Citation: CEO of Customs v Pham [2006] NSWSC 1011
Court: Supreme Court of New South Wales
Date: 4 October 2006
Judge(s): Bell J
Background
The Chief Executive Officer of Customs brought a prosecution under Part XIV of the Customs Act 1901 (Cth) against a married couple who operated a warehouse business in Sydney's western suburbs. The proceedings, commenced by statement of claim in November 2001, alleged that the defendants had arranged for two shipping containers to be imported into Australia without paying customs duty on the cigarettes concealed inside them.
Both containers arrived in Sydney in late January 2001. Their shipping documents declared the contents as gyprock (plasterboard). When Customs officers examined the containers, they found large quantities of cigarettes, over two million sticks in each container, hidden alongside the declared goods. The cigarettes bore "For Export Only" markings, having originally been exported from Australia to Singapore by British American Tobacco.
The defendants had engaged a customs agent to prepare and lodge an Entry for Home Consumption for the first container. That entry declared only gyprock. No duty was paid on the cigarettes in either container, with the combined unpaid duty totalling approximately $817,000.
Legal Issues
- Whether each defendant smuggled cigarettes into Australia contrary to s 233(1)(a) of the Customs Act 1901 (Cth), in respect of each container.
- Whether each defendant evaded payment of customs duty payable on the cigarettes in the first container, contrary to s 234(1)(a) of the Customs Act 1901 (Cth).
- Whether each defendant knowingly or recklessly made a false or misleading statement to a Customs officer by lodging the Entry for Home Consumption that failed to declare the presence of cigarettes in the first container.
- Whether the conduct of both defendants was sufficiently connected to establish their individual liability across all four charges, including through principles of joint enterprise.
Decision
Bell J was satisfied beyond reasonable doubt that both defendants were guilty of all four charges. The court found that the instructions to engage a customs agent to clear the first container through Customs were given by one defendant with the knowledge of the other, as part of a joint enterprise to import the cigarettes without paying duty. The misdeclaration in the Entry for Home Consumption was found to have been known by both defendants to be false at the time the instructions were given.
The court's reasoning addressed each offence in turn. On the smuggling charges, the court was satisfied that both defendants had the requisite involvement in the importation of each container. On the duty evasion charge, the court found the conduct of lodging a declaration that omitted to disclose the cigarettes was squarely within the terms of s 234(1)(a). On the false declaration charge, the court found the entry was false or misleading in a material particular, namely the omission of over two million cigarette sticks from the declared contents.
The question of penalties and any other consequential orders was reserved, by agreement between the parties, for determination on a separate occasion.
Orders Made
- Both defendants convicted of smuggling approximately 2,098,175 cigarette sticks into Australia on or about 25 January 2001, contrary to s 233(1)(a) of the Customs Act 1901 (Cth).
- Both defendants convicted of evading payment of customs duty payable on 2,098,175 cigarette sticks on or about 22 January 2001, contrary to s 234(1)(a) of the Customs Act 1901 (Cth).
- Both defendants convicted of knowingly or recklessly making a false or misleading statement to a Customs officer on or about 22 January 2001, by failing to declare the presence of 2,098,175 cigarette sticks in Entry for Home Consumption No. 1S.1019.0909P.
- Both defendants convicted of smuggling approximately 2,099,750 cigarette sticks into Australia on or about 30 January 2001, contrary to s 233(1)(a) of the Customs Act 1901 (Cth).
- Penalties and other consequential orders reserved for a further hearing.
Key Takeaways
- A conviction for smuggling under s 233(1)(a) of the Customs Act 1901 (Cth) can be established against multiple defendants where the evidence supports a finding of joint enterprise in the importation of undeclared dutiable goods.
- Lodging a customs entry that omits dutiable goods from the declared contents can simultaneously ground separate charges of duty evasion under s 234(1)(a) and making a false or misleading statement to a Customs officer.
- Where one party takes the active step of engaging a customs agent, the other party's knowledge of and participation in that step can be sufficient for both to be found liable across all related offences.
- The Supreme Court, sitting in its Common Law Division, has jurisdiction to hear customs prosecutions brought by way of statement of claim under Part XIV of the Customs Act 1901 (Cth).
- Concealing goods among legitimately declared cargo does not insulate importers from liability: the court found the presence of the cigarettes, and the defendants' knowledge of them, proved to the criminal standard despite the misdescription in the shipping documents.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), ss 233(1)(a), 234(1)(a), Part XIV
- Customs Administration Act 1984 (Cth)
- Evidence Act 1995
Cases:
- Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49; 216 CLR 161
- Chief Executive Officer of Customs v El Hajje [2005] HCA 35
- Dyers v The Queen [2002] HCA 45; 210 CLR 285
- Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; 166 FLR 125
- L Vogel & Son Pty Ltd v Anderson (1967-1968) 120 CLR 157
- Ludwigs Canberra Bond Seller Pty Ltd v Sheen (1982) 65 FLR 347
- R v Apostilides (1984) 145 CLR 563
- R v Australasian Films Ltd (1921) 29 CLR 195
- R v Kneebone [1999] NSWCCA 279
- Shepherd v R (1990) 170 CLR 573
- White v Ridley (1978) 140 CLR 342
- Wilson v Chambers (1925-1926) 38 CLR 131