Navarro and Company Ltd v Kingston
| Jurisdiction | Trinidad & Tobago |
| Judge | Braithwaite, J.A. |
| Judgment Date | 20 December 1983 |
| Neutral Citation | TT 1983 CA 31 |
| Docket Number | P.O.S. Mag. Appeal No. 149/82 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 20 December 1983 |
Court of Appeal
Kelsick, C.J.; Hassanali, J.A.; Bernard, J.A.
P.O.S. Mag. Appeal No. 149/82
Bruce Procope S.C. and V. De Lima for the appellant.
The Director of Public Prosecutions and R. Bartley for the respondent.
Criminal Law - Appeal against conviction — Contravention of Exchange Control Act
JUDGMENT OF THE COURT DELIVERED BY J.A. On the 21st October, 1980 with the consent of the Director of Public Prosecutions, an indictable information was laid under the Indictable Offences, (Preliminary Enquiry) Ordinance, Ch, 4 No. 1 against Navarros and Company Limited of 78 Wrightson Road, Port of Spain (in this judgment referred to as “the appellant”) by Malcolm Kingston, an Assistant Superintendent of Police.
This information charged that (Navarros and Company Limited of 78 Wrightson Road, Port of Spain, during the period Tuesday, 31st May, 1977 and Wednesday 8th February, 1978 at Port of Spain, in the County of St, George West, being a person resident in Trinidad and Tobago and having the right to receive foreign currency in the sum of five hundred and seventy five thousand dollars United States Currency from Mc Donnell Douglas International Sales Corporation, United States of America, did without the permission of the Central Bank, of Trinidad and Tobago an act to wit: causing the said sum to be deposited outside of Trinidad and Tobago, with intent to secure that payment of the said foreign currency ceased to be receivable by Navarros and Company Limited in Trinidad and Tobago: Contrary to section 26 (1) of the Exchange Control Act, 1970.(
The prosecution of the charge eventually got under way on the 12th of August 1981. The charge was read by the magistrate to Fernando Navarro, a director of the appellant duly appointed in accordance with the provisions of section 10 of the Criminal Procedure (Corporations) Act Ch. 12:03 as representative of the appellant for the purpose of that Act. Counsel for the prosecution “recommended” to the court that it should proceed with view to summary trial. The magistrate explained to Navarro what was meant by being tried summarily and informed him that the appellant had the right to elect whether it wished to be tried summarily instead of being tried by a jury. He consented to summary trial.
The appellant entered in writing a plea of not guilty to the charge and the trial proceeded summarily.
The facts upon which the prosecution relied to prove the offence are relatively simple.
The appellant was incorporated under the laws of Trinidad and Tobago and resident at 78 Wrightson Road, Port of Spain, Trinidad and Tobago.
In 1976 British West Indian Airways, (in this judgment referred to as (BWLW() was interested in purchasing new aircraft. One of the air-craft manufacturing companies considered as a probable supplier was the Mc Donnell-Douglas Corporation (in this judgment referred to as “MC Donnell() a company incorporated in the United States of America. As a result of negotiations between B.W.I.A. and Mc Donnell, on the 23rd of August 1976, a contract was made between B.W.I.A and Mc Donnell for the purchase of three DC-9 aircraft at a price of $27,550,000.00(U.S.). This price was to be paid by instalments.
On the 1st June, 1976 Mc Donnell and the appellant entered into what is described in the evidence as an “agreement for representation” whereby the appellant was appointed “as the sole representative in Trinidad and Tobago of Mc Donnell to solicit and to promote sales of Mc Donnell's products.(In consideration of their activities with, respect of the negotiations for the purchase of the three aircraft, the appellant was to receive the sum of $250,000.00 (U.S.) for each DC-9 purchased by B.W.I.A.
The agreement dated the 1st June, 1976, expired and was replaced by another agreement similar terms but of a different format dated the 20th May, 1977. This agreement was signed by Fernando Navarro on behalf of the appellant and by a Mr. Stockwell on behalf of” Mc Donnell.
Under this agreement, and consequent upon the payment by B.W.I.A to Mc Donnell of the stipulated instalments, Mc Donnell issued to the appellant cheques amounting in their total to the sum of $575,000.00 (U.S.). None of these cheques was encashed or deposited in Trinidad and Tobago. They were endorsed Fernando Navarro, a director of the appellant and made payable to banks in Caracas, Venezuela and in Toronto, Canada.
