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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

Claim No. CV2015-03939

BETWEEN

RAVENDRA KEMAT BRIDGLAL

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Madam Justice Donaldson-Honeywell.

Dated the 7th June, 2016

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

DECISION

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

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globally recognised 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

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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 authorised 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 authorise 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 authorise 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

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(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

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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]

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;

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(f) Regulations were made to prescribe a form under Section 38 (7A) on September

3rd, 2015. Prior to this there was no form by which the Claimant whose cash had

been seized and purportedly detained in accordance with Section 38 could make an

application under Section 38 (7) to challenge the initial detention and/or further

subsequent detention of his cash;

(g) The ex-parte order made by the Magistrate on 31st day of January, 2014 authorizing

the detention of the Claimant’s cash does not contain the grounds for the detention

or any reason for the making of the order. The Claimant was therefore, in any event

unable to exercise his right to apply for the release of the cash as he is not aware of

the basis for same;

(h) By Section 38 (7) the Claimant is required to prove that “there are no or no longer

any grounds for its detention as are mentioned in subsection (2).” The Claimant is

unable to discharge this burden of proof because the procedures which existed

under the POCA did not allow him to know the basis and/or reason and/or

justification and/or grounds for the detention orders.

(i) Thus even if there was a prescribed form under Section 38 (7A), the Claimant was

not in a position to make a meaningful application to have his cash released.

(j) Subsequent to the passage and coming into effect of the Finance Act 2015 and the

amendments made therein to the POCA, the Magistrate had no jurisdiction to make

a detention order in the absence of regulations prescribing the forms and content of

the detention order under Sections 38 (2) and (3). Magistrates are creatures of

statute and hence derive their powers in this regard under the POCA.

(k) The continued detention orders granted after the 27th day of January, 2015 were

therefore null and void and of no legal effect as they were not in a form prescribed

and approved by Parliament as intended;

(l) Alternatively, the detention order and all subsequent detention orders were invalid

because they did not contain the grounds of the detention thereby defeating the

constitutional procedural safeguard given to the Claimant by Parliament to be able

to apply to have the order discharged and his cash released;

(m) In the circumstances, the right given to the Claimant under Section 38 (7) was

meaningless as the failure of the State to prescribe a form for making the relevant

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application and/or failure to disclose the reason and/or grounds and/or basis for the

detention order effectively compromised and or undermined his ability to satisfy

the statutory preconditions that would enable the court to make an order for the

release of his cash; the Claimant was unable to mount a challenge to the grounds

for the detention of his cash as he is not aware of the said grounds upon which the

said detention was based;

(n) The failure to balance the right of the State to seize the Claimant’s cash pursuant to

an ex-parte order with his right to apply to have his cash discharged is illegal and

unconstitutional. There is in fact no balance because while the police can apply for

a detention order, the Claimant cannot apply for a discharge to have his cash

returned.

The Issues:

8. The primary issue in the present case is whether the detention of the Claimant’s cash by

order of the Magistrates in the absence of prescribed forms and/or with the omission of

grounds in the orders violated the Claimant’s rights to due process and protection of the

law under Sections 4(a) and 4(b) of the Constitution.

9. Secondly, a determination must be made as to whether the delay in returning the cash to

the Claimant amounted to a breach of his Constitutional rights.

The Evidence:

10. The evidence, herein, comprised the Claimant’s initial Affidavit dated November 16, 2015

as well as three other supporting Affidavits including a second and third by the Claimant

dated December 15, 2015 and March 23, 2016. The Defendant’s main witness was

Customs Officer, Richard Smith who swore an Affidavit dated December 11, 2015. There

were two other supporting Affidavits for the Defendant.

11. The facts relied on by the Claimant are summarised in his written closing submissions as

follows:

1) The Claimant, Ravendra Kemat Bridglal , by way of a fixed date claim form filed on

November 16th 2015, claims relief and/or redress pursuant to Section 14 of the

Constitution against the Attorney General of Trinidad and Tobago. The relief claimed

is in respect of the seizure and detention of Seventy-Four Thousand United States

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Dollars ((US$74,000.00) which was seized from the Claimant at the Piarco

International Airport on January 28th, 2014 by Customs and Excise Officer III, Richard

Smith (the investigator) and subsequently detained pursuant to an order made by a

Magistrate under Section 38 (2) of the Proceeds of Crime Act, Chap. 11:27 (POCA).

2) Several renewals of the detention order were granted pursuant to Section 38 (3) of

POCA between January, 2014 and July, 2015. However, on an application by the

investigator indicating that the detention of the cash was no longer necessary, Her

Worship Magistrate Debby Ann Bassaw ordered the Claimant’s cash released on July

23rd, 2015.

