Ship captain fined €600 over discovery of three million 'contraband cigarettes' onboard

Magistrate expresses reservations about, but follows, recent judgements by the Court of Criminal Appeal in similar cases

File photo
File photo

A court has fined the captain of a merchant ship €600 for submitting a false declaration in administrative paperwork after customs officials discovered mastercases containing over three million contraband cigarettes. However, the court cleared him of more serious charges after ruling that it hadn't been shown that the items seized were in fact, cigarettes.

Magistrate Ian Farrugia presided over the case in which prosecuting police inspector Daryl Borg charged Mario Cardona, captain of the MV Alice with attempting to evade duty and tax and knowingly receiving or transporting the contraband cigarettes, as well as .knowingly omitting a substantial detail in his declarations to the Maltese authorities.

The MV Alice had docked in Malta on June 29, 2014, with its captain, Mario Cardona and four other crew members on board.

As per normal procedure, the ship’s local Agent had gone aboard the ship to inspect its IMO declaration, which stated that there was nothing to be declared except gas, oil and fuel. But not long after Caruana had disembarked the ship and gone home, Customs officials boarded the ship and discovered a large stockpile of cigarettes in the ship’s stores, close to the crew’s living quarters.

The captain was summoned to the ship, together with its owner, Philip Cardona, so that customs officers could continue to search the vessel in their presence. Another six master cases of American Legend cigarettes were subsequently discovered in the steering room. A total of 318 master cases of cigarettes were found.

A master case normally contains approximately 10,000 cigarettes in 500 packets of 20. 318 mastercases would therefore contain 3,180,000 cigarettes.

Mario Cardona insisted that he had not known about the master cases, also claiming that the cigarettes were used as “tips” to reward the crew.

Deciding the case, the court noted that it was accepted in practice that the IMO declaration is the responsibility of the captain or owner of the vessel. In his case, the owner was not at the helm, noted the magistrate, adding that it had clearly emerged that captain Mario Cardona had been in command of the ship during its voyage from Libya and docking in Malta.

It was the captain’s responsibility to ensure that the IMO declaration was a faithful reflection of everything on board the ship. His denial and explanation about the undeclared cigarettes were “not convincing and in no way exculpatory,” ruled the court.

The magistrate, however, also noted that the defence had argued that no evidence had been exhibited to show that the objects around which the case centred were in fact cigarettes.

“This Court is of the humble understanding that the finding of untaxed cigarettes is to be treated as a whole…therefore that whole should be taken to have been sufficiently proven by the prosecution.” From that point onwards, it is up to the accused to bring evidence that the duty had been paid, said the court, adding that it was also up to the accused to back up his assertion that the objects discovered were not cigarettes.

However, criteria had been established by the Court of Criminal Appeal in recent judgments which had been cited by the defence, noted the court, which required the exhibition of evidence relating to the cigarettes themselves, which had not been done in this case. "This court, with all due respect, has its reservations about the interpretation made by the Court of Criminal Appeal on this point of displacement of the evidence," the magistrate pointed out.

With apparent reluctance, the court held that “with this evidentiary obstacle in place, the natural consequence of the evidence emerging in the proceeds is that the accused cannot be found guilty of the first two charges,” which dealt with smuggling and concealing contraband cigarettes.

Guilt was therefore found only on the third charge, that of participation in the making of a substantially false declaration in the administrative paperwork submitted to the port authorities.

For this administrative failure, the court fined Cardona €600, of which €200 was to be paid immediately to the Director General of Customs.

Lawyers Alfred Abela and Franco Debono were defence counsel.