence consists in knowingly harbouring uncustomed goods. This means that the accused knowingly harboured goods and also knew that they were uncustomed. The offence therefore comprises the following elements: -

(a) dutiable goods;

(b) the defendant knowingly harboured these goods;

(c) the goods were uncustomed;

(d) the defendant knew that goods to be uncustomed.

In England an intent to defraud must also be proved. The onus to prove this rests on the prosecution but it may be inferred from the surrounding circumstances.

Upon whom does the onus rest to prove the four other elements above mentioned? Clearly the prosecution must prove the first two, namely the presence of dutiable goods and that the defendant harboured those goods knowingly. Cohen's case, however, lays down that the onus of proof in respect of the other two elements rests upon the defendant, provided that the first two elements have been established by the prosecution.

Indeed the point to grasp in the judgment of Lord Goddard is that in such cases the onus of proof upon the defendant may be two-fold resting both upon statute and upon general principles. First, if it is proved by the prosecution that the defendant knowingly harboured goods subject to duty, section 259 of the Act (section 124 of the Ordinance) throws upon him the onus of proving that the goods are in fact customed. This may be termed the statutory onus.

Next, 'the prosecution having proved that the defendant was in possession of dutiable goods in such circumstances as would entitle a Court to find that he was consciously in possession of them and the accused having failed to prove that the duty had in fact been paid, there is then an onus on him to give some explanation of his possession from which a jury might infer that he did not know that the duty had not been paid. That it must be for him to give this explanation is because the facts relating thereto must be exclusively in his knowledge. There is, in fact, a shifting of the burden of proof, and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the facts to be proved which may be possessed by the parties respectively.'

The passage quoted is taken from the judgment and it shows that in the circumstances outlined the onus of proof rests on the defendant and not on the prosecution in respect of the question whether the defendant knew that the goods were uncustomed. It is, so to speak, a further onus resting on general principles. (See R v Cohen etc.). If the defendant proves that the goods are customed then he must be acquitted. If he does not, that is not the end of the case. The question of knowledge that the goods were uncustomed must be dealt with, but it is upon the defendant that the onus rests to prove the contrary. This is because proof by the prosecution that the defendant knowingly harboured goods which were subject to duty (like the possession of recently stolen goods in receiving cases) is prima facie evidence of guilty knowledge or in other words, raises a presumption of guilt. If the explanation given by the defendant is convincing or raises a doubt in the mind of the Magistrate the defendant must be acquitted. If the defendant gave no explanation at all then he may be convicted.

……..it must be made clear that the circumstances that a defendant is a compellable witness in these cases is not a circumstance upon which his guilt may be established. It should not be thought that because a defendant is a compellable witness he must either testify or be convicted. Failure to testify may in some circumstances leave the Court no alternative but to accept the presumption of guilt raised by evidence already given by the prosecution. In such a case the defendant is convicted because the evidence of the prosecution was sufficient to establish guilt. If the Magistrate entertains doubt as to the case for the prosecution, that doubt is not cured by the failure of the defendant (even where compellable) to testify and he should acquit the defendant. Refusal to be sworn, when compellable, or when sworn to answer an admissible question is a contempt of Court and there is a separate machinery for dealing with such contempt.

Then there is the element of fraudulent evasion in this particular case. The words 'fraud' 'defraud' and 'fraudulent' are cognate terms and light is thrown on the meaning of the expression fraudulent by consideration of the comments of the Courts in Customs cases. See the judgment of Lord Goddard in Sayce v Coupe (1953) 1 Q.B. 1 at page 6 and in Beck and Binks (1949) 1 K.B. 250-252. And fraudulent intent may be inferred from the facts of the case. In customs cases fraudulent evasion would include a situation where the facts showed that someone was trying by some dishonest trick or other means to avoid payment of or to with-hold from government, the duty which should be paid on goods; all the more so if the efforts succeeded.

In a case for being knowingly concerned in the fraudulent evasion of customs duties, the fraudulent evasion might be carried out or attempted by a third party with the defendant merely being concerned therein. It is also possible that the defendant himself might be the person fraudulently evading or seeking to evade the payment of duties. In such circumstances he might also be committing one or more of the other offences created by the section. There must be evidence to support a finding of fraudulent evasion and that the defendant was knowingly concerned therein.

