Businessman escapes $11 million fine with $1.3 million payment

Barbara Gayle, Staff Reporter

A KINGSTON businessman who was fined $11.1 million by the Corporate Area Tax Court for breaches of the Customs Act has been ordered by the Court of Appeal to pay only $1.3 million because there was insufficient evidence to support most of the charges brought against him.

David Chin, businessman and a director of David Incorporated, was convicted on August 31, 1998 at the end of a trial which lasted over a period of 21 months.

He was convicted of nine offences of being knowingly concerned in the fraudulent evasion of import duties on edible oil. He was convicted of a further nine offences of being knowingly concerned in bringing into the island restricted goods, namely, edible oil, in a manner contrary to restrictions imposed by the Coconut Industry Aid Act.

Resident Magistrate Owen Parkin ordered Mr. Chin to pay a total of $11,109,176.58 or two years imprisonment. The RM ordered Mr. Chin to pay $1,624,835.40 within six weeks after the sentence and thereafter the balance was to be paid at a rate of $300,000 per month until the amount was liquidated.

Mr. Chin gave verbal notice of appeal and the RM suspended payment pending the outcome of the appeal. The records of the proceedings at the trial were filed at the Court of Appeal Registry in January last year.

The prosecutions case was that Mr. Chin imported edible oil from Sunlight Foods incorporated of Miami, United States. When the oil was to be cleared, Mr. Chin submitted false invoices and permits to his custom broker James Lue Shim. The invoices had undervalued statement of the prices of the goods. On the strength of the documents submitted by Mr. Chin, Mr. Lue Shim's company prepared C78 forms which were necessary for clearing goods valued at US$1,000 or more at the Customs Department.

The prosecution relied heavily on documentary evidence as well as on the oral evidence of Francois Huttin, vice president of Sunlight Foods Incorporated, several persons employed in the Customs and Revenue Protection Departments, several clerks employed to shipping companies and Leslie Dick, a handwriting expert who is a member of the Forensic Science Society in the United Kingdom. Dick gave evidence as an "independent examiner of questionable documents."

Challenged

Lawyers representing Mr. Chin at the trial and before the Court of Appeal vigorously challenged the admissibility of most of the documents that were admitted in evidence at the trial. Mr. Chin, in an unsworn statement, had declared his innocence. He denied that he was an importer of goods at the time of the alleged offences. He said the Revenue Protection Department had malice towards him.

He told the court that the vice president of Sunlight Foods Inc. had a poor disposition towards him due to his refusal to settle debts allegedly owed by his father to Sunlight Foods. Mr. Chin denied giving the customs broker, Mr. Lue Shim, any instructions to prepare an entry for him. He also denied signing any document aimed at evading customs duties. He said he had no connection with the importation of any goods that required a licence from the Coconut Industry Board.

The RM found that Mr. Chin dealt personally with the business of the company David Incorporated of which he was a director and that he placed orders and had frequent discussion with the vice president of Sunlight Foods Inc. The RM found that Mr. Chin was an importer using the names of other companies namely Dee Tee Marketing, Real Farms Ltd. and Sam Halls Enterprises and that he had used the services of Mr. Lue Shim, a licensed custom broker. It was the RM's finding that the invoices were false and did not originate from Sunlight Foods Incorporated. In relation to certain questioned writings, the RM accepted the evidence of Leslie Dick whom he found to be a competent handwriting expert.

Mr. Chin who was represented on appeal by Ian Ramsay, QC, and attorneys Jacqueline Samuels Brown and Deborah Martin, challenged the convictions on several grounds , one of which was that the convictions recorded by the RM were based substantially on inadmissible documentary evidence and therefore could not stand in law.

Mr. Ramsay argued that nine particular informations should be dismissed because the prosecution had two separate Acts in the same information. He said the nine informations read that Mr. Chin "was knowingly concerned in bringing into the island restricted goods, namely, a quantity of edible oil vide entry #... in a manner contrary to restrictions imposed by section 4(1) of the Coconut Industry Aid Act, contrary to section 210(1) of the Customs Act."

The Court of Appeal comprising the Hon. Ian Forte, President of the Court of Appeal, Justice Donald Bingham and Justice Seymour Panton agreed with Mr. Ramsay that it was impermissible for the Crown to combine the two Acts in the informations. "The Crown had two choices - to prosecute under either the Coconut Industry Aid Act, or the Customs Act certainly, not both," the court said.

However, the court said the appropriate course in Mr. Chin's case was not to dismiss the informations as requested but rather to amend the informations by deleting references to the Customs Act and substituting section 6 of the Coconut Industry Aid Act as the penal section. The Court said that the power to amend was provided for in section 302 of the Judicature (Resident Magistrates) Act. "The result therefore is that the fines imposed by the learned Resident Magistrate would be set aside and a fine of $200 or three months' imprisonment substituted on each information," the court ruled.

Reviewing

In reviewing Mr. Lue Shim's evidence, the court said that he testified that he did business for Mr. Chin but invoices were sent to him by Mr. Chin's bearer. The court said that so far as direct contact with Mr. Chin was concerned, Mr. Lue Shim said Mr. Chin came to his office once and provided him the invoice and bill of lading and asked him to clear a particular shipment. "However, the transcript does not reveal which shipment this related to, so, in view of Mr. Lue Shim's earlier evidence that he had cleared items other than edible oil for the appellant, the importance of this evidence withers into nothingness, in the context of the case. It ought not to be forgotten that the appellant faced charges that related to edible oil only," the court said.

The Court found that the handwriting expert, Leslie Dick had said it was "highly likely" that the signatures and dates on the nine Sunlight Food invoices were written by Mr. Chin. The Court of Appeal said it was apparent the he was thereby informing the court that his findings were not conclusive. Mr. Dick's evidence fell well short of the required standard of proof and could not be used to support the convictions, the court ruled.

The court ruled that Mr. Chin's appeal was allowed in part and quashed the convictions and set aside the sentences in respect of all informations except four. On two informations the fines of $667,188.09 or two years imprisonment and $705,497.13 or two years imprisonment were affirmed. On the other two informations, the sentences were varied to a fine of $200 or three months imprisonment each.

Paula Tyndale, Assistant Director of Public Prosecutions and Ann-Marie Feurtado-Richards, Crown Counsel, represented the Crown.

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