Taylor J:

The facts and arguments appear sufficiently from the judgment.

The appellant was convicted of the possession of uncustomed goods. The facts, briefly, are that the accused, who is a watch dealer, was stopped at a customs barrier with 646 watches in his car. After a long investigation the customs officers released 456 watches but prosecuted him in respect of the remaining 190, which were separately and differently packed. He was not charged with smuggling. The gist of the matter is this. The preventive men seize a suspected parcel and say :- "Duty has not been paid on this." If the sale records and duty receipts have not been kept systematically, it is virtually impossible to prove this negative proposition. The law, therefore, shifts the onus and requires the accused to prove that the duty has been paid - otherwise any dealer could defeat the revenue by breaking bulk, mixing smuggled with innocent goods, keeping only hazy records of sales and muddling his receipts. That was the position of this accused; probably he could not have been convicted of smuggling; just possibly the duty on these 190 watches had been paid. His offence is that he - a regular dealer in dutiable goods and therefore under a duty so to conduct his affairs as to protect the revenue - in breach of his duty muddled his affairs in such a manner as to afford facilities for dealing in smuggled goods. In particular, his muddle left it extremely doubtful whether duty had been paid on these 190 watches and this is the specific matter for which he was convicted.

The value of the 190 watches was stated to be $5,294. The duty was said to be I5% but only $555 was claimed. One or other of these figures is obviously wrong but both Counsel accepted them. I have since been informed that the value was correctly stated but by a clerical error the duty was calculated at 10.5 Instead of 15%, that the mistake was discovered before the end of the trial but that it was then considered too late to rectify it. Section 278 of the Code should have been applied.

The minimum fine is six times the duty. The Magistrate forfeited the 190 watches and, considering this a great deterrent, he imposed a fine of $3,500, in round figures, the minimum on the basis that the duty was $555.

There was ample evidence to prove the offence, so the conviction must be affirmed but the appeal was also against sentence, that is, in effect, against the forfeiture. The Deputy Public Prosecutor submitted that the Magistrate had considered forfeiture to be obligatory and that there was an unreported authority for that view. The point being of substance in this case and also of general importance, at the request of Counsel I adjourned the hearing for the point to be fully argued.

On the resumption both Counsel examined and compared the different provisions dealing with forfeiture, at some length, and I was requested to deliver a considered judgment on the various points raised. Mr. Bostock Hill, for the appellant, argued that the English Act is different from the local law in material respects and, in particular, that it is differently arranged - forfeiture of goods and forfeiture of vehicles being dealt with separately whereas in our Enactments they are dealt with together. He submitted that nowhere, in the Enactment of 1937 does the expression "shall be forfeited" occur, though it is used in s. 202 of the Act in relation to vehicles. He referred to Beh Chang Hin [1950] MLJ 239 and also to Lee Ah Sam [1949] MLJ 236, which supports the view that the words "liable to" in a penal statute mean "liable to not more than ...... at the discretion of the Court.

Mr Austin, for the Public Prosecutor, agreed that the English Act is materially different. He put forward a construction of the Enactment which he himself said was odd and led to harsh and unreasonable results but these could be mitigated by the High Commissioner. He relied on the unreported judgment in Nai Hor Par's case Ipoh Criminal Mi