In this case the relevance of the principles laid down in Cohen's case is to show that if, in the course of establishing fraudulent evasion it becomes necessary to prove either payment or non-payment of duty or that the defendant knew that duty had not been paid, those elements must be proved by the defendant once the prosecution has proved that the defendant was consciously dealing with goods declared by the legislature to be liable to duty…."

The Judge at page 8 of his judgment went on to say:-

"That judgment (Cohen's case) however, incorporated a statement of the principle that in deciding whether there was a shifting of the onus of proof from the prosecution to the defendant, a Court had regard to the opportunities of knowledge with respect to the fact to be proved which might be possessed by the parties respectively. The Judicial Committee of the Privy Council applied this principle in an appeal from Fiji which came before the Court last year (Patel v Commissioner of Customs (1965) 3 WIR 1221) and involved construction of the words 'the place whence such goods are brought' which appear in a section of the Fiji Customs legislation in terms similar to section 124 of Chapter 36 of our Laws…"

Later the Judge said: -

"It seems to me, however, that the case of Petty v Biggerstaff (1954) N.I.70 IR shows even more clearly where the onus rests when a dispute arises as to whence goods are brought or imported. The only report of this case available locally is to be found in 39 Digest 256 131 where the note of the case reads as follows:

"Dealing with uncustomed goods - origin - onus of proof - Where a deft. is charged with being knowingly concerned in dealing with goods contrary to Customs Consolidation Act, 1876 S. 186, complainant must prove that deft. was knowingly concerned in dealing with the goods in question, but thereafter by virtue of section 259 of that Act the onus is on deft. to show that the duty in respect of the goods had been paid, or that the goods were lawfully imported, or that they were not brought from a place outside the United Kingdom. B. was charged on a summons which alleged that he had been knowingly concerned in dealing with a Ford motor car in contravention of S. 186 of the 1876 Act. A second summons charged a similar offence in relation to an Austin motor car. At the hearing no evidence was adduced by B who contended that the onus was on complainant to prove that duty was due on the cars, or that they had been unlawfully imported, or that they were bought from a place outside the United Kingdom: Held (1) on the summons relating to the Ford car the evidence for complainant was insufficient to establish that B. was concerned in dealing with the car and accordingly no case was proved which would bring S.259 into operation; (2) on the summons relating to the Austin car there was evidence which established that B. was concerned in dealing with the car, and as B. had contended that no offence was committed, a 'dispute' existed for the purpose of S.259 of the Act, and accordingly that section operated to cast upon the deft. the onus of proof on the issues referred to in the section."

I make no apology for quoting Graham J. at such length if only because the learned Judge has set out so lucidly the law and the principles to be applied in these sort of cases.

But the authorities do not end there because some eight years later Malone C.J. (as he then was) had cause to deal with an appeal against a conviction under Section 114 (1) (f) of the Customs Regulation Ordinance, Chapter 36, in an un-numbered Criminal Appeal - Ignacio Coye, Appellant v Cpl. Frederick Gill, Respondent; and in his judgment he refers with approval to what was said by Graham J., viz:

"……but if they frame a charge under paragraph (g) of the section the fraudulent element must be proved."

Malone C.J. took the opportunity to quote from R v Cohen where Lord Goddard had said: -

"Apart from the intent to defraud, with which we will deal separately, the offence consists in knowingly harbouring uncustomed goods, and in our opinion that means that the accused knowingly harboured goods and also knew that they were uncustomed."

And went on to say: -

"On the basis of the above authorities, I therefore am of the opinion that the offence comprises the following elements that:

(a) the goods were dutiable goods;

(b) the defendant was knowingly concerned in concealing the goods;

(c) the goods were uncustomed; and

(d) the defendant knew the goods to be uncustomed.

In R v Cohen (ibid) Lord Goddard, having listed the elements that, apart from the intent to defraud, constituted the offence with which he was dealing and which, but for the substitution of knowingly harbouring in place of being knowingly concerned in concealing, are those I have listed above, went on to explain where the burden of proof lay. In so doing he reached the conclusion that to establish a prima facie case, the burden was on the prosecution to prove the first two of the elements mentioned above. If the prosecution discharged that burden, the burden then shifted to the defence to satisfy the court that duties had in fact been paid on the goods or at least that the goods had been declared and that the customs officers had, in their discretion, permitted them to enter duty fee. If the accused failed to do so, there is then as Lord Goddard said at p. 244:

'an onus on him to give some explanation of his possession from which (it) might (be inferred) that the did not know that duty had not been paid.'

