Jesse Ryan Mark Rooplal v Comptroller of Customs and Excise
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr Justice R. Rahim |
| Judgment Date | 30 January 2020 |
| Neutral Citation | TT 2020 HC 38 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2019-01002 |
| Date | 30 January 2020 |
In the Matter of the Judicial Review Act No. 60 of 2000
and
In the Matter of an Application by Jesse Ryan Mark Rooplal for Judicial Review Pursuant to the Provisions of the Judicial Review Act 2000
the Honourable Mr Justice R. Rahim
Claim No. CV2019-01002
IN THE HIGH COURT OF JUSTICE
Claimant/Applicant: Mr. J. Singh, Mr. D. Rambally, Mr. K. Taklalsingh and Mr. S. Ramkissoon instructed by Ms. R. Khan
Defendant/Respondent: Mr. G. Peterson SC and Ms. J. Baptiste-Mohammed instructed by Ms. T. Kissoon
The challenge in this case is to that which the claimant refers to as the policy of the defendant in relation to the application of a particular qualifying test for imported items which it considers falls under the definition of indecent or obscene under section 45(1)(L) of the Customs Act Chap 78:01 (the Act). The subsection prohibits the importation of indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, gramophone records or any other indecent or obscene matter. It is an offence to import any such goods under section 213 of the Act. In this case, the claimant attempted to import what he refers to as a mannequin (the item).
There is a further challenge to the process employed by way of the issue of a summons to show cause issued to the claimant for him to demonstrate to the court a reason as to why the item ought not to be seized. It is the argument of the claimant that the burden of proof in forfeiture proceedings lies with the defendant so that the process employed is an unlawful one.
The material facts are that on December 28, 2018, the item was inspected by Customs and Excise Officer Natasha Harracksingh at the Aviation Business Limited Bond compound Piarco International Airport it having been imported by the claimant through the shipping company UPS and described in the invoice as a plastic mannequin for entertainment. The inspection was conducted in the presence of the claimant and it is the uncontroverted evidence of Harracksingh that upon examination she observed a life size doll that felt like it was made of silicone with very distinctive features resembling that of a woman. The doll had pubic hair on a very detailed vagina which contained a hole, enlarged breasts with defined nipples and a tool that resembled a pencil with a usb heating rod attached to it. She was informed by the claimant upon her enquiry that the item was to be used for photography in that he intended to dress it up and take photographs.
Harracksingh formed the view that the item was prohibited as being an item described at section 45(1)(L) of the Act. She then alerted the officer in charge Franklin Ramnath and of her opinion that the item was not as described in the airway bill and requested his assistance. It is Ramnath's evidence that he then viewed the item in the presence of the claimant and his observations were the same. The item was seized, and a detained package receipt was issued. The claimant was informed of the detention and his right to appeal the decision. The Delivery Note, Airway Bill and Invoices were handed over to Ramnath by Harracksingh and were then in turn handed over to the preventative branch of Customs and Excise at Piarco. It is to be noted that the airway bill attached to the affidavit of Harracksingh carries the description “Plastic Mannequin for entertainment”.
A more detailed inspection was conducted by Customs and Excise Officer II Suzanne John of the preventative branch who took measurements, made observations and provided many photographs of the item in her affidavit. It is quite unnecessary to set out her highly vivid and extremely detailed description and measurements as it is not an issue in this case that the item is a life sized doll with what purports to be life size female genitalia and features.
John met with the claimant on January 29, 2019 at Customs House Port of Spain according to her, to allow the claimant to identify the item seized and to provide him with an opportunity to explain the purpose and intended use of the item. She informed him of the reason for seizure and detention of the item. The claimant stated that he had hired lawyers and was there to collect the item. John then issued to him a notice of seizure and he declined to be interviewed. On January 31, 2019, the defendant wrote to attorney for the claimant seeking to interview him. The request was eventually refused. By letter of February 4, 2019, the claimant made a notice of claim for the goods. The claimant through his lawyers called upon the defendant to institute court proceedings by letter of February 25, 2019.
