[1] Henry Liu [2] Feng Huang Appellants v [1] Attorney General of the Commonwealth of Dominica [2] DPP [3] Comptroller of Customs Respondents [ECSC]

JurisdictionDominica
CourtCourt of Appeal (Dominica)
JudgeThomas J.A. [AG.],Sir Brian Alleyne, SC,Justice of Appeal
Judgment Date22 September 2008
Judgment citation (vLex)[2008] ECSC J0922-11
Date22 September 2008
Docket NumberHCVAP 2006/001
[2008] ECSC J0922-11

IN THE COURT OF APPEAL

Before:

The Hon. Sir Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Hugh Rawlins Justice of Appeal

The Hon. Mr. Errol Thomas Justice of Appeal [Ag.]

HCVAP 2006/001

Between:
[1] Henry Liu
[2] Feng Huang
Appellants
and
[1] The Attorney General of the Commonwealth of Dominica
[2] Director of Public Prosecutions
[3] Comptroller of Customs
Respondents
Appearances:

Mr. Ramesh Maharaj, SC and with him Mr. Gerald Burton for the appellants

Mr. Anthony Astaphan, SC and with him Mrs. Heather Felix-Evans for the respondents

Civil Appeal — Cross appeal-Abuse of Process-substantive offences-whether the learned judge had jurisdiction to institute substantive charges against the appellants-Conspiracy charges-exceptional circumstances — whether there is a requirement to plead bad faith — remedies in public law by way of judicial review and constitutional motion — whether denying costs to the appellants was erroneous.

The appellants, economic citizens of the Commonwealth who were entitled to engage in business in accordance with the law of the land were arrested and over 300 fraud related charges were brought against them between April and December 2000. Eighteen months later, conspiracy charges were also brought against the appellants and their locally incorporated company and a customs officer were named as defendants in the conspiracy charges. These charges were allegedly related to the removal of goods from a bonded warehouse without the payment of the relevant taxes. An agreement which was made between the appellants and the Comptroller of Customs to compound the offences and make a payment was not realized. The appellants sought various public law remedies while the various charges were being brought before the Magistrates' Court.

Held: allowing the appeal only to the extent that the appellants are awarded their costs below; allowing the cross-appeal in part and making no order as to costs in the appeal:

  • (1) The filing of over 300 charges against the appellants and the prosecution thereof do not constitute an abuse of process. Accordingly, the decision of the trial judge that the conspiracy charges against the appellants proceed and that there was no contravention of the appellants' right to property under the Constitution of the Commonwealth of Dominica, are upheld.

    "An abuse can exist where the prosecution has manipulated or misused the process of the court or taken advantage of a technicality or where on a balance of probability the accused has been or will be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution." Hui Chi Ming v R [1991] 3 All ER 897 cited.

    Bennett v Horseferry Road Magistrates' Court [1993] 3 All ER 138 , Regina v Telford. Justices Ex Parte Badham [1991] 2 WLR 866 cited.

    "The circumstances must be considered in the light of local conditions, legal, economic, social and cultural. The court can take account of economic realities, in particular lack of resources and skilled staff on the part of the prosecuting authorities, but there are limits to this: the constitutional right of an individual cannot be placed at the mercy of the Government's inefficiency. (See Bell v Director of Public Prosecutions [186] LR CONST 329, 401i to 402e and Mungroo v The Queen [1991] 1 WLR 1351, 1354f to 1355c)."

    Dicta from Nazereus Andrew v Attorney General SLUHCV 2005/0090 delivered on 17 th June 2005 applied.

    Bhola Nandlal v The State [1995] 45 WIR 412 and Verrier v Director of Public Prosecutions (1967) 2 AC 195 applied.

  • (2) The cross-appeal is allowed to the extent that the name of Gene Lawrence is restored to the conspiracy charges.

  • (3) The appellants were entitled to their costs in the proceedings in the court below, but none of the parties is entitled to costs in the appeal because there was no unsuccessful party in the appeal proceedings.

Thomas J.A. [AG.]
1

The matter before the Court involves an appeal and a cross appeal with respect to the judgment of Madame Justice Clare Henry-Wason delivered on 25 th November, 2005.

Background
2

The appellants are economic citizens of the Commonwealth of Dominica and as such are entitled to engage in business activities in accordance with the law of the land. In this regard they sought and were granted permission to operate a bonded warehouse pursuant to the Customs (Control and Management) Act 1 ("the Customs Act"). This warehouse was closely connected to their importing, manufacturing, retailing and related businesses.

3

The Customs Act and the regulations made thereunder prescribed certain procedures that must be adhered to before the warehoused goods can be lawfully removed from the said warehouse. However, in the course of time the Comptroller of Customs obtained information that goods were being removed otherwise than in accordance with the Act. This led to investigations by the Customs Department and subsequent execution of search warrants at the appellants' residence and places of business.

4

The result of all of these activities is that the appellants were arrested and ultimately over 300 charges were brought against them between April and December 2000. These charges, essentially related to fraud on the revenue and variations thereof. Then some eighteen months later, conspiracy charges were also brought against the appellants and their locally incorporated company, Shine Union Trading Co. Ltd. A customs officer, Gene Lawrence, was named as a defendant in the conspiracy charges.

5

Some form of agreement was reached between the appellants and the Comptroller of Customs to compound the offences which entailed the payment of a certain penalty. This did not come to fruition.

6

While these charges were before the Magistrates' Court, the appellants together with their company brought various actions seeking remedies in public law by way of an application for judicial review 2 and constitutional motion 3.

7

In the constitutional motion, various declarations were sought with respect to: contraventions of the separation of powers doctrine, the right to property, right to a fair hearing and the right not to be subject to illegal searches. On the other hand, the application for judicial review sought a review of various decisions of the Director of Public Prosecutions, the Comptroller of Customs and His Worship Magistrate Ossie Lewis with respect to the continuation of the prosecution of the charges even after numerous adjournments.

8

In the case of the Magistrate, the review concerned his refusal to adjourn the information before him sine die until the termination of the matter in the High Court.

9

The matters before the Court were consolidated and heard between 21 st and 24 th February, 2005. The Order of the learned trial judge on the consolidated matters is in the following terms:

  • ."1. That all the substantive charges be stopped and not proceeded with by the prosecution;

  • 2. That the name of Gene Lawrence be struck from the conspiracy charges be allowed to proceed without further delay against the First and Second Claimants [now the First and Second Appellants]; that in any event the preliminary inquiry must be completed by 31 st March 2006.

  • 3. The respondents pay the third Claimant [Shine Union Company Ltd.] cost to be assessed by the Master."

Appeal and Cross Appeal
10

The appellants filed a notice of appeal and the respondents filed a notice of cross appeal. However, due to the overlap of the grounds I consider that it will be necessary, at least in one instance, to discuss a ground of appeal and a ground of cross appeal together.

11

In the notice the respondents appealed against the part of the decision of the trial judge which —

  • "1. Held that the prosecution and/or the continued prosecution of them on three conspiracy charges did not amount to an abuse of process and/or breach of the fundamental rights of the appellants and a breach of the principles of public law.

  • 2. Did not award the appellants their costs in the High Court proceedings."

The appeal
12

Some eleven grounds are contained in the Notice of Appeal 4. However, there is much overlapping and repetition. The grounds as filed are as follows:

  • "1. The decision