The reason why the first burden is cast upon the defendant is because of statutory enactment imposing that burden. In the United Kingdom that enactment is to be found in section 259 of the Customs Consolidation Act 1876. A provision which, as Lord Goddard said at p. 243:

'throws on him (i.e. the defendant) the onus of proving that the goods are in fact customed.'

In this country the relevant section is section 124 of the Customs Regulation Ordinance Chapter 36, which is virtually word for word the same as section 259 of the Act of the United Kingdom. On the other hand the reason why, if the goods are found to be uncustomed the onus is placed upon the defendant to give some explanation of his possession is because, as Lord Goddard said at p. 244:

'the facts relating thereto must be exclusively within his knowledge.'

But because the burden shifts, that does not result in a departure from the principle laid down in Woolmington v. D.P.P. (1935) A.C. 462 that a criminal case is never proved if the sum of the evidence does not attain the standard of making the court feel sure of the guilt of the accused. It results only in the prosecution not having to lead evidence in proof of every element of the offence. Where then it is established that an accused was knowingly concerned in the concealment of dutiable goods which are found to be uncustomed, then if he gives no explanation, he may (not must) be convicted of concealing uncustomed goods.

I emphasise that a conviction does not of necessity follow as despite the fact that the goods are found to be dutiable and uncustomed and that the accused was concerned in their concealment, yet notwithstanding that he gives no explanation the facts may exceptionally not warrant the drawing of a reasonable inference that he knew that goods to be uncustomed. If he does give an explanation and the court is satisfied either that he did not know the goods were uncustomed or is left in doubt whether he knew or not, he should be acquitted. The position as regards the burden on the defendant to give an explanation of his possession is thus as Lord Goddard said at p. 245:

'closely analogous to (cases) of receiving stolen goods when the evidence relied on for the prosecution is merely possession of goods recently stolen.'

The burden is, therefore, a mere evidential burden.

In determining the weight to be given to an explanation proffered by the defence, the evidence ought not to be narrowly construed in favour of the defendant. The judgment of Lord Parker in the case of R. v. Moss (1965) 2 Q.B. 396 at p. 406 establishes that knowledge - in this instance knowledge that the goods were uncustomed - covers the case of shutting one's eyes to what is going on, and, still more, covers the case where the person intends what occurs to go on, but deliberately looks the other way. But where the burden of proof is cast upon a defendant by virtue of a statutory enactment, as in this instance the burden to prove that duties were paid or that the goods were declared and allowed to enter duty free, other considerations apply. The question then is, must the defence to discharge this burden attain the standard of proof required of the prosecution to prove a criminal case? Or is it sufficient for it to attain the standard of proof required to prove a civil case? In Phipson on Evidence 11th Edition at p. 101 (102) it will be found stated:

"In contrast to the common law defences considered above, certain statutes expressly cast the onus of establishing a specified defence upon the accused. The defence of insanity falls into the same category. In such instances the accused bears a legal burden which will be discharged if the defence is established on a balance of probability.'

It must not however be thought that because by express statutory enactment the burden of proving that duties were paid on the goods or that the goods were declared and allowed in duty free at the discretion of the customs is placed on the defence, the prosecution may not lead evidence to prove specifically, and not merely by inference, that the goods were uncustomed. Where the prosecution leads evidence in proof that the goods were uncustomed, the defence may of course still lead evidence in proof of the contrary. Whether or not the prosecution does lead such evidence, it is for the court to decide by applying the standard of the greater probability to the evidence before it whether the goods were or were not uncustomed. In practical terms the situation may not appear to differ from the situation that arises where the goods having been found to be uncustomed, the defence has the evidential burden of explaining that the defendant did not know the goods to be uncustomed. In both situations, if the evidence of the defence is accepted, or if it is found to cast doubt on the prosecution's case so that the prosecution's case is not established to the point that the court can feel sure of it, the defence is entitled to an acquittal. There are, however, these distinctions. In the one instance the court has clearly to bear in mind that the evidence must be judged by the standard of the greater probability and that the defence will succeed if the greater probability is in its favour. In the other instance the court has clearly to bear in mind that the evidence must be judged by the standard applicable to a criminal trial and that the prosecution will succeed if by dispelling all reasonable doubt it makes the court feel sure of its case. As these issues may arise on an appeal, the magistrate's reasons for his decision should disclose how he approached these issues. The fact however that they may not or that they reveal a wrong approach, is not necessarily fatal to the decision if on the evidence and the findings of fact made, it is to be clearly seen that the findings of fact, measured by the correct standard of proof, were justified. I have earlier made mention of the possibility that there may be exceptional cases where, despite the failure of a defendant to give an explanation to account for his not knowing the goods to be uncustomed, a court may still hold that the prosecution has not proved its case. To conclude this part of my judgment I would make this further comment with respect to the drawing of inferences in cases of this class. As the law stands, the powers of the customs officers, as Lord Goddard implied in R. v. Cohen (ibid) are considerable, for as he said at p. 244:

