JUDGMENT

Chong Siew Fai J

The accused was found guilty and convicted of the offence of signing a customs import declaration containing incorrect particulars in that the declaration stated 21 tons of unglazed mosaic flooring tiles ('the goods') valued at $21,805.22 when in fact there were 29.7 tons valued at $30,838.81, an offence under s 133(1)(a) of the Customs Act 1967. There was no dispute that the goods were contained in 1,000 cartons. The accused was ordered to be released on bond of good behaviour for a period of one year from the date of sentencing (29 April 1989) in the sum of $1,000 with one surety. The goods were forfeited.

Against the conviction, the sentence and the forfeiture order, the accused appealed. The prosecution also appealed against the sentence imposed.

At the hearing of the appeal Mr Lai for the accused abandoned the appeal against the sentence.

Accused's appeal

For the accused it was contended that exh P9 was inadmissible. Exhibit P9 recorded the results of the examinations of the entries in the import declaration and related documents and of the goods ie the quantity, amounts of duty, surtax, customs duty etc. The examinations were carried out by PW10 Yunus Ghani and he himself prepared exh P9. The authorship was proved. I fail to see how it is inadmissible. The contention fails.

One of the grounds of appeal stated that 'the evidence adduced as a whole does not support the ingredients of the offence charged' At the hearing counsel for the accused said that by 'the ingredients' he meant the value of the goods which was stated in the charge to be $30,838.81, and he submitted that there was no basis for this sum to have come about.

The charge is one of signing an import declaration containing incorrect particulars. It is clear that the essence of the charge was the weight of the goods ie 29.7 tons instead of 21 tons as declared. The offence is committed upon proof of particulars being incorrectly declared. The evidence adduced conclusively proved that the weight as declared was incorrect. As to the value of the goods $30,838.81, the notes of evidence shows that PW10 did explain exh P9 and he was not cross-examined at all about the basis upon which the assessed value of the goods was arrived at. Likewise in the submission of the then advocate for the accused, the stress was on the weight, and nothing was said about the basis for the valuation of the goods. On the other hand, exh P9 shows that duty was payable according to the weight of the goods. (See the column 'Rate of Duty' in exh P9 under which it was stated '50 sen p/kg'.) This ground of appeal has no merit.

The final submission for the accused to be dealt with is on the application of presumption under s 120 of the Customs Act 1967.

The said s 120 enacts:

When any goods suspected of being prohibited or uncustomed or otherwise liable to seizure have been seized, it shall be sufficient to open, examine, and if necessary test the contents of ten per centum only of each description of package or receptacle in which such goods are contained and the court shall presume that goods contained in the unopened package or receptacles are of the same nature, quantity and quality as those found in the similar packages or receptacles which have been opened.

It is a matter of construction of the section. To invoke the presumption that the goods in the unopened packages or receptacles are of the same nature, quantity and quality as those in the similar packages or receptacles that have been opened, it is sufficient to examine and if necessary test the contents of 10% only of each description of package or receptacle in which the goods are contained.

In Au Ah Lin v PP 1 , on a construction of s 61 of the Excise Act 1961 which is almost wholly similar to s 120 of the Customs Act 1967, Thomson LP said (at p 366):

In our view s 61 does not require that samples be taken of the contents of every package or container which is in question. The samples shall be 10% of the packages or cont