REPUBLIC OF TRINIDAD AND TOBAGO

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE SAN FERNANDO Claim No. CV BETWEEN RAVENDRA KEMAT BRIDGLAL Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Madam Justice Donaldson-Honeywell. Dated the 7 th June, 2016 Appearances: Mr. Anand Ramlogan SC, Ms Jayanti Lutchmedial, Mr. Chaitram Bhola and Mr. Kent Samlal for the Claimant Mrs Tinuke Gibbons-Glen, Ms Leah Thompson, Ms. Shanna Lutchmansingh and Ms. Ryanka Ragbir for the Defendant DECISION Introduction and Background Facts: 1. The Claimant, by way of Constitutional Motion, seeks redress for an alleged violation by the Defendant of his rights to protection of the law arising from circumstances whereby he was deprived of his property, namely cash. The cash was seized by the State pursuant to an investigation under the Proceeds of Crime Act, Chap. 1:27 [POCA]. POCA is a central cog in the State s new and evolving legislative machinery introduced to further the Page 1 of 25

2 globally recognised goal of defeating money-laundering and other offences that fuel the growth of organized crime and terrorism worldwide. 2. The Claimant was detained by airport security personnel on 28 January, Upon investigation Seventy-Four Thousand United States Dollars (US$74,000.00) undeclared cash found in his suitcase was seized pursuant to S.154 of the Customs Act, Chap. 78:01 (as amended) and the POCA. 3. The Investigating Customs and Excise Officer III, Richard Smith applied to a Magistrate for a Detention Order for the seized sum of money pursuant to S.38 (2) POCA and it was granted on 31 January, During the course of investigations, Mr. Smith applied for five more detention orders pursuant to S.38 (3) POCA which were granted by the Magistrate. The investigation was completed by July, 2015 and Mr. Smith applied for the release of cash pursuant to S.38 (7) (a) (ii) of POCA. The Magistrate granted the application for release on 23 July, More than one month after, to the filing of the present claim, on 16 th November, 2015, the principal sum was on December 23, 2015 returned to the Claimant without the interest, which still remains due. The Claimant now seeks the following redress: a. A declaration that the Claimant s right to use and enjoy his property and not be deprived thereof except by due process of law under S.4(a) of the Constitution was violated and breached; b. A declaration that the Claimant s right to protection of the law under S.4(b) of the Constitution was breached by virtue of the failure of the Defendant to make Regulations to prescribe the necessary forms under S.38(4C) and/or (7A) POCA; and c. Damages. 5. An identical claim was filed against the State in San Fernando by Primnath Geelal and Dhanrajie Geelal. The claim has not yet been determined but is awaiting a decision of the Court of Appeal on disclosure before the trial continues. 6. The main thrust of the Claimant s complaint is that his rights not to be deprived of his property without due process and protection of the law have been breached as the Magistrates had no power to make the detention orders in the absence of prescribed forms. Furthermore, the Claimant contends that with or without forms the Magistrate was required Page 2 of 25

3 to state the grounds for detention so that, in keeping with Natural Justice, the Claimant could have sufficient information to know what to put in an application for release of the funds on the basis that detention was no longer justified. The Claimant also submits that the delay in returning the cash after the Magistrate ordered it released and the continued failure of the Defendant to pay interest thereon as prescribed by law is also unconstitutional. The POCA provisions: 38. (1) A Customs and Excise Officer of the rank of Grade III or higher, or a Police Officer of the rank of Sergeant or higher, may seize from any person and in accordance with this section, detain any cash in accordance with this section if its amount is more than the prescribed sum. (1A) A Customs and Excise Officer or Police Officer referred to in subsection (1), may seize and detain cash only, where he has reason to believe that the cash directly or indirectly represents any person s proceeds of a specified offence, or is intended by any person for use in the commission of such an offence. (2) Cash seized by virtue of this section shall not be detained for more than ninety-six hours unless its continued detention is detention authorised by an order made by a Magistrate, and no such order shall be made unless the Magistrate is satisfied (a) That there are reasonable grounds for the suspicion mentioned in subsection (1); and (b) That continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution, whether in Trinidad and Tobago or elsewhere, of criminal proceedings against any person for an offence with which the cash is connected. (3) Any order under subsection (2) shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order as may be specified in the order, and a Magistrate, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that (a) No period of detention specified in such an order shall exceed three months beginning with the date of the order; and Page 3 of 25

