THE CUSTOMS ORDINANCE. SUPREME COURT.—WELLINGTON.

New Zealander, Volume 7, Issue 589, 6 December 1851, Page 4

THE CUSTOMS ORDINANCE. SUPREME CO URT.— WELLINGTON.

Joseph (I.Up Samuel &, Joseph) v. Cahm-ik. On Thursday the 23rd October, Mr. Justice Chapman gave judgment as follows : — This is an application for a rule calling on the plaintiff to show cause why the verdict in this case should not be set aside, and a nonsuit enteied, 01 a new trial gi anted, on several grounds sot foilh by Air. King, on moving for the rule. Most of these I have ahcady disposed of, and on further consideration 1 have nothing to add 10 what fell from me at the trial, and on hearing the application. On the two grounds for this motion •wlucu remain to be disposed of, and which alone go to the merits, 1 took tune to consider, chiefly for the purpose of conbidenug the application of the case cited by Mr. King, which was new to me, and was cited only fiom the abstract in Harrison. Since the second trial I have thought it my duty to go over the whole case again, with especial reference to the wording of the Customs Ordinance as compared with the English Acts. I have also carefully considered the case ot the Attoiney-Gen-erul v. Hawkes, and I can discover nothing to lead me to believe that the verdict is otherwise (han proper. Hence it would only result in additional expense to grant a mle, where every argument and every consideration appears to me to have been thoioughly exhausted. First, aa to the constructive removal. Some weaiing apparel not included in the plaintiff's entry is seized. Previously to the seizure a cask, containing cruet frames, is given up by the Collector to the plaintiffs, at their request, and removed. This Air. Kins; conteuds was a constructive removal of the clothes. Now I must repeat what 1 have before said, that in construing penal statutes ail such doctiines aa " constructive acts" — acts innocent iv themselves rendered wrongful by " intendments" or by " relation" to some other acts, must be discarded, unless warranted by express enactment. This question of removal was put by me to the jury, in some doubt whether I ought to have done so, but I gave at the same time my own opinion, with a cautiouthat they were not bound by it, but must decide m accordance with their own judgment. They took the view which common sense, as it eeems to me, dictated ; and found that theie was no removal. 1 have since carefully considered this point, and my opinion has undergone no change. The cask containing the civet frames was voluntarily delivered up, and we must presume that the proper officer in the discharge of his duty had asceitained lhat theie was nothing wrong about it. Samuel & Joseph wanted other packages, but that was refused, their correctness not having been ascertained. On examining the clothes somo were found not comprised in the entry. These the Collector caused to be separated from the rest, placed apart, and seized. Of these goods so seized for want of due entry there was no removal. The unentered goods and the seized goods are the same. The poods taken away are those respecting which the Collector was satisfied. There being no evidence that any portion of the unentered and seized goods were removed from the warehouse, I do not think the removal of any portion of the entered goods delivered by the Collector to the plaintiffs can be made to operate on the seized goods by any mode of strained interpretation or construction. If the Collector had left the packages undisturbed (after satisfying himself of the fraudulent intention of the plaintiffs), and the plaintiffs had sent for the goods, there can oe no doubt that the whole might have been seized lon the very threshold of the Seaicher's office. If the '< plaintiffs had not sent for them, then the Collector might have warehoused them after three days, and sold the whole after the month, as prescribed by the 27th section. As to the remaining point, — "that the goods, although landed under and by virtue of a sight entry, were in the same position as goods landed ex ship without due entry," 1 should not have thought it necessary to add a word to my foimerjudgement,nnd to my direction at the trial, were it not that a caieful review oi the Acts of Parliament enables me (aa I think) to throw additional light on the proper construction of tho Ordinance ; and had it not been necessary to consider the case or" the