REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV No. 2009 03446 IN THE MATTER OF THE JUDICIAL REVIEW ACT, NO. 60 OF 2000 AND IN THE MATTER OF AN APPLICATION BY CANSERVE CARIBBEAN LIMITED FOR JUDICIAL REVIEW BETWEEN CANSERVE CARIBBEAN LIMITED AND THE COMPTROLLER OF CUSTOMS AND EXCISE Claimant Defendant Before: Boodoosingh J. Appearances: Ms Dana Seetahal SC leading Mr Kelvin Ramkissoon instructed by Mr Westmin James for the Claimant Mr Christopher Hamel Smith SC leading Mr Martin George and Ms Karlene Seenath instructed by Ms Florence Ramdin for the Defendant Delivered: 8 February 2010 RULING On 10 July 2009 Custom Officer Darren Bhola served the claimant with a document entitled Notice of Seizure of Goods. This concerned 51 WMS Gaming Machines and Page 1 of 9
83 PCS Ceromix Monitors. The grounds set out were: Breaches of Section 213(e) and Section 214 of the Customs Act Chap. 78:01: Pending report from CARIRI. On 29 October 2009, the goods not having been released, the claimant brought judicial review proceedings. They claimed: (1) The decision to seize and detain the above named goods was illegal, irrational and void. (2) The failure to consider a CARIRI report dated 13 July 2009 stating that the above items were not capable of accepting or rejecting dollar bills, coins, tokens, tickets or credit notes during inspection was illegal and irrational. (3) The Customs Authority was bound by that report. (4) The decision of Customs to request further CARIRI reports without rational or reasonable cause was illegal, irrational and of no effect. (5) The continued detention of the goods was illegal. The shipment was also said to contain chandeliers and panels. Leave was granted for judicial review proceedings to be brought. At the substantive hearing, preliminary submissions were made that the leave granted should be set aside and the judicial review application should be dismissed. Three grounds were set out. These were: (1) The claimant failed to disclose on the ex parte application that it is a member of the Sunny Group of Companies which is heavily engaged in the gambling and/or casino business. Page 2 of 9
(2) The claimant had failed to disclose it had obtained a CARIRI report dated 17 August 2009. (3) There were alternative remedies to seek the recovery of the goods and this was not disclosed in the judicial review application and it was said there were no alternative remedies. I did not agree with the submissions of the defendant in support of grounds (1) and (2) above. Regarding the first ground, the Customs Authority, as far as this case is concerned, is required to consider the items being brought in as they are. Customs must decide if the items are prohibited or if there is a false declaration. They can choose to be guided in making this decision by expert reports that may shed light on the operation of the items in question. But they would not have been entitled to consider the business operations of related companies to the Company seeking to bring in the goods. That would, in my view, be an irrelevant consideration. It would also involve significant speculation. The fact that a related company is involved in gaming or casino operations does not mean necessarily that items in a particular shipment would be applied to those businesses. A company could choose not to apply the items to such operations, but have them for entertainment purposes without any gambling or game of chance features in use. Further, they would not ordinarily be entitled to use this as a ground for seizing goods without giving the owner an opportunity to be heard on it. I did not therefore consider this a material non disclosure. In any event, this court is not called on to pronounce on the legality or illegality of gambling operations, but is asked to review a decision of the Customs related to allegedly prohibited items. The second ground alleged a failure to disclose or misrepresentation in relation to a second report of CARIRI. There was no merit in this. While that report was not attached Page 3 of 9
to the affidavit filed, its existence was brought out in the hearing and explained as a mistake. I accepted this explanation in good faith from respected Counsel at the Bar and the leave application proceeded with full knowledge of the existence of the report. There was no suggestion that the claimant did not know of this report. The third ground concerns whether there were alternative remedies available to the claimant which were not disclosed. It was suggested that a procedure exists for challenge in the Magistrates Court of a decision of the Customs to seize goods under the Customs Act. Further, it was submitted that this procedure is far better suited than the judicial review court to examine the relevant issues involved and to make a determination. Mr Hamel Smith also advanced that any decision of the Magistrate could be appealed. Thus, this court is not the appropriate forum. Ms Seetahal frankly conceded that there is ordinarily a process in the Magistrates Court under section 220 of the Customs Act. This requires the owners to give notice in writing to the Comptroller of Customs that they claim the goods seized. This notice must be given within one month of the seizure. Where notice is not given as prescribed, the items seized shall be deemed to be condemned without the need for proceedings before the Magistrate. Mr Hamel Smith suggested that the time has passed for this. The failure to give notice to the Comptroller is the claimant s fault and the judicial review court cannot be involved due to their default in following the prescribed process. Ms Seetahal disputed whether it can be said the items were seized within the meaning of section 220 given the terms of the Notice, which was served on the claimant s representative. Page 4 of 9
The crux of matter here then is: Was there a seizure within the meaning of the Customs Act? Related to this is: If there was a seizure, was this clearly communicated to the claimant so as to trigger the operation of section 220? I note here that the issue of whether the goods were in fact seized is a mixed issue involving both fact and law. A preliminary objection is not the best forum for deciding factual issues where there is disagreement or contention regarding those facts. I am of the view that it is necessary to be selective in making pronouncements on factual issues where there has not been any objections to evidence and where there has not been crossexamination of the respective deponents. That said, it is undisputed that on or about 10 July 2009 there was an examination of certain items opened by the claimant. These included 51WMS Gaming Machines and 83 PCS Ceromix Monitors. It is not clear to the court what exact discussions took place between the parties (at this stage), but what is undisputed is that a document entitled Notice of Seizure of Goods was served on the claimant by Custom Officer Darren Bhola. This Notice: (1) Set out the items in question; (2) Stated breaches of section 213(e) and section 214 of the Customs Act; (3) Quoted the text of section 220; (4) Noted the date of seizure as 9 July 2009 and the place as Container Examination Section, Point Lisas. The Notice of Seizure thus far appeared to be fully in order. Stated on the Form however, after the breaches of the sections are identified, is this: Breach of Section 213(e) and Section 214 of Customs Act 78:01: Pending report from CARIRI. Page 5 of 9
The question that arises is: What was the effect of the words Pending report from CARIRI? There are different suggested interpretations as to the meaning of these words. On the one hand is the suggestion that the goods were seized on 10 July 2009, but that a report from CARIRI may alter that decision. Another possible interpretation is that there was no seizure on 10 July 2009, but that a decision would be deferred until a report from CARIRI was obtained. That report could either alter the decision regarding the seizure or not. In both these interpretations it is clear that a qualification was being made to the seizure notice. It is understandable that Custom Officers will not be experts on all subjects. They are entitled in making their decisions to consider the evidence of experts. This is both reasonable and prudent. When an expert s input is to be given it follows that the actual decision on seizure may have to be postponed. The Customs will have to be given a reasonable time to seek the opinion. In a small jurisdiction, they may also have to wait for the evidence to be forthcoming since the likely number of experts in a given subject area may be small, and these experts may be busy. In my view, it would be proper to consider the decision as being one that had been postponed. Since it would not ordinarily make sense to allow possibly prohibited goods to be released to later find out they are in fact prohibited goods, some arrangements had to be made in this period before a final decision can be properly made. It would be more appropriate to consider such goods as being detained at that time and not seized. This, in my view, is what occurred here construing the Seizure Notice. There was a detention of the goods pending expert input from CARIRI. Page 6 of 9
A third suggestion is that there was a seizure and the additional words had no effect. I am unable to agree with this. If Mr Bhola had seized the goods and communicated this orally to the claimant s representative, he ought not to have served such a Notice. This view is consistent with the dictates of good administration. Public authorities cannot be permitted to take advantage of ambiguity arising from their own assertions. Had Mr Bhola intended to seize the goods on 10 July, and having decided to serve the claimant with a Notice of Seizure of Goods, he ought to have said so categorically in that Notice. It would not lead to good administrative practice for the court to sanction the State, in effect, stealing a march on citizens by ambiguous documentary communication. Mr Bhola was fettering his discretion by holding out to the claimant that a decision on the seizure would be made pending a CARIRI report. I reiterate that it is inappropriate for me at this stage to make determinations based on contending assertions in the affidavits of the deponents as to what was stated orally. I therefore consider that I should rely on the terms of the Seizure Notice which are plain to see. Following this Notice the claimant decided in its own interests to commission a report from CARIRI. This was forwarded to the Customs. It appears that the Customs were not satisfied with this report and they commissioned two additional reports from CARIRI. The timing of these reports is critical. Both reports came after 10 August 2009 when, if it is accepted the goods were seized on 10 July 2009, the time would have expired for the claimant to challenge the decision to seize the goods in the Magistrates Court. Up to the time of these reports there is nothing to suggest that the Customs had clearly communicated to the claimant that a decision was made to forego a further report from CARIRI or to reject the first CARIRI report or to await an additional report. There was an onus on the Customs to indicate in an unequivocal way what their decision was. If they had decided to seize the goods they needed to say that they had done so. The most appropriate method would have been to serve a second Seizure Notice since they had served a notice previously. This would have alerted the claimant that they needed to initiate proceedings in the Magistrates Court to preserve their position and prevent Page 7 of 9
automatic condemnation. Had that been done the claimant could not have had any complaint if the goods were seized a month after the second notice. Mr Hamel Smith further submitted that based on language used in their application and their supporting affidavits the claimant have accepted that a seizure was made and they therefore cannot now seek to resile from that concession. The language which the claimant used in their leave application, in my opinion, is much less important than what a reasonable construction of the terms of the Notice reveals, keeping good administrative practice in mind. To date, from the information available to me, I cannot say the Customs has communicated to the claimant that the goods have been seized. Where does this leave us now? The Customs has charged the claimant under the Customs Act. Understandably they may wish to detain the goods until the end of those proceedings. They may choose to leave things as they are, therefore, and allow those proceedings to decide the matter. If breaches of the Act have been proved, then forfeiture may follow. If they are not proved then the claimant may be entitled to delivery of the goods. The claimant would have a remedy in civil law if the goods are damaged or destroyed or may have a remedy for loss arising from the detention of the goods. The Customs may also decide at this stage to communicate their seizure of the goods. If this is done the claimant may decide to invoke section 220. This course may however be pointless since the matters are now already before the Magistrates Court. In any event the claimant has a forum before which they may seek the return of the goods depending on the outcome of the cases. While the existence of an alternative remedy may not in all cases preclude a claimant from seeking judicial review, in this case I agree that the judicial review court is not the appropriate forum for the ventilation of the issues regarding the questioned goods. Page 8 of 9
For the reasons above, the leave given for the applicants to bring judicial review proceedings is set aside. The judicial review application is consequently dismissed. Given the nature of this decision I will leave it to the parties to try to agree on costs. If they are unable to agree, each side is ordered to make submissions in writing on costs on or before 30 April 2010. I thank the attorneys for their clear and very helpful submissions. Ronnie Boodoosingh Judge Page 9 of 9