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Defendants acquitted of unexcisable goods possession charge (2019)

BY Fadley Faisal

Hotel Associates Sdn Bhd and Jerome Jean van Helden were both acquitted by the Magistrate’s Court on November 26, of the charge of ‘knowingly having in their possession unexcisable goods’ under S 146(1) of the Excise Order 2006.

The charge was brought following an inspection by the Royal Customs and Excise Department at Radisson Hotel on December 4, 2018, where 92 bottles of liquor and 144 cans of beer were found stored at the Business Class Lounge on the sixth floor of the Radisson.

The lounge is a private area accessible only by guests staying in business class rooms and private members.

The necessary elements of the charge were that the alcohol was unexcisable; the defendants were in possession of the alcohol; and they had knowledge that the alcohol was unexcisable.

At the trial, the defence adduced evidence to show that substantially all of the alcohol found by Customs at the Radisson belonged to foreign guests, and that neither Hotel Associates nor van Helden had reason to believe that the alcohol had not been lawfully declared to Customs authorities when brought into Brunei.

Also, the alcohol was stored only at the request of the foreign guests, and the Radisson could not dispose of the alcohol except with the owners’ permission.

Under Brunei law, passengers travelling into the country are granted an exemption from paying excise duty on alcohol that they bring, which is limited to two bottles of liquor, wine or spirits, and 12 cans of beer.

Deputy Public Prosecutor Siti Nurjauinah binti Haji Kula submitted that this exemption is subject to a number of conditions, such as the condition to store the exempted alcohol at the passenger’s place of residence.

After hearing full arguments from the prosecution and the defence, Magistrate Dewi Norlelawati binti Haji Abdul Hamid determined that the storage of the alcohol at the Radisson had not breached any conditions of their exemption and so was not ‘unexcisable’.

The Magistrate held that for foreign guests having no residential address in the country, the Radisson was a valid ‘temporary residence’ for the purposes of the exemption. It followed that the Business Class Lounge formed part of the ‘temporary residence’ of the Radisson’s foreign guests who had paid for the privilege. To establish ‘possession’, there must be a transfer of ownership and an intention to deal with the alcohol as owners to the exclusion of all others.

The Magistrate found that neither the Radisson nor the defendants had treated the alcohol as their own, especially as it was shown that expired alcohol from 2015 had not been disposed of and had continued to be stored by the Radisson. On the element of ‘knowledge’, the Magistrate determined that there were no characteristics of the alcohol to suggest or impute knowledge on the defendants that the alcohol was unexcisable.

As none of the elements of the charge had been established, the Magistrate ruled that neither Hotel Associates nor van Helden had committed an offence under S 146(1) of the Excise Order 2006.

Hotel Associates and van Helden were defended by defence counsels On Hung Zheng and AJ Wong of CCW Partnership.

-- Courtesy of Borneo Bulletin


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