4 (b) The total period of detention shall not exceed two years from the date of the order under subsection (2). (4) Any application for an order under subsection (2) or (3) shall be made in the prescribed form before a Magistrate by the Customs and Excise Officer or a Police Officer of the grade or rank referred to in subsection (1). (4A) An application for an order under subsection (2) shall be made ex -parte. (4B) Where an order has been granted under subsection (2) or (3), the order shall be served as soon as reasonably practicable on (a) The person by, or on whose behalf the cash was being imported or exported, if known; or (b) The person from whom the cash was seized. (4C) An order referred to in subsections (1) and (2) shall be in the prescribed form. (5) Any cash subject to continued detention under subsection (3) shall, unless required as evidence of an offence, immediately upon an order for such detention being made, be delivered into the care of the Comptroller of Accounts who shall forthwith deposit it into an interest bearing account. (6) An order made under subsection (2) shall provide for detention of cash seized for the period stated in the order until (a) The expiration of the period; (b) The release of the cash by the Court; or (c) The release of the cash by the Comptroller of Accounts. (7) At any time while cash is detained under this section (a) A Magistrate may direct its release if satisfied (i) On application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer any grounds for its detention as are mentioned in subsection (2); or (ii) On an application made by any other person, that detention of the cash is not for that or any other reason justified; and (b) The Comptroller of Accounts may, upon the written application of the applicant for the order, release the cash together with any interest that Page 4 of 25

5 may have accrued, if satisfied that the detention is no longer justified. (7A) An application for the release of cash detained under subsection (7) shall be made in the prescribed form. (8) Where the cash is to be released under subsection (6) (b), the Comptroller of Accounts shall first notify the Magistrate under whose order it is being detained. [Emphasis added to highlight the new provisions introduced in January 2015; one year after the Claimant s cash was first seized] Claimant s contentions: 7. The issues of fact relied upon by the Claimant in seeking relief are largely not in dispute. A comprehensive synopsis of the Claimant s case is provided in the written closing submission of the Defendant as follows: (a) Section 38 of the Proceeds of Crime Act (POCA), as amended by the Finance Act, 2015 authorizes a Customs Officer of the rank of Grade III or higher to seize and detain cash in certain circumstances (b) An aggrieved citizen whose cash has been detained pursuant to an ex-parte order made under section 38 (2) of the POCA has the right under section 38 (7) to apply to the Magistrate for it to be released; (c) By Legal Notice No. 2 of 2015, regulations were made and forms were prescribed and published under section 38 (2) and (3) to facilitate the application for an exparte order to authorize the initial detention of cash seized by any subsequent detention orders; (d) Section 7 of the Finance Act 2015 amended the POCA by, inter alia, inserting that an application for the release of cash detained under the Act shall be made in the prescribed form; (e) Regulations were not made to prescribe a form pursuant to Section 38 (4B) to enable a Magistrate to make an ex-parte order in the form intended and mandatorily prescribed by Parliament until September 3 rd, There was therefore no prescribed form for the ex-parte order authorizing the detention of a citizen s cash seized by the police under the POCA; Page 5 of 25

6 (f) Regulations were made to prescribe a form under Section 38 (7A) on September 3 rd, Prior to this there was no form by which the Claimant whose cash had been seized and purportedly detained in accordance with Section 38 could make an application under Section 38 (7) to challenge the initial detention and/or further subsequent detention of his cash; (g) The ex-parte order made by the Magistrate on 31 st day of January, 2014 authorizing the detention of the Claimant s cash does not contain the grounds for the detention or any reason for the making of the order. The Claimant was therefore, in any event unable to exercise his right to apply for the release of the cash as he is not aware of the basis for same; (h) By Section 38 (7) the Claimant is required to prove that there are no or no longer any grounds for its detention as are mentioned in subsection (2). The Claimant is unable to discharge this burden of proof because the procedures which existed under the POCA did not allow him to know the basis and/or reason and/or justification and/or grounds for the detention orders. (i) Thus even if there was a prescribed form under Section 38 (7A), the Claimant was not in a position to make a meaningful application to have his cash released. (j) Subsequent to the passage and coming into effect of the Finance Act 2015 and the amendments made therein to the POCA, the Magistrate had no jurisdiction to make a detention order in the absence of regulations prescribing the forms and content of the detention order under Sections 38 (2) and (3). Magistrates are creatures of statute and hence derive their powers in this regard under the POCA. (k) The continued detention orders granted after the 27 th day of January, 2015 were therefore null and void and of no legal effect as they were not in a form prescribed and approved by Parliament as intended; (l) Alternatively, the detention order and all subsequent detention orders were invalid because they did not contain the grounds of the detention thereby defeating the constitutional procedural safeguard given to the Claimant by Parliament to be able to apply to have the order discharged and his cash released; (m) In the circumstances, the right given to the Claimant under Section 38 (7) was meaningless as the failure of the State to prescribe a form for making the relevant Page 6 of 25

