CHINESE AND OPIUM.

CHINESE AND OPIUM.
RECENT NEW PLYMOUTH PRO SECUTIONS.
THE CONVICTIONS QUASHED.
His Honor jir. Justice Edwards has decided in favor of the appellants in the appeals of Charles Wong See and Joe Wall against John Hamilton llempton, Collector of Customs at New Plymouth, who recently successfully prosecuted the two Chinese mentioned for bronchus of the law relating to the importation of opium. The decision was read by the deputy-registrar of the Supreme Court yesterday morning. (living judgment, his Honor said:— "The offence charged by each informn| tion was that the appellant against whom it was laid had on August 3tu, 190!), in certain premises occupied by Chinese, situated in Devon street. Xew Plymouth, knowingly acquired possession of certain prohibited goods, to wit, opium, in a form suitable for smoking, contrary to the provisions of sub-section (g) of section 23G of the Customs Law Act, PJOS, whereby the appellant had forfeited the penalty of £11)0 for ■which the Minister of Customs hud elected to sue. The facts found by the Magistrate are that on August ol.li. 190!). the appellant, Wong See, a Chinese laundry-man, resided in certain premises in Devon street, Xew Plymouth. On that day two constables visited the premises. When they entered the house a third Chinaman, not charged, calh 1 out some words in Chinese to the men upstairs. On arriving at the top of the .stairs, leading to a room in which they subsequently found the appellant, Wong See, the constables found tile appellant, Joe Wall, coining from that direction. The appellant, Joe Wall, then threw away a jar, which was picked up by one of the constables and was found to contain extract of opium suitable for smoking. On entering the room, the constables found the appellant, Wong See, smoking, or iiaving just ceased smoking opium from a pipe, which Wis then in his hands and was hot. The constables found in this appellant's possession a quantity of opium in a form suitable for smoking. Counsel for the appellant in each case contended before the Magistrate that it was incumbeut upon the prosecution to prove (1) that the opium found in the possession of the appellants was suitable for smoking ■when it was imported; (2) that ths appellant charged acquired it in that form; (3) that when he acquired it he knew that it was prohibited; and (4) that it was acquired by the appellant, charged 'within three years from August 5. The Magistrate held that these were matters which lay peculiarly within the knowledge of tne appellants, and Wat consequently the burden of proof as to these lay upon the appellants. His Honor stated that under the Customs Laws Consolidation Act, 1882, sectiJii 66, the importation ot opium was restricted, but was not, whatever its form, prohibited. By the Opium Prohibitio.i Act, 1901, No. 26 (section 2), the importation of opium in any form lor smoking was absolutely prohibited; and (section 3) the importation of opium ;n any other form wnich, though not suitable lor smoking, .might be made suitable, was restricted. By the Opium Prohibition Act Amendment Act, 1902, No. 15 (section. 2), it was enacted that after December 30 in that year any opium or preparation of opium prohibited by the Act of 1901 to be importej, and found in the possession of any one person, should be forfeited, and tint every person in whose possession any such opium or preparation was found should bo liable to a penalty not exceeding £SO. This enactment was the subject of interpretation by this Court in Johnston v. Fan Tu, "6 Gazette L.K., 107. In that case I held—and the decision has never been questioned—that the effect of the second section of the Amendment Act of 1902, No. 15, was t.-i render it unlawful for any person to ,have in his possession after December 31, 1902, opium in any form suitable for smoking, whether imported before the Act of 1901 or not. It was, in fact, held that there was an absolute prohibition against the possession or opium in any form suitable for smoking; ]f, therefore, the proceedings against Hi-; present appellants had been prior to the legislation of 190S, there could hav* been absolutely no answer to them/'
His Honor then went on to review the legislation of 11)08, which repealed all previous enactments upon the subject. The proceedings in the cases under appeal were taken under ''The Customs Act, 1008," but it was necessary to consider first the provisions of The Opium Act, 1008." The fifth section of this Act took the place of Ihe second section of the Act of 1002, but did not replace it in the sense of reproducing either its language or its effect. To establish an offence under the second subsection of this section, his Honor held, it was clearly necessary to show that the opium found in the possession of the person ■charged had been importel or purchased in breach of the previous provision of the Act. The person charged could also establish, as a good affirmative defence, that he had not a guilty mind. It would be a good defence 10 an information under sub-section 2 of section o of "The Opium Act, 1008," to show that the opium found in the possession of the person charged had been imported o r purchased by him prior to August 4, 1008, on which date the Consolidated Legislation of 1008 came into operation, since in that case it could not have been imported or purchased in contravention of the provisions of that Act. "Probably the person charged might by virtue of section 20 of "f h-> Acts Interpretation Act, 1008." still fall within the meshes of the law, hut it must he unfler the repealed Acts, and not under the Act of 1008. It is therefore, 1 think, clear that the facts found by the Magistrate in the present ■would not support convictions under sub-section 2 of section 5 of 'The Opium Act, 1008.'"
