The respondent was charged as follows:

1st Charge:

"That you, Lau Hui Ong, being the proprietor of Chop Chit Seng, No.5, Lane 1, Lanang Road, Sibu at about 1500 hrs. on 1.10.1989, at the Rajang Port Authority, was concerned in the importing of prohibited goods to wit 888 ctns. (12076.80 kgs.) Frozen Chicken Wings valued at $24,153.60, such goods being goods the import of which are prohibited except under and by virtue of a valid import licence issued by the Director-General of Customs under the Customs (Prohibition of Imports) Order 1988 (P.U.(A) 408) and thereby committed an offence under Section 135(1)(a) and punishable under Section 135(1)(iii) of the Customs Act, 1967." [2]

2nd Charge:

"That you, Lau Hui Ong, being the proprietor of Chop Chit Seng, No.5, Lane 1, Lanang Road, Sibu at about 1500 hrs. on 1.10.1989, at the Rajang Port Authority, was concerned in the importing of prohibited goods to wit 876 cartons (10973.13 kgs.) Frozen Ducklings valued at $25,238.20, such goods being goods the import of which are prohibited except under and by virtue of a valid import licence issued by the Director-General of Customs under the Customs (Prohibition of Imports) Order 1988 (P.U.(A) 408) and thereby committed an offence under Section 135(1)(a) and punishable under Section 135(1)(iii) of the Customs Act, 1967."

The facts of the case are similar in all respects with the Criminal Appeal No. 41 of 1991. As a matter of fact, in the Criminal Appeal No. 41 of 1991 the respondent was jointly charged with another person for the same type of offence. The only difference was that the AP was issued on 5.10.1989 whilst in the latter 2.10.1989. In the latter case there was the urgency for the respondents to return the hired containers (in which the frozen foods were stored) to its owner immediately, and in the former this was not so.

The practice that exists over the years seems to be that as soon as the shipment of goods arrived, the importer would go to the Veterinary Office, Sibu and get a permit (AP). Invariably he would get it. But there is no certainty that on the arrival of the goods, the veterinary officer would be there, waiting in his office. In the event the veterinary officer is not in the office [3] e.g. on travelling duty, there are two alternatives open to the importer, either to wait for his return to office or, in cases of urgency, to go to the veterinary officer of other Divisions, e.g. Kuching, and get the AP there. This has been the practice or procedure which is followed and accepted by usage over the years. There is no complaint about it.

There are cases where an importer for some reasons or other applies for an AP after the goods have arrived, the veterinary officer would use his discretion to issue the AP and validate it to the date of the arrival of the goods. P.W.10 (Dr. Khan), Veterinary Officer, Sibu in his testimony stated that this was done on humanitarian grounds. In other words if he is satisfied that an AP should be validated retrospectively he has no qualms about it. To Dr. Khan this is legitimate; it is not an ethical breach on his part. Of course it is within his discretion to do so. As this is not a strict liability case, a few days more or less can make no difference: de minimis non curat lex. In this case, on 2.10.1989 Dr. Khan was not in the office and when he returned to office on 5.10.1989 he issued the AP. He did not back-date it simply because the importer did not ask him to do so. If he had been asked, P.W.10 would have obliged. The respondent did not ask because he had been in this business for over 6 years and he was fortified in the thought and belief that a few days late would not bring [4] him into violent conflict with the law. Here the law is more honoured in the breach than the observance (Shakespeare). It is the order of the day. At the very least, he had acted in good faith. There is no evidence of a deliberate or intentional act on his part to apply for an AP on 5.10.1989. As he