Azan (Gassan Elias) and Bashco Trading Company v R
| Jurisdiction | Jamaica |
| Judge | PANTON, J.A. , HARRISON, J.A: , HARRIS, J.A. , GASSAN AZAN |
| Judgment Date | 15 June 2006 |
| Neutral Citation | JM 2007 CA 28 |
| Judgment citation (vLex) | [2007] 6 JJC 1503 |
| Court | Court of Appeal (Jamaica) |
| Date | 15 June 2006 |
JAMAICA
IN THE COURT OF APPEAL
CRIMINAL LAW - Prohibited goods - Harbouring
CRIMINAL LAW - Prohibited goods - Importation
1. The convictions herein were recorded as long ago as August 27, 2001, by His Hon. Mr. Owen Parkin, Resident Magistrate for the Corporate Area. The trial lasted from March 6, 2000 until June 15, 2001. The verdicts were scheduled for delivery on July 10, 2001, but had to be postponed due to what is described in the record as "disturbance" in the Corporate Area. For completeness, it should be mentioned that the record of appeal did not reach the Court of Appeal until September 28, 2005. This means that it took the particular Court's office more than four years to dispatch the record of appeal to the Court of Appeal. Notwithstanding the fact that the Courts may be stretched in respect of their capacity to deal on a timely basis with matters of this nature, this lengthy delay in dispatching the record is inexcusable and unacceptable, and requires the taking of immediate corrective measures by those in charge of the conduct and operation of that particular Court's office.
2. The two appellants were charged together on two informations for importing prohibited goods, namely, shoes, and three informations for harbouring the said goods. The offences were allegedly committed in January, 1999. In respect of information no.1497/99 for importing, each appellant incurred a penalty of $4,146,525.00 and in respect of information 1501/99 also for importing, each incurred a penalty of $4,081,977.00. On the charges for harbouring, the penalty incurred by each appellant, on each information was as follows:
| Information | No. | 1498/99 | - | $149,715.00; |
| Information | No. | 1499/99 | - | $2,386,635.00; |
| Information | No. | 1500/99 | - | $59,196.00. |
The penalties against the company were ordered recoverable, if there was default in payment, by distress on the goods of the company. The alternative in respect of the male appellant was twelve months imprisonment on each information.
3. The goods that were imported were made in China. The port of lading was Shekou, and the shipper was Domex International Co. of Hong Kong. At the time of the incorporation of the appellant company in May, 1990, the subscribers to the memorandum of association were the appellant Azan and another individual, both of them being the directors. The other individual was replaced as a director on January 8, 1996, by Juan Machado who was jointly charged and tried with the appellants. However, Machado was acquitted.
4. The prosecution's case was that shipping agents presented manifests in respect of two shipments of goods, imported by the appellant company, to the representatives of the Customs Department. Shortly after, the Revenue Protection Department placed restrictions on the delivery of the shipments, and served notices of seizure of the goods. Investigators from the Revenue Protection Department then searched three premises in Kingston that were under the control of the appellant company. At one location 28 – 30 Orange Street, the director Juan Machado showed investigators around an "administrative area" where shoes were displayed. The shoes at the various locations were subsequently examined and found to be counterfeit. The record of appeal does not disclose any contact or communication between the investigators and the appellant Azan. The evidence presented by the prosecution did not implicate Azan personally.
5. It is fair to say that at the end of the case for the prosecution, the evidence amounted to this:
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a) the company had imported prohibited goods;
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b) Machado and Azan were directors of the company; and
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c) the goods were found on premises under the control of the company.
6. The appellant Azan gave evidence that:
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a) he had been buying goods on behalf of the company from China for about fourteen to fifteen years, having been invited to trade shows there;
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b) the shoes were bought at a trade show;
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c) he had no knowledge that the shoes were not genuine;
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d) the shipping documents had been made available to the Customs Department prior to the arrival of the shipments; and
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e) the company tried to cater to the more inexpensive level of the market.
Machado did not give evidence. He made an unsworn statement that he was a director, but he had no shares in the company. He said he had nothing to do with importing, storing or harbouring the goods. According to him, he performed administrative duties only. However, he did not specify what those duties were.
7. The learned Resident Magistrate found that the company imported the shoes, and accepted the evidence of the representatives of Nike, Adidas and Caterpillar that the shoes were not genuine. He found that there were inconsistencies and discrepancies in the evidence of Azan, and concluded that he was not entirely truthful. However, he accepted that Azan did all the buying of the merchandise for the company whereas Machado did not. The learned Resident Magistrate further stated:
"Defendant (meaning Azan) stated he was not aware NIKE, Adidas and Caterpillar prides selves and in special features. This knowledge is known by almost every man in the street as it is so widely publicized.... I accepted the valuation and find that azan [sic] did not take all reasonable precaution and knew that the shoes were not genuine. He did not act innocently".
8. The inconsistencies and discrepancies referred to by the learned Resident Magistrate were not spelt out by him. It seems reasonable to say that he convicted the appellant Azan because he was an active director, whereas Machado was acquitted on the basis of his unsworn statement that he did not participate in this area of the company's operations.
9. The appellants' original ground of appeal challenges the verdicts recorded against them on the basis that they are unreasonable and cannot be supported by the evidence. Supplemental grounds were filed attacking the informations on the basis that there were no specific particulars, and also that Azan was wrongfully charged as a principal and should not have been charged at all.
The particulars set out in the informations
10. The informations charging both importing and harbouring the prohibited goods refer to the prohibition being by virtue of section 40 of the Customs Act, and contrary to section 210 of the said Act. A look at section 40 reveals that there are twenty-two numbered paragraphs listing the goods that are prohibited. The contention of the appellants is that the failure of the prosecution to make specific reference in the informations to the particular paragraph that covers this case, is fatal to the convictions. The response of the Crown is that this is merely a matter of form, not substance, and the appellants knew what charges and allegations they were facing and were not prejudiced in any way - even if there was an omission.
11. It is useful to look at the relevant provisions of the Customs Act and the Merchandise Marks Act.
Section 40 of the Customs Act, so far as is obviously relevant to the case, reads:
"Until revoked by order under section 39 the following goods are prohibited to be imported -
(i)...;
(ii) all goods which if sold would be liable to forfeiture under the Merchandise Marks Act...".
It is clear that given the evidence presented by the prosecution, the case revolved around the fact that the shoes had false trade marks, in that they pretended to be "Nike", "Caterpillar" and "Adidas" brands, when they were not. Section 3 (2) of the Merchandise Marks Act reads:
"Every person who sells, or exposes for, or has in his possession for sale, or any purpose of trade or manufacture, any goods or things to which any forged trade mark or false trade description is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, as the case may be, shall, unless he proves either -
(a) that, having taken all reasonable precautions against committing an offence against this Act, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark, mark or trade description, and that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; or
(b) that otherwise he had acted innocently, be guilty of an offence against this Act".
Section 3 (3) of the Merchandise Marks Act provides for the forfeiture of goods in respect of convictions under this Act. Section 11(1) of the said Act also provides for the issuing of a search warrant by a Justice of the Peace to whom information has been given as to the commission of an offence under the Act. On the issue of such warrant, a constable may seize and take away the goods involved and such goods:
"shall be brought before a court of summary jurisdiction for the purpose of its being determined whether the same are not liable to forfeiture under this Act".
12. The appellants were clearly of the view that the accusation against them was that they had imported goods with forged trade marks. The entire case was conducted on that basis, and the very experienced attorneys-at-law appearing for them at the trial were under no delusion in that respect, given the nature of the cross-examination that took place over the fourteen trial dates lasting over a period of...
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