[1944] EACA 1

## CRIMINAL CONFIRMATION

### Before SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

### COMMISSIONER OF CUSTOMS, Prosecutor

# HUSSEIN JIVRAJ, Accused

### Confirmation Case No. 684 of 1944

The Customs Management Ordinance, 1926—Customs Prosecution—Attempting to evade payment of customs duty—Burden of proof—Ordinance 25/1926, Sections 242, 244—Averment by prosecutor insufficient.

Held (11-11-44).—That the essence of a charge of attempting to evade payment of customs duty is that the accused person had an intent to defraud the revenue and attempted to do so. Consequently in such a charge an averment by the prosecutor is not sufficient to put an accused person on his defence.

### Spurling, Crown Counsel, for the Crown.

ORDER.—The accused was charged with attempting to evade payment of customs duty contra Sections 227 (a) and 231 of the Customs Management Ordinance, No. 25 of 1926. On the charge being read out and the accused pleading not guilty the prosecutor submitted that under Sections 242 and 244 of the Customs Management Ordinance, 1926; the onus of proof was on the accused. The learned Resident Magistrate, Mombasa accepted that submission and informed the accused accordingly and the accused then gave evidence and called witnesses. At the close of the evidence called by the accused, and no evidence having been called by the prosecution, the learned Magistrate convicted the accused, stating in his judgment that the accused had failed entirely to discharge the onus of proof placed upon him.

Sections 242 and 244 of the Ordinance read: $-$

$\overline{a}$

"242. In every Customs prosecution the averment of the prosecutor or plaintiff, and in every proceeding under this Ordinance against the Attorney-General or the Commissioner the averment of the defendant shall be deemed to be proved in the absence of proof to the contrary, but so that:

(a) when an attempt to defraud the revenue is charged the averment shall not be deemed sufficient to prove the intent; and

$(b)$ no person shall be sentenced to imprisonment unless his guilt is established by evidence."

"244. If in any Customs prosecution or in any proceedings under Section 199 for the recovery of any ship, boat, or goods seized by a Customs - officer any question shall arise whether or not the duties of Customs have been paid in respect of any goods or whether or not any goods have been lawfully imported, exported, carried coastwise, unshipped, or shipped the burden of proof that such duties have been paid or that such goods have been lawfully imported, exported, carried coastwise, unshipped or shipped, as the case may be, shall lie on the defendant in a Customs prosecution and on the plaintiff in the aforesaid proceedings under Section 199."

In considering the meaning of Section 242 $(a)$ it is in our view necessary to consider Section 235 of the Ordinance which reads: -

"Any person may at the same time be charged with an offence against this Ordinance and with intent to defraud the revenue, and if in addition to such offence he is convicted of such intent, the maximum pecuniary penalty shall be double that otherwise-provided."

$v$ .

Section 242 (a), Section 235 and Section 3 containing the definition of smuggling are the only sections of the Ordinance which contain the words "defraud the revenue" and we put it to learned Crown Counsel that the word "attempt" in Section 242 (a) was a misprint for the word "intent". We were of that opinion because the Ordinance contains no offence styled "attempt to defraud" the revenue," but Section 235 provides for the doubling of the maximum penalty in the case say of a person charged with the offence of evading payment of Customs duty contrary to Section 227 (a) to which charge was added the allegation that the accused did so with intent to defraud the revenue. Learned Crown Counsel after consultation with the learned Attorney General admitted that the word "attempt" in Section 242 $(a)$ should have read "intent".

We have, however, come to the conclusion that for the purpose of this case it does not matter whether the word "attempt" in Section 242 (a) is read as "intent" or not. A person might well evade payment of Customs duty without any intent to defraud the revenue. He might through ignorance or mistake import a dutiable article without paying duty. In such a case he could be convicted of the offence of evading payment of Customs duty and at the trial an averment by the prosecutor that he had evaded payment would be deemed to be proved in the absence of proof to the contrary. If on the other hand a person is charged with attempting to evade payment of duty the essence of the charge is that he had an intent to defraud the revenue and attempted to do so. It follows that in a charge of attempting to evade payment of Customs duty an averment by the prosecutor is not sufficient to put an accused person on his defence and that the wrong procedure was adopted in this case.

We have considered the possibility that the Legislature intended that unless a charge for an offence under the Ordinance contained the specific allegation that the offence was committed "with intent to defraud the revenue" an averment by the prosecutor would be deemed sufficient to prove the charge in the absence of proof to the contrary. In other words that on a charge of attempting to evade payment of Customs duty without any allegation that the offence was committed with intent to defraud the revenue the averment would suffice to place the onus on the accused to prove his innocence. We, however, would not so construe the law for the reasons already given.

Learned Crown Counsel submitted that on the evidence adduced by the defence the offence charged had been proved. The particulars of the offence set out that the accused did "attempt to evade payment of duty Sh. 646/88 payable $on:$

- 79 sets of ladies' underwear. - 121 pairs ladies' stockings, - 47 dozen pencils, - 4 dozen hair dyes, - 10 dozen boxes face powder. - 10 dozen fancy belts, - 25 dozen handkerchiefs. - $78\frac{1}{2}$ dozen teats. - 812 dozen bottles perfume, - 90 fountain pens, - 1 dozen razors. - 24 sets geometry instruments,

valued at Sh. 2,117/25 which had been imported from Zanzibar."

There is no evidence of these articles being in the two boxes, nor is there evidence of the value of the articles. The only evidence as to the contents of the boxes is that the accused in cross-examination stated, "I sell men's clothing, women's clothing and fancy goods of the same sort as was found in the boxes." The prosecutor could not prove the intent charged without evidence on these two matters.

Ouite apart from this lack of evidence we would not consider upholding a conviction in such circumstances as in our view there was no proper trial of the 'offence owing to the prosecutor failing to call evidence. We accordingly set aside the conviction and order the fine to be refunded.