3) At the time of the filing of this claim on the 16th day of November, 2015, the

Magistrate’s order had not been complied with, despite evidence that the State was

aware of the Order as early as July 30th, 2015 and had given an indication that the

Investigator would take the necessary steps to “apply for a formal release of the said

cash together with interest accrued from the Comptroller of Accounts…”1 This

correspondence was sent in response to the Claimant’s pre-action letter of June 1st,

20152.

4) On the 9th day of November, 2015, over three (3) months after the Magistrate’s order

was made, a further letter3 seeking the urgent return of the Claimant’s cash was sent to

the Defendant but remained unanswered. This claim was brought a week after.

5) To date, this Order was only partially complied with, as only the principal sum of

Seventy-Four Thousand United States Dollars (US$74,000.00) was returned to the

Claimant on the 23rd day of December, 20154, subsequent to the filing of this claim and

an application for interim relief filed on 26th day of November, 2015. The interest due

to the Claimant is yet to be paid.

6) On the 26th day of January, 2016 the Court refused the Claimant’s application for

interim relief on the basis that the Court did not have the power to make a mandatory

order against the State in light of Section 14 (3) of the Constitution and the Section

1 See exhibit “RKB4” annexed to the Claimant’s affidavit filed on 16th November 2015 2 See exhibit “RKB23” 3 See exhibit “RKB5” annexed to the Claimant’s affidavit in reply filed on 15th December 2015. 4 See Affidavit of Shanna Lutchmansingh filed on 8th March 2016

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22 of the State Liability and Proceedings Act. Directions were given on the said date

for, inter alia, the filing of written submissions on the substantive issues raised in the

constitutional claim.

12. As it relates to the factual matrix there was some relevant additional information not

provided in the Claimant’s Affidavit in support of the Claim. Specifically, at paragraph 6

of the affidavit of Richard Smith, it was stated that before the initial detention order was

granted by the Magistrate the Claimant was issued a Notice of Seizure of the cash which

clearly stated the grounds on which the Claimant’s cash was being seized. Further at

paragraph 11 of the Defendant’s Affidavit (later also included at paragraph 11 of an

affidavit in response by the Claimant) Richard Smith testified that the Claimant had in July,

2014, availed himself of the option to apply to the Magistrate for release of the cash.

13. This additional information once provided in the Defendants Affidavits was not disputed.

In addition to these affidavits the parties filed written submissions by exchange in

accordance with the Case Management directions of the Court. The parties filed

submissions in Reply however, only the Defendant did so within the time directed by the

Court.

Submissions, Law and Analysis:

i. Ex-parte order:

14. The Claimant in written submissions argues that S.38(4A) which directs an applicant to

make an ex-parte application for the continued detention of goods seized, is a draconian

provision and that the circumstances of the instant case were such that the application for

a detention order should not have been made ex-parte. Citing Ridge v Baldwin5, the

Claimant submits that his natural justice right to be heard was breached by the ex-parte

nature of the application. However, the Defendant in reply has argued that this was not a

pleaded point and the Claimant is therefore barred from submitting on this issue at this

stage.

15. Further the Defendant submits there is no basis for this challenge since S. 38(4A) was

lawfully passed by Parliament with the requisite majority for a provision inconsistent with

5 (1964) AC 40, 113-114

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Sections 4 and 5 of the Constitution, Chap. 1:01. Sections 4 and 13 of the Constitution

provide as follows:

4. It is hereby recognised and declared that in Trinidad and Tobago there have

existed and shall continue to exist, without discrimination by reason of race, origin,

colour, religion or sex, the following fundamental human rights and freedoms,

namely:

(a) The right of the individual to life, liberty, security of the person and

enjoyment of property and the right not to be deprived thereof except by due process

of law;

(b) The right of the individual to equality before the law and the protection

of the law

13. (1) An Act to which this section applies may expressly declare that it shall have

effect even though inconsistent with Sections 4 and 5 and, if any such Act does so

declare, it shall have effect accordingly unless the Act is shown not to be reasonably

justifiable in a society that has a proper respect for the rights and freedoms of the

individual.

(2) An Act to which this section applies is one the Bill for which has been passed

by both Houses of Parliament and at the

final vote thereon in each House has been supported by the votes of not less than

three-fifths of all the members of that House. (3) For the purposes of subsection (2)

the number of members of the Senate shall, notwithstanding the appointment of

temporary members in accordance with section 44, be deemed to be the number of

members specified in section 40(1).

