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Republic v Chen Jian Ping [2016] NRDC 18; Criminal Case 30 of 2015 (19 March 2016)

IN THE DISTRICT COURT OF NAURU
CRIMINAL JURISDICTION

Criminal Case No. 30 of 2015

REPUBLIC

V

CHEN JIAN PING

Date of hearing: 17, and 18 March 2016
Date of Ruling: 19 March 2016

Mr. Livai Sovau for the Republic
Mr. Vinci Clodumar for the defendant

RULING

1. The defendant is charged with 1 count of making a false declaration contrary to section 243(4) (a) of the Customs Act 2014. Section 243(4)(a) of the Customs Act 2014 reads:
   

"A person commits an offence who makes a false declaration under this Act knowing it to be false;"[1]

2. The defendant is also charged with 1 count of defrauding the revenue of customs contrary to section 252(1)(a) of the Customs Act 2014. Section 252(1)(a) of the Customs Act 2014 reads:
   

"A person commits an offence who does any act or omits to do any act for the purpose of...evading or enabling any other person to evade, payment of duty or full duty on goods"[2]

The particulars of the offence read:

"Chen Jian Ping on the 15 of September 2015 at Nauru omitted to declare to the department of customs and revenue that he was importing 1009 sleeves of Chinese cigarettes which were dutiable to evade payment of tax on the said cigarettes"[3]

3. After the prosecution had called four witnesses Mr. Sovau applied to have the particulars of the offences alleged by way of deleting the words "on the 15 September 2015" and inserting "between the 15 September 2015 and 14 October 2015". The proposed amendment as sought by the prosecution would therefore read:
   
   1. For count 1: "Chen Jian Ping between the 15 September 2015 and 14 October 2015 at Nauru made a false declaration under the Customs Act 2014 in declaring the description and statement of goods in Bill of Lading No. MATCAN 00349 from China containing only sanitary napkins, commodity and other mixed general goods which he knew to be false as it contained 1009 sleeves of Chinese cigarettes"[4]
      
   2. For count 2: "Chen Jian Ping between the 15 September 2015 and 14 October 2015 at Nauru omitted to declare to the department of Customs and Revenue that he was importing 1009 sleeves of Chinese Cigarettes which were dutiable to evade payment of duty on the said cigarettes."[5]
      
4. Mr. Clodumar objected submitting that if the amendment as sought by the prosecution is allowed, then the defendant will be prejudiced in that he has been misled by the prosecution as to the date on which he is said to have committed the offence.
   
5. The effect of the amendment sought by the prosecution relates to the dates on which the offences as charged is said to have been committed by the defendant. The concerns raised by Mr. Clodumar are valid concerns that in my view could be sufficiently addressed by way of allowing the defense to re-call and have any witnesses cross-examined if it seeks to do so.
   
6. For the prosecution to submit that the amendment sought merely relates to a change in the date is not correct. I accept Mr. clodumar's submission that if granted there will be such a variance which will require that the amended charge be put to the defendant.
   
7. The amendment sought is granted and the defendant will be arraigned on the amended charge.
   

Dated this 19 day of March 2016

Emma Garo
Resident Magistrate

^[1] Section 243(4)(a) of the Customs Act 2014
^[2] Section 252(1)(a) of the Customs Act 2014
^[3] Particulars of the offence charged as contained in the charge filed with the court on the 15 October 2015
^[4] Particulars of the proposed amended charge
^[5] Particulars of the proposed amended charge