Howes J:

I am not satisfied that the Magistrate had any power to make the order for confiscation which he purports to have done under s. 117 of the Customs Enactment. That section gives a right to seizure when the person importing, exporting, or removing any goods does so in contravention of the provisions of any notification or rule made under the Enactment, or of any licence issued thereunder.

I cannot understand Mr. Draper's argument that the notification in that section would include a declaration made by the owner of the goods under s. 30 of the Enactment nor can I accept his argument that s. 407 of the Criminal Procedure Code contains a general right of forfeiture. It has been decided by the Court of Appeal in the case of Tan Hoon Swee v. The PP [1927] 6 FMSLR 191, that section only applies when the right of forfeiture exists.

The offence charged in this case was signing a false declaration, punishable under s. 113 (i) (a), and the accused has been punished for making that false declaration. There is nothing at the end of s. 113 to say that the goods dealt with in contravention of this section are liable to seizure as appears at the end of ss. 112 and 117 (ii). I can only assume that the punishment prescribed by s. 113 for making the false declaration stands on a separate basis. It does not interfere with the right of the customs authorities to deal with the goods (if they are in fact dutiable goods) in the same way as if they had examined them after the declaration was made. I understand that in the present case the goods were not dutiable.

The appeal is allowed, and the Magistrate's order for confiscation quashed.

Appeal allowed.