Narish Rampersad v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: David C Harris
• Judgment Date: 28 April 2020
• Neutral Citation: TT 2020 HC 120
• Court: High Court (Trinidad and Tobago)
• Docket Number: CV2018-00166
• Date: 28 April 2020

IN THE HIGH COURT OF JUSTICE

San Fernando

Before

The Honorable Justice David C Harris

CV2018-00166

Between

Narish Rampersad

First Claimant

Vashti Rampersad

Second Claimant

M. Rampersad Auto Supplies Limited

Third Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Appearances:

Mr. Ramesh Lawrence Maharaj S.C. leads Mr. Prakash Ramadhar instructed by Mr. Michael Rooplal for the Claimants

Mr. Douglas Mendes S.C. leads Mr. Michael Quamina instructed by Mr. Vincent Jardine for the Defendant

INTRODUCTION

1 By Amended Fixed Date Claim filed March 16 ^th 2018, the Claimants challenge the constitutionality of Article 8 Rules 1 and 4 of the Mutual Assistance (Agreement between Trinidad and Tobago and the United States of America) Order, pursuant to s. 40(1A) of the Mutual Assistance in Criminal Matters Act Chap. 11:24 ( “the Act”). They contend that the said Order is inconsistent with the human and fundamental rights guaranteed in Chapter 1 of the constitution, and particularly ss. 4(a) and (b), 5(2)(d) and (h).

2 The genesis of the claim lies with a request made by the Central Authority of Trinidad and Tobago to the USA pursuant to the provisions in the Act, as a result of which request two subpoenas were served on Tanelka Inc. (“ Tanelka”; the “ company” used interchangeably), a company duly incorporated in Florida, USA and owned by the Claimants, the First and Second Claimants being directors of Tanelka Inc. The terms of the subpoenas seek to compel Tanelka Inc. to give testimony and to produce documents before a Commissioner in the USA.

THE CLAIM 1

3 The Claimants contend that the request made by the Central Authority is aimed at compelling the directors and owners of Tanelka Inc. to give testimony and produce documents connected with the importation of motor vehicles and automotive parts into Trinidad and Tobago by the Third Claimant from Tanelka Inc. They further contend that the information provided through such testimony and documents will be used by the Comptroller of Customs in Trinidad and Tobago, in investigations conducted to determine whether the Claimants are to be prosecuted for criminal offences, allegedly committed by them in Trinidad and Tobago, in connection with the said importation of motor vehicles and automotive parts from Tanelka Inc.

4 The Claimants state that in July 2016 the Comptroller of Customs and Excise (“ customs”) investigated the Claimants for alleged fraudulent evasion of import duties in respect of the importation of motor vehicles and automotive parts which they purchased in the USA from Tanelka Inc. The First Claimant and an official of the Third Claimant were asked questions by customs officials in Trinidad and Tobago in relation to matters referred to in the two subpoenas, to which the Claimants exercised their right to silence and against self-incrimination; they refused to answer the questions posed to them by the Comptroller of Customs and refused to produce the documents the Comptroller requested.

5 The Claimants further state that on 25 ^th September 2016 and 9 ^th November 2016 the General Manager of the Third Claimant and the First Claimant respectively were interviewed by customs officials about matters concerning the importation of motor vehicles and automotive parts; they again exercised their right to silence and against self-incrimination.

6 The Claimants argue that although they intend to exercise their right to silence and against self-incrimination as guaranteed to them by the constitution, they cannot successfully assert these immunities and privileges in relation to the subpoenas served on Tanelka Inc, as the Commissioner in the USA has the purported power by Article 8 Rules 1 and 4 of the Order, pursuant to the Act. As such, the Claimants further contend that the Commissioner can ignore these constitutional assertions and compel them to testify and produce the said documents, and hold them in contempt if they do not comply with the terms of the subpoena.

7 They state further that if they fail to comply with the terms of the subpoenas, their right to liberty, enjoyment of property and protection of the law, their rights to silence and against self-incrimination, as guaranteed under the constitution, would be violated by the Commissioner exercising his powers to fine or imprison the Claimants. Therefore, they contend, Article 8 Rules 1 and 4 of the Order, pursuant to the Act, contravenes the guaranteed human rights entrenched in the constitution.

THE DEFENCE 2

8 The Defendant states that there are three criminal complaints against the Claimants, before the Port of Spain Magistrates Court. Further, the Defendant states that the complaints are premised on allegations that tax invoices issued by Tanelka Inc. in favour of the Third Claimant carry greater values for the vehicles supplied, than the values imputed by the Claimants onto the Customs Declaration Forms with respect to the said vehicles. It is contended by Customs and Excise Division, the Defendant states, that the Claimants made a false declaration in an effort to avoid paying the relevant import tax.

