IN THE COURT OF APPEAL BETWEEN CUSTOMS AND EXCISE OFFICER MICHAEL DIAZ AND YVONNE HADEED

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Magisterial Appeal No. P016 of 2015 BETWEEN CUSTOMS AND EXCISE OFFICER MICHAEL DIAZ AND YVONNE HADEED Appellant Respondent PANEL: P. Weekes, J.A. R. Narine, J.A. APPEARANCES: Mr. Jonathan Soo Hon for the Appellant No appearance of the Respondent Date Delivered: 15 th March, Page 1 of 12

2 JUDGMENT Delivered by R. Narine, J.A. 1. This appeal was heard in the absence of the respondent, Yvonne Hadeed. The court was informed that she was served notice of the proceedings via registered mail at her current address in Grenada. BACKGROUND 2. On 19 th June 2003, the respondent, a national of Grenada, arrived at the Piarco International Airport on a flight from St. Vincent. Upon her arrival she cleared customs with two pieces of hand luggage, after submitting a customs declaration form, stating she had nothing to declare. 3. She returned to the customs hall a short while later claiming she had left two other pieces of luggage in the baggage room of the airport. She was allowed to retrieve the two suitcases which were subsequently examined by the same customs officer who had attended to her earlier. 4. Three packages wrapped in brown plastic tape were found in the two suitcases. When questioned by the customs officer as to the contents of the packages she replied, I do not know. The three packages were examined and found to contain a plant-like material resembling marijuana. 5. The customs officer reported her findings to the appellant, a Customs and Excise Officer on duty at the airport. The appellant examined the two suitcases and made the same findings. The appellant cautioned the respondent and she replied, A man in St. Vincent gave me the two suitcases to bring for Ebo in Trinidad. 6. The Organised Crime and Narcotic Unit, was contacted. The packages were subsequently weighed and found to be 12.8 kgs. The marijuana within the packages was kgs. Page 2 of 12

3 7. The respondent was arrested and charged with possession of marijuana for the purpose of trafficking under the Dangerous Drugs Act Chapter 11:25, and with two offences under the Customs Act Chapter 78:01, namely (1) making a false declaration contrary to Section 212 and (2) importing prohibited goods, namely marijuana, contrary to Section 213(a). MAGISTRATE S DECISION 8. The charge of possession of marijuana for the purpose of trafficking was taken indictably and was subsequently dismissed following a preliminary inquiry. 9. The charges of importing prohibited goods and making a false declaration were dealt with summarily. Following objections by the respondent s attorney on the issue of the admissibility of the customs declaration form, attorney for the appellant conceded before the Magistrate that she would not proceed with the charge of making a false declaration. Accordingly, the Magistrate dismissed that charge. On 22 nd April 2008, the Magistrate upheld a no case submission made on behalf of the respondent and dismissed the charge of importing prohibited goods. The Magistrate expressed the view that: (i) (ii) (iii) The issue of importation was not adequately dealt with by the prosecution. The prosecution only established on the evidence led, that the respondent presented the suitcases to the customs officer. The Customs Declaration presented by the respondent did not assist in proving the element of importation. The evidence presented by the prosecution did not go the distance of making the necessary linkages in establishing the elements of the offence. Page 3 of 12

4 GROUNDS OF APPEAL 10. By notice dated 27 th April 2008 the appellant appealed against the refusal of the learned magistrate to convict the respondent of the offence of importing prohibited goods. The grounds of appeal are as follows: (i) (ii) (iii) The learned magistrate s decision that there was no evidence of importation, is unreasonable and cannot be supported having regard to the evidence. The learned magistrate erred in refusing to admit the Customs Declaration into evidence. The learned magistrate erred in upholding the no case submission. SUBMISSIONS 11. Counsel for the appellant submitted that there was evidence of importation which was established by the exhibits, the admission of the respondent through the evidence of the appellant s witnesses that she brought the suitcases from St. Vincent and the circumstantial evidence. 12. He also submitted that the Customs Declaration Form sought to be tendered into evidence was the original despite one side being a carbon copy as this was the actual form submitted to the attending customs officer. The best evidence rule was not applicable in this case since the Customs Declaration Form was the best evidence available. Even if the court was of the view that the best evidence rule was applicable, the original side of the Immigration Declaration was tendered into evidence and consequently there could be no objection to the Customs Declaration Form forming part of the evidence. 13. He further submitted that at the time of the commission of the offence, it was well settled that the offence was one of strict liability. In support of this submission, Mr. Page 4 of 12

5 Soo Hon relied on the case of R v. George Barbar (1973) 21 WIR 343; Richard Simmons v. R (1997) 52 WIR 383 and The Attorney General of Hong Kong v. Tse Hung-Lit & Anor [1986] AC 876. ISSUES 14. The issues to be considered in this appeal are: (i) (ii) (iii) Whether the element of importation was established on the evidence. Whether the Magistrate erred in upholding the no case submission. Whether the Customs Declaration Form should have been admitted into evidence. THE LAW Elements of the Offence 15. Section 213(a) of the Customs Act Chapter 78:01 which created the offence of importing prohibited goods provided as follows: Any person who (a) (b) (c) (d) (e) (f) imports or brings or is concerned in importing or bringing into Trinidad and Tobago any prohibited goods, or any goods the importation of which is restricted, contrary to such prohibition or restriction, whether the goods unloaded or not; Page 5 of 12

