Bhola (Customs and Excise Officer II) v Canserve Caribbean Ltd, Nurse and Gibbs

• Jurisdiction: Trinidad & Tobago
• Judge: M. Mohammed, J.A.
• Judgment Date: 29 June 2017
• Neutral Citation: TT 2017 CA 34
• Court: Court of Appeal (Trinidad and Tobago)
• Docket Number: Mag. App. No. P 068 of 2015
• Date: 29 June 2017

IN THE COURT OF APPEAL

Panel:

R. Narine J.A.

P. Moosai J.A.

M. Mohammed J.A.

Mag. App. No. P 068 of 2015

Between

Darren Bhola [Customs and Excise Officer II]

Appellant

and

Canserve Caribbean Limited

Respondent No. 1

Darren Nurse

Respondent No. 2

Cindy Gibbs

Respondent No. 3

APPEARANCES:

Mr. G. Peterson S.C. and Ms. S. Shephard for the Appellant

Mr. J. Singh for the Respondents

Cases mentioned:

Customs and Excise Officer Clarence Walker v. Iveren Lucy Feese Mag. App No. 96 of 2009 – Rammarine Maraj v. The AG and the Comptroller of Customs CA Civ. No. 54 of 1997 – Myers, Brangman and Cox v. R [2015] U.K.P.C. 40 – Patel v. The Comptroller of Customs [1965] 3 W.L.R. 1221 – Glendon De Galle v. United Hatcheries Ltd Mag. App. No. 155 of 1986 – The Comptroller of Customs v. Tamash Enterprises Limited CA No. 234 of 2009 – R v. Barbar [1973] 21 W.I.R. 343 – Simmonds v. R [1998] AC 286 – Cameron v. Holt [1980] HCA 5 – He Kaw Teh v. R [1985] 157 C.L.R. 523 – Sault Ste Marie v. R [1978] 2 RCS 1299 – Gammon v. AG of Hong Kong [1985] A.C. 1 – Sherras v. De Rutzen [1895–99] All ER Rep 1167 – Lim Chin Aik v. The Queen [1963] A.C. 160 – R v. Matudi [2003] EWCA Crim. 697 – Pharmaceutical Society of Great Britain v. Storkwain Ltd [1986] 2 All ER 635 – R v. Blake [1997] 1 All E.R. 963 – Harrow London Borough Council v. Shah and Another [1999] 3 All E.R. 302 – AG of Hong Kong v. Tse Hung Lit and Another [1986] 1 A.C. 876 – Ramdwar v. Fernandes Mag. App. No. 238 of 1951 – Sweet v. Parsley [1970] AC 132 – R v. Brown (Northern Ireland) [2013] UKSC 43 – Azan (Gassan Elias) and Bashco Trading Company v. R [2007] 6 JJC 1503 – Customs and Excise Officer Azard Khan v. Bobby Ashram Sanhai and Glen Mulchansingh Mag. App. No. 36 of 2015 – Tesco Supermarketrs Ltd. v. Nattrass [1972] A.C. 153 – Reid v. R (1978) 27 W.I.R. 254

Legislation:

Section 212(a) of Customs Act, Chapter 78:01 of Trinidad and Tobago – Section 214 of Customs Act Chapter 78:01 of Trinidad and Tobago – Section 213 (a) and the Second Schedule of the Prohibition (Carriage, Coastwise, Importation and Exportation) Order – Section 45 of the Customs Act – Section 116 of the Customs Ordinance of Fiji – Section 205 of the Jamaican Customs Act – Sections 248 – 249 of the Customs Act Chapter 78:01 of Trinidad and Tobago – Section 5(4) of the Dangerous Drugs Act Chapter 11:25 of Trinidad and Tobago – Section 233B(1)(b) of the Australian Customs Act 1901 – Section 132(b) of the Summary Courts Act Chapter 4:20 of Trinidad and Tobago – Section 132 (h) of the Summary Courts Act Chapter 4:20 of Trinidad and Tobago

Customs and Excise - Importation of Gaming machines — Seized items — Whether the Magistrate erred in concluding that the seized items did not fall within the Second Schedule of the Prohibition Order — Whether the Magistrate erred in concluding that section 212(a) of the Customs Act required proof of knowledge — Whether the offences stated in sections 213 and 214 of the Customs Act ought to be interpreted as strict liability — Whether the requirement on mens rea ought to be maintained — Whether the respondent ought to have been called upon to answer the charges against him — Whether the Magistrate erred in law when she relied on the purported contents of the correspondence that was not tendered into evidence — Whether the Magistrate erred in upholding a no case submission — Reverse burden of proof — Whether a retrial should be ordered — Sections 212 — 214 and 249 of the Customs Act — Ramnarine Maraj v. The Attorney General and the Comptroller of Customs CA Civ. No. 54 of 1997 — Patel v. The Comptroller of Customs [1965] 3 W.L.R. 1221 — Gammon v. AG of Hong Kong [1985] A.C. 1 — De Gale v. United Hatcheries Ltd. Mag. App. No. 155 of 1986 — R v. Simmonds [1998] A.C. 286 — Custom and Excise Officer Clarence Walker v. Iveren Lucy Feese Mag. App. No. 96 of 2009 — Sault Ste Marie v. R (1978) 2 RCS 1299.

Delivered by M. Mohammed, J.A.