16. In addition to the provision on ex-parte hearing having been passed with the required

majority, it is clear that the right to be heard, particularly at a preliminary stage of

investigations may be expressly and lawfully excluded by statute. According to the Stair

Memorial Encyclopaedia on natural justice6:

“Statutory procedures, whether in a regulatory or disciplinary context, frequently

provide for a preliminary inquiry into an individual's conduct or affairs before it is

6 Administrative Law (Reissue) (31 December 1999) at [69]

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decided whether the matter should be taken into a further stage at which charges

are notified to the individual and a full hearing held in which he may take part.”

17. On this point, therefore, the Claimant has failed to prove that the ex-parte nature of the

application for detention orders provided for in POCA has violated his rights to natural

justice.

ii. Prescribed Forms:

18. The POCA gives certain Police and Customs Officers the power to seize and detain a

citizen’s cash. If the funds are to be detained for more than 96 hours the Order of a

Magistrate is required. Prior to 2014, there was no standard procedure for obtaining the

detention of cash order provided for in the POCA. Thereafter, the Miscellaneous

Provisions Act, No. 15 of 2014 was enacted, introducing the words “in the prescribed

form” into Section38(4) POCA, as follows:

“(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…”

19. The Proceeds of Crime (Prescribed Forms) Regulations, 2015 were made on January 8,

2015 prescribing by Legal Notice No. 2 of 2015 under Section 38(2) and (3) for an ex-

parte order to authorize the detention of cash seized and for any subsequent applications

for detention orders where extension beyond three months was required.

20. Further on January 27, 2015 Section 7 of the Finance Act, No. 2 of 2015 amended the

POCA by introducing at Section 38(4C) the requirement of a prescribed form for the

Magistrate’s cash detention order as well as at Section 38(7A) the requirement of a

prescribed form for the application for the release of cash.

21. Regulations were not made to prescribe a form pursuant to Section38 (4C) to enable a

Magistrate to make an ex parte order in a prescribed form as intended by Parliament until

September 3, 2015. This was after the Claimant’s cash had already been ordered detained

and subsequently ordered released by a Magistrate. There was therefore no prescribed

form at the time of the making of the initial ex-parte order and subsequent extension orders

authorizing detention of the Claimant’s cash.

22. The Claimant’s case is based primarily upon the fact that as from January 27, 2015,

approximately one year after the initial detention of his cash, there was provision for an

order to be made in the prescribed form; but there were no prescribed forms in the

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Regulations. This, according to the Claimant, had the effect of depriving the Magistrate of

her jurisdiction to make such orders until such time as the forms were prescribed.

23. The Claimant cites the case of Peters and Chaitan v AG7 which involved a constitutional

challenge by the Claimants to certain representation petitions under the Representation of

the People Act [“RPA”] which sought to invalidate the Claimants’ election to Parliament

in the year 2000. The challenge was based inter alia on the failure of the Rules Committee

to make rules of Court prescribing the several matters relating to the bringing of a

representation petition that had been left by the RPA to be 'prescribed'. Among the things

so left to be prescribed was the form of the representation petition.

24. The Defendant herein also placed reliance on this case and underscored in submissions that

the Court of Appeal in Chaitan held that there had been no breach of the Claimant’s right

to protection of the law in the fact that the High Court had entertained the petitions despite

there being no prescribed rules. This was so firstly because it considered that the High

Court was vested with inherent jurisdiction to regulate the procedure for entertaining and

determining representation petitions.

25. De la Bastide CJ, as he then was, rejected the argument advanced for the appellants “that

the effect of making this provision ‘subject to this part and…the rules made thereunder’ is

to render it inoperative unless and until rules are made.” He explained that the

fundamental question was whether it was parliament’s intention in enacting the RPA that

the filling in of procedural gaps by prescribing rules of court should be a condition

precedent to the exercise of the Court’s jurisdiction or whether these gaps could be “filled

by resort to the inherent jurisdiction of the court, or in some other way.”8 [Emphasis

added]

26. Further guidance relevant to any Court conferred by statute with a power in relation to

which procedural gaps remained to be filled by a relevant authority was provided in the

statement of de la Bastide CJ at page 278 of the Judgment. He explained:

“The failure of the relevant authority to fill in by rules or regulations, the interstices

of a statutory provision which grants to a court a new jurisdiction or power, does

7 (2001) 63 WIR 244 8 Pg 274

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not necessarily make it impermissible for the court to exercise that jurisdiction or

power. That will be the result only if:

(a) The rules or regulations are needed in order to complete the definition

of the power or jurisdiction in question and/or

(b) An intention can be discerned from what Parliament has enacted that

the making of the rules or regulations should be a condition precedent to

the exercise of the power.”