6 shall incur a penalty- (i) in the case of a first offence, of twenty-five thousand dollars, or treble the value of the goods, whichever is the greater and imprisonment for six months, (ii) in the case of a second or subsequent offence, of one hundred thousand dollars or treble the value of the goods whichever is the greater and imprisonment for one year, and in either case the goods shall be forfeited. 16. In 2007, the section was amended by section 20(c) of the Finance Act No. 17 of The definition of the offence as contained in the original section 213(a) remained the same, however, the penalties were drastically increased as follows: (a) on summary conviction, in the case of a first offence, to a fine of fifty thousand dollars or treble the value of the goods, whichever is the greater and to imprisonment for a term of eight years; or (b) on summary conviction, in the case of a second or subsequent offence, to a fine of one hundred thousand dollars or treble the value of the goods, whichever is the greater and to imprisonment for a term of fifteen years; or (c) on conviction on indictment be liable to imprisonment for a term of twenty years. 17. Prior to the amendment the offence was only a summary offence which was punishable by a term of imprisonment not exceeding six months on first conviction and on a subsequent conviction, one year. In light of the amendment the offence can now be dealt with summarily or by indictment. Page 6 of 12

7 18. Prohibited goods is defined under section 2 of the Customs Act as any goods the importation or exportation of which is prohibited by law. Import under section 2 of the Customs Act means to bring or cause a particular item to be brought within Trinidad and Tobago. THE EVIDENCE 19. The evidence led by the prosecution before the Magistrate was as follows: Customs and Excise Officer II Savitri Joseph was on duty at the green line in the baggage room at Piarco International Airport on 19 th June 2003 at about 9:45 am when the respondent approached her with two pieces of hand luggage and a completed and signed Customs Declaration Form. The customs officer perused the form and observed that the passenger s name was Yvonne Hadeed, and that the form stated she had nothing to declare. The officer allowed the passenger to leave the baggage room. Shortly after, she returned to the baggage room with a customs guard and another man. She informed the officer that she had two other pieces of luggage to collect in the baggage room. The officer allowed her to collect the two additional pieces. The man who had accompanied her assisted her in placing the two pieces of luggage on the counter. The officer asked the respondent for her passport. She presented a Grenadian passport in the name of Yvonne Hadeed. The officer searched the suitcases and found three packages wrapped in brown plastic tape. She asked the respondent if she knew what the packages contained. The respondent replied that she did not know. The officer opened the packages and found them to contain plant-like material resembling marijuana. She showed the contents to the Page 7 of 12

8 respondent and asked her if she knew what it was. The respondent remained silent. The officer contacted the appellant, who came to the counter. In the presence of the respondent, the officer reported what had transpired and showed him the two suitcases containing the three packages wrapped in brown plastic tape containing the plant-like material. She also showed the appellant the Customs Declaration Form and the respondent s travel documents. The appellant identified himself to the respondent, and asked her if what was told to him by the officer was true, and she replied Yes. The appellant examined the packages and told the respondent that he was of the opinion that the plant-like material was marijuana, and he cautioned her. She replied that a man in St. Vincent had given her the suitcases to bring for one Ebo in Trinidad. The appellant arrested her and subsequently laid the charges. The plant-like material was sent for analysis to the Forensic Science Centre. The plant-like material was found to be marijuana. 20. I have set out in some detail the evidence on which the prosecution relied. There is no dispute that marijuana is a prohibited good, the importation of which is expressly contained in the definition of trafficking in section 3 of the Dangerous Drugs Act Chapter 11:25. The issue that remains is whether there was prima facie evidence of importing the prohibited good. In my view there was sufficient evidence before the Magistrate to establish a prima facie case of importing. While the Magistrate had refused to admit the Customs Declaration Form into evidence following a technical objection by defence counsel, there is abundant circumstantial evidence that the respondent arrived in this country from abroad, and presented her travel documents including a completed and signed Customs Declaration Form to the customs officer on duty in the green line of the baggage room of the airport. She Page 8 of 12