When interviewed by the respondent and shown a photostat copy of a cheque in the sum of $12,500.00 U.S. issued by Mc Donnell in favour of the appellant, Fernando Navarro said (this cheque together with three others were received by Navarro — Bahamas Limited as the contract in respect of the purchase of DC-9 aircraft………… had been assigned to Navarro Bahamas Limited.(The three other cheques referred were in fact received by Navarro and endorsed to Navarro Bahamas (in foreign currency). Together they amounted to $575,000.00 U.S.
The appellant did not obtain the permission of the Central Bank of Trinidad and Tobago to cause the payment of the sum of $575,000.00 U.S. to be deposited outside of Trinidad and Tobago, nor did it make any application to the Central Bank to receive foreign (U.S.) currency in a foreign account.
The appellant called one witness — Calvin Girdharrie — chartered accountant. Girdharrie's evidence, as I understand it, was to the effect that it was on his advice that the appellant had assigned the (agreement for representations” to Navarros (Bahamas) Ltd. He said he based his advice to the appellant on an opinion he had obtained from counsel in previous transactions in which the appellant was involved. He did not think it necessary to advise the appellant that any such assignment ought to be notified to the Central Bank of Trinidad and Tobago. As he put it in his testimony before the magistrate (I did not applied (sic) for or receive any consent for the assignment of contract from the Navarro Trinidad to the Navarro Bahamas by the Central Bank, I relied on previous experience in similar matters.”
The magistrate heard the submissions of counsel on both sides on both the questions of fact and of law and pronounced on these submissions as follows:
“On the totality of the evidence, I held that the defendant company, having a right to receive foreign currency, did an act with intent to secure and did secure the payment of foreign currency under contract MOISE 77-97-A, dated the 20th May, 1977, outside the territory of Trinidad and Tobago, i.e., Canada and Venezuela, without permission special or general of the Central Bank of Trinidad and Tobago in contravention of section 26 (1) of the Exchange Control Act, 1970.
I therefore adjudged the defendant Company — Navarro and Company Limited, guilty of contravention of section 26 (1) of the Exchange Control Act, 1970 and imposed the penalty of twice the amount of the foreign currency involved and ordered in default distress upon the property of the said Company pending the outcome of an Appeal.
The penalty imposed amounted to $2,784,150(TT), in accordance with the provisions of the Fourth Schedule of the Exchange Control Act 1970, in the exercise of my discretion.”
At a previous stage in the reasons for his decision the magistrate had made the following findings:
“The evidence adduced by the prosecution's witnesses indicated prima facie that:–
(a) the defendant Company was resident in Trinidad and Tobago;
(b) the defendant Company had entered into an existing contract;
(c) under the terms of the contract, the defendant Company had a right to receive foreign currency and therefore received it through a Director, a Fernando Navarro;
(d) the right to receive foreign currency was from a non-resident; in this case, a foreign company;
(e) the defendant company caused the said payment of the foreign currency to cease to be receivable by the said defendant company in Trinidad and Tobago by causing it to be payable outside the jurisdiction of Trinidad and Tobago.
(f) no permission — general or special — was obtained by the defendant Company from the Central Bank of Trinidad ant Tobago to cause the payment of the said foreign currency not to be received by the defendant Company in Trinidad and Tobago; and
(g) the defendant Company had the mens rea for the commission of the said offence.
I heard the evidence of the prosecution witnesses given on oath. They impressed me as witnesses of truth. I listened to the manner in which they withstood the cross-examination by the lawyers for the defence. I was impressed by their candour and accepted them as being truthful.”
Against the above findings and rulings on law and fact the appellant has appealed on these grounds:
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(1) That the Company is not guilty;
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(2) That the court had no jurisdiction in the case;
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(3) That the court has exceeded its jurisdiction in the case;
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(4) That the decision is unreasonable and cannot be supported having regard to the evidence;
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(5) That the decision is erroneous in point of law; that is to say, the learned magistrate erred in his interpretation of the Fourth Schedule, Part Two of the Exchange Control Act, 1970;
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(6) That the sentence imposed is unduly severe.”
In support of ground 1, junior counsel for the appellant submitted:
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(1) The learned magistrate refused to receive into evidence the Public Statement made by the Minister (3 copies attached hereto) and published by the Government Printery.
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(2) The Statement made to the court (on page 56 of the Notes of Evidence by the counsel for the Prosecution was unlawful and prejudiced the appellant Company's fair trial.
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(3) The Verdict is unreasonable and cannot be supported having, regard to the evidence, in that, the learned magistrate failed to consider the question of corroboration of the evidence of...
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