A summons was issued against the claimant for the importation of a prohibited item contrary to section 213(a) of the Customs Act pursuant to section 45(1)(L) on March 11, 2019. It is the evidence of John that forfeiture proceedings have not been instituted as he was charged for a criminal offence. The inference being that the item can be ordered to be destroyed should he be found guilty. The charges are still pending.
The evidence attached to the John affidavit consists of two documents. There is firstly the information number 2601 of 2019 by which the charge has been laid and secondly there is a summons to the claimant issued pursuant to the very charge laid in information number 2601 of 2019. The latter requires the claimant to attend court to show cause as to why the item should not be destroyed. It is with the latter document that issue has been taken in this case.
The issues are as follows;
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a. Has the defendant adopted and implemented a policy whereby some goods which fall within a named sub category of goods are considered indecent or obscene when the goods closely resemble male and female genitalia without consideration of the ordinary and natural meaning of the words indecent and obscene as used in the Customs Act.
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b. If so, is the adoption and implementation of such a policy transparent and lawful.
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c. In either case, is the process of the issuance to the claimant of a summons to show cause a lawful process for forfeiture under the provisions of the Customs Act in the circumstances of this case and in particular in light of the laying of an information against the claimant as opposed to forfeiture proceedings.
The defendant has deposed (see affidavit of Bernard Nicholas the Deputy Comptroller of Customs at para 6) that there is no such written policy but that the long employed unwritten practice of the defendant has been that any item which closely resembles the male or female genitalia is considered indecent or obscene. It sets out that this is its practice in relation to items “such as adult toys”, the possible inference being that the practice does not apply to items used for other purposes such as medical purposes. At paragraph 12 Nicholas makes it clear that the Act does not speak of adult toys so that the Comptroller of Customs (COC) is called upon to interpret indecent and obscene and not adult toys. He also makes it abundantly clear that it is not the Comptroller's position that all adult sex toys are prohibited goods and that it is only in the case where the adult sex toy falls into the category of that close resemblance to male or female genitals that they are considered indecent or obscene (see paragraph 11 of his affidavit).
Further, it is the evidence of Nicholas that as far back as 1981 the Censorship Committee (not a committee of the defendant) issued lists of books and magazines of a pornographic nature which were banned from importation. Pursuant thereto the Customs Division issued circulars to Customs Officers to be guided by same. Copies of said circulars are attached to his affidavit. He deposes that members of the public have access to the email address of the division to make enquires should they be unsure of whether certain items are classified as indecent or obscene. The circulars attached actually go as far back as 1972.
The defendant is also guided by a memorandum dated October 2, 2003 under the hand of the Director of Public Prosecutions in relation to advice sought by the then acting COC as to how to proceed in relation to the importation of adult toys. That memo sets out that as a matter of interpretation, the words indecent and obscene ought to be given their natural and ordinary meaning. That the standard imposed does not only apply to matters of a sexual nature but also those which offend against recognized standards of propriety generally with indecent being at the lower end and obscene being at the upper end of the scale. The memo also makes reference to the well known older cases of R v Bow Street Stipendiary Magistrate (1989) 89 Cr App R 121 and R v Anderson (1972) 1 QB 304 at 311. Finally, that the cases demonstrate that those words indicate the ambit of the English common law offence of outraging public decency.
The evidence of all of the deponents for the defendant demonstrates that in applying the advice provided by the DPP, the defendant has adopted an approach that once the item being imported closely resembles male or female human genitalia, it is considered obscene within the meaning of the Act and is thereby prohibited. (See the affidavits of Suzanne John at paragraph 15 and paragraph 7 of the affidavit of Zaid Mohammed filed in CV 2018 03206 attached to the claimant's affidavit in support of this claim filed on March 11, 2019).
It is therefore not in issue that this approach is one which is recommended to and applied by all officers of the defendant. In the court's view therefore it is...
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