Comptroller of Customs v King

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Lewis, C.J.
• Judgment Date: 12 November 1968
• Neutral Citation: KN 1968 HC 5
• Docket Number: No. 1 of 1968
• Date: 12 November 1968

The West Indies Associated States High Court.

Louisy, J.

Glasgow, J.

No. 1 of 1968

Comptroller of Customs

and

King

Appearances:

H.M. Squires, Director of Public Prosecutions for the appellant

C. F. Henville Q.C., F. E. Kelsick with him for respondent

Revenue law - Customs.

Statute - Interpretation — Trade and Revenue Ordinance, Cap. 258.

Facts: An appeal from a decision of a magistrate which held that the appellant being a master of a named vessel did depart from the airport without a clearance from the Comptroller of Customs.

Facts: Whether an aircraft was included in the term “vessels” under the Ordinance.

Held: That the irregularity on the part of the Comptroller of Customs did not render clearance given invalid which made that the case be remitted to the Magistrate to be heard again.

Held: That the term “vessels” included an aircraft.

Lewis, C.J.

1 This is an appeal from a decision of the Magistrate for District A delivered on the 2 ^nd of September 1968 in a case in which the respondent, was charged with a breach of s. 17 of the Trade and Revenue Ordinance, Chapter 258 of the Revised Laws of this State (1961) o The particular offence charged was that the respondent on the 16 ^th day of July, 1968 at Golden Rock Airport in the Parish of St Peter's in the Magisterial District A of the State of St. Christopher Nevis Anguilla, being the master of a certain vessel namely, aircraft VPL IV, did depart from the said Golden Rock Airport without a clearance from the Comptroller of Customs. The case had a curious history. It was started by an information sworn by one Austin T. Joseph, an officer of the Department of Customs and on that information a warrant was issued. The respondent was arrested and brought before the Magistrate on the 17 ^th of July 1968. He was admitted to bail. Thereafter on the 27 ^th of the same month a complaint without oath was filed in the Magistrate's Court. It does not appear from the record that any summons was ever issued on that complaint. The complaint was in the name of the Comptroller of Customs of Basseterre St. Kitts, and was signed by one Horace C. Warner, as Comptroller of Customs. The case came up for hearing on the 29 ^th July and was adjourned to the 6 ^th of August, when it was heard.

2 Decision was reserved on a submission of no case to answer at the close of the case for the prosecution, and on the 2 ^nd of September the Magistrate accepted that submission and dismissed the charge. He ought to have endorsed the information, which contained the charge upon which the respondent was before him, but he has told this Court, when it called him before it for an explanation, that on the day in question he could not find the information and so did not have it before him, and therefore he endorsed the complaint. I mention this fact because the Court has observed that the notice of appeal was signed, not by the informant who started the proceedings, and who is the virtual complainant in the case, but by the Comptroller of Customs who signed the complaint without oath. However, no objection has been taken to the hearing of this appeal on any ground connected with that, and the Court will deal with the case as though this appeal had been properly lodged.

3 The facts are very short. On the 16 ^th of July 1968, the respondent, a pilot of the well-known airline LIAT, brought his aircraft to Golden Rock Airport. Thereupon, according to the evidence—although strictly this part of the evidence was not evidence against this respondent though it was evidence against an airline official named Hobson who was charged with him—went to the witness Merchant, the Customs Officer who was on duty, and said that this aircraft had come in unexpectedly and would he allow it to leave without clearance. The officer refused to do this. Sometime shortly afterwards another airline officer, one Berridge, brought certain documents to Merchant, and the officer having examined them, stamped them with the rubber stamp which was used for giving a clearance. That rubber stamp contained the name of the Airfield, the date, and the words “Cleared by Customs” and is required to be signed by the officer who is on duty on behalf of the Comptroller of Customs. Merchant then heard the engine of the aircraft and on looking out saw that it had moved from its place on the apron in front of the terminal building, and he gleaned from the noise that it was taxi-ing to the runway with a view to taking off. He then refused to sign the clearance, and the aircraft took off anal left without the clearance being signed. Later the aircraft returned to St. Kitts and proceedings were started. It was then piloted by another pilot, but subsequently the respondent came in, and as I have said, he was arrested upon the warrant which had been issued.