Attorney-General v. Hawkes. The proviso contained in the Act of Parliament 3 and 4 Will. 4 c. 52, has no place in the repealed Customs Regulation Act (1825) 6 Geo. 4, c. 107; neither is it to be found in the New Zealand Ordinance — a copy of the New South Wales Ordinance, which was most likely framed on the model of the 6 Geo ; 4, and not amended in accordance with the subsequent amend- j meats of the English Act. There seems every reason to believe that the sections in the Act of 6 Geo. 4, relating to entry and bill of sight (corresponding with sections 22 and 27 of the Customs ordinance) were found to be defective soon after 1825 j for in 1827 the 7 & 8 Geo. 4c. 56, was passed with a remedial enactment, ushered in by a preamble, which would seem to have been framed upon the occuirence of a case exactly similar to the one before us. " And whereas by one of the said Acts entituled an ' Act for the regulation of the Customs,' it is enacted that no entry nor any warrant for the taking of any goods out of any warehouse shall be valid, unless made in manner therein directed, and that any goods taken or delivered out of any warehouse, by virtue of any entry not so made, shall be deemed to be good to be taken without due entry thereof: and doubts have arisen whether such goods can be deemed to be taken or delivered until they be actually removed from the warehouse, and out of the custody of the officers of the Customs : bo it therefore enacted that when demand shall have been made for the delivery, or for any order for the delivery of any goods by virtue of such entry (meaning an invalid entry), such goods shall be deemed to have been taken or deliveied within the meaning, &c." Thus making mere demand equivalent to lemoial. It is not difficult to perceive where this expedient would fail. The smuggler who bad goc some sort of intimation that {his trick was detected, would be as likely to abstain from making a demand as from effecting a removal. The clause, in fact, still left it in his power to reduce a liability to seizure to a mere liability jto sale in default of entry. Five years later another remedy was devised to meet probably some new form of fraud. By the 2& 3 Will. 40. 84, it is enacted that " Where any package or parcel shall have been landed by bill of sight, and any goods or other things shall be found in such package or parcel concealed in any way or packed with intent to deceive the officers of the Customs, as well all such goods and other things as the package or parcel in which they are found, and all other things contained in such package or parcel shall be forfeited." This clause was introduced the year after the Attor-ney-General v. Hawkes was decided ; and seems to provide for what that case of concealment would have been, had there been nothing to show fraud in the sight entry itself, for without such enactment concealment alone would not work a forfeiture. This clause it has been thought necessary to letain in the 3 & 4 W. 4, c. 52 in addition to the proviso ; yet we may easily conceive the difficulty of proof to winch it would occasionally give birth. It would be a matter of dispute and doubt, except in a very palpable case, what would amount to " concealed in any woy } " or what mode of packing ought to be deemed " packed with intent to deceive, &c." Hence in the Act of the following year, the gordion knot of all these difficulties was effectually cut, by the proviso so often alluded to in this case. Can it be doubted, after reading these clauses in chronological order, tbat the very difficulty before us had arisen in England, that the very defect now apparent in our Ordinance was discovered in the 6 Geo. 4, c. 107, come time between 1825 and 1827, and that the cited clauses are so many attempts to remedy and meet the " doubts" recited in the Act of 1827. Not one of these clauses is in the New Zealand Oidinance ; and a subsequent Act 6 & 7 Vie. c. Bi, sections 3, 4, and 5, establishes further &ecun(ies hi the case of bight entries, which are worthy of adoption heie. On, examining the cue of the Attorney Geneinl v Hawkes, I find it has very little boaiing on this ca-c. If in not under the Act of Parliament from which the clauses in our Ordinance now in question are copied ; it is not a proceeding similar to this or to the mfoimation out of which this action grew, the facts, moreover, are entirely .different. lt|is an {information for penalties

