Bridglal v Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Donaldson-Honeywell, J.
• Judgment Date: 07 June 2016
• Neutral Citation: TT 2016 HC 234
• Docket Number: CV 2015-03939
• Court: High Court (Trinidad and Tobago)
• Date: 07 June 2016

High Court

Donaldson-Honeywell, J.

CV 2015-03939

Bridglal

and

Attorney General

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

Constitutional law - Seizure of property — Whether the detention of the claimant's money by order of the Magistrate violated the claimant's right to due process and protection of the law — Whether the Magistrate had jurisdiction to act in the absence of the prescribed form — Procedural irregularity — Whether delay in returning the money to the claimant amounted to a breach of his constitutional rights — Grounds for detention — Whether the detention orders had a prejudicial effect on the claimant — Section 38 of the Proceeds of Crime Act-Sections 4 (a) (b) and 13 of the Constitution.

Donaldson-Honeywell, J.

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 globally recognized 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, 2014. 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, 2014. 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, 2015.

4 More than one month after, to the filing of the present claim, on 16th 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 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 authorized 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 authorize 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 authorize 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

  • (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 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]

THE POCA PROVISIONS:

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 ex-parte 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 3rd, 2015. 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;

• (f)...