7 application and/or failure to disclose the reason and/or grounds and/or basis for the detention order effectively compromised and or undermined his ability to satisfy the statutory preconditions that would enable the court to make an order for the release of his cash; the Claimant was unable to mount a challenge to the grounds for the detention of his cash as he is not aware of the said grounds upon which the said detention was based; (n) The failure to balance the right of the State to seize the Claimant s cash pursuant to an ex-parte order with his right to apply to have his cash discharged is illegal and unconstitutional. There is in fact no balance because while the police can apply for a detention order, the Claimant cannot apply for a discharge to have his cash returned. The Issues: 8. The primary issue in the present case is whether the detention of the Claimant s cash by order of the Magistrates in the absence of prescribed forms and/or with the omission of grounds in the orders violated the Claimant s rights to due process and protection of the law under Sections 4(a) and 4(b) of the Constitution. 9. Secondly, a determination must be made as to whether the delay in returning the cash to the Claimant amounted to a breach of his Constitutional rights. The Evidence: 10. The evidence, herein, comprised the Claimant s initial Affidavit dated November 16, 2015 as well as three other supporting Affidavits including a second and third by the Claimant dated December 15, 2015 and March 23, The Defendant s main witness was Customs Officer, Richard Smith who swore an Affidavit dated December 11, There were two other supporting Affidavits for the Defendant. 11. The facts relied on by the Claimant are summarised in his written closing submissions as follows: 1) The Claimant, Ravendra Kemat Bridglal, by way of a fixed date claim form filed on November 16 th 2015, claims relief and/or redress pursuant to Section 14 of the Constitution against the Attorney General of Trinidad and Tobago. The relief claimed is in respect of the seizure and detention of Seventy-Four Thousand United States Page 7 of 25

8 Dollars ((US$74,000.00) which was seized from the Claimant at the Piarco International Airport on January 28 th, 2014 by Customs and Excise Officer III, Richard Smith (the investigator) and subsequently detained pursuant to an order made by a Magistrate under Section 38 (2) of the Proceeds of Crime Act, Chap. 11:27 (POCA). 2) Several renewals of the detention order were granted pursuant to Section 38 (3) of POCA between January, 2014 and July, However, on an application by the investigator indicating that the detention of the cash was no longer necessary, Her Worship Magistrate Debby Ann Bassaw ordered the Claimant s cash released on July 23 rd, ) At the time of the filing of this claim on the 16 th day of November, 2015, the Magistrate s order had not been complied with, despite evidence that the State was aware of the Order as early as July 30 th, 2015 and had given an indication that the Investigator would take the necessary steps to apply for a formal release of the said cash together with interest accrued from the Comptroller of Accounts 1 This correspondence was sent in response to the Claimant s pre-action letter of June 1 st, ) On the 9 th day of November, 2015, over three (3) months after the Magistrate s order was made, a further letter 3 seeking the urgent return of the Claimant s cash was sent to the Defendant but remained unanswered. This claim was brought a week after. 5) To date, this Order was only partially complied with, as only the principal sum of Seventy-Four Thousand United States Dollars (US$74,000.00) was returned to the Claimant on the 23 rd day of December, , subsequent to the filing of this claim and an application for interim relief filed on 26 th day of November, The interest due to the Claimant is yet to be paid. 6) On the 26 th day of January, 2016 the Court refused the Claimant s application for interim relief on the basis that the Court did not have the power to make a mandatory order against the State in light of Section 14 (3) of the Constitution and the Section 1 See exhibit RKB4 annexed to the Claimant s affidavit filed on 16 th November See exhibit RKB23 3 See exhibit RKB5 annexed to the Claimant s affidavit in reply filed on 15 th December See Affidavit of Shanna Lutchmansingh filed on 8 th March 2016 Page 8 of 25

9 22 of the State Liability and Proceedings Act. Directions were given on the said date for, inter alia, the filing of written submissions on the substantive issues raised in the constitutional claim. 12. As it relates to the factual matrix there was some relevant additional information not provided in the Claimant s Affidavit in support of the Claim. Specifically, at paragraph 6 of the affidavit of Richard Smith, it was stated that before the initial detention order was granted by the Magistrate the Claimant was issued a Notice of Seizure of the cash which clearly stated the grounds on which the Claimant s cash was being seized. Further at paragraph 11 of the Defendant s Affidavit (later also included at paragraph 11 of an affidavit in response by the Claimant) Richard Smith testified that the Claimant had in July, 2014, availed himself of the option to apply to the Magistrate for release of the cash. 13. This additional information once provided in the Defendants Affidavits was not disputed. In addition to these affidavits the parties filed written submissions by exchange in accordance with the Case Management directions of the Court. The parties filed submissions in Reply however, only the Defendant did so within the time directed by the Court. Submissions, Law and Analysis: i. Ex-parte order: 14. The Claimant in written submissions argues that S.38(4A) which directs an applicant to make an ex-parte application for the continued detention of goods seized, is a draconian provision and that the circumstances of the instant case were such that the application for a detention order should not have been made ex-parte. Citing Ridge v Baldwin 5, the Claimant submits that his natural justice right to be heard was breached by the ex-parte nature of the application. However, the Defendant in reply has argued that this was not a pleaded point and the Claimant is therefore barred from submitting on this issue at this stage. 15. Further the Defendant submits there is no basis for this challenge since S. 38(4A) was lawfully passed by Parliament with the requisite majority for a provision inconsistent with 5 (1964) AC 40, Page 9 of 25

