HIS MAJESTY'S CUSTOMS.

Otago Daily Times, Issue 13674, 17 August 1906, Page 7

HIS MAJESTY'S CUSTOMS.

A CHAHGB DISMISSED. At the City Polico Court yesterday Mr H. Y. Widdowson, S.M., read judgment in, the case in which Ernest Junior Fenn was charged, on tho information of (ho Collector of Ciiiftoiiin (Mr Char.es W. S. Chamberlain) with having, on October 23, 1905, subscribed ii curtain declaration iirade in the matter relating to tho Customs, within the moaning of " Tho Customs Laws Consolidation Apt, 1882," mentioned and referred to in the said declaration, the same being false and untrue. Tho Magistrate snid ho regretted that judgment in this action had not been delivered before, As counsel w?re aware, it had been delayed for the convenience ot counsel attending tho Court of and latterly owing to )us own Bbseiice through illness. Judgment was as follows:— "The defendant is charged «i the information of the Collector, of Customs with having, on the 23rd October, ]805. nrade u f».lso declaration in connection with the entry of certain electrical appliance? imported by the defendant, and chargeable with ud valorem duly, contrary to soctlon 243 of 'The Customs Laws Consolidation Act, 1860.' The declaration in question is endorsed upon the import entry, to which, is attached tho English invoice, tho value in each being stated an .toil, It was admitted on behalf of the defendant at the hearing that that sum was not tho 'mo value of the goods, it being explained "that a bona, lido mistake was matin by the defendant when making the declaration, and that there was no intention to defraud. The declaration was mode in pursuance of peolion 43, which provides for the verification' by declaration of the entry of nil goods chargeable with ad valorem duty, and attaches a penalty to «■ wilfully ialf>e. declaration. Section 40 (as amended by S.S. (II), section 1G of the not of IMS) gives power to asses.? the value of any goods which the Customs officials consider undervalued, section 47 power to deal with such goods if the importer or agent refuses or neglects to pay tho duty imposed on the viillln so ascertained, and section 60 provides for tho forfeiture of goods in lespect of which, a wilfully' false declaration has been made. Counsel for the defenoe contends that the only section under which -the dofendant. could be proceeded against in respect of the deolaration (if at all) is section 43—i.e., tho section wherein the procedure is provided and tho specific penalty is imposed, and that if it were not wilfully false, tho proper eourse would be to proceed under section 46, and, if necesFitry, section 47, citing Badham, v. Hill (3 .fur. N.S., 84) and Maxwell on Statutes at page 570 in support of his argument. Section 243, under which tho information is laid, provides for the forfeiture of £100 as a penally for making a false declaration. The declaration under the last-mentioned section need not be 'knowingly' or 'wilfully' false (Badham v. Hill, supra), ami counsel for the prosecution contends thai, notwithstanding section 43, a person making a declaration required l by that section which proves to be false in tiily particular can be proceeded ugaiupt under section 'JI3 without the necessity of alleging or proving nions rcn, a mistake in fact being sufficient. In IWham v. IUU the ehargo was for making a false declaration under section 0 of ' The Customs Turin" Act, 1673,' but the penalty was claimed under section 135 of ' The Customs Regulation Act, 1858." Those, sections tiro similar to, if no', exactly the same i.4, sections 43 and 2-1,1 respectively of the present uct with respect to false declarations. In his judgment in that cafe the late Mr Justice Gillies said; * Although the language of section 135 if the act, 1658. would in a loose and popular sense apply to all declarations made in relation to any matter connected with tho Customs under any act past, present, and future, it appears to me that that section embraces (in that part of it) only such declarations as are mado under or W virtue of tho provisions of that Act' or anv act incorporated with it. Since that judgment the Customs laws have been consolidated into the present ac , ami ltwoud almost appear, therefore, that section "M (under which the present charge is hud) cmhrece? i«H declarations made under the pre sent act. including tho declaration m quoton. Hnt »h» We i!l J " s, r' i,lllCF " in continuing his judgment ,n the above ewe, further said: 'The declaration required under "The Customs Tariff Act, M7S." » not ".« Nation to the collection, management, or rcceint of Customs duties, but for the aaeorluinicnl of the duties no to he col ectcrt managed, or received; and I think that as a special penultv is by that act attached to a wilfully Mse 'declaration under that act, auti having' regard to the nature of the declaration, it. seems to me that such penalty was not intended to he cumulative upon other penal! iw, hut to be the sole penalty for a ialso declaration under that act.' If we examine the present act. wo find thai it contains sub'lanlially the same provisions as the previous Customs .vets, and it appears to me that section 2i:l is simply he gcnoral section providing a penalty in the cases where one is not already specifically imposed or attached, such as offences under sections S2. S3, 15G, IK), etc., which seems W he supported by the concluding paragraph f the section. This declaration in the present case is made under that part of the act relating to the asce:taium'ltnt of Customs duties wherein specific, penalties life provided lor wilfully false declarations, and after careful consideration I luvo come to the conclusion, but not without hesitation, that, notwithstanding the consolidation of the previous Customs laws, Mr Justice (lillcs's reasons in '.he couc'.uding put of his judgment in Dadhaiu '•, Hill (i'ited above) are applicable to the iicsc-ni case, mid that the contention oi iho itfeniaoVs counsel is correct. U it were in-

tended by tbo act to bo otherwise, I tlilnk that intention would li?.vo been more clearly exprcFSEd, and in the case of doubt v.-iili regard to tho operation of the revenue l«.wa iho benctit of thai doubt must, of cowc, be •jivon io tho subject. The iDform»;ion will therefore be dismissed." Mr Jtacassey (for Mr J. F. M. Frasor) intimated that he might later on isk his Worship to state a case for appeal. Mr Whit* appeared on behalf ot defendant's counstl, Mr J. JI. llosl<m«.