063-NLR-NLR-V-61-THE-ATTONEY-GENERAL-Appellant-and-LEBBE-THAMBY-and-others-Respondent.pdf
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BASNAYAEE, G.J.—The Attorney General v. Lebbe Thamby
1958Present: Basnayake, C.J., and Sansoni, J.
THE ATTORNEY-GENERAL, Appellant, and LEBBE THAMBY and
others, Respondents
S. C. 79—D. G. Colombo, 35484jM
Customs Ordinance—Seizure of prohibited goods—Section 144—“ Lawfully imported
—Burden of proof—Exchange Control Act, No. 24 of 1953, s. 21 (2) (c).
The question for decision was whether certain gold bars found on24th February 1955 in the possession of an employee of the respondents wereunlawfully imported and therefore liable to be seized ss forfeited under theCustoms Ordinance. The respondents conceded that after the Exchange ControlAct came into operation on 15th August 1953 the importation of gold, exceptwith the permission of the Central Bank of Ceylon, was prohibited. TheAttorney-General (appellant) conceded that the burden of proving lawfulimportation would not lie on the respondents under section 144 of the CustomsOrdinance unless the Crown proved that the gold bars were imported.
Meld, that, as the onus of proving that the gold bars were imported wason the Crown, the Crown should have established that fact beyond reasonabledoubt as in a criminal prosecution.
Appeal from a judgment of the District Court, Colombo.
A. G. Alles, Acting Solicitor-General, with Mervyn Fernando, CrownCounsel, for Defendant-Appellant.
H. V. Pererct, Q.G., with JS. J. V. Ghelvanayalcam, Q.C. and G. BarrKumarahulasinghe, for Plaintiffs-Respondents.
Cur. adv. vvlt.
August 6, 1958. Baskaxakb, C.J.—
This is an appeal by the Attorney-General the 1st defendant in thisaction (hereinafter referred to as the appellant) which the plaintiffsnine in number (hereinafter referred to as the respondents) institutedagainst him and the Principal Collector of Customs in pursuance ofsection 146 of the Customs Ordinance for the recovery of four gold barsvalued at Rs. 4,250 of which the respondents claim to be owners. ThePrincipal Collector of Customs who was the 2nd defendant was dischargedfrom the aetion by the trial Judge.
The only question that arises for decision is whether the Crown is en-titled in law to seize the four gold bars as forfeited under the CustomsOrdinance. The facts of the case which are few and simple are notdisputed except in regard to the question of importation. They are asfollows : The respondents are partners of a business carried on underthe name and style of “ L. K. S. Lebbe Bros. ” at Pettah in Colombo.They were at the material date, 24th ^February 1955, carrying on businessas jewellers at 137, 2nd Cross Street in Pettah in Colombo. They alsohad a place of business at Kannatody in Jaffna, where they manufacturedjewellery for sale mainly in Colombo. They were also buyers of old
BAS2TAYAKE, C.J.—The Attorney General v. Lebbe Thamby
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jewellery the gold, of which they melted down both for the purpose ofsale as gold and for the purpose of being utilised in the manufacture ofjewellery. On the day in question S. A. Meera Saibo the 8th plaintiffprepared a parcel of jewellery and the four gold bars in question to besent to Jaffna by insured post. It was sent to the General Post Officethrough an employee of the firm Carim by name. When he was at theparcels counter of that office he was arrested with the parcel by InspectorGrenier and taken to the office of the Criminal Investigation Department,where he opened the parcel in the presence of Carim, the driver of his car,,and another who had come with him. The parcel contained the 4 goldbars (one larger than the other three) and the following items of jewellery r24 gold bangles, 11 gold rings, 1 gold bracelet, 7 pieces of gold chains,
4 pieces of gold necklaces, 2 gold amulets, 3 gold hooks, 4 gold chains,
1 gold pendant, and 8 miscellaneous pieces of gold. The jewellery wasused jewellery and was returned to the owners after a few days. Thelarger of the gold bars weighed 16 tolas and the other three together20'90 tolas. The plaintiffs value the jewellery at Rs. 5,192*50 and thegold bars at Rs. 4,250. The gold bars bear microscopic Chinese andEnglish characters which with one exception can only be read with theaid of a magnifying glass. The larger of them bears the English words.