10 Sections 4 and 5 of the Constitution, Chap. 1:01. Sections 4 and 13 of the Constitution provide as follows: 4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely: (a) The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law; (b) The right of the individual to equality before the law and the protection of the law 13. (1) An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with Sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. (2) An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House. (3) For the purposes of subsection (2) the number of members of the Senate shall, notwithstanding the appointment of temporary members in accordance with section 44, be deemed to be the number of members specified in section 40(1). 16. In addition to the provision on ex-parte hearing having been passed with the required majority, it is clear that the right to be heard, particularly at a preliminary stage of investigations may be expressly and lawfully excluded by statute. According to the Stair Memorial Encyclopaedia on natural justice 6 : Statutory procedures, whether in a regulatory or disciplinary context, frequently provide for a preliminary inquiry into an individual's conduct or affairs before it is 6 Administrative Law (Reissue) (31 December 1999) at [69] Page 10 of 25

11 decided whether the matter should be taken into a further stage at which charges are notified to the individual and a full hearing held in which he may take part. 17. On this point, therefore, the Claimant has failed to prove that the ex-parte nature of the application for detention orders provided for in POCA has violated his rights to natural justice. ii. Prescribed Forms: 18. The POCA gives certain Police and Customs Officers the power to seize and detain a citizen s cash. If the funds are to be detained for more than 96 hours the Order of a Magistrate is required. Prior to 2014, there was no standard procedure for obtaining the detention of cash order provided for in the POCA. Thereafter, the Miscellaneous Provisions Act, No. 15 of 2014 was enacted, introducing the words in the prescribed form into Section38(4) POCA, as follows: (4) Any application for an order under subsection (2) or (3) shall be made in the prescribed form before a Magistrate by the Customs and Excise Officer 19. The Proceeds of Crime (Prescribed Forms) Regulations, 2015 were made on January 8, 2015 prescribing by Legal Notice No. 2 of 2015 under Section 38(2) and (3) for an exparte order to authorize the detention of cash seized and for any subsequent applications for detention orders where extension beyond three months was required. 20. Further on January 27, 2015 Section 7 of the Finance Act, No. 2 of 2015 amended the POCA by introducing at Section 38(4C) the requirement of a prescribed form for the Magistrate s cash detention order as well as at Section 38(7A) the requirement of a prescribed form for the application for the release of cash. 21. Regulations were not made to prescribe a form pursuant to Section38 (4C) to enable a Magistrate to make an ex parte order in a prescribed form as intended by Parliament until September 3, This was after the Claimant s cash had already been ordered detained and subsequently ordered released by a Magistrate. There was therefore no prescribed form at the time of the making of the initial ex-parte order and subsequent extension orders authorizing detention of the Claimant s cash. 22. The Claimant s case is based primarily upon the fact that as from January 27, 2015, approximately one year after the initial detention of his cash, there was provision for an order to be made in the prescribed form; but there were no prescribed forms in the Page 11 of 25

12 Regulations. This, according to the Claimant, had the effect of depriving the Magistrate of her jurisdiction to make such orders until such time as the forms were prescribed. 23. The Claimant cites the case of Peters and Chaitan v AG 7 which involved a constitutional challenge by the Claimants to certain representation petitions under the Representation of the People Act [ RPA ] which sought to invalidate the Claimants election to Parliament in the year The challenge was based inter alia on the failure of the Rules Committee to make rules of Court prescribing the several matters relating to the bringing of a representation petition that had been left by the RPA to be 'prescribed'. Among the things so left to be prescribed was the form of the representation petition. 24. The Defendant herein also placed reliance on this case and underscored in submissions that the Court of Appeal in Chaitan held that there had been no breach of the Claimant s right to protection of the law in the fact that the High Court had entertained the petitions despite there being no prescribed rules. This was so firstly because it considered that the High Court was vested with inherent jurisdiction to regulate the procedure for entertaining and determining representation petitions. 25. De la Bastide CJ, as he then was, rejected the argument advanced for the appellants that the effect of making this provision subject to this part and the rules made thereunder is to render it inoperative unless and until rules are made. He explained that the fundamental question was whether it was parliament s intention in enacting the RPA that the filling in of procedural gaps by prescribing rules of court should be a condition precedent to the exercise of the Court s jurisdiction or whether these gaps could be filled by resort to the inherent jurisdiction of the court, or in some other way. 8 [Emphasis added] 26. Further guidance relevant to any Court conferred by statute with a power in relation to which procedural gaps remained to be filled by a relevant authority was provided in the statement of de la Bastide CJ at page 278 of the Judgment. He explained: The failure of the relevant authority to fill in by rules or regulations, the interstices of a statutory provision which grants to a court a new jurisdiction or power, does 7 (2001) 63 WIR Pg 274 Page 12 of 25

