R v Barbar

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Luckhoo, Ag. P.,Fox, J.A.,Edun, J.A.
• Judgment Date: 31 May 1973
• Neutral Citation: JM 1973 CA 42
• Docket Number: R.M. Criminal Appeal No. 81 of 1972
• Date: 31 May 1973

Court of Appeal

Luckhoo, Ag. P.; Fox, J.A.; Edun, J.A.

R.M. Criminal Appeal No. 81 of 1972

R.

and

Barbar

Appearances:

R. Alberga, Q.C., and J. Leo-Rhynie for the appellant.

C. Orr, Q.C., Deputy Director of Public Prosecutions and

H. Downer for the crown.

Criminal Law - Mens Rea — Statute — Interpretation — Prohibition of importation of furniture except under licence — Licence granted to accused to import genuine antique furniture subject to certain conditions — Whether prosecution required to prove means rea.

Criminal Law - Statute — Interpretation — Prohibition of importation of furniture made of metal or wood except under licence — Information charging importation of prohibited furniture without licence — No allegation in information of an intent to evade prohibition — Whether prosecution required to allege and prove an intention in accused to evade prohibition.

Luckhoo, Ag. P.

1 By an order made under the provisions of s. 5 of the Trade Law, 1955 (No. 4) the importation into Jamaica of furniture constructed of metal or of wood was prohibited except under special licence granted by the Trade Administrator to whom the appropriate Minister had delegated his functions in that regard. On March 12th, 1971, the appellant George Barbar applied to the Trade Administrator for a licence to import certain articles of furniture which he described in his application as “Antiques”. On March 17th, 1971, the Trade Administrator granted the appellant a licence to import the articles specified in his application subject to certain conditions contained in the licence. On or about September 14th, 1971, the appellant imported into Jamaica a number of articles of furniture some only of which purported to have been imported under the authority of the licence he had been granted by the Trade Administrator.

2 Examination by an expert in the furniture trade after unshipping disclosed that some of those articles which purported to have been imported under authority of the licence were made less than 100 years before the date of importation and were therefore not to be regarded as antiques within the meaning of that term in the furniture trade. One of the conditions attached to the licence granted the appellant was that the articles mentioned in the licence should be “genuine antiques”. As a result two informations were laid against the appellant in the Resident Magistrate's Court for the parish of Kingston. One information, which related to those goods which were not imported under licence, charged the appellant in the following terms–

“…………. imported into the Island certain prohibited goods, to wit (setting out the goods) contrary to section 205 (1) of Chapter 89;”

3 and the other, which related to those goods which purported to be imported under authority of the licence granted the appellant, charged the appellant in the following terms–

“……. being a person to whom a licence was granted under section 5 of the Trade Law, Law 4 of 1955 for the importation of certain goods, namely, furniture, the importation of which (are) prohibited except under the authority of a licence under section 5 of the said Law, as amended by Act 7 of 1962, unlawfully did fail to comply with a certain condition subject to which the licence was granted for that he, the said George Barbar, imported the following items of furniture, namely, (setting out the goods) which said furniture were not genuine antiques accompanied by a certificate from the Antique Dealers, Association of Great Britain or other recognised dealers association, contrary to s. 9 (1) (a) of Law 4 of 1955.”

4 The appellant was convicted on both informations as laid. He has appealed against both convictions.

5 Information charging, breach of s. 205 (1) of the Customs Law, Cap. 89.

6 Section 39 of the Customs Law, Cap. 89 provides that articles which may from time to time be prohibited to be imported by Law shall be goods prohibited to be imported. By order made under s. 5 (1) of the Trade Law, 1955 (No. 4) as repealed and re-enacted by s. 4 (a) of the Trade (Amendment) Act, 1962 (No. 7) the importation of furniture made of metal or of wood was at all material times prohibited except under the authority of a licence granted by the appropriate Minister (or the Trade Administrator to whom he delegated those functions under the authority of s. 8A of that Law as amended by s. 7 of the 1962 Amending Act). Furniture made of metal or of wood imported into Jamaica without licence were therefore goods prohibited by s. 39 of the Customs Law, Cap. 89 to be imported.