4 At the trial the prosecution tendered in evidence the documents, which Berridge had given to the officer, Merchant, and which the witness said were a passenger manifest and a cargo manifest. Objection was taken by learned counsel for the defence, who incidentally is also counsel for the respondent in this appeal, on the ground that no connection had been shown between the defendant and the documents. This objection was upheld by the Magistrate who, however, said that if later on the connection could be established another application could be made to admit them. No such application was subsequently made, and one of the grounds of the appeal is that the learned Magistrate was wrong in refusing to admit these documents. The prosecution put in evidence three proforma documents, a passenger manifest, a cargo manifest, and a general declaration, which are the forms in use at the Airport required by the Comptroller to be delivered to him or to his officer in order that clearance may be given. They also put in a used Form of general declaration on which the rubber stamp had been impressed. Evidence was given that these forms were forms approved by the International Civil Aviation Organisation for use in connection with Customs Airports, and indeed they bear the inscription “I.C.A.O. Annex 9, Appendix I”.

5 The submission which the learned Magistrate upheld at the close of the case for the prosecution was that s. 17 of the Trade and Revenue Ordinance, under which the appellant was charged, does not apply to an aircraft or to the pilot of an aircraft and that accordingly the respondent was entitled to leave the Airport without a clearances.

6 The first ground of appeal complains of the non-admission of the documents which Berridge had handed to Merchant and which the prosecution had tendered in evidence. The evidence at that time was simply this:

“…one Mr. Dennis Berridge rushed up to me and pushed some papers on my desk and said something. These are the said papers I have here. The papers were a Passenger Manifest and a Cargo Manifest. These are papers connected with the clearance of aircrafts, on which we give clearance. I kept these documents in my custody, now beg to produce them in evidence”.

7 It was submitted by the Director of Public Prosecutions on behalf of the appellant that the learned Magistrate was wrong in excluding the documents and reference was made to a passage in Archbold., Criminal Pleading Evidence and Practice, 35 ^th ed. paragraph 1075 (4). That passage relates to Res gestae and the second paragraph is as follows: “Under this head declarations made by an agent, acting at the time within the scope of his authority, are received against his principal, R.V. Hall, 8 C. & P. 358”.

8 It will be apparent from what I have read from the evidence that at the stage when objection was taken no connection had been established between either of the defendants and Berridge to prove that he was their agent. It will be noted that at that stage it had not even been given in evidence that Dennis Berridge was an airline officer. The evidence simply was that “one Dennis Berridge rushed up to me and pushed some papers on my desk and said something”. In these circumstances the Court is quite clearly of opinion that the learned Magistrate was correct in ruling that those documents could not be admitted at that time. It may be that if application had been made to put them in after evidence had been given as to their relationship to the respondent's aircraft and the relationship of Berridge to the airline, and of the practice at the Customs as between airline agents and the pilots, they might have been admitted, but no farther application was made. This ground of appeal therefore fails.

9 Of the other grounds of appeal, which were urged before the Court, it is only necessary to refer to ground 3 (a). This reads as follows: “‘Form of clearance’ was not in issue but the fact in issue was that the Aircraft departed from Golden Rock, a Customs Airport in the State without a Clearance (irrespective of Form) by the Authorised Officer”.

10 The learned Director of Public Prosecutions referred the Court to the relevant sections of the Ordinances and also to certain Imperial orders in council which are or at one time were applicable to this State. I shall now read s. 17 of the Ordinance insofar as it is relevant. Section 17 says:

“In all cases where the master of any vessel…departs from any place in the Colony without a clearance…he shall be liable on conviction to a penalty not exceeding four hundred and eighty dollars, and when any such vessel is un-decked or if decked is of less than thirty tons burthen, such vessel shall be forfeited”.

11 Then there is a proviso that relates to stress of weather, which does not concern the present case. Section 11 of the Ordinance is relevant to the appeal. It is as follows:

“The master of every vessel departing from the Colony shall, before departure, deliver to the Comptroller of Customs an outward manifest in such form and containing; such particulars as he shall direct, and shall make and...