An article by Mr. Voon Lee Shan, a Senior Legal Practitioner.


It is not easy to defend clients facing charges for possession of uncustomed goods, especially, if the goods involved were uncustomed beers and cigarettes. This is because the prosecution’s burden of proof is aided by presumption clauses in the Customs Act. Once client is found in possession of suspected uncustomed goods the burden shifts to the client to prove that customs duties had been paid for the goods. Further, documentary evidence signed by the analyst purporting to be a certificate made under the hand of an analyst shall, on production thereof by the prosecutor, be sufficient evidence of the facts stated therein. In this article, let us concentrate on cases of uncustomed beers and cigarettes – because such cases are more common and difficult to defend.

Power of Investigation

Customs officers’ power to conduct investigation, arrest and seizure of uncustomed goods and persons are derived from the Customs Act itself. However, where no provisions are provided, the powers of investigation are supplemented by the Criminal Procedure Code. Once the client is put under arrest, the client can be searched and be brought to the police station or be detained in the custody of the proper officer of customs for investigation. Seizure list of the cigarettes and beers seized may be prepared at the place of seizure, but, most often than not, customs officers always prepare these search lists at their office after seizure were made and completed. Statements of witnesses and the client have to be recorded. It is advisable in such circumstances that client should be careful in giving his statement and he has a right not to incriminate himself. He also has a right to keep silent and request a lawyer to advise him, if he wants, but in practice, this is difficult.

After investigation is completed, the client will be charged in the magistrate court. During or before case management, client will be extended by the prosecution copies of documents in which prosecution wishes to rely in prosecuting the client.

The Charge Sheet

Look at the charge sheet carefully as to time, place, where, description and amount of duties not paid and amount cigarettes and beers seized. That means, there is a need to know the ingredients of the charge well. For the charge, the prosecution needs to prove, inter alia, the following ingredients and if any of the ingredients not proved, this will mean that there should not be any prima facie case against the client.

(1)            Time, date and place where  the cigarettes and beers been seized;

(2)            Description and amount of the cigarettes and beers;

(3)            That the cigarettes and beers seized were dutiable;

(4)            That client knew he was in possession of the cigarettes and beers in which duties had not been paid;

(5)            The amount of duties payable.

The Police Report

The purpose of police reports is to set the machinery of investigation in motion. Without the police report, customs officers are not supposed to conduct an investigation as there can be allegations of abuse of power or illegal exercise of power and may expose them to civil claims in damages by the victims. Study the police report carefully and one can find many loopholes in the report lodged such as to the description and amount of the cigarettes and beers seized. Experience counsel will during cross-examination always be able to punch many holes in the seizure and investigation into the case.

If the purported report produced in court is a computer generated document, then procedures under section 90A of the Evidence Act 1950 comes into play. If the document fails to comply with this provision, the document should be challenged as not admissible. Further, look carefully the requirements of section 107 Criminal Procedure Code on how police reports should be lodged. At times, the police reports tendered in court also fail to comply with the strict provisions of section 108A of the Criminal Procedure Code. It may also fail to comply with the Evidence Act.

Documents Prepared by Experts

Once the cigarettes and beers had been seized, they should without delay be sent to a government analyst to analyze and examine the cigarettes and beers seized. These government analysts or experts need not come to court to give evidence and suffice that the documents prepared by them be tendered as evidence in court.

However, most often than not, documents prepared by these experts have many weaknesses and an experience defence counsel can easily detect these. To lay down for submissions at end of prosecution case, there has to be a thorough cross-examination on the contents of the documents. This is because the report can be parroting from what the experts could see and read from the cigarette and beer boxes or on the cigarette packs or beer bottles themselves. Experts who are lazy may not wish or bothered to examine the contents of what were inside the cigarette sticks or bottles. As far as cigarettes are concerned, the failure to detect the presence of certain chemicals in the shredded leaves or grass materials found therein is crucial while for beers, the presence of alcohol is necessary. The crucial questions are whether the beverages in the bottles or cans are alcohol and why the expert came to his conclusion? This has to be answered in the document prepared by the expert, otherwise, it has to be submitted that the documents is useless to help the court in its finding.

Duties Not Paid

Customs officers will normally testify that once tax stamps are not found on the cigarette boxes, beer cans and bottles, the goods are deemed or suspected to be of duties not been paid. It is quite common that cigarettes and beers are sold in supermarkets and shops without these tax stamps because many businessmen are not aware the need for these tax stamps. As long as agents or salesmen sold the goods to them, they just bought it, displayed them on the shelves for sale, but later on they found themselves in trouble with the law. It is for this reason, the law requires that when charged, the charge has to be read as, “…were knowingly in possession of uncustomed goods…” and by this, the charge gives burden on prosecution to prove that the persons from whom goods were seized knew that they were in possession of uncustomed goods.

Chain of Evidence

Customs officers may at times been careless in handling the cigarettes and beers seized. They may not have counted the amount of cigarettes and beers seized. This is because not all of them involved in the operations are experienced in doing the job. The law requires them to examine at least 5% of every description of cigarettes and beers seized. There is a need to examine boxes carefully to see whether exhibit labels been prepared to record the description of cigarettes and beers seized. These exhibits labels should show inter alia, time, date, place and description of goods seized. It should also mention the relevant police report number and name of the accused persons from whom the cigarettes and beers were seized. Most important of all, there must be security seals found on the exhibits seized and tendered in court.

The exhibit labels should also have with them showing records of movements of the exhibits from the time of seizure to the store and also from the store the court. It must be known who were the officers who handled these exhibits, from the time of seizure until the end of the trial.