27. Following this guidance from Chaitan it is clear therefore that the Claimant herein, in order

to establish that the exercise of the Magistrates authority without the prescribed form was

unconstitutional, must prove either that the forms are necessary to complete the definition

of the Magistrate’s power to make detention orders or that Parliament’s intention was that

the prescription of forms be a condition precedent to the making of such an order. In

Chaitan it was held that the failure of the Rules Committee to make rules governing

representation petitions did not deprive the High Court of its jurisdiction. This was so

because it was clear that Parliament did not intend that the said failure should prevent the

court from exercising its jurisdiction to determine election disputes. The said failure

having occurred did not have that effect.

28. Unlike the case in Chaitan, the present case concerns the jurisdiction of a Magistrate.

Accordingly the Claimant has underscored in submissions that the Magistrate’s jurisdiction

is limited to the powers given to Magistrates under the Summary Courts Act, Chap. 4:20

(“SCA”) or other legislation and a Magistrate does not have authority to exercise an

inherent jurisdiction9.

29. Under the SCA the Magistrate is empowered to make orders “in the exercise of its

jurisdiction”. The Claimant therefore argues that the Magistrate had no jurisdiction to act

in the absence of the prescribed form, or alternatively, that the Magistrate exceeded its

jurisdiction by using a form other than that which is prescribed.

30. The Defendant in addressing this contention cited Port Contractors Ltd v Shipping

Association of Trinidad and Tobago10 which was applied in Chaitan. The Court in Port

9 DPP v Her Worship Marcia Murray and First Citizens Bank App. No. P019 of 2013 10 (1972) 221 WIR 505

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Contractors was considering whether the exercise of jurisdiction to join parties to a trade

dispute, which in that case was a power of the Industrial Court, is subject to the making of

rules and regulations. On the facts of that case it was held that:

“[Section 11(5)(c) Industrial Stabilisation Act 1965] does not in terms make the

exercise of the power of joinder subject to the making of rules. The whole scheme

of the Act indicates that the court was to have ample freedom in the regulation of

its procedure. Section 11 (4) provides:

'The Court may, subject to the Act, regulate its practice and its procedure for the

hearing and determination of a trade dispute.'

It could hardly have been intended that a court given such wide power to regulate

its procedure without a code of rules should be restrained from exercising a power

of joinder unless it produced a code dealing with the terms and conditions under

which joinder would be ordered. It must be borne in mind that any rules

prescribed would not limit the scope of the power. This must depend on the Act

itself. They would merely regulate the procedure for the exercise of the power.

Further, it is clear that although the power is given to the court, the intention is

that it should be exercised for the benefit of parties appearing before the court.

Final decisions in disputed matters can be more speedily reached if all parties

concerned can be compelled to attend, put their cases forward and submit to the

judgment delivered. To hold that the power cannot be exercised in the absence of a

prescribed code of rules would mean that parties to disputes would be deprived of

the benefit of the exercise of the power because of the court's failure to produce a

code–a circumstance over which they could have no control. I do not think that this

could have been intended…

I am satisfied also that the preparation of such a code was not a condition

precedent to the exercise of the power of joinder. The provision is directory–not

mandatory. The failure to prepare rules does not stultify the power conferred upon

the court to exercise the power of joinder. Accordingly, I am of opinion that the

court did have the power to entertain and rule upon the applications for joinder

made in this case.” [Emphasis added.]

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31. Following the reasoning from Port Contractors and Chaitan the Defendant submits that

the test as to whether the failure to prescribe rules, or in this case forms, stultifies the power

conferred on the Magistrate is in two parts: (a) whether the prescribing of the forms is a

condition precedent to the exercise of magisterial power or (b) whether the forms

prescribed would limit the scope of the power of the Magistrate. Applying this test the

Defendant submits that despite the fact that no prescribed forms were used or available for

use as provided for in the amendment to the POCA, the Magistrates detention orders were

not unconstitutional.

32. In further support of the claim that failure to use prescribed forms was fatal to the

constitutionality of the Magistrate’s orders, the Claimant cites the case of Sharma v

Registrar of the Integrity Commission and Another11. This case involved judicial review

of the Integrity Commission’s delay in prescribing regulations for the filing of declarations

for persons in public life. The Appellants therein also challenged the decision of the

Commission not to require persons to file declarations in the absence of regulations. The

Privy Council affirmed the decision of the Court of Appeal in that case that the Commission

was correct in informing the persons in public life that they were not required to file a

declaration for that year as it was simply giving effect to the Act.