7 There can be no question that the appellant when he imported into Jamaica those goods to which the abovementioned information relates without the authority of a licence was well aware that they were being imported into Jamaica contrary to the statutory prohibition. The point raised by this appeal in relation to the information laid under s. 205 (1) of Cap. 89 is whether it was necessary for the prosecution on such a charge to allege and prove an intention on the part of the appellant to evade the prohibition applicable to the goods specified in the charge. Section 205 (1) of Cap. 89 provides as follows–

“Every person who shall import or bring, or be concerned in importing or bringing into the Island any prohibited goods, or any goods the importation of which is restricted, contrary to such prohibition or restriction, whether the same be unloaded or not, or shall unload, or assist or be otherwise concerned in unloading any goods which are prohibited, or any goods which are restricted and imported contrary to such restriction, or shall knowingly harbour, keep or conceal, or knowingly permit or suffer, or cause or procure to be harboured, kept or concealed, any prohibited, restricted or uncustomed goods, or shall knowingly acquire possession of or be in any way knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with any goods with intent to defraud Her Majesty of any duties due thereon, or to evade any prohibition or restriction of or applicable to such goods, or shall be in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any import or export duties of customs, or of the laws and restrictions of the customs relating to the importation, unloading, warehousing, delivery, removal, loading and exportation of goods, shall for each such offence incur a penalty of one hundred pounds, or treble the value of the goods, at the election of the Collector-General and all goods in respect of which any such offence shall be committed shall be forfeited.”

8 It will be observed that in the information in question where is no allegation of an intent to evade the prohibition applicable to the goods specified in the charge. At the close of the case for the prosecution learned attorney for the defendant (appellant) submitted that the information as laid was bad in that it omitted to charge an intention an the defendant's part to evade the prohibition. For the prosecution it was contended that the offence contemplated by s. 205 (1) of Cap. 89 in relation to the importation of prohibited goods was one of strict liability and did not require that such an intent should be alleged or proved. A number of authorities were cited in the course of the argument before the learned resident magistrate and these have also been cited on appeal. The learned resident magistrate accepted the contention advanced by attorney for the prosecution and held that a prima facie case had been made out against the defendant. No evidence was adduced on the part of the defendant. The learned resident magistrate found the offence proved. The Collector General having elected that the defendant forfeit treble the value of tine goods the defendant was fined $16, 121 and in default of payment to be imprisoned for 3 months at hard labour.

9 The question in issue falls to be determined upon what is the proper construction to be put upon the provisions of s. 205 (1) of Cap. 89. These provisions first appeared in that form in the Laws of Jamaica in 1939 when the Customs Law, 1939 (No. 34) was enacted. That Law appears to have been modelled on the EnglishCustoms Consolidation Act, 1876 (39 & 40 Vict. c. 36) the provisions of s. 186 of which were in part enacted as s.205 (1) of the local 1939 Law with such consequential changes as were considered necessary. One of the offences common to both s. 186 of the English 1876 Act and s. 205 (1) of the local 1939 Law (now s. 205 (1) of Cap. 89 of the 1953 Edition of the Laws of Jamaica) is “knowingly harbouring prohibited goods”. Such an offence was charged in Frailey v. Charlton (1920) 1 K.B. 147 where the respondent, a ship's Steward, had on board his ship while lying in the Thames preparatory to her departure for a foreign port a quantity of soap which was intended for the use of passengers on the voyage. The export of soap was prohibited by proclamation but the respondent was not aware of that prohibition. The magistrate in dismissing the information was of the opinion that the offence charged involved an intention to contravene the prohibition. On appeal, the Divisional Court held that the magistrate was right and that the words “with intent ……… “must be read as applying to all the various offences created in the earlier parts of the section including the offence with which the respondent was charged. For the appellant, an officer of customs, it was submitted that the words “with intent to defraud Her Majesty of any duties due thereon, or to evade any prohibition or restriction applicable to such goods” in s. 186 of the 1876 Act were intended to be read only with the words immediately preceding them -” or shall be in any way knowingly concerned in carrying, removing, depositing, concealing, or in any manner dealing with any such goods.” It was contended that the condition as to intent was introduced for...