13 not necessarily make it impermissible for the court to exercise that jurisdiction or power. That will be the result only if: (a) The rules or regulations are needed in order to complete the definition of the power or jurisdiction in question and/or (b) An intention can be discerned from what Parliament has enacted that the making of the rules or regulations should be a condition precedent to the exercise of the power. 27. Following this guidance from Chaitan it is clear therefore that the Claimant herein, in order to establish that the exercise of the Magistrates authority without the prescribed form was unconstitutional, must prove either that the forms are necessary to complete the definition of the Magistrate s power to make detention orders or that Parliament s intention was that the prescription of forms be a condition precedent to the making of such an order. In Chaitan it was held that the failure of the Rules Committee to make rules governing representation petitions did not deprive the High Court of its jurisdiction. This was so because it was clear that Parliament did not intend that the said failure should prevent the court from exercising its jurisdiction to determine election disputes. The said failure having occurred did not have that effect. 28. Unlike the case in Chaitan, the present case concerns the jurisdiction of a Magistrate. Accordingly the Claimant has underscored in submissions that the Magistrate s jurisdiction is limited to the powers given to Magistrates under the Summary Courts Act, Chap. 4:20 ( SCA ) or other legislation and a Magistrate does not have authority to exercise an inherent jurisdiction Under the SCA the Magistrate is empowered to make orders in the exercise of its jurisdiction. The Claimant therefore argues that the Magistrate had no jurisdiction to act in the absence of the prescribed form, or alternatively, that the Magistrate exceeded its jurisdiction by using a form other than that which is prescribed. 30. The Defendant in addressing this contention cited Port Contractors Ltd v Shipping Association of Trinidad and Tobago 10 which was applied in Chaitan. The Court in Port 9 DPP v Her Worship Marcia Murray and First Citizens Bank App. No. P019 of (1972) 221 WIR 505 Page 13 of 25

14 Contractors was considering whether the exercise of jurisdiction to join parties to a trade dispute, which in that case was a power of the Industrial Court, is subject to the making of rules and regulations. On the facts of that case it was held that: [Section 11(5)(c) Industrial Stabilisation Act 1965] does not in terms make the exercise of the power of joinder subject to the making of rules. The whole scheme of the Act indicates that the court was to have ample freedom in the regulation of its procedure. Section 11 (4) provides: 'The Court may, subject to the Act, regulate its practice and its procedure for the hearing and determination of a trade dispute.' It could hardly have been intended that a court given such wide power to regulate its procedure without a code of rules should be restrained from exercising a power of joinder unless it produced a code dealing with the terms and conditions under which joinder would be ordered. It must be borne in mind that any rules prescribed would not limit the scope of the power. This must depend on the Act itself. They would merely regulate the procedure for the exercise of the power. Further, it is clear that although the power is given to the court, the intention is that it should be exercised for the benefit of parties appearing before the court. Final decisions in disputed matters can be more speedily reached if all parties concerned can be compelled to attend, put their cases forward and submit to the judgment delivered. To hold that the power cannot be exercised in the absence of a prescribed code of rules would mean that parties to disputes would be deprived of the benefit of the exercise of the power because of the court's failure to produce a code a circumstance over which they could have no control. I do not think that this could have been intended I am satisfied also that the preparation of such a code was not a condition precedent to the exercise of the power of joinder. The provision is directory not mandatory. The failure to prepare rules does not stultify the power conferred upon the court to exercise the power of joinder. Accordingly, I am of opinion that the court did have the power to entertain and rule upon the applications for joinder made in this case. [Emphasis added.] Page 14 of 25

15 31. Following the reasoning from Port Contractors and Chaitan the Defendant submits that the test as to whether the failure to prescribe rules, or in this case forms, stultifies the power conferred on the Magistrate is in two parts: (a) whether the prescribing of the forms is a condition precedent to the exercise of magisterial power or (b) whether the forms prescribed would limit the scope of the power of the Magistrate. Applying this test the Defendant submits that despite the fact that no prescribed forms were used or available for use as provided for in the amendment to the POCA, the Magistrates detention orders were not unconstitutional. 32. In further support of the claim that failure to use prescribed forms was fatal to the constitutionality of the Magistrate s orders, the Claimant cites the case of Sharma v Registrar of the Integrity Commission and Another 11. This case involved judicial review of the Integrity Commission s delay in prescribing regulations for the filing of declarations for persons in public life. The Appellants therein also challenged the decision of the Commission not to require persons to file declarations in the absence of regulations. The Privy Council affirmed the decision of the Court of Appeal in that case that the Commission was correct in informing the persons in public life that they were not required to file a declaration for that year as it was simply giving effect to the Act. 33. Applying this to the present case, the Claimant contends that the absence of the detention order forms that the POCA amendment, provided for months after his cash was initially detained, in fact precluded the Magistrate from making any further orders for continued detention of his cash. 34. However, the Defendant submitted in reply submissions that the circumstances of the Sharma determination were distinguishable from the case at hand. In Sharma, the Privy Council determined that the forms were a condition precedent to the filing of the declaration due to the high degree of uniformity required so that the information that the Commission received could be examined efficiently and in the absence of such a system the declarations would be chaotic. In the present case however, the forms could not have been a condition precedent since all the conditions for detention of the cash were provided for at Section 38(2) of the POCA. It was based on this that Magistrates had been able to issue detention orders prior to the introduction of the provision for a prescribed form to be 11 [2007] UKPC 42 Page 15 of 25

