SUPREME COURT.

Dominion, Volume 4, Issue 1190, 27 July 1911, Page 3

SUPREME COURT.

OPIUM ACT XOT CUSTOMS ACT. The . Chief J usticc (Sir Robert Stout) (lelivcreil reserved judgment yesterday in the appeal against a judgment delivered at -Napier by Mr. S. L. M'Carlhy, S.M. The case was one in which a Chinese named luy l'tin had been charged with having hail opium (in a iorni contrary to Vac provisions of tne Upiuni Act) in his possession. The magistrate had decided chat Lay Fun was guilty, and a line of A'so had been imposed, in default three mouths' imprisonment. The defendant 'then moved for a. writ ■of prohibition, and, by consent, it was arranged that the defendant should, at the same time, move for a writ of certiorari to have the conviction Quashed. Mr. G. Toogood appeared and supported the motion. Mr. M. H. Ostler, representing the Crown, opposed it. Mr. Toogood submitted that the Opium Act was a Customs Act, and a person charged under a, Customs Act had tho right of trial by jury. Therefore a.writ ot prohibition must lie, on the ground that tho magistrate did noi: at any time during the trial advise the defendant that he had a right of trial'by jury. His Honour, in giving judgment, said that tho question t'o be decided depended on tho construction of the Opium Act, 1903, and Section 280 of the Customs Laws Act, 1908. After going fully into the question, his Honour remarked: "The Opium Act does not' deal with taxes, duties, or tariff. It is an Act to prohibit (he importation of goods. That is quite a different' matter lrom levying a duly. Further, there appears to me to bo evidence in the Opium Act itself that the Legislature did not treat it as a Customs Act. ... In my opinion tho Opium Act is not' within the definition of Cusloms Acts as given in the Customs Laws Act and, therefore, the plaintiff fails in his action."

Judgment was accordingly given for the defendant with ->£5 us. casts.