Chu Wai Kiu v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 14 February 2005
• Neutral Citation: [2005] SGHC 32
• Date: 14 February 2005
• Subject Matter: Appeal,Criminal Law,Revenue Law,Failure to declare jewellery and pay GST,Whether appellant required to declare jewellery if GST liability suspended at time of importation,Forfeiture,Whether offence of non-declaration made out,Customs and excise,Section 123(2) Customs Act (Cap 70, 2004 Rev Ed),Whether obligation to declare imported dutiable goods applicable to imported goods subject to GST,Section 8(4) Goods and Services Tax Act (Cap 117A, 2001 Rev Ed),Whether dual elements for mandatory forfeiture of jewellery fulfilled,Criminal Procedure and Sentencing,Appeal against order of forfeiture,Appellant failing to declare jewellery and pay GST,Whether more appropriate to institute revision proceedings,Appellant importing jewellery into Singapore,Correlation between customs and GST regimes,Whether amounting to collateral attack against conviction,Jewellery subject to Goods and Services Tax (GST),Customs Act,Statutory offences,Goods and services tax (gst),Sections 37, 128(1)(f) Customs Act (Cap 70, 2004 Rev Ed)
• Docket Number: Magistrate's Appeal No 126 of 2004
• Published date: 15 February 2005
• Defendant Counsel: Leong Wing Tuck (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Go Kim Chuan Mark (Hin Tat Augustine and Partners)

14 February 2005

Yong Pung How CJ:

1 The appellant (“CWK”) appealed against the order of the district judge (“the judge”) that two lots of jewellery (“the jewellery”) in his possession be forfeited to the Singapore customs for disposal. I dismissed his appeal against the order of forfeiture and I now set out my reasons.

Background

The Statement of Facts

2 CWK admitted without qualification to the following facts. On 6 June 2004 at about 6.30pm, he arrived in Singapore from Hong Kong on flight no CX 735. Whilst at the customs duty office at Terminal One of Singapore Changi International Airport, he produced a Goods and Services Tax (“GST”) Inward Transhipment Permit for clearance of the goods in his possession.

3 Before tallying the goods produced against the permit and invoices attached, the customs officers asked him if he had any other goods to declare, to which CWK replied in the negative. After the customs officers tallied the goods, they asked him one more time if he had any other goods to declare. Again, CWK replied in the negative. Thereafter, the customs officers searched CWK’s possessions and found two lots of undeclared jewellery in a zipped compartment of CWK’s sling bag.

4 When questioned by the customs officers, CWK admitted that he knew he was carrying the jewellery and he had no intention of declaring it. He was also aware that GST leviable on the jewellery was unpaid. The Statement of Facts also stated that the jewellery in CWK’s possession should have been declared to the customs officers for payment of the GST leviable. It further revealed that CWK was arrested for failing to declare dutiable goods at about 11.00pm that night.

5 Investigations revealed that CWK had been in the employment of Jade Peace Ltd in Hong Kong for over three years and would deliver jewellery from Hong Kong to Singapore every two months. The jewellery was valued at $4,908.10 and the GST leviable on the jewellery was $245.40.

The charge

6 On 8 June 2004, CWK pleaded guilty to the following charge:

You, Chu Wai Kiu (M/37 yrs) Hong Kong SAR Passport No: H 01828627 are charged that you, on or about the 6^th day of June 2004, at about 7.15 pm did fail to make the declaration as required by Section 37 of the Customs Act, Cap 70 on importation of taxable goods from Hong Kong, to Singapore by Flight CX 735 at Singapore Customs Duty Office, Terminal 1, Singapore Changi International Airport, Singapore, to wit, 2 lots of assorted jewelleries, valued at $4,908.10 on which the Goods & Services Tax of $245.40 was not paid, and you have thereby, by virtue of sections 26 and 77 of the Goods and Services Tax (Cap 117A), paragraph 3 of the Goods and Services Tax (Application of Legislation Relating to Customs and Excise Duties) Order (Cap 117A, Order 4) and paragraph 2 of the Goods and Services (Application of Customs Act) (Provisions on Trials, Proceedings, Offences and Penalties) Order (Cap 117A, Order 5), committed an offence under Section 128(1)(f) of the Customs Act punishable under Section 128(1)(f) of the same Act.

The statutory provisions

7 At this juncture, it would be helpful to set out the salient provisions of the legislation referred to above. GST on imports is charged and collected using the provisions of the Customs Act (Cap 70, 2004 Rev Ed). The Goods and Services Tax Act (Cap 117A, 2001 Rev Ed) (“the GST Act”) brings in the Customs Act by virtue of ss 26 and 77 of the GST Act, para 3 of the Goods and Services Tax (Application of Legislation Relating to Customs and Excise Duties) Order (Cap 117A, O 4, 2001 Rev Ed) (“GST Order 4”) and para 2 of the Goods and Services Tax (Application of Customs Act) (Provision on Trials, Proceedings, Offences and Penalties) Order (Cap 117A, O 5, 2001 Rev Ed) (“GST Order 5”).

