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Colonial Cases

The Fatshan, 1888



The Fatshan

Consular Court, Canton

Alabaster, 8 October 1888

Source: North China Herald, 16 October 1888



            Mr. Alabaster, H.M. Consul at Canton, gave judgment in this case on the 8th inst.  The judgment is so important, it being a test one, that we give it in full:-

   The Consul said:-

   This is a case in which the master of the British ship Fatshan is charged under Article XXXVII of the Treaty of Tientsin with the criminal offence of presenting a false manifest.  It is shewn that there is no mention in the manifest in question of 36 tins of opium discovered hidden away on board, and that 25 bundles of dried fish, part of the cargo, are described wrongly as 25 basket of dried fruit; and, on this showing, it is argued that the master is liable to a fine of Tls. 500.

   I do not agree with the contention I understood the learned Attorney-General to make, that the manifest is only required to contain a statement of the goods on board for which shipping documents are issued and freight paid, but I cannot uphold the contention of the prosecution hat it must contain a true and accurate description of everything on board not belonging to the ship, without exception.  Indeed the prosecution admitted that passengers' luggage which in these vessels is often more in quantity than the cargo carried, is not required to be entered in the manifest; and there are many more exceptions by general usance and understanding, such as mail bags, parcels, &c. But it is clear to me that the manifest must at least contain a full, and to the best of the master's ability, accurate account of all packages of dutiable articles carried on board with the master's knowledge; and if therefore it had been shewn that the master knew that the 36 tins of opium were being carried on board, or even that, while as it appeared he did not as a matter of fact know of their presence, he ought to have known, I should have convicted him.  But it is not even alleged that he knew the opium was there, and it is shewn that it was so artfully concealed that a trained search party could only discover it when the precise locality was pointed out to them; and it can be inferred therefore that no ordinary search on the part of the master, after it had come on board, would have led to his detecting it; and it is shewn, moreover, that he took proper precautions to prevent it being smuggled on board by engaging a watchman specially for the purpose; and it is clear to me that his failure to have had knowledge of it is due, not to default on his part, but to thre corruption of those on whom he had to rely.  It paid those whose duty it was to have known of the opium, and who actually did know it was there, better to act as informers for the customs than to inform the master; and so long as the ship's employees are paid by the Customs to act as informers for them, it is evident that the masters of these vessels will be helpless and unable to prevent recurrences of these cases.

   As regards the cases referred to by the prosecution, I do no find that they support the contention.  In the case of the Taiwan - which is the only case in which the Consul's  decision is before me - in which the circumstances were very similar to those in the present case,  save that the quantity of opium was about three times as much, the Consul acquitted the captain, and his decision was upheld.  In the other two cases to which the prosecution especially refers me no prosecution appears to have been entered; and as decisions therefore they cannot be quoted; but if they had been cases decided in Court they do not seem to me at all similar to the present.  In the case of the Douglas, the Captain paid a fine to the Customs of Taels 50, having 66 packages of merchandise on board not entered in his manifest; and in the case of the Haiphong, the Captain paid a similar fine to the Customs, having 127 packages in excess.  Indeed neither they nor the numerous other cases to which Mr. Spinney refers me even sustain the contention, that they shew conclusively that in the general understanding of the mercantile world in China, the Captain is liable to a fine for  false manifest, if smuggled goods, like this opium, are found on board his vessel. I having gone through some thirty of those he has specially marked, but they only shew that in many cases in which there were mistakes in the manifest, or some smuggled goods found on board, the merchants have preferred paying small sums of Taels - Taels 1, Taels 5 or Taels 10 - to the Customs, rather than delay their ships and put themselves to the trouble and expense of a case in Court.

   Indeed the report he refers me to, the list of fines and confiscations at Canton, October to December, 1886, shews conclusively that in practice here, it has not been considered by the Customs even that the concealment of opium on board by the crew of the vessel constitutes a case of presentation of false manifest; for in 146 such cases, in over 30 of which quantities of a quarter of a picul or over, and in four cases over a picul and a half, and in one, two piculs and a half of opium were seized, the Customs levied a trifling fine, not for presenting a false manifest, but for concealing dutiable imports on board; and the only two cases they enter as cases of presenting false manifests are one in which a box of goods, and in another six bales of goods, were discovered, which were not in the manifest.

   I need not say that the cases are not authorities in the sense of judicial decisions, but they bear out the contention of the defence, that as regards the opium there was no obligation on the part of the master to put it in the manifest, though as the seizure was made before the manifest was presented he might easily have done so. As regards the omission to enter the opium in the manifest, I can find no evidence of guilty knowledge, shewn or presumable, of intent to deceive, shewn or presumable, or of want of due care, or, disregard of the regulations in force in regard to manifests; and as regards that portion of the charge I have no hesitation in acquitting him.

   As regards the other part of the charge, in the manifest originally handed in there was an undoubted error in that 25 baskets of dried fish were entered as 25 baskets of dried fruit; and it is argued that as this error was not corrected by the master within 24 hours, it has been clearly laid down in previous cases that he is liable to the full penalty without further question.  If there had been any intent to deceive shewn or presumable, the master would have been clearly liable to the fine under the Treaty; and there are cases which to some extent seem to support the contention of the Customs more fully.  Thus a dealer in tobacco has been held liable under 5 and 6 Vict. c. 33. For having in his possession adulterated tobacco, though ignorant of the adulteration; and the  well-known dictum that the intent to break a law must be inferred from the simple infraction would also seems to support this view; but, the cases, as far as I have seen them, only appear to me to lay down that if there is negligence the guilty intent will be inferred; but as laid down in A.G. v. Sillen, 2 H & C 435, it cannot properly be  said that a man does an act with intent, unless he intends to bring about the thing intended, or the act is particularly fitted to do so. He cannot be found guilty of deceiving unless he intend to deceive or does something eminently calculated to do so.

   If the error had been shewn to be from want of due care on Captain Goggin's part or neglect to do something he ought to have done, if it was done with intention to deceive the Customs, or was particularly fitted to do so, if even there had been reason to suspect him of evil intentions, I might probably have convicted him; but the intention is not alleged and is positively refuted by the circumstances.  It is not like the cases quoted where a number of packages of cargo in excess of those in the manifest were found on board and it was shewn that the omission was due to want of care on the part of the master; it was not intended to deceive or calculated to deceive, as the Customs were furnished at the same time with a true and accurate statement in regard to the cargo in question; but, as sworn to by one of the witnesses of the prosecution, who could speak with authority on the point, it was simply a clerical error; and so palpable was it, that the Customs' officer who discovered it did not, as is shewn to be usual in cases of mistake, even draw the master's attention to it.

   Errors must occur from time to time, and if they are intentional or presumably intentional, for intention will be presumed where there is shewn to have been a neglect of proper care, the heavy penalty laid down in the Treaty may rightly be imposed, but where it is clear that it is merely an accidental error, where it is shewn that there has been no want of proper care, it is absurd to say that the charge of presenting a false manifest should lie. Actus non facit reum nisi mens sit rea; and believing, after full consideration, that the defendant is innocent I acquit him on this portion of the charge also.  The charge is dismissed. - Daily-Press.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School