33. Applying this to the present case, the Claimant contends that the absence of the detention

order forms that the POCA amendment, provided for months after his cash was initially

detained, in fact precluded the Magistrate from making any further orders for continued

detention of his cash.

34. However, the Defendant submitted in reply submissions that the circumstances of the

Sharma determination were distinguishable from the case at hand. In Sharma, the Privy

Council determined that the forms were a condition precedent to the filing of the

declaration due to the high degree of uniformity required so that the information that the

Commission received could be examined efficiently and in the absence of such a system

the declarations would be chaotic. In the present case however, the forms could not have

been a condition precedent since all the conditions for detention of the cash were provided

for at Section 38(2) of the POCA. It was based on this that Magistrates had been able to

issue detention orders prior to the introduction of the provision for a prescribed form to be

11 [2007] UKPC 42

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used. The issue of inefficiency such that the Magistrates power to make detention orders

could not properly have been carried out without the forms did not therefore arise.

35. The Defendant argues that the case of Sharma is inapplicable based on the distinguishing

factors. Accordingly, the Claimant in the present case must still satisfy the test outlined in

Chaitan by proving either that the forms are a condition precedent to the exercise of

magisterial power or that the forms prescribed would limit the scope of the power of the

Magistrate to issue detention orders.

36. According to the Claimant, Parliament’s intention was to avoid uncertainty by removing

the Magistrate’s autonomy to create her own orders. The Claimant argues that the use of

the word “shall” in the amendments to the Act suggest that the prescribed forms are

mandatory for the making of an order. The Claimant suggests that due to the ex parte nature

of the application for detention, the prescribed forms would act as a safeguard to ensure

certain technical requirements were met.

37. However, the Defendant disputes that this was Parliament’s intention, citing the Hansards’

Reports12 the Defendant underscored that the amendments which provided for prescribed

forms came into force “to strengthen the country’s anti-money laundering and combat the

financing of terrorism regime”. It could not therefore have been intended that by

introducing this provision for forms and simultaneously not prescribing any forms the

Magistrates power to issue detention orders would by instantly removed. Furthermore the

prescribing of the forms could not present a limitation of scope of the Magistrates powers

since the grounds for the issue of a detention order and the continuation thereof were

already contained in S.38(2) POCA. These are the substantive conditions to be fulfilled

prior to making such an order and there is no provision that the use of a prescribed form is

a condition precedent to the Magistrates detention order authority. The Defendant

maintains that the provision for use of the prescribed forms in no way limits the scope of

the Magistrate’s power to issue a detention order but merely provides a format for doing

so.

38. Further support for the Defendant’s position is provided by the decision of the Court of

Appeal in Jamaat al Muslimeen v Bernard13. At page 435 of the Judgment Sharma JA,

12 Hansards’ Reports dated 19 September 2015 13 (1994) 46 WIR 429

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as he then was, confirmed a submission of Counsel for the Appellant, Mr. R.L. Maharaj as

he then was, that:

“Where an Act conferred jurisdiction on a court, and no rules have been made, the

court will not allow that failure to stultify the Act, and jurisdiction would be

exercised.”

Based on supporting authority for this statement Mr. Maharaj had contended that “When

jurisdiction exists in a case in which apt procedure is not provided by statute the judge

must himself mould a convenient form of procedure.”

39. Having considered the submissions on both sides it is my finding that the Claimant has

not succeeded in proving either that Parliament’s intent was that the prescribing of forms

would be a condition precedent to the Magistrate’s making of a detention order or that the

provision for forms limited the scope of the Magistrate’s power.

iii. Failure to prescribe a form for the Claimant’s application to release the

detained cash.

40. As aforementioned the Claimant submitted that he was deprived of his right to protection

of law because there were no prescribed forms for him to apply to have his cash released.

41. This contention falls flat however in the face of the evidence presented by the Defendant

that the Claimant in fact made several oral applications and one written application for

release of the funds, albeit this was before the law was changed to require a prescribed

form. The Defendant in closing submissions underscored that the Claimant’s right to apply

for release of his cash was never taken away from him. It is my finding that the absence

of prescribed forms after the law was changed did not prevent the Claimant from making

further applications for release of the cash as he saw fit. These could have succeeded if at

any time the Magistrate found that there were no sufficient grounds for continued detention

due to ongoing investigations. In fact the Application which eventually resulted in the

release of his cash was made by Customs Officer Richard Smith without the use of a

prescribed form.

iv. Mandatory nature of the provisions regarding forms.