But these proceedings were under s J lion 230 of "The Customs Law Act, MOS," and it was necessary to examine the provision of that enactment, which his Honor did at length, concluding by holding that the offence in the section of the Act under which the information wn« laid could only be established by proof that the person charged had "knowingly" acquired possession of goods prohibited or restricted by or uncustomed, under "The Custom's Law l!HI8." There was no pretence (hat in J the present proceedings there was any j evidence of guilty knoT»'sdge on the part of cither of the appellants other than such inference as might be drawn from the possession by each of them of opium in a prohibited form. Counsel for the respondent contended, however, that the burden of proof that the ip' pellants had not guilty knowledge lav upon them, and that. a 6 thev failed to discharge this burden, they'were properly convicted. In support of this contention counsel relied upon the principle stated by the Magistrate to be the ground of his adjudication, and noon the 2!Mth section of "The Customs Law Act, inns." TTis Honor, howevc considered that (his section could not apply in any case where the Statute made guiltv knowledge an essential clement of (he offence. To apply the provision of (his section in such a cara would be to wipe out from the Statute the .word "knowingly," which always throws the burden of proof upon the Crown. T„ hold (hat. where the offence enacted by the Statute is "knowingly" doing a certain act. the burden of proof was bv section 2114 (brown upon the person charged would therefore be to give no effect whatever lo lhat word 'To h'ol,l thar where (he burden of proof of guilty knowledge lies upon tin prosecution, that burden transferred from the prosecution to the person charged, because whether or not the person charged has guilty knowledge is a fact peculiarly within 'its own know- ledge, is not merely a contradiction in term, but is a direct negation of (he principles laid down bv (he hbdicn authority. No doubt, whether o r not guilty knowledge has been proved ,is generally a matter of inference for established facts. But here there were no facts proved from which the Magistrate could properly have inferred" guilty Knowledge, nor dfSdie Tiase his adjudication upon that ground. The appeal must, therefore, be allowed, and the conviction must be quashed in each case. I donot think that those niv cases in which costs should be allowed i against respondent, who is a public offi- 1 cer. ft was hie duty to know, and
he may be assumed to have known the construction put by the Court upon ■tin- Statutes which were repealed oy the
legislation of 1908. It was perhaps his duty to ascertain from the report of the Commissioners what alterations in the Customs laws were made by the .Consolidated Statutes. If lie read" that report, he found nothing in it to indicate that the law had been altered in this respect. It may be safely inferred that the Commissioners were not tlk-mi selves aware that they had altered the law. The respondent was therefore justified in assuming that he had a dear case against the appellants, which i: was his duty to bring. The ap.K'llanU-, on the other hand, bv their own con duct, slewed that I hey inleude-l to break the law and that they thought they, were doing so. They may hiiiv done so, but it has not been proved. They have escaped by reason of an accidental alteration in the law which they cannot have known, and which wis ertainu not i.itended by the l/'irislatun-."
Mr. Ilutclien appeared for Won. Nee, Mr. A. II hnstone (Malonc. Anderson and Johnstone) for Joe Yah.' tad Air. T. S. Weston. Crown Prns-.-eutor, for iho respondent. Taranaki Daily News, Volume LII, Issue 271, 22 December 1909, Page 4