“ Macao Bankers Association of Certification for standard gold bars.Hangtai Macao 5000.” On its reverse are Chinese characters. TheChinese word for “ standard ” appears on both sides of it and in thecentre there is a Chinese word which stands for ** Macao ”. The Chineseequivalent of ” Wong jKind Assayer ” appear in the centre of the bar..The other bars also bear Chinese characters which give their weight andthe English words “ Pine gold corp According to the Chinese engrav-ings the larger bar should be 50 times the weight of each of the smallbars while in fact it is not so.
It is in evidence that gold bars are available in the market and also-that gold bars are sold by public auction by the Customs authorities.The eighth plaintiff claims that his firm has bought and sold gold in the-market since 1935. The price of gold in the market is higher than the-price at which gold is sold by the Central Bank. But gold cannot bepurchased from the Central Bank without a permit.
The learned District Judge has given judgment for the respondents^holding—
(а)that they are the owners of the gold bars ;
(б)that they are entitled to a declaration that the four gold bars belong-
to them and for an order that they be returned to them or thattheir value be paid to them, and
(c) that the four gold bars were not lawfully seized as forfeited by the-Principal Collector of Customs.
The respondents did not dispute the fact that since 15th August 195 J(hereinafter referred to as the relevant date) the date on which theExchange Control Act No. 24 of 1953 (hereinafter referred to as theExchange Control Act) came into operation the importation of gold,except with the permission of the Central Bank of Ceylon is prohibited.
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BAS2STAYAKE, C.J.—The Attorney General v. Lebbe Thamby
[s. 21 (1) (c)]. Learned counsel for tliein also conceded both, here andbelow that any gold imported after that date without the requisite per-mission was liable to seizure and forfeiture under the Customs Ordinance.I do not therefore propose to discuss the question whether gold fallswithin the ambit of the prohibition in section 10 (1) of the CustomsOrdinance and whether the effeet of section 23 of the Exchange ControlAct is to add gold to the goods enumerated in Schedule B as thosequestions do not arise for decision in this case.
The argument in appeal centres round the question whether the fourgold bars were imported after the relevant date. Learned counsel forthe appellant relies on the inscriptions on the gold bars in support of hiscontention that they were imported and he submits that in view of thatevidence the onus is ou the respondents under section 144 of the Customs•Ordinance to prove that they were lawfully imported. Section 144reads—
“ If any goods shall be seized for non-payment of duties or any othercause of forfeiture, and any dispute shall arise whether the duties havebeen paid for the same, or whether the same have been lawfully im-ported, or lawfully laden or exported, the proof thereof shall lie onthe owner or claimer of such goods, and not on the Attorney-Generalor the officer who shall seize or stop the same.”
Learned counsel for the appellant conceded that the burden of provinglawful importation would not lie on the respondents unless the Crownproves that the gold bars were imported. At the same time he submitted"that the inscriptions on the gold bars were sufficient evidence of impor-tation. I am unable to agree that the inscriptions prove that the goldbars were imported on or after the relevant date or at any time. As•against that evidence there is evidence that gold bars are made locallyand that words in English and Chinese can be impressed on them here.There is also evidence that the Customs department sells imported goldincluding gold bars. P18 which is the Gazette of 11th February 1955■shows that the Customs department sold by tender in the month ofFebruary 1955 alone 21 gold bars, 12 sheets of gold weighing 1 lbs, 216^sovereigns, 5 ingots gold and 136 pieces gold bullion.
In the instant case in my opinion the Crown has failed to establish that"the gold in question was imported on or after the relevant date or at anytime. The Customs Ordinance is a penal enactment which imposes-■severe penalties on those who violate its provisions. The Crown must"therefore establish any breach of those provisions beyond reasonabledoubt as in a criminal prosecution. The onus of proving that the goldbars were imported being on the Crown it should have established thatfact beyond reasonable doubt. It has failed to do so. The onus ofproving lawful importation does not therefore lie on the respondents.
The learned District Judge has rightly given judgment for them.'The appeal of the Attorney-General is dismissed with costs,
Sahsoste, J.—I agree.
Appeal dismissed.