42. As aforementioned one of the contentions of the Claimant is that the effect of the statute

as to whether it was mandatory or discretionary that forms be prescribed must be

considered. This requirement was emphasised in the Court of Appeal decision of Annissa

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Webster v AG.14 The use of the word “shall” in the provisions of the amendment to POCA

that introduced the requirement for prescribed forms appears on a literal interpretation to

make it mandatory that forms be used. However, by the time this provision was made law

the Magistrate herein had already issued her order detaining the Claimant’s cash. All that

remained was for the order to be extended every three months until investigations were

complete.

43. The new amendment required after the fact, that prescribed forms be used where none

were previously needed for the grant of extension orders; but there were none in existence.

This gave rise to an ambiguity that differentiates the instant circumstances from those

where in other cases such as Sharma the prescription of regulations was held to be

mandatory based inter alia on the word “shall”. A purposive interpretation taking into

consideration whether the grant of detention orders without prescribed forms could in

actuality prejudice the Claimant’s rights is therefore required.

44. The Claimant relies on the authority of Alleyne and ors v AG15, a case in which the Privy

Council determined that the failure to make regulations under the Municipal Corporations

Act and the Statutory Authorities Act violated the applicant’s “right to such procedural

provisions guaranteed to them by Section 5(2)(h) of the Constitution for the purpose of

giving effect to their rights and freedoms under Section 4(b) of the Constitution”.

45. The Defendant, citing Ronald Daniel v AG16, submits that since Section 4(a) of the

Constitution provides that a person should not be deprived of his right to property save by

due process of law, the onus is on the Claimant to show how he was deprived of his

property without due process. The Defendant emphasises that the finding from the Ronald

Daniel case is that the due process right guarantees a justice system that is fair but not one

that is infallible17. Further, once due process is fulfilled, the individual has protection of

the law under S. 4(b)18.

14 CA No. 86 of 2008 15 [2015] UKPC 3 16 CV2009-00398 17 Maharaj v AG (No.2) [1979] AC 385; Thomas v Baptiste (1998) 54 WIR 387; Boodram v AG [1996] AC 842 18 Lewis v AG of Jamaica PCA No. 60 of 1999

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46. The Court of Appeal in Matthews v The State19 further clarified the position as to how a

determination should be made whether legislation providing for certain things to be done

is mandatory of directory. The Court held:

“It is no longer accepted that it is possible, merely by looking at the language of a

legislative provision, to distinguish between mandatory provisions, the penalty for

breach of which is nullification, and directory provisions, for breach of which the

legislation is deemed to have intended a less drastic consequence. Most directions

given by the legislature in statutes are in a mandatory form, but in order to

determine what is the result of a failure to comply with something prescribed by a

statute, it is necessary to look beyond the language and consider such matters as

the consequences of the breach and the implications of nullification in the

circumstances of the particular case.”

47. In the instant case, the absence of prescribed forms appears to have had little prejudicial

effect on the Claimant. The only potentially material prejudice the Claimant, from his

evidence on oath, claims to have been faced with was the lack of grounds outlined in the

first detention order. This however, is countered by the Defendant’s position that the

Claimant attended for every hearing thereafter wherein the Magistrates had to decide on

extensions and was represented by counsel. He therefore had an opportunity to make any

objections or to request that grounds be provided.

48. The Claimant could also at any time during the period when detention orders were being

made and extended have filed for judicial Review of the Magistrates decisions. Such

recourse could have been either on the basis that no grounds were expressed for the

decisions as alleged or that the grounds made known to the Claimant did not justify her

decision. In so doing the Claimant could have had recourse to Section 16 of the Judicial

Review Act, Chap 7:08 to have the reasons of the Magistrates reviewed.

49. In any event, even before the initial ex-parte order the Claimant was issued a Notice of

Seizure of the cash which stated the grounds of detention. Additionally, the Claimant made

oral requests for release of the cash at every hearing and also submitted a written

application in July, 2014 even before the law was changed to provide for a prescribed form.

His applications were denied pending the ongoing investigations.

19 (2000) 60 WIR 390

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50. In all the circumstances it is my finding that despite the use of the word “shall” in the

amendment providing for use of prescribed forms, a purposive interpretation allowing for

the Magistrate to issue extensions of pre-existing detention orders was required to make

the legislation workable in the absence of any prescribed forms. Such an interpretation is

justified as while allowing for the intention of parliament in facilitating POCA

investigations to be fulfilled it did not prejudice the rights of the Claimant

v. Failure to provide grounds:

51. The Claimant’s further contention as to the breach of his constitutional rights is that the

ex parte order of the Magistrate breached natural justice in that it did not contain the

grounds for the detention or reasons for making the order. Accordingly, even if there was

a prescribed form in existence and it was used in the Magistrates Orders, the Claimant

contends he could not have made an application for release showing that there were no

longer any grounds for the detention. He submits that due to this alleged breach of natural

justice the orders made by the Magistrates are therefore null and void. The Claimant cites

the case of Weekes v Montano and May20 as authority for the principle that courts should

ensure strict compliance with any enactment when an interference with a citizen’s

constitutional rights is involved.