'it is in law possible for them to require anyone be he trader or not, who has dutiable goods in his possession, to show that duty has been paid.'"

The learned Chief Justice went on to say that it was possible for the authorities to bring a case merely on evidence that dutiable goods were found in the possession of the defendant. He continues: -

"But because that course is adopted, it does not follow that at the close of the prosecution's case the defendant must give evidence or be found guilty. He may, as in other criminal cases, submit that the evidence is insufficient to draw the inference that the goods were uncustomed. The court must then decide if such an inference may reasonably be drawn from the facts and circumstances presented in evidence, as the inference that the court must draw must be reasonable. If it decides that such an inference cannot be drawn, that would be the end of the case. Otherwise it will then proceed to hear the case for the defence."

These quotations from the judgment of Graham J. and Malone C.J. set out very clearly the principles to be applied in cases of this nature and I thus now turn to consider the learned magistrate's reasons for decision in the light of the principles set out in the aforementioned judgments.

The magistrate sets out the evidence in his reasons very succinctly and then goes on to say that the prosecution must show: -

(1) that the goods in question were dutiable goods;

(2) that there was evasion of customs duties on these goods;

(3) that this evasion was fraudulent; and

(4) that the defendant (s) were knowingly concerned therein.

He notes that the Defence did not dispute that the goods in question were dutiable goods and continues: -

"The dispute gravitated to the remaining elements of the charge."

That sentence was not very happily worded because in fact the "dispute" arose as a result of the magistrate finding that the prosecution had established a prima facie case on the first two elements of the charge viz: -

(1) that the goods in question were dutiable goods; and

(2) that the Respondents were knowingly concerned in the fraudulent evasion

and thus the onus had shifted to the Respondents in regard to the remaining elements of the charge viz: -

(3) that the goods were uncustomed; and

(4) that the Respondents knew the goods to be uncustomed.

As Malone C.J. pointed out (infra): -

"In order to establish a prima facie case the burden was on the prosecution to prove the first two of the elements (the second element differed in that case for it was a charge under S.114 (1) (f)). If the prosecution discharged that burden, that burden shifted to the defence to satisfy the court that duties had in fact been paid on the goods or at least that the goods had been declared and that the customs officers had, in their discretion, permitted them to enter duty free."

Be that as it may the learned magistrate then goes on to deal with the 3rd element (that the goods were uncustomed) and notes that it was the defence case that there was no evasion as the Customs Import Entries were in fact entries which, if accepted, proved that the goods in question were customed goods. He then reviewed the relevant evidence in this regard and then quoted from Woolmington, as follows: -

"The burden of proving the charge rests and remains with the prosecution who must prove the charge so that the court can feel sure of the guilt of the accused."

With respect, that is not a correct interpretation of the law relating to a charge under S.114(1)(g) upon which the prosecution must establish a prima facie case and if those two elements are established, then the onus then shifts to the Respondents in regard to the last two elements of the charge.

The learned magistrate's quotation from Woolmington v D.P.P. (1935) A.C. 462 may have misled him on this point, and perhaps a more apposite reference to Woolmington would have been in the terms used by Malone C.J. in un-numbered Criminal Appeal Ignacio Coye and Cpl. Frederick Gill at page 5: -

"But because the burden shifts, that does not result in a departure from the principle laid down in Woolmington that a criminal case is never proved if the sum of the evidence does not attain the standard of making the court feel sure of the guilt of the accused. It results only in the prosecution not having to lead evidence in proof of every element of the charge."

