SUDAN GOVERNMENT vs. OSMAN SALEH AND SONS

                 AND IBN IDRIS MOHAMED TAHA

                AND BIRKLEY CHRISTIALIDIS

HC-CP.Revision-213-59

 Criminal Revision

Principles

Criminal law—The Customs Ordinance, 1939, S. 204 (h)—Being in or being found in possession of a bill heading or other blank paper capable of being filled and used as invoice for goods from abroad—Mens rea—Absolute liability—Onus of proof

    The accused are all merchants of Khartoum. On various dates in May 1959 each of the accused received a postal packet containing blank invoices. These were sent by some of the accused’s principals abroad. The Customs Authorities seized the invoices and prosecuted the accused under section 204 (h) of the Customs Ordinance. In a joint decision the Police Magistrate, Khartoum (Sayed Y. Omran), dismissed the charges against the accused on the ground that they had no mens rea. The Judge of the High Court confirmed the finding of Not Guilty. The Attorney-General appealed.
        Held: (1) Section 204 (h) of the Customs Ordinance is a section of absolute   liability. No mens rea or intent is required.
                  (2) The prosecution must still prove “bringing in” or “possession”, but      nce this has been done,
                  (3) The onus is on the accused to prove that he had a lawful excuse.
                  (4) As the first accused had denied bringing in the invoices or asking for  them he cannot be held to be either in actual or in constructive  possession of them, and is entitled to an acquitta (  (5As the second and third accused had admitted ordering them from their  Principals the case must go back to the magistrate to find them guilty  unless they could make out some other defence.

Judgment

      24th December 1959. A. M. Imam 1. :—the following accused

I. Osman Saleh and Sons,

2. Ibn Idris Mohamed Taha, and

3. Birkley Christialidis,

all merchants of Khartoum were on 2 July 1959 charged and subsequently discharged of an offence under section 204 (h) of the Customs Ordinance, 1939. They were tried non-summarily and a joint decision is contained in non-summary case, Khartoum Magistrate’s Court No. 550/ 1959. The substance of the charges is that these accused persons, either did bring

 into the Sudan, or were found in possession of, proforma invoices, allegedly contrary to the above-mentioned subsection of the Customs Ordinance. The Attorney-General lodged an appeal against the order of discharge before the learned Judge of the High Court, Khartoum, who dismissed it on 8th September 1959 on the ground that he saw no reason to intervene. Hence the present application.

      As I see it, I think this application should be allowed for the following

reasons:—

(a) Section 204 (h) reads: —

    “Any person who . . . brings into the Sudan or has in his possession without lawful excuse (the proof of which shall lie upon him) any bill heading or other paper appearing to be a heading or blank capable of being filled up and used as invoice for goods from abroad; . . . shall be liable on conviction to a fine not exceeding £S.500 or to imprisonment not exceeding two years…”

      From the first glance, it can be seen that this section makes the mere preparation to commit an offence, an offence. In other words, the mere bringing or being in possession of such paper as is described by the section is, in the absence of any defence open to the accused, a full and complete offence under the ordinance. No mens rea or criminal intent as prescribed, e.g., by subsections (b) and (c) of the same section, is required. The liability is absolute.

(b) From the analysis of the section, it appears that the elements necessary to constitute this statutory offence are —

(i) The accused brings into the Sudan or has in his possession,

(ii) Without lawful excuse,

(iii) Any bill heading or other paper appearing to be a bill heading or blank,

(iv) That such bill heading, etc., is capable of being filled up and used as invoice for goods from abroad.

Consequently, the only defences open to the accused are:-

(i) That the accused did not bring or cause to be brought into the Sudan the article in question or it was not found in his possession, actual or constructive, e.g., in his pocket or in his business premises respectively.

(ii) He has some lawful excuse for bringing it in or for its having been found in his possession, e.g., being a police officer in charge of investigating an offence the subject-matter of which is the said article, or a customs officer, or the Court. Contrary to the general principles of the law of evidence the onus of proving this lies on the accused person.