52. However, the Defendant submits in response to this contention, that the Weekes case

involved a habeas corpus application and concerned the deprivation of a person’s liberty.

Therefore, the Defendant submitted that it is distinguishable from the present case where

it is the detention of the Claimant’s property at stake. The safeguard may therefore be less

strict in such a case. Further, they contend that the legislation being considered in the

Weekes case specifically provided for the grounds to be set out. Thus the decision in that

case cannot be applied to the instant circumstances where the POCA does not specify that

in issuing a detention order the grounds must be stated by the Magistrate. It is my finding

that this contention regarding unconstitutionality of the omission of grounds in the order

also fails.

vi. Delay:

20 (1970) 16 WIR 425

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53. The issue of delay in release of the cash and interest thereon is the strongest aspect of the

Claim for redress herein. This issue now stands alone based on my determination that the

other Constitutional Relief claims were without merit. The Claimant contends that the

failure to repay the sum plus interest after the order of the magistrate to release it amounts

to a further violation of the Claimant’s rights to protection of the law. The Claimant has

not cited any authority for this proposition however, the Defendant citing Ronald Daniel

v the AG21 underscored that in that case the Court questioned whether faults in

administration could amount to the breach of the right to protection of the law under

Section 4 of the Constitution. Pemberton J concluded at page 15 of the Judgment that

while administrative difficulties should be speedily addressed and proper administrative

steps put in place to ensure delays by the prison authorities in providing a form to a prisoner

for withdrawal of his appeal are the exception rather than the rule, the delay in that case

was insufficient to show breach of the prisoners constitutional rights.

54. The Defendant submits that constitutional relief would not be the appropriate remedy to be

granted to the Claimant for the delay in payment. There are alternative remedies available

to the Claimant such as an award of damages if a claim alleging detinue/conversion had

been filed by the Claimant.

55. In support of this contention the Defendants cite the decision in Ghani v Jones22. In that

case it was shown that police officers at common law had the power to detain goods for a

reasonable time once they suspected that such goods were material evidence of criminal

activity. An action in trespass can ensue for the return of goods wrongfully seized. Another

case, R v. City of Salford Magistrate’s Court23 cited by the Defendants supported their

contention that the Claimant had at all times from the initial seizure, the right to apply for

his detained cash. That right had never been taken away and as such there was no basis for

Constitutional redress. According to MacKay J,

“There are safeguards for the erstwhile holder of the seized property, and he has

the ability at any time, if he thinks he can show that its continued detention is

unwarranted, to seek its return.”

21 CV2009-00398 22 (1970) 1 QB 693 23 [2009] 1 WLR 1023

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56. According to the Defendants the inclusion at Section 38(7) (a) (i) of POCA of a provision

for the person whose cash has been seized to claim its release provides an “inbuilt

safeguard”, but this was always a remedy available at common law. It remained available

and the Claimant was not deprived of it when there was a failure to prescribe forms and/or

to include grounds in the detention orders. Such failure if any could also have been

addressed by the Defendant availing himself of procedures under the Judicial Review Act,

Chap to have the actions of the relevant authorities in delaying the release of his cash

reviewed.

57. The Claimant has failed to avail himself of the recourse to damages in trespass and/or to

challenge, by application for Judicial Review, the omission of the relevant authorities to

return his cash. This precludes him from any relief for the delay by way of this

Constitutional Motion.

Decision:

58. The detention orders of the Magistrates were not unconstitutional even though not in a

prescribed form. No prescribed forms existed when the POCA was amended to introduce

that requirement. It could not have been the intention of Parliament that legislation

intended to strengthen the anti-money-laundering efforts of the State would instead result

in all Magistrates being required to release forthwith cash that had been detained for

investigations.

59. Ideally, bearing in mind that POCA had been in force for some time, with Magistrates

acting on same in making detention orders, the amendments to provide for a prescribed

form ought not to have been brought into effect until the said forms could immediately

thereafter be prescribed by the Minister. Accordingly, the new provisions introduced in

January, 2015 were not without ambiguity. They spoke to the need to use forms which did

not exist, so a purposive interpretation was required to fulfil the intention of parliament.

60. There are examples of such a purposive approach in cases such as Chaitan and Port

Contractors cited by the Defendant. Those cases differed from this one in that the Court

was determining whether the Claimant’s rights to access the Court would be stultified by

the failure of the relevant authority to fill procedural gaps in the legislative framework.

