Ravi Balgobin Maharaj v The Comptroller of Customs and Excise

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 29 July 2020
• Neutral Citation: TT 2020 HC 211
• Court: High Court (Trinidad and Tobago)
• Docket Number: CV2018-04400
• Date: 29 July 2020

IN THE HIGH COURT OF JUSTICE (Sub-Registry, San Fernando)

Before the Honourable Mr. Justice R. Rahim

CV2018-04400

Between

Ravi Balgobin Maharaj

Claimant

and

The Comptroller of Customs and Excise

First Defendant

The Attorney General of Trinidad and Tobago

Second Defendant

Appearances:

Claimant- Mr. A. Ramlogan SC, Mr. A. Pariagsingh and Ms. C. Stewart instructed by Mr. J. Jagroo.

Defendants- Ms. J. Baptiste-Mohammed instructed by Mr. S. Julien.

1 This matter is a mixed claim in the form of judicial review and a constitutional motion in which the claimant is seeking to review a policy implemented by the first defendant. The proceedings essentially concerns whether the policy of the Customs and Excise Division to consider adult toys or sex toys as prohibited goods, within the meaning of Section 45 (1) (l) of the Customs Act, Chapter 78:01 (“the Act”) is irrational, illegal and unfair.

2 Section 213 of the Act 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.

3 The claimant states that the crux of his case involves an infringement of his constitutional rights and challenges the legality of the first defendant's policy. As such, the claimant contends that said policy has and can infringe his constitutional rights.

4 However, the defendants argue that the claimant is seeking to re-litigate issues that were determined in recent decision of this court, CV2019-01002, Jesse Ryan Mark Rooplal v Comptroller of Customs and Excise (“the Rooplal case”).

5 The claimant seeks the following relief:

1. As against the First Defendant:

a) A declaration that the first defendant's decision by said action and or omission that adult toys are illegal and hence a prohibited good, the importation of which is restricted under section 45 (1) (l) of the Customs Act, Chapter 78:01 is unfair, irrational and illegal;

b) A declaration that section 45(1) (l) of the Customs Act, Chapter 78:01 upon its true construction for all intents and purposes, does not include adult toys rendering it illegal and or a prohibited good, the importation of which is restricted.

2. As against the Second Defendant:

c) A declaration that there has been a violation of the claimant/intended claimant's right to liberty and enjoyment of property and the right to be deprived thereof except by due process of law in accordance with section 4(a) of the Constitution of the Republic of Trinidad and Tobago;

d) A declaration that there has been a violation of the claimant's right to respect for his private and family life in accordance with section 4(c) of the Constitution of the Republic of Trinidad and Tobago;

e) Damages including vindicatory damages for the breach of the claimant's aforesaid constitutional right.

3. As against the First and Second Defendant:

f) Costs; and

g) Such further and or other relief as the court may deem just and appropriate in the circumstance of this case.

FACTUAL HISTORY

6 It must be noted that this case does not involve a seizure or detention of goods. Further, that the above reflects the specific basis for and the relief claimed. To that end the fixed date claim form filed on December 10, 2018 has not been amended.

7 The claimant is a social, political and civil rights activist who claims to be in a committed relationship with his girlfriend. On August 21, 2018 the Daily Express Newspaper published an article that advised that pursuant to section 45(1) of the Act, adult toys fell under the words indecent or obscene articles or matter.

8 Another article was published on August 26, 2018 by the Daily Express Newspaper wherein the Honourable Minister of Finance advised that although the Act did not specifically refer to adult toys as a prohibited good it was the discretion of the Customs Division, the Comptroller and the courts to determine what items were indecent or obscene.

9 It is the claimant's case that he has always had access to adult toys by way of importation as well as by purchasing same from local stores. There was never any prohibition rendering the importation, purchase or use of adult toys as illegal and the policy of the first defendant a breach of his constitutional rights.

10 The claimant utilizes the local shipping company Websource Ltd to import his items. In or around August 21, 2018, the shipping company sent an email to its customers that the Customs and Excise Division restricted the importation of adult toys.

11 On August 28, 2018, the claimant sent a pre-action protocol letter to the Comptroller by which he is seeking clarification on whether or not there was a policy in place and what was the said policy regarding the restriction on adult toys. To date the first defendant has not responded.

12 The claimant is fearful as the Act imposes certain penalties for importation of certain prohibited goods and in theory, he may be impacted.

THE CLAIM FOR JUDICIAL REVIEW

The ruling of this court in the Rooplal case

13 It is convenient to set out this matter at this stage. The challenge the Rooplal case was to the policy of the first defendant in relation to the application of a particular qualifying test for imported items which it considered fell under the definition of indecent or obscene under section 45(1)(L) of the Customs Act Chap 78:01 (the Act). That 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. The facts in Rooplal were that the claimant attempted to import a life size doll that made of silicone with very distinctive features of a woman's anatomy. The item was seized as being a prohibited item under section 45(1)(L) of the Act. The decision in Rooplal was delivered on January 20, 2020.

14 Two relevant issues in that case were;

• a. Did the defendant adopt and implement 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.

• b. If so, was the adoption and implementation of such a policy transparent and lawful.

15 This court found at paragraph 24 of Rooplal that there was very clear evidence of a long established practice of the defendant of implementation of an unwritten policy that any item which closely resembles the male or female genitalia is considered indecent or obscene. The court also found that it appeared to be the case notwithstanding a memo of the Director of Public Prosecutions in which he properly defined both indecent and obscene in the context of the law as it stood then and stands today.

16 Further, this court had this to say in Rooplal;

26. The issue therefore arises as to whether the definition set out in the policy is overly restrictive. As set out above, the natural and ordinary meaning of the word Obscene is offensive or disgusting by accepted standards of morality and decency and repugnant. This definition admits of and is directly related to applicable societal standards of that which is moral, decent and acceptable. To classify an item as obscene therefore by the simple fact that it closely resembles the male or female genitals would be to ignore the other elements of the definition unrelated to description of the item. These other elements may be the prevailing accepted norms of society at the time or the accepted morality of Trinidad and Tobago society. There is a jurisprudential argument that morals and that which is accepted by society changes as society itself changes.

27. By way of example, quite recently in this jurisdiction there has been an acceptance of same sex relationships, a relationship which would have been considered immoral by many in the past and which some still consider to be so. Similarly, the practice of smoking less than 30 grams of cannabis in private has been decriminalized in this territory quite recently. This again is a matter that may have been considered immoral or certainly unacceptable by this society in the past. So that it is reasonable to presume that a feature of all developing societies is that accepted standards of decency and morals change over time.

28. It follows therefore that what may be seen to have been indecent, immoral or unacceptable or repugnant decades ago may not necessarily be so considered today. In the court's view therefore, the definition of indecent or obscene under section 45(1)(L) of the Customs Act Chap 78:01 is coloured by the date and time in which the section is used and that this is so by design and not by coincidence in a recognition by the legislature that standards or morality and that which is acceptable are not stoic but are in fact dynamic features of societal existence.

29. The Customs Officer who is charged with applying the provision of the Act will have to make a determination as to whether the item which he examines appears to be that which at the lower end does not conform with generally accepted standards of behaviour or propriety, especially in relation to sexual matters in which case it may be indecent or at the higher end whether the item is offensive or disgusting by accepted standards of morality and decency, in which case it may be obscene.

30. The application of a blanket policy that relies solely on the description of an item in that regard may have the effect of removing essential elements of the criteria to be applied by any Customs Officer when acting pursuant to section 45(1) (L) of the Act. In other words, his consideration of whether an item may be prohibited as being obscene or indecent may ignore...