(iii) That such article is not a bill heading, etc., etc.

                                                                                
(iv) that even if it were a bill heading, etc., etc., it is not capable of being filled up and used as invoice for goods from abroad.

    It is no defence, therefore, for such an accused person to plead that his possession or bringing in was innocent, or that it was in conformity with the general commercial practice prevailing. These may go to mitigating the punishment rather than being good pleas negativing the liability itself. He, however, may plead mistake.

(c) The simple facts of these cases were that the customs official attached to the Post Office, Khartoum, seized parcels belonging to the accused, and on opening the same, found therein proforma invoices—like the one marked “Doc. A” and filed in the record.Hence these customs prosecutions. The accused said by way of defence as follows: —

1. Accused Osman Saleh and Sons: —that he did not ask for these articles to be sent             to him from abroad.

2. Accused Ibn Idris Mohamed Taha: —that he asked for them to be consigned to him.

3. Accused Birkley Christialidis: —that he asked for them to be con signed to him.

   All three accused join in the defence that even if these articles were brought by them or that they were found in their possession, they must not be held liable because this is the prevailing practice in the market, and that the customs authorities and the Ministry of Trade, etc., accepted these proforma invoices for the purposes of import and for taxation. They produced in support of the alleged practice a purported extract from Pitman’s Commerce, marked “Doc. B”, which, besides being of doubtful admissibility, does not say that it is the practice in the commercial world to send these pro-forma invoices in blank. It can be seen, however, as explained above, that this defence can be of no avail.

    It should be noted that the general onus of proving the elements of the offence as explained above, e.g., that the accused did bring or cause to be brought in or that he was in possession, etc., still lies on the prosecution; the particular onus of lawful excuse resting on the accused.

   Applying the above principles, it seems to me that the learned magistrate was right in discharging accused Osman Saleh and Sons for the reason that it was not proved that accused brought these proformas or caused them to be brought in, nor were they found in his possession; their being found in the Post Office can clearly neither be held as actual possession of the accused nor as constructive possession. But I think he was not right in discharging the two other accused. For having admitted that they caused these proforma invoices to be brought into the Sudan; and failing to put forward any defences acceptable by the law, they ought to have been found guilty of the offence charged.

 To finish off, a word must be said in connection with the fourth element mentioned above, viz., that the bill head, etc., is capable of being filled up and used as invoice for goods from abroad. A legal description of an invoice can be found in the Law Relating to Commercial Letters of Credit by Davis, 2nd edition, p. 152, which

reads: — “The invoice must be in the form described by Blackburn J. in Ireland

Vs. Livingston,’ or in some similar form; that is, it must debit the consignee with the agreed price (or the actual cost and commission, with the premiums of insurance and freight, as the case may be) and give him credit for the amount of the freight he will have to pay to the ship owner on actual delivery”.

   The two essentials of an invoice, therefore, are items showing the goods offered for sale and the price chargeable. It can be seen that Doc. A can be filled in and used as an invoice for goods from abroad (as it carries the signature of the foreign supplier and the head of an invoice). Its being stamped with the word proforma is of no legal consequence. For it may still pass as an invoice completed abroad. That the customs authorities accept such an invoice with caution, because of the possibility of its being filled in here, is wisdom itself; but no defence for the accused. Such an invoice can be used to defraud the customs of their lawful duties, or a customer of his right to pay a fixed price, and may even be used to flout the legislature banning the import of certain goods as from a future date, by simply affixing an antecedent one. Hence its danger to the economy of the country, the gravity of the offence and the enormity of the penalty.

   For the above reasons explained, I think the order of discharge of accused Osman Saleh and Sons be confirmed, but that the orders in respect of the other two accused be refused, and that their cases should go back for retrial by the magistrate, Khartoum Magistrate’s Court, with a view, in the light of the above note, to finding them Guilty and sentencing them, provided they have no further defence sustainable.

       M. A. Abu Rannat C.J.: —I agree and I have made the necessary orders.

                                                                                                        (Order accordingly)

1 (1872) L.R. s H.L. 395