under the 36th and 45th sccMon of the Smuggling Act, (b Geo. -I, c. 108.) The first count it, to iccover tlio penalty nf JL.500 for ''otfoung a bnbe" to the oiheiM, the othei counts foi the penalty of £ 100 '' which the Com< missioned had elected to take m lieu of treble the value of the goods" for unlawfully unshipping " bugles" (a Kind of glass bead.) The /acts w eie these :— The linpoiter, by means of the. affidavit then lequired, took out a bill of sight lot " a oi^e of toys."' Vi hen the case was landed and examined it«as found to contain a t lisa partition and concealed compai Inputs, within which wore hidden ceitaiu bugler. The whole evidence showed a guiliy knowledge aud fiaudulent di*«i«n fiom the very beginning. While the ofhcei was trying the suspicious put of the case with a gunblet, Ilaukes, the defendant snul " what aio \ou about ? You will break the glass." He also said, " here are some bugles, I will give >ou i £10 if you will say nothing about them." This showed I that he was awaio of the bugles being concealed in the case at the tune he dcsciibed it m his affidavit and siolit entiy as a " case of toys:" nay, more, it showed that the case had beencaiefully prepaied for smuggling at the shipping poit, nnd t'"it llawkes must liave known it. The affidavit and s o ht entiy weie false and fiaudulent, and the judgment of the Couit, supporting the counts for both the penalties turned wholly on this and not on any doctnne of relation — not even on the concealment taken alone. "The bill of sight," said the Chief liai on, "w<i> no protection, because it was a fiaudulent measure." Iris scarcely necessary to point out the many distinctions betwen the two cases. Samuel & Joseph did not make a false t-ight entry specifying one description of goods well knowing the cases contained another kind of goods ; there was no fraudulent concealment by means of false partitions, so as to show, taken with conveisations and other evidence, fraud and guilty knowledge from the very beginning. The sight entry did not specify the goods, there was no evidence whatever of any fiaud or irregularity in the sight entry itself, as in the cited case. Nothing wrong appears until the perfect entiy is made, and that omits the goods subsequently seized. Moieover, I think it may be be collecied fiom the early pait of the judgement of the Chref Baron that the u bugles" intended to have been smuggled were not in the ships' leport and manifest. 1 can, therefore, come to no other conclusion upon the facts of this case, than that it is precisely the land of incipient and inchoate fraud, as I will call it, as may be supposed to have produced the " doubts" (recited in the 7th and Bth Geo. 4th, c. 56") whether goods could be deemed to be " taken" or " delivered" until they be actually lemoved — just such a case as the "proviso" in the more recent Act was intended to remedy. It seems to me, that on any other supposition, the proviso would have been uncilled for and without meaning. It is to be noted also, that the proviso is not declaratory but eitaclivc; that is, by enacting that the law shall be so and so, it implies conclusively that without it the law was otherwise. Mr. Baton Parke's interpretation of the proviso* m bis judgment on the Attorney Geneial v Ilurel fully bears out this new. The same rule applies to the enactment that concealment shall work a foifeiture; without such an enactment meie concealment would not have justified a seizure and m the Attorney eneral v Hawkes it is only viewed as part of a lot of evidence to show that the entry was fraudulent within llawkes' knowledge. As to the use of the words " provisionally landed," nothing can turn upon that. Goods landed under a bill of sight are, in fact, and always, were landed "provisionally," whether the Actor Ordinance says so or not. It is not a little curious that both the learned counsel on a former occasion endeavoured to draw an inference from these words in favour of their respective clients. Jf the necessity for the proviso is only generated by the use of the words " provisionally landed," in the clause of the Act of Parliament relating to the bill of sight, why did not the Legislature leave the clause as it stood in the 6th Geo. 4th c. 167, and as it stands in our Ordinance ? i. c., without the words in question. For these reasons, I think no grounds have been shown for disturbing the verdict, and th§ application for a rule must therefore be refused.

* The proviso is as follows : — " Provided, that if, when full or perfect entry be at any time made for any goods provisionally landed as aforesaid by bill of sight such entry shall not be made in manner hereinbefore required (all the requirements of the Act are similar to those in the Customs Oidinance) for the due landing of goods, such good* shall be deemed to be landed without due entry thereof, and shall be subject to the like forfeiture accordingly."