Customs Guard freed by Full Court, restored by Appellate Court

THIS was the fate of Customs Guard Perez. In the absence of the Customs Officer he received money from a businessman as revenue on a gift imported into the country, which was not taken into account.
As a consequence he was found guilty of – Embezzlement by a public officer – .
It all happrned in the Ramjattan v- Bernari { British Caribbean Court of Appeal – Criminal Jurisdiction (Gomes,P.,Lewis and Jackson, JJ. A.) July 17, 18. 1962.]
A customs guard , having no official duty to do ,so, collected from one Kissoon Singh a payment of duty on certain articles imported into the country , and made out and delivered a receipt therefore.

He thereafter handed over the money to the respondent , an officer of Customs and Excise , whose duty it was to collect such money, but who had been absent earlier when payment was made to the customs guard.
The respondent failed to pay over the money into revenue and was convicted of the offence of embezzlement by a public officer, the case having been tried summarily by consent.
The conviction and sentence were set aside on appeal to the Full Court which held that it was not part of the duties of the customs guard to receive the money, and that when he paid it over to the respondent but a receipt was not made as a receipt of money entrusted to him by virtue of his employment . (See 1962 LR.B.G.331). On appeal by the prosecution,

Held: Although the customs guard was not authorised to receive the payment , KS’s intention was that the money should be paid into revenue and his intention was carried out when the customs guard paid it over to the respondent who admittedly was authorised to receive it on behalf of the Government . At that moment the money is the property of the Government and in failing to hand it over to the Government the respondent was guilty of embezzlement.

E.A. Ramao ,Senior Crown Counsel, for the Appellant.
A. S. Manraj for the Respondent.
GOMES, P. : This is the judgment of the court. This appeal raises a question of law .The facts are not in dispute but they may be stated very briefly for the purposes of this appeal. They
are these.
A man by the name of Kissoon Singh arrived as a passenger at a port of entry bringing with him some gifts. The customs duty on the gifts was assessed in the sum of $10. At that moment the respondent , the customs officer who is authorised to assess and receive customs duty was absent, but a customs guard by the name of Perez was holding on for him in his absence . The sum of $10 was paid by Kissoon Singh by way of customs duty to the customs guard, Perez.

It was admitted that Perez was not a person authorised to assess or collect customs duty. He had, however, in the absence of the authorised officer received the amount and he gave a provisional receipt therefore to Kissoon Singh. Later on, when the Customs officer arrived , Perez paid over the $10 to him in order that it might be paid in to the proper destination, that is to say , paid into the revenue.

The respondent , having failed to bring the matter to account into revenue, was charged with embezzlement . He was convicted by the magistrate and the Full Court after hearing arguments , allowed the appeal and quashed the conviction. (1962 L.R.B.G. 331).
From that decision of the Full Cour,t the Crown has appealed to this cour . Giving the reasons for decision the Full Court inter alia stated:

“The question for consideration is whether the appellant by failing to pay to his employers , the colony of British Guiana the sum of $10 given him by Perez is guilty of the offence of embezzlement by a public officer. In so far as Perez is concerned, he was employed as a customs guard and it was not part of his duties as a customs guard to receive monies or give receipts. It was the duty of the appellant to collect monies paid as duty on articles coming into the colony. Perez might be a bailee of the money received from Kissoon Singh and would hold the money in trust for him, but he would not have been entrusted with the money as a public officer within the meaning of s. 191 of the Ordinance . The money would be still the property of Kissoon Singh and not that of the Government of British Guiana . Perez would not have been entrusted with the money by virtue of his employment as a customs guard even though the appellant may have asked him to receive such moneys.”
If we may say so with respect we agree entirely with that part of the judgment of the Full Court. That court , however , went on to say –
“the facts that Perez paid over the money to the appellant does not make the receipt by the appellant a receipt of money entrusted to the appellant ( who is now respondent ) by v irtue of his employment. “

This court does not agree with that view. When the money was paid by Kissoon Singh , it was paid with the intention that it should be paid into the revenue as customs duty.
Although the payment to Perez was ineffective as he was not an authorised officer to receive it , Kissoon Singh’s intention was carried out when Perez paid it over to the respondent who admittedly received it in his capacity as a customs officer and as a person authorised to receive it on behalf of the Government.
This is where we consider the Full Court fell into error for when Perez paid mover the money he performed that which he undertook to do when he became the bailee of Kissoon Singh, from whom he received the money

The respondent in this court failed to pay over the money and thereby intercepted it before it came into the possession of his employer.
In such circumstances we consider him guilty of embezzlement . For these reasons the appeal is allowed and the order of The Full Court is set aside and the conviction and sentence restored .
The court considers that the appellant is entitled to costs . The appellant will therefore have the costs in this appeal and of the Full Court. Appeal allowed.