16 used. The issue of inefficiency such that the Magistrates power to make detention orders could not properly have been carried out without the forms did not therefore arise. 35. The Defendant argues that the case of Sharma is inapplicable based on the distinguishing factors. Accordingly, the Claimant in the present case must still satisfy the test outlined in Chaitan by proving either that the forms are a condition precedent to the exercise of magisterial power or that the forms prescribed would limit the scope of the power of the Magistrate to issue detention orders. 36. According to the Claimant, Parliament s intention was to avoid uncertainty by removing the Magistrate s autonomy to create her own orders. The Claimant argues that the use of the word shall in the amendments to the Act suggest that the prescribed forms are mandatory for the making of an order. The Claimant suggests that due to the ex parte nature of the application for detention, the prescribed forms would act as a safeguard to ensure certain technical requirements were met. 37. However, the Defendant disputes that this was Parliament s intention, citing the Hansards Reports 12 the Defendant underscored that the amendments which provided for prescribed forms came into force to strengthen the country s anti-money laundering and combat the financing of terrorism regime. It could not therefore have been intended that by introducing this provision for forms and simultaneously not prescribing any forms the Magistrates power to issue detention orders would by instantly removed. Furthermore the prescribing of the forms could not present a limitation of scope of the Magistrates powers since the grounds for the issue of a detention order and the continuation thereof were already contained in S.38(2) POCA. These are the substantive conditions to be fulfilled prior to making such an order and there is no provision that the use of a prescribed form is a condition precedent to the Magistrates detention order authority. The Defendant maintains that the provision for use of the prescribed forms in no way limits the scope of the Magistrate s power to issue a detention order but merely provides a format for doing so. 38. Further support for the Defendant s position is provided by the decision of the Court of Appeal in Jamaat al Muslimeen v Bernard 13. At page 435 of the Judgment Sharma JA, 12 Hansards Reports dated 19 September (1994) 46 WIR 429 Page 16 of 25

17 as he then was, confirmed a submission of Counsel for the Appellant, Mr. R.L. Maharaj as he then was, that: Where an Act conferred jurisdiction on a court, and no rules have been made, the court will not allow that failure to stultify the Act, and jurisdiction would be exercised. Based on supporting authority for this statement Mr. Maharaj had contended that When jurisdiction exists in a case in which apt procedure is not provided by statute the judge must himself mould a convenient form of procedure. 39. Having considered the submissions on both sides it is my finding that the Claimant has not succeeded in proving either that Parliament s intent was that the prescribing of forms would be a condition precedent to the Magistrate s making of a detention order or that the provision for forms limited the scope of the Magistrate s power. iii. Failure to prescribe a form for the Claimant s application to release the detained cash. 40. As aforementioned the Claimant submitted that he was deprived of his right to protection of law because there were no prescribed forms for him to apply to have his cash released. 41. This contention falls flat however in the face of the evidence presented by the Defendant that the Claimant in fact made several oral applications and one written application for release of the funds, albeit this was before the law was changed to require a prescribed form. The Defendant in closing submissions underscored that the Claimant s right to apply for release of his cash was never taken away from him. It is my finding that the absence of prescribed forms after the law was changed did not prevent the Claimant from making further applications for release of the cash as he saw fit. These could have succeeded if at any time the Magistrate found that there were no sufficient grounds for continued detention due to ongoing investigations. In fact the Application which eventually resulted in the release of his cash was made by Customs Officer Richard Smith without the use of a prescribed form. iv. Mandatory nature of the provisions regarding forms. 42. As aforementioned one of the contentions of the Claimant is that the effect of the statute as to whether it was mandatory or discretionary that forms be prescribed must be considered. This requirement was emphasised in the Court of Appeal decision of Annissa Page 17 of 25

18 Webster v AG. 14 The use of the word shall in the provisions of the amendment to POCA that introduced the requirement for prescribed forms appears on a literal interpretation to make it mandatory that forms be used. However, by the time this provision was made law the Magistrate herein had already issued her order detaining the Claimant s cash. All that remained was for the order to be extended every three months until investigations were complete. 43. The new amendment required after the fact, that prescribed forms be used where none were previously needed for the grant of extension orders; but there were none in existence. This gave rise to an ambiguity that differentiates the instant circumstances from those where in other cases such as Sharma the prescription of regulations was held to be mandatory based inter alia on the word shall. A purposive interpretation taking into consideration whether the grant of detention orders without prescribed forms could in actuality prejudice the Claimant s rights is therefore required. 44. The Claimant relies on the authority of Alleyne and ors v AG 15, a case in which the Privy Council determined that the failure to make regulations under the Municipal Corporations Act and the Statutory Authorities Act violated the applicant s right to such procedural provisions guaranteed to them by Section 5(2)(h) of the Constitution for the purpose of giving effect to their rights and freedoms under Section 4(b) of the Constitution. 45. The Defendant, citing Ronald Daniel v AG 16, submits that since Section 4(a) of the Constitution provides that a person should not be deprived of his right to property save by due process of law, the onus is on the Claimant to show how he was deprived of his property without due process. The Defendant emphasises that the finding from the Ronald Daniel case is that the due process right guarantees a justice system that is fair but not one that is infallible 17. Further, once due process is fulfilled, the individual has protection of the law under S. 4(b) CA No. 86 of [2015] UKPC 3 16 CV Maharaj v AG (No.2) [1979] AC 385; Thomas v Baptiste (1998) 54 WIR 387; Boodram v AG [1996] AC Lewis v AG of Jamaica PCA No. 60 of 1999 Page 18 of 25