9 In furtherance of the criminal investigation, a request was made to the USA pursuant to the Treaty on Mutual Legal Assistance in Criminal Matter (“ the treaty”) seeking a notarised statement from

Tanelka's Export Co-ordinator, attesting to the authenticity of 166 Tanelka's invoices, a certified copy of Tanelka's Articles of Association and the 166 invoices covering the period 2013–2016 in consecutive numbers. It is as a consequence of this, the Defendant contends, that the Office of International Affairs of the Department of Justice issued two subpoenas, commanding Tanelka Inc. to appear before the Commissioner

10 The Defendant states that both subpoenas warned that failure to attend and provide testimony and/or the said records would render Tanelka guilty of contempt and liable to penalties under the law. The Defendant however contends that the subpoenas do not purport to compel any of the Claimants to incriminate themselves, but to compel Tanelka to provide the originals of invoices relevant to the criminal charges laid against the Claimants.

11 Further, the Defendant contends that an order to produce documents not created by the production order itself does not violate the Claimants' rights against self-incrimination; the privilege against self-incrimination does not extend to the production of documents or things which have an existence independent of the will of the person relying on that privilege.

12 The Defendant states that Article 8 Rule 4 is not applicable as Tanelka Inc. has not made any claim of privilege – as they would have been required to — under the laws of Trinidad and Tobago.

PROCEDURAL HISTORY

13 During the course of the proceedings, the court requested that the parties file submissions regarding the claim and defence respectively; these were filed as ordered. On 21 ^st May 2018 the Claimants filed submissions in response to the Defendant's submissions of 4 ^th May 2018, wherein the Claimants contend that the actions of the Trinidad and Tobago Central Authority are ultra vires the Mutual Assistance in Criminal Matters Act Chap 11:24 (“ the Act”) at s. 33C.

14 The court then ordered all parties to file submissions on this new issue – whether the actions of the Trinidad and Tobago Central Authority were ultra vires the Act and whether the Claimants can further amend their Fixed Date Claim Form ( “FDC”) – and to include this new issue placed before the court in the submissions.

15 The submissions on this new issue were duly filed as ordered. Upon the court considering the submissions of the parties and in particular the Defendant's submissions at para. 2 which raised no objection to the Claimants further amending their FDC, the court ordered on 9 ^th January 2020 that:

• a) The Claimants do file the necessary application to amend the Amended Fixed Date Claim Form filed on the 16 ^th March 2018 on or before the 7 ^th February 2020;

• b) The Re Amended Fixed Date Claim Form annexed to Claimants' written submissions filed on the 16 ^th August 2018 be filed simultaneously with the application to amend;

• c) There be no order as to costs.

16 The Claimants filed their application and Re Amended FDC as ordered; this new issue now forms part of the substantive deliberations to resolve this matter.

CORE ISSUES TO BE DETERMINED

17 (i) The issue added on amendment: Whether the actions of the of the Trinidad and Tobago Central Authority are ultra vires the Mutual Assistance in Criminal Matters Act Chap. 11:24 at s. 33C, rendering the actions and subpoenas of the US Authority null, void and of no effect;

(ii) If not, whether the actions pursuant to the request and the issued subpoenas of the Trinidad and US authorities respectively compelling the claimants to copy, certify and produce certain documents identified in the subpoenas before a US commissioner, infringe the constitutional rights of the Claimants, pursuant to ss. 4(a) and (b), 5(2)(d) and (h) of the constitution of Trinidad and Tobago.

THE STATUTORY LAW

Mutual Assistance in Criminal Matters Act Chap. 11:24:

18 The pertinent section of this Act is s. 33C. 3

Constitution of Trinidad and Tobago Chap. 1:01:

19 The relevant sections of the constitution, as raised by the Claimants in their claim and submission are ss. 4; 5(2)(d) and (h). 4

SUBMISSIONS ON ISSUE (i)

Claimants

20 The Claimants submit that s. 33C of the Mutual Assistance in Criminal Matters Act Chap. 11:24 (“the Act”) sets out the applicable procedure for processing of requests under the Act, by the Central Authority of Trinidad and Tobago to the USA authorities. This procedure as outlined in the Act was not complied with by the Defendant. A letter of request was made to the US authorities instead of an application from the DPP to a Judge or Magistrate who then...