8 These provisions are as follows:

(a) GST Act:

Application of Customs Legislation

26.—(1) Except where the contrary intention appears, any written law relating to customs or excise duties on imported goods shall, with such exceptions, modifications and adaptations as the Minister may by order prescribe, apply (so far as relevant) in relation to any tax chargeable on the importation of goods as it applies in relation to any customs or excise duties.

(2) Without prejudice to the generality of subsection (1), the Director-General of Customs may, by virtue of that subsection, exercise any power conferred on him by any written law relating to customs or excise duties (including the power to issue permits and impose conditions on the import, export, transhipment and removal of goods) as if the reference to customs duty or excise duty in that written law included a reference to tax chargeable on the importation of goods.

(3) In this section, “any written law relating to customs or excise duties” means —

(a) the provisions of the Customs Act (Cap. 70);

(b) the provisions of the Postal Services Act (Cap. 237A) relating to customs or excise duties on postal articles; and

(c) any other provision of any written law relating generally to customs or excise duties on imported goods.

Proceedings for offences and penalties under Customs Act

77. Parts XIV and XV of the Customs Act (Cap. 70) (Provisions as to Trials and Proceedings; and Offences and Penalties) and such other related provisions of that Act as the Minister may by order specify shall apply, with such exceptions, adaptations and modifications as may be prescribed in that order, in relation to offences under this Act (which include any act or omission in respect of which a penalty is imposed) and penalties imposed under this Act as they apply in relation to offences and penalties under the Customs Act as defined in that Act; and accordingly in those provisions as it applies by virtue of this section the reference to customs duty or excise duty shall be construed as a reference to the tax.

(b) GST Order 4:

Application of Customs Act

3. The following provisions of the Customs Act (Cap. 70) shall, with such modifications and adaptations as are specified in paragraphs 4, 5, 6 and 7, apply to tax chargeable on the importation of goods as they apply in relation to customs or excise duties:

(a) Part I (except section 2 (a));

(b) Part II (all sections);

(c) Part III (only sections 11, 12, 16, 19, 20, 21, 27 and 28);

(d) Part IV (all sections);

(e) Part V (except sections 43 and 46);

(f) Part VI (except section 49);

(g) Part VII (only section 69);

(h) Part X ;

(i) Part XII (except section 100);

(j) Part XIII (all sections);

(k) Part XIV (all sections); and

(l) Part XV (except sections 131, 133, 134, 135, 136 and 136A).

(c) GST Order 5:

Application of Customs Act

2. Parts XIV and XV (with the exception of sections 131, 133, 134, 135, 136 and 136A) of the Customs Act (Cap. 70) shall apply to trials, proceedings, offences and penalties in relation to offences under the Act as they apply in relation to offences and penalties under the Customs Act as defined in that Act.

9 Under s 26 of the GST Act, the provisions of the Customs Act apply to any tax chargeable on the importation of goods as they apply in relation to any customs and excise duties, subject to any exceptions, modifications and adaptations as the Minister may prescribe. In relation to the germane provisions in the present appeal, sub-paras 3(d), (k) and (l) of GST Order 4 respectively provide that all of Parts IV and XIV as well as certain sections of Part XV of the Customs Act shall apply to GST on imported goods as they apply to customs or excise duties. As such, s 37 (the requirement to make a declaration on imported dutiable goods), s 123 (disposal of goods seized) and s 128 (penalties on making incorrect declarations and on falsifying documents) of the Customs Act are duly applicable to the GST regime.

10 The relevant sections of the Customs Act state:

Declaration

37. Every importer or exporter of dutiable goods and every person transhipping goods of a class dutiable on import shall, before removing any such goods or any part thereof from customs control or from any of the following places (whether or not the goods are under customs control):

(a) the vessel on which the goods arrived;

(b) the customs airport at which the goods arrived;

(c) the customs station along the railway at which the goods arrived;

(d) any customs station at Woodlands or Tuas if the goods were brought into Singapore by road; or

(e) the free trade zone in which the goods were deposited or landed,

make personally or by his agent to the proper officer of customs a declaration, in accordance with section 96, of the particulars of the goods imported or exported or to be transhipped.

Court to order disposal of goods seized

123.—(1) …

(2) An order for the forfeiture of goods shall be made if it is proved to the satisfaction of the court that an offence under this Act has been committed and that the goods were the subject-matter of, or were used in the commission of, the offence, notwithstanding that no person may have been convicted of the offence.

Penalty on making incorrect declarations and on falsifying documents

128.—(1) Any person who —

…

(f) being required by this Act to make a declaration of dutiable goods imported, exported or transhipped, fails to make the declaration as required; or

…

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or the equivalent of the exact amount of customs duty, excise duty or tax payable, whichever is the greater, or to imprisonment for a term not exceeding 12 months or to both.

11 In practice, GST on imports in Singapore is collected and administered by the Customs and Excise Department of the Immigration and Checkpoints Authority. This is not unique to Singapore. The learned annotators of the Butterworths’ Annotated Statutes of Singapore vol 9(2) (Butterworths Asia, 2000) explain at p 21 that:

For effective collection of the tax at the point of importation, VAT (or GST) regimes the world over collect the tax on importation of goods through their...