The learned magistrate then adverts to Section 124 of the Customs Regulation Ordinance, which reads: -

"If in any prosecution in respect of any goods seized for non-payment of duties or any other cause of forfeiture, or for the recovery of any penalty under this Ordinance or any other law relating to Customs, any dispute arises whether the customs duties have been paid, for the same, or the same have been lawfully imported or lawfully unshipped or concerning the place whence such goods were brought then and in every such case the proof thereof shall be on the defendant in such prosecution who shall be competent and compellable to give evidence."

But he continues: -

"Section 124 imposes an evidential burden on the accused to prove that the goods were customed goods, if there is a dispute as to the payment of duties. This he discharges on a balance of probabilities….'it is for the court to decide by applying the standard of the greater probability to the evidence before it whether the goods were or were not uncustomed….'" and then comes a lift from the judgment of Malone C.J. in an un-numbered appeal Ignacio Coye and Cpl. Frederick Gill dated the 19th December, 1974 where the then Chief Justice said: -

"…the court has clearly to bear in mind that the evidence must be judged by the standard of the greater probability and that the defence will succeed if the greater probability is in its favour."

and then there follows two further extracts from the same judgment: -

"The burden is therefore a mere evidential burden." and again: -

"In determining the weight to be given to an explanation proffered by the defence, the evidence ought not to be narrowly construed in favour of the defendant."

The learned magistrate goes on to say that he was inclined to conclude on a balance of probabilities that the greater probabilities were in favour of the defence that the loaded truck in question had not crossed the western border in the period 22nd to 23rd July, 1979, and that the import entries were for duty paid on the tyres and zinc the subject matter of the charge. He concluded: -

"That being so there was no need to consider (3) whether any evasion was fraudulent (4) whether the defendants were knowingly concerned therein."

The elements that the magistrate had listed as (3) and (4) were, of course, matters upon which he was bound to have given consideration in holding that the Respondents had a case to answer.

Again, quoting Malone C.J.: -

"He (the defendant) may, as in any other criminal case, submit that the evidence is insufficient to draw the inference that the goods were uncustomed. The court must then decide if such an inference may reasonably be drawn from all the facts and circumstances presented in evidence, as the inference that the court must draw must be reasonable. If it decides that such an inference cannot be drawn, that would be the end of the case. Otherwise it will then proceed to hear the case for the defence."

Unfortunately the learned magistrate does not advert to the burden of proof in regard to the first two elements of the charge in the record of the case nor in his reasons; and the ruling on the submission of no case to answer gives no clue as to whether the magistrate considered this burden. But as I said earlier I must, I think, assume that the learned magistrate in finding that the Respondents had a case to answer had satisfied himself that the prosecution had established a prima facie case in respect of the first two elements of the charge.

For all these reasons I must agree with Mr. Elrington that the learned magistrate's reasons are at times difficult to follow and elsewhere somewhat confusing; but in considering the Crown's submissions, I must, I think, have regard to what Malone C.J. laid down in the aforementioned appeal viz: -

"In the one instance the court has clearly to bear in mind that the evidence must be judged by the standard of the greater probability and that the defence will succeed if the greater probability is in its favour. In the other instance the court has clearly to bear in mind that the evidence must be judged by the standard applicable to a criminal trial and that the prosecution will succeed if by dispelling all reasonable doubt it makes the court feel sure of its case. As these issues may arise on an appeal, the magistrate's reasons for his decision should disclose how he approached these issues. The fact however that they may not or that they reveal a wrong approach, is not necessarily fatal to the decision if on the evidence and the findings of fact made, it is clearly seen that the findings of fact, measured by the correct standard of proof were justified."

In conclusion then, the learned Magistrate discloses how he approached these issues, and although his approach was somewhat unusual, I cannot say at the end of the day that his findings measured by the correct standard of proof were unjustified. He had the advantage of seeing and hearing the witnesses, and his conclusions (based as they were on the tests prescribed by Malone C.J.) were not unreasonable in the light of the evidence led at the trial. Nor can I say that the learned Magistrate misdirected himself as to the burden of proof imposed on the Respondents by Section 124 of the Customs Regulations Ordinance.

It therefore follows that the appeal against the learned Magistrate's findings must be dismissed.

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