9 had two pieces of hand luggage. She subsequently returned, retrieved the two additional pieces of luggage, and attempted to clear them through customs. 21. From her oral reasons the Magistrate appears to have found that the element of importation had not been sufficiently established. The Magistrate felt that what was required to prove this element was, for example, evidence of baggage tags on the suitcases corresponding to baggage tags in her possession. While this may have provided a stronger evidential link between the respondent and the suitcases, there was sufficient evidence in this case linking the respondent, who had just arrived in the country with the two pieces of luggage. The evidence was not simply that she retrieved the suitcases and presented them to the officer for clearance. She acknowledged that she had brought them into the country when she admitted to the appellant that a man in St. Vincent had given them to her to give to one Ebo in Trinidad. This was an important piece of evidence of importation which the magistrate appears to have disregarded. 22. Accordingly, in my view the Magistrate was wrong in finding that there was insufficient evidence of importing. It follows that she was also wrong to uphold the no case submission on that basis. 23. The appellant has further complained that the Magistrate was wrong in refusing to admit the Customs Declaration Form. Before the Magistrate, defence counsel objected to the admission of the form into evidence. According to the evidence, the form that was sought to be put into evidence was the actual document that the respondent had presented to Customs and Excise Officer Joseph, who placed her marking on it. Subsequently, the form was shown by Customs and Excise Officer Joseph to the appellant who also placed his markings on it. Defence counsel objected on the basis that the appellant s markings were at the front of the document. An official stamp also appeared at the front. According to the objection there was nothing to validate the back of the document and so it lacked evidential value. It was also submitted that one side of the document appeared to be a carbon copy. The original side of the document was tendered into evidence through Immigration Officer Garcia. However, the Magistrate refused to admit the Page 9 of 12

10 carbon copy side which contained the customs declaration. Attorney for the appellant indicated that she was relying only on one side of the document. 24. As noted above, the document was marked at the front by both Customs and Excise Officer Joseph and the appellant. It was the actual document that the respondent had presented to Customs and Excise Officer Joseph. It was clearly relevant and admissible as original evidence. The modern approach to the admissibility of such evidence is reflected in a dictum of Lord Denning in Garton v. Hunter (Valuation Officer) [1969] 1 All ER 451 at page 453: That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in one's hands, one must produce it. One cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. Whether Section 213(a) of the Customs Act creates an offence of strict liability 25. In her brief oral reasons the Magistrate appears to have held the view that the offence of importation of a prohibited good is an offence of strict liability. This finding of law has not been appealed. However, having regard to this court s decision in Customs and Excise Officer Clarence Walker v. Iveren Lucy Feese Mag. App. No. 96 of 2009 in which section 213 of the Act was held not to have created an offence of strict liability, Mr. Soo Hon has asked this court to express its view as to whether the decision in Feese applies to his case. 26. As noted above section 213(a) was amended in The penalties for the offence were drastically increased. Before the amendment the offence was summary only and attracted a fine of $25, and imprisonment for six months for a first offence, and a fine of $100, or imprisonment for one year for a second offence. By virtue of the amendment and summary conviction the fine for a first offence was doubled and the terms were increased to eight years for a first Page 10 of 12

11 offence and fifteen years for a second offence. The offence was also triable on indictment and now attracted a term of imprisonment of twenty years. 27. In Glendon De Gale v. United Hatcheries Ltd Mag. App. No. 155 of 1986, Hamel Smith JA considered whether section 213 required the prosecution to prove a specific intention to commit the offence of importing a prohibited good. He noted that sections 213(c), (d) and (e) contained the word knowingly, while sections (a) and (b) did not. He concluded that the omission of the word knowingly from section 213(a) indicated that the legislature intended that the prohibition against importation of certain goods was absolute. The offence was one of strict liability. 28. In Customs and Excise Officer Clarence Walker v. Iveren Lucy Feese (supra) Soo Hon JA considered the law in light of the increased penalties imposed by the 2007 amendments to section 213(a), and the principles expressed in Sweet v. Parsley [1970] AC 132 and He Kaw Teh v. R (1985) 157 CLR 523, a decision of the High Court of Australia, which the court found to be of high persuasive authority. In He Kaw Teh v. R (supra) Gibbs J. opined that having regard to the serious consequences of committing the offence, it was unlikely that Parliament would have intended that such consequences should be visited on a person who had no intention to commit the offence, or no knowledge that he was committing it. It also seemed improbable that Parliament would have intended that the offence might be committed through mere carelessness or through unreasonable, though honest mistake. Having regard to the gravity of the consequences of the offence, it must have been intended that guilty knowledge would be an element of the offence. Soo Hon JA adopted this reasoning and concluded that section 213 ought not to be construed as creating an offence of strict liability. 29. The offence in this case was alleged to have been committed on 19 th June 2003, long before the 2007 amendment. The respondent was charged under section 213(a) as it stood before the 2007 amendment. It follows that the law that is applicable to this case is the pre-amendment statement of principle as set out in the decision of Hamel Smith JA in De Gale (supra), that is, that the offence is one of strict liability. Page 11 of 12

12 DISPOSITION 30. The appeal is allowed. The order of the Magistrate dismissing the charge of importing a prohibited good under section 213(a) of the Customs Act, is set aside. This matter is remitted to the Arima Magistrates Court to be heard de novo before another Magistrate on a date to be fixed. Dated the 15 th day of March, 2016 P. Weekes Justice of Appeal R. Narine Justice of Appeal Page 12 of 12