A FALSE DECLARATION.

Auckland Star, Volume XIX, Issue 219, 17 September 1888, Page 5

A FALSE DECLARATION.

PROSECUTION BY H.M. CUSTOMS.

At the R. M. Court to-day before Dr. Giles, R.M., a case of considerable importance tvas.heard. Thoinas:Nash was charged that he did on the 22nd. August, lßßß,atAucklahdi make and subscribe a false declaration pur-1 porting to be a declaration that he was the I importer of goods contained in the entry tendered with such declaration, and of the value of the said goods, and of the genuineness of the invoices then Denounced to the Collector of Customs, thesame declaration being false and : untrue, contrary to section 243 of the Gustoms Laws Consolidation Act, 1882, whereby the said' Thomas Nash forieited. a penalty of £100. 'Mr Button appeai-ed for the Collector of Customs, and ; Mr E. Heaketh foe the defend:'; ant. The invoices referred to in the charge had reference'f ocertain packagesof bbotsand shoes shipped at 'London by■ Schmedes/ Erbsloh ,and Co., and consigned to order. ; The Eliglish : invoice for the gooas. received by Messrs Garrett Bros^ stated their value to _be £539|9511d, and the invoice upon which the defendant Nash \yas charged with making a false declara tion was an invoice by Heinrich Lisner, of Hamburg,■whereupon the value of the goods was set down at £413 11s 3d. The difference, in the amount of duty payable to-H.M. Customß w,as between £17 and £20. ,:, * '■■■.',:/ • '■ - Mr Hesketh said that the defendant, by his advice, would plead guilty to having made a lalse declaration; , Technically he did not come within the meaning of the term " importer" in the second section of the Customs Lawa, Corisblidatioh Act, 1882, because he was not the peraon possessed for the being '•,-:, or beneficially, interested in ; these goods at the time- of b. importation or till after' de^ livery from the:.? Customs.. Mr v Nash passed .this entry, at a time when heoould not say that, he was technically bhe.'im'pQ'rter of-;, the /goods. As the defendant's declaration was to the eftect that he (Thomas Naah) was the importer of the goods he (Mr ilesketh) had.aidvised him to plead guilty He could not find any instance where this question of the deh'nitiori of •'importer " had beetf raised in 'Nevr'' Zealand before, and it seemed to him that technically the declaration i made by Mr Nash was false. He would, however, ask His Worship .to exercise the powers conferred ; J upon ihim^, this being i a first offence, in mitigation of the penalty to £25, which he submitted would be sufficient to meet the requirements of the law. Mr Button said he felt it his duty to inform His Worship of the facts of the case. After that he would leave it to His VVorsbip to say whether or not this was" a case in which his disoretionary powers should be exercised. His Worship had special jurisdiction under the Customs Laws Oohsolidatippj^ct—rtihey were not proceeding under.the justiceaof the Peace Act—and the procedure was all regulated by the former. It was therefore poaßible!that his learned: friend had been, to some extent misled by the form of the information. It certainly gave more information on the subject than he had referredto.-. What wasalleged in this information was that the defendant made a' iaise deciaraiion, but the nature of the declaration was only referred to in general words. The circumstances of the case he had , proposed ito bring before . the Court,were;these : He would have been able to pYove;that these goods were ordered some time ago by Garrett .Bros,, th rough the firm of Schmedes, Brbsloh and Co., of London. It was no part of the case for the prosecution that defendant was a principal of that firm, but he (Mr, Button) had no reason to contradict the assertion. These gobda" were shipped from the firm in London by bill-ofladingfcooider, and the invoice. waS'SenttoftMeesr^ jG^rrett Bros,. The bill-of-lading was'Jianded over by the Bank to Garrett Bros.Yon their accepting the bill, so, that Garrett Bros.Vvyere; the importers according to common parlance and according to the intentions of 'the interpretation clause of the Act. They were what was, generally known as importers of the goods. They had ordered them, the goods came itiydiced to tberri, tljey accepted the draft for them and obtained tie bill of lading, and they placed tho bill of lading in the hands of their Customs agent to* pass the entry; :By some means or another which the,prosecution could only suggeab, for they did not know how it came absent, Mr Nash got possession of this billof lading, and passeUtheentryasbeingthe importer' himself under a'German invoice. Mr Nash had represented himself as one of the firm of Schnedes Erbsloth and Co. The prosecution contended that London was the place from which the goods "were imported, and that Garretfc Bros, were the importers from London. What the prosecution suggested was ; 'this —-and he (Mr Button) submitted that the hypothesis was a reasonable; onewas that after this bill of lading had como into Garret Bros.' hands, Garrett Bros., as oSvners of tho goods, were taking the proper steps to pass them on; their in voiced and then, by some means, (after they had' become the1: importers of the gbjjds wi thin the meaning '■' of the Act, ■ arid according to the. general •undel'Btandirig of the term) Mr Nash attempts to pass them on his German invoice, the''difference in the amount) of duty being between £17 and £20.U- But, it s6. happened that the English invoices had already been used in connection with the entry, and it came to;; the ■ knowledge of a Customs officer m that way. Mr Nash'a entry was already through when the Customs officer became that another; Customs officer>was preparing to pass entries on the English invoice. The. prosecution challenged not only the question of Mr Nash being the iniporter but also thfe Igenuinness of tha invoices—-that there were | more invoices than one. The declaration I 'made by Mr Nash set. out that there were mo others,' that the ; value of the goods ! was £413; lls 3d,: and-that this^ was the fair I market value' in ,tH& country from, which i they were;'' shipped. There were* three j things- challenged —ithe question of; imi porter, the value; of the goods, | arid that : the invoice'' I'"referred :' to in i the declaration was/the" only; invoices There w.as also a provision in Section 39 of the Customs Laws Consolidation ! Act ' prohibiting ■ shippers from ; recovering the value of1 cjodds if they had been ; parties, in any way, to sending a i second invoice. The prosecution had the i bill-of-la'ding and the goods were invoiced I from London. ! .His Worship:, And, 'does that show, a |'&ger'lyatue;:thaiii ; tho'.(^rmarfi^v6icS'?..'; i' Mr Button : It.makes ah increase in the duty of about £17., The German invoice !is for £400 odd and the English invoice for I £500 odd. "The'goods' were ordered throdgh :'the London, firm,. ■■ , , ~. !" ■His,'.: Worship,:, Dbes ;,;the invoice, 'come I through the London house or from Germany ? '': v' -■ •■ ' '•"'- ■'":'['-'- J:A/' IMr Button : That we dp not know. ' .Inanßwertba.question by Mr Button Mr Btbsketh said he would,admit)"that Chero were two separate invoices.; i< .; < Mr .Button said there was, of course, the question of costs,arid he asked^HisWorship to take that into consideratibQ as; well as .the.penalty.' _ _-~ , ~W, .. -, Mr ileaketh said that they were upon a new field altogether. With regard to section 39 there was .not a section about which there had been,' more doubt or, argument. The ad valorem dv ty "was to be paid on the fair value of the goods in the /priricipal markets of the country whence they were exported. There was; no . question that these goods had come from Germany. They werei nbfc sent to London, opfenedj re-packed and then sent outihere. ; ; The gpocls w6nt through London, it was perfectly, true. J$ "was also perfectly cprrect tbat they had