However, although the Claimant’s right to access the Court without awaiting rules is not

an issue here, the purposive approach is still appropriate. This is so because no rights of

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the Claimant were or could have been adversely affected by not treating the Magistrate’s

detention order powers under POCA as having been terminated by the failure of the State

to prescribe forms.

61. Although the Magistrates orders did not say what specified offence was suspected it had

been made clear to the Claimant previously by way of the initial seizure notice that the

offence was breach of Section 154 of the Customs Act. The Magistrate’s first order had

to be understood in the context of what went before. There was no breach of Natural Justice

in the omission of the grounds of suspicion in her order as these were already known by

the Claimant.

62. In the failure to return the cash within a reasonable time of the release order and to pay any

interest thereon up to this time, there has clearly been a breach in spirit of provisions in the

POCA intended to balance some proportionate relief with unavoidable interference with

property rights during criminal investigations. Sections 38(5) and (7)(b) provide that the

Comptroller of Accounts must deposit the detained cash in an interest bearing account once

it is delivered to him and thereafter he may on application release the cash with interest.

63. The delays in releasing the cash and continued failure to pay the Claimant any interest

smack of beaurocratic bungling, which though perhaps commonplace, cannot be condoned

particularly where property rights are adversely affected. Subject to any facts to be

ventilated in evidence in continued or subsequent proceedings, the Claimant may be

entitled to compensatory damages in these circumstances. However, the instant claim is

not the appropriate procedure for such redress. The Claimant should have sought such

redress by way of a claim for damages in trespass/detinue based on the unlawfully extended

detention of his cash which may have amounted to a trespass to his property once the

Magistrate ordered it released.

64. In all the circumstances however, the Claimant has not proved that the failure of the

Minister to prescribe forms when the POCA was amended served to eliminate the

jurisdiction of the Magistrate to make detention orders until the forms were prescribed. The

Claimant did not sufficiently succeed in satisfying the requirements outlined in Chaitan to

prove that a Magistrate’s detention order powers then became subject to the prescribing of

the forms.

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65. The Claimant also failed to prove that the detention orders had a prejudicial effect on him.

This is clear from the evidence of his having received the seizure notice with grounds stated

therein, thereafter having attended with counsel at all but the first hearing of the

applications by the Magistrate and finally by having been able to make his own applications

for release of the sum.

66. The Claimant has therefore failed to prove that the exercise by the Magistrate of her power

under the POCA in issuing a detention order in the absence of prescribed forms was a

breach of the Claimant’s right to protection of the law.

67. The Claim as to breach of constitutional rights due to the delay in release of the cash to the

Claimant must also fail. It is not a claim that ought properly to be treated with by

Constitutional Motion as the alternate recourse of a claim in detinue/conversion or Judicial

Review was available to the Claimant. There is however provision in the Civil Procedure

Rules 1998(as amended) [“CPR”] for matters to be put right by rectifying the nature of

the proceedings and continuing to a determination of the issues of fact and law arising from

the delay in releasing the cash.24

68. Of particular relevance are CPR 55.14(3) read with 55.1(1) (b) and (2) as well as CPR

26.8(3) and (4). This approach also accords with the over-riding objective at CPR 1.1 to

enable the Court to deal with cases justly which would include the saving of expense that

could otherwise be incurred by the parties and the Court if the Claimant were required to

file a fresh claim in detinue. There is provision at CPR 26.1(w) enabling directions to be

given accordingly.

69. In all the circumstances the Constitutional Motion filed by the Claimant herein is not the

appropriate procedure. In light, however, of the fact that the non-release of the cash and

continued failure to pay the Claimant his interest were good grounds for seeking redress I

will not make an order of full costs against the Claimant for having inappropriately

approached the Court by Constitutional Motion. The Defendant is urged to take immediate

steps to minimize the need for continued costly litigation by ensuring that no administrative

inefficiency is allowed to deprive the Claimant of any interest due and payable on his cash.

24 Antonio Webster v. The Attorney General [2011] UKPC 22 at para 13 and 14.

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IT IS NOW ORDERED AS FOLLOWS:

a. That the Originating Motion filed on 16th November, 2015 be and is hereby

converted to a common law action for detinue.

b. That the Claimant pay to the Defendant two thirds of the costs of the Constitutional

Motion to be assessed, if not agreed.

c. That a Case Management date be fixed for further directions.

Dated June 7, 2016

………………………………………

Eleanor Joye Donaldson-Honeywell

Judge

Assisted by: Christie Borely,

Judicial Research Counsel

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