19 46. The Court of Appeal in Matthews v The State 19 further clarified the position as to how a determination should be made whether legislation providing for certain things to be done is mandatory of directory. The Court held: It is no longer accepted that it is possible, merely by looking at the language of a legislative provision, to distinguish between mandatory provisions, the penalty for breach of which is nullification, and directory provisions, for breach of which the legislation is deemed to have intended a less drastic consequence. Most directions given by the legislature in statutes are in a mandatory form, but in order to determine what is the result of a failure to comply with something prescribed by a statute, it is necessary to look beyond the language and consider such matters as the consequences of the breach and the implications of nullification in the circumstances of the particular case. 47. In the instant case, the absence of prescribed forms appears to have had little prejudicial effect on the Claimant. The only potentially material prejudice the Claimant, from his evidence on oath, claims to have been faced with was the lack of grounds outlined in the first detention order. This however, is countered by the Defendant s position that the Claimant attended for every hearing thereafter wherein the Magistrates had to decide on extensions and was represented by counsel. He therefore had an opportunity to make any objections or to request that grounds be provided. 48. The Claimant could also at any time during the period when detention orders were being made and extended have filed for judicial Review of the Magistrates decisions. Such recourse could have been either on the basis that no grounds were expressed for the decisions as alleged or that the grounds made known to the Claimant did not justify her decision. In so doing the Claimant could have had recourse to Section 16 of the Judicial Review Act, Chap 7:08 to have the reasons of the Magistrates reviewed. 49. In any event, even before the initial ex-parte order the Claimant was issued a Notice of Seizure of the cash which stated the grounds of detention. Additionally, the Claimant made oral requests for release of the cash at every hearing and also submitted a written application in July, 2014 even before the law was changed to provide for a prescribed form. His applications were denied pending the ongoing investigations. 19 (2000) 60 WIR 390 Page 19 of 25

20 50. In all the circumstances it is my finding that despite the use of the word shall in the amendment providing for use of prescribed forms, a purposive interpretation allowing for the Magistrate to issue extensions of pre-existing detention orders was required to make the legislation workable in the absence of any prescribed forms. Such an interpretation is justified as while allowing for the intention of parliament in facilitating POCA investigations to be fulfilled it did not prejudice the rights of the Claimant v. Failure to provide grounds: 51. The Claimant s further contention as to the breach of his constitutional rights is that the ex parte order of the Magistrate breached natural justice in that it did not contain the grounds for the detention or reasons for making the order. Accordingly, even if there was a prescribed form in existence and it was used in the Magistrates Orders, the Claimant contends he could not have made an application for release showing that there were no longer any grounds for the detention. He submits that due to this alleged breach of natural justice the orders made by the Magistrates are therefore null and void. The Claimant cites the case of Weekes v Montano and May 20 as authority for the principle that courts should ensure strict compliance with any enactment when an interference with a citizen s constitutional rights is involved. 52. However, the Defendant submits in response to this contention, that the Weekes case involved a habeas corpus application and concerned the deprivation of a person s liberty. Therefore, the Defendant submitted that it is distinguishable from the present case where it is the detention of the Claimant s property at stake. The safeguard may therefore be less strict in such a case. Further, they contend that the legislation being considered in the Weekes case specifically provided for the grounds to be set out. Thus the decision in that case cannot be applied to the instant circumstances where the POCA does not specify that in issuing a detention order the grounds must be stated by the Magistrate. It is my finding that this contention regarding unconstitutionality of the omission of grounds in the order also fails. vi. Delay: 20 (1970) 16 WIR 425 Page 20 of 25