an Ehg lish • bill of lading, bub there were the words "by transhipment" on the marglti. The London ho 3se had ordered the goods from the German house, and they were transhipped at Home. Supposmgthat Mr Nash, as the represeritative of his firm; had taken; delivery of these goods himself, and then handed them over to Garrett Bros.; not a. wbrd could have been said. Then if he had said, " I am the importer of these goods," he would be strictly speaking the truth. * The invoice sent to Garrett Bros., however, deprived the German house of the right to ; pass an entry. As far as he (Mr Hesketh) could discover, neither here nor in the Southern ,pa;ts of j New Zealand' had there been any decision as to the defihitibn *' importer," and it was of importance: to merchants to know whether when importing goods " from Germany > they shbuid have to ■say;- " they have been in England." He admitted that technically and legally his client was guilty. The question was ' whether there was" any moral turpitude in what Mr Nash had done, 'ahd'he did hot think that the Customs I thought it necessary to make a special example of Mr Nash ;by infliction of a iieayy penalty for the warning of other people guilty of offences of this nature. :Mr Button said that .Mr Hesketh's remarks on the words " for; tranship-; inent." - required nome explanation. The words referred not to transhipment at London, but to transhipment in New Zealand, the goods having come to this colony by the direct steamer Ruapehu; ' His Worship.: That view is presumably the more probable. : Mr Button Baid there was only one other, matter,■ viz.,'. that the parties in Germany from 'whom the ■ goods were received yere not • Schmedes, ErbslGh, and Co., but Heinrich Lisner, of Hamburg. IMr Hesketh: I would ask my friend whether the 'Collector 6f Customs wants to make a special-example of Mr'Na.sh, or whether he can see his way to consent to a| mitigatibn of the penalty by the Court ? ' ■ Mr. Button: The Collector of Customs thinks that £25 is not sufficient penalty. We have no definite charge against Mr Nash, but we believei this sort Or thing has been, going on, and; that attempts have thereby been made to evade the Customs. , His Worship said that in considering the question !6f a mitigated penalty;' he would certainly lean to such unless ■trong reasons were shown to the cbntraryj and these reasons only alleged very strong presumptions, and: there was no absolute proof of moral wrong or fraud. A fraudulent motive should tie suggested by the prosecution, and, so far as JBEis Worship, 'had heard " the facts, ;they were consistent with the possibility of such a mblive. At the same time he did nob think it was made quite clear that this was the case. : ,'\yith regard .to Section 39 of the Act it appeared to him that some rather difficult legal questions might !'be raised, and before he could take upon ;himself to say certainly what was the real' effect of that section, and also give a decided opinion as to whether it had been fraudulently contravened by the defendant, be would wish to hear more than he had beard tbismorning. If witnesses bad been brpught forward he would probably have asked many questions for the; Bake of arriving at a more satisfactory understanding with regard to! ,the course officers take in such proceedings generally. This would enable him- better to judge of the probable motives of a person in; acting in this way. ■ Mr Button: We ;have the witnesses in attendance, your Worship. ■ His Worship said that certain facts had been put before him and he had to decide what inference he should draw from them. He was not prepared to say that it was 1 quiet clear -that there was deliberate fraud in this case, but at tha same time an arguable ! case might be made out, leaving a strong case [for defendant's view with regard to clause 39.V He thought that it was a fair case for the mitigation of the penalty. Attention having been directed to it now, in anyfuture case people #buld»naturaliy expect that the matter would be more fully investigated and more serious penalties imposed. It appeared to him that the jriitigafced' penalty would meet the requirements of justice in this case so, far as/he had been enabled to see into it. The mitigated-penalty of £25 waa> therefore imposed,- and £7 13s were allowed.