Callow J:

This is an appeal from the Court of the Magistrate, Alor Star, sitting at Jitra against the convictions, fines and forfeitures imposed on 6 August 1949, for contravention of s. 2 of the Prohibition of Imports Order, 1946.

The charges read:

(1) That you Beh Chang Hin alias Mah Geok Moey s/o Beh Ah Tooi at about 3.45 p.m. on 23 May 1949 at the Customs Station, Changloon, Kedah, were concerned in attempting to import into Kedah prohibited goods, to wit, articles made wholly or partly of gold to the value of $2,293 without an import licence therefor contrary to s. 2 of the Prohibition of Imports Order, 1946, and you thereby committed an offence punishable under ss. 98 and 91 (a) of Enactment No. 27 (Customs).

(2) That you at about 3.45 p.m. on 23 May 1949, at the Customs Station, Changloon, Kedah, were concerned in attempting to import into Kedah prohibited goods, to wit, diamond set jewellery to the value of $802 without an import licence therefor contrary to s. 2 of the Prohibition of Imports Order, 1946, and you thereby committed an offence punishable under ss. 98 and 91 (a) of Enactment No. 27 (Customs).

This appeal has been argued at length and occupied over three sitting days of this Court.The first hearing was on 29 October 1949, the second on 24 November 1949, and the third on 13 December 1949.The long intervals were regrettable and due to arranging convenient days for the Counsel for the appellant who has had to journey from Penang.It is in every way better to hear an appeal continuously.

Twenty-five grounds of appeal were filed and at the close of his address Mr. Hogan for the appellant summarised his grounds as follows:

(i) If P-13 rejected then the case for the prosecution must fall to the ground.

(ii) Grounds 3, 4, 5 and 6: Misdirection.Possession did not arise.No evidence of possession by the appellant in prosecution's case.Magistrate should have acquitted under s. 173 CPC

(iii) Ground 7: Magistrate bound by Carey J's Judgment.Exhibit "D".

(iv) Grounds 8, 9 and 10: Articles not within the Proclamation.

Common sense to secret valuable articles.

(v) Ground 11: Grave injustice: Counsel should have been heard.Conviction might have been averted.

(vi) Grounds 12, 13 and 14: Evidence of goldsmith's clerk.Pure guess work.Best evidence should have been called.

Articles should have been proved to be gold.

No evidence that witness was expert in diamonds.

(vii) Alternatives: Grounds 16, 17 and 18.

Articles not dutiable.

No intention to evade duty.

Judgment of Carey J followed and Magistrate was bound by it. He disregarded it.

(viii)Grounds 19 and 20: Only one offence.

Should have been only one penalty.

(ix) Ground 21: First offender.First prosecution of this kind.Maximum fine should not have been imposed.

(x) Grounds 22 and 23: Counsel should have been heard.

(xi) Grounds 24 and 25: Forfeiture not mandatory or compulsory.Discretion not exercised.

The facts of the case are that on 23 May 1949, the appellant together with Teow Soo Cheng (12PW) arrived in a Hudson Saloon motor car (Exh. P-2) at the Customs Station Changloon on the Malay-Siam border, having travelled from Haadayai in Siam.

There ODO 1036 Wan Ahmad bin Haji Wan Hamid (2PW) showed the appellant the usual Customs notice (Exh. P-1) to which the appellant made no declaration.

Then ODO 1008 and other Customs Officers examined the vehicle in the presence of the appellant, and in a cunningly concealed shelf or compartment constructed under the right front mudguard were found at first two packages Exh. P-4A and P-4B and later a third package (Exh. P-5). I examined the car and the hiding place is most cleverly situated and without the most expert search or previous information would escape discovery.

In the package were articles of jewelry of gold and diamonds.The appellant was searched and on his person was found a letter (Exh. P-9) which reads:

Brother Shang Moh,

Yesterday I received a letter from your wife and its contents were noted.She instructed me to