21 53. The issue of delay in release of the cash and interest thereon is the strongest aspect of the Claim for redress herein. This issue now stands alone based on my determination that the other Constitutional Relief claims were without merit. The Claimant contends that the failure to repay the sum plus interest after the order of the magistrate to release it amounts to a further violation of the Claimant s rights to protection of the law. The Claimant has not cited any authority for this proposition however, the Defendant citing Ronald Daniel v the AG 21 underscored that in that case the Court questioned whether faults in administration could amount to the breach of the right to protection of the law under Section 4 of the Constitution. Pemberton J concluded at page 15 of the Judgment that while administrative difficulties should be speedily addressed and proper administrative steps put in place to ensure delays by the prison authorities in providing a form to a prisoner for withdrawal of his appeal are the exception rather than the rule, the delay in that case was insufficient to show breach of the prisoners constitutional rights. 54. The Defendant submits that constitutional relief would not be the appropriate remedy to be granted to the Claimant for the delay in payment. There are alternative remedies available to the Claimant such as an award of damages if a claim alleging detinue/conversion had been filed by the Claimant. 55. In support of this contention the Defendants cite the decision in Ghani v Jones 22. In that case it was shown that police officers at common law had the power to detain goods for a reasonable time once they suspected that such goods were material evidence of criminal activity. An action in trespass can ensue for the return of goods wrongfully seized. Another case, R v. City of Salford Magistrate s Court 23 cited by the Defendants supported their contention that the Claimant had at all times from the initial seizure, the right to apply for his detained cash. That right had never been taken away and as such there was no basis for Constitutional redress. According to MacKay J, There are safeguards for the erstwhile holder of the seized property, and he has the ability at any time, if he thinks he can show that its continued detention is unwarranted, to seek its return. 21 CV (1970) 1 QB [2009] 1 WLR 1023 Page 21 of 25

22 56. According to the Defendants the inclusion at Section 38(7) (a) (i) of POCA of a provision for the person whose cash has been seized to claim its release provides an inbuilt safeguard, but this was always a remedy available at common law. It remained available and the Claimant was not deprived of it when there was a failure to prescribe forms and/or to include grounds in the detention orders. Such failure if any could also have been addressed by the Defendant availing himself of procedures under the Judicial Review Act, Chap to have the actions of the relevant authorities in delaying the release of his cash reviewed. 57. The Claimant has failed to avail himself of the recourse to damages in trespass and/or to challenge, by application for Judicial Review, the omission of the relevant authorities to return his cash. This precludes him from any relief for the delay by way of this Constitutional Motion. Decision: 58. The detention orders of the Magistrates were not unconstitutional even though not in a prescribed form. No prescribed forms existed when the POCA was amended to introduce that requirement. It could not have been the intention of Parliament that legislation intended to strengthen the anti-money-laundering efforts of the State would instead result in all Magistrates being required to release forthwith cash that had been detained for investigations. 59. Ideally, bearing in mind that POCA had been in force for some time, with Magistrates acting on same in making detention orders, the amendments to provide for a prescribed form ought not to have been brought into effect until the said forms could immediately thereafter be prescribed by the Minister. Accordingly, the new provisions introduced in January, 2015 were not without ambiguity. They spoke to the need to use forms which did not exist, so a purposive interpretation was required to fulfil the intention of parliament. 60. There are examples of such a purposive approach in cases such as Chaitan and Port Contractors cited by the Defendant. Those cases differed from this one in that the Court was determining whether the Claimant s rights to access the Court would be stultified by the failure of the relevant authority to fill procedural gaps in the legislative framework. However, although the Claimant s right to access the Court without awaiting rules is not an issue here, the purposive approach is still appropriate. This is so because no rights of Page 22 of 25

23 the Claimant were or could have been adversely affected by not treating the Magistrate s detention order powers under POCA as having been terminated by the failure of the State to prescribe forms. 61. Although the Magistrates orders did not say what specified offence was suspected it had been made clear to the Claimant previously by way of the initial seizure notice that the offence was breach of Section 154 of the Customs Act. The Magistrate s first order had to be understood in the context of what went before. There was no breach of Natural Justice in the omission of the grounds of suspicion in her order as these were already known by the Claimant. 62. In the failure to return the cash within a reasonable time of the release order and to pay any interest thereon up to this time, there has clearly been a breach in spirit of provisions in the POCA intended to balance some proportionate relief with unavoidable interference with property rights during criminal investigations. Sections 38(5) and (7)(b) provide that the Comptroller of Accounts must deposit the detained cash in an interest bearing account once it is delivered to him and thereafter he may on application release the cash with interest. 63. The delays in releasing the cash and continued failure to pay the Claimant any interest smack of beaurocratic bungling, which though perhaps commonplace, cannot be condoned particularly where property rights are adversely affected. Subject to any facts to be ventilated in evidence in continued or subsequent proceedings, the Claimant may be entitled to compensatory damages in these circumstances. However, the instant claim is not the appropriate procedure for such redress. The Claimant should have sought such redress by way of a claim for damages in trespass/detinue based on the unlawfully extended detention of his cash which may have amounted to a trespass to his property once the Magistrate ordered it released. 64. In all the circumstances however, the Claimant has not proved that the failure of the Minister to prescribe forms when the POCA was amended served to eliminate the jurisdiction of the Magistrate to make detention orders until the forms were prescribed. The Claimant did not sufficiently succeed in satisfying the requirements outlined in Chaitan to prove that a Magistrate s detention order powers then became subject to the prescribing of the forms. Page 23 of 25