A man, convicted 12 years ago over five boxes of allegedly contraband cigarettes, was cleared on appeal because the prosecution did not prove that the boxes had been opened to confirm the illicit origin of the merchandise.

Anton Mallia, 45, had been arrested one morning back in January 2008 after the police caught him in the act of transferring five boxes from his car to the car of a friend, close to Crucifix Hill, Floriana.

Both men were arrested and the boxes confiscated.

The police had been tipped-off about suspect drug activity taking place in that area; however, the suspect packages turned out to be cigarette boxes, allegedly
containing 50 cartons per box, each carton containing 200 Rothmans Blue cigarettes.

The two men were prosecuted.

In July 2016, Mallia was found guilty of possession and handling of the contraband goods and was handed a six-month jail term suspended for one year, together with a €600 fine.

The matter did not stop there.

When proceedings moved on to appeal stage, the appellant’s lawyer argued that the illicit origin of the goods had not been proved.

Mallia, a self-declared heavy smoker, testified, explaining how he had once overheard a fellow patron at a Żebbuġ coffee shop talk about “good quality” cigarettes for sale.

Expressing interest, Mallia had been told that the minimum amount sold was the equivalent of Lm2,000 (€4,660).

A deal was clinched and Mallia soon bought his stock of cigarettes, later declaring that “it had never crossed his mind” that the merchandise could be contraband.

He had subsequently handed the boxes over to his friend for the latter to drop them off at Mallia’s home, while the latter planned to head on to Valletta
for errands.

That was when police intercepted the men.

The Court of Criminal Appeal, presided over by Mr Justice Giovanni Grixti, observed that there was not a single piece of evidence to show that the sealed boxes had actually been opened to confirm whether the merchandise bore the customary stamp, indicating that duty had been paid.

The receipts and seizure note, issued by police and customs authorities, simply gave a description of the contents.

The court could not understand how, all throughout the proceedings, no witness was ever summoned to declare that the boxes had been opened and that the illicit origin of the goods actually verified.

Since the boxes had not been physically presented in court, the judge himself could not verify this fact.

Mallia’s own testimony was marked by uncertainty since he too declared that he was not sure as to what he had actually bought, since the boxes had never been opened in his presence.

A customs official had declared that the value of the cigarettes and the relative duty and VAT owed had been calculated in line with the value of imports by
various agents from different countries, according to the database of the department.

This led the court to conclude that the only reference to the unpaid duty was that found in the charge, which was nothing but an allegation, yet to be proved.

After also discarding Mallia’s police statement, released without legal assistance, the court said that since the illicit nature of the cigarettes had not been proved, Mallia was to be acquitted and no order for confiscation could stand.

Lawyer Stefano Filletti assisted Mallia.