I agree with the judgment of M. Mohammed J.A. and have nothing to add.

R. Narine,

Justice of Appeal

I too agree with the judgment of M. Mohammed J.A. and have nothing to add.

P. Moosai,

Justice of Appeal

Introduction:

1 The first respondent, Canserve Caribbean Limited (Canserve) and the second respondent, Darren Nurse (Nurse) were charged with the following offence under the Customs Act Chapter 78:01 (the Customs Act):

Canserve, Nurse and the third respondent Cindy Gibbs (Gibbs) were all charged with the following offences under the Customs Act:

• (i) Making and subscribing a false declaration with respect to a Customs Declaration of Value, contrary to section 212(a).

• (i) Importing goods not corresponding to Customs Declarations SFDO A 21884 dated 24/06/09, contrary to section 214; and

• (ii) Importing prohibited goods to wit: 51 WMS gaming machines in container GLDU 071327–6, contrary to section 213 (a) and the Second Schedule of the Prohibition (Carriage, Coastwise, Importation and Exportation) Order.

2 All the charges were heard summarily and together by consent. At the close of the case for the appellant, attorney-at-law for the respondents made a submission of no case to answer, which was upheld by the magistrate. The magistrate proceeded to dismiss the charges against all three respondents. From those dismissals, this appeal originates.

3 This appeal was heard before a panel of three judges since the Court was being invited on behalf of the respondent to either depart from the decision in Customs and Excise Officer Clarence Walker v Iveren Lucy Feese1 or to qualify and restrain its application. The magisterial appeal in Feese was heard before a traditionally constituted panel of two judges.

The Case for the Appellant:

4 On the 10 ^th July, 2009, the appellant, Customs Officer Darren Bhola, went to the Customs and Excise Division (Customs) at Point Lisas where he met Nurse and Gibbs who informed him that they were representatives from Canserve. He also met Mr. Andrews, an employee of the Caribbean Industrial Research Institute (CARIRI), who told him that someone at Canserve contacted CARIRI and requested his presence to examine some gaming machines. Customs Officer Bhola asked Nurse, in the presence of Gibbs, “Why you have CARIRI here, if you all are expecting office furniture?” and he made no reply.

5 Customs Officer Bhola and Customs Officer Boodoo then proceeded to the area where the container was located. After verifying the container, Customs Officer Boodoo gave instructions for it to be opened, which was done in the presence of Customs Officer Bhola. Nurse and Gibbs were also present but were further away from the container. Upon the container being opened, Customs Officers Bhola and Boodoo observed that it contained gaming machines and not office furniture as was stated on the invoice. The container was emptied and an examination of its contents revealed, inter alia, fifty-one (51) WMS gaming machines, eighty-three (83) Ceronix monitors, two (2) packages containing gaming chits and thirteen (13) boxes containing gaming machine parts. Customs Officer Bhola made a record of all the items at the back of the Customs Declaration form, which was verified by Customs Officer Boodoo who then signed it. Customs

Officer Bhola told Nurse and Gibbs that the items found in the container did not correspond with the items listed on the relevant documents given to Customs and they made no reply. He then issued a notice of seizure to Nurse for the fifty-one gaming machines and eighty-three Ceronix monitors. Subsequently, Customs Officer Bhola contacted CARIRI and made arrangements to have an evaluation of the gaming machines, which were stored at the Fernandes Compound in Laventille. He visited the Fernandes Compound and saw the personnel from CARIRI conduct the inspection.

6 On the 14 ^th September, 2009, pursuant to a request from Customs, a team from CARIRI, which included Mr. Nunez, a senior Electronic Engineer, examined ten of the gaming machines to determine the mode of pay-out. A report dated the 18 ^th September, 2009 was prepared as a result of that examination.

7 On the 15 ^th March, 2011, six of the gaming machines were taken to the Container Examination Station in Port of Spain for inspection by representatives of Canserve, and also by Mr. Nunez. Customs Officer Bhola observed an inspection being carried out by Mr. Gerrard Mendez and Mr. Matthew Da Silva on two of the gaming machines. He also observed the inspection of another gaming machine being carried out by an electrical engineer, Mr. Mendez, a technician, Mr. Da Silva and Mr. Nunez. Also present at that Station were Nurse, Gibbs, Mr. Robertson (the Property Keeper for Customs), Ms. Shirley Shepherd and Mr. Fulchan (the attorney-at-law who represented the respondents in the court below).

8 On the 23 ^rd March, 2011, Customs Officer Bhola accompanied Mr. Robertson to a warehouse and in his presence, he removed two plastic bags containing instruction manuals from one of the gaming machines. One of the plastic bags contained manuals instructing the operations of coins and notes while the other plastic bag contained other instructions.

9 Customs Officer Bhola received an initial report on the gaming machines from CARIRI which was prepared by Mr. Andrews on behalf of Canserve. Mr. Andrews also submitted a report to Customs at their request. In order to get an independent opinion on the machines, Mr. Nunez and a senior technician were commissioned to conduct an examination on the gaming machines and a report was prepared pursuant to that examination. The findings of Mr. Nunez were found to be different from the findings of Mr. Andrews as reflected in his report. Mr. Nunez's report indicated that not only were the gaming machines capable of pay out in terms of coins, but they were also capable of accepting and dispensing coins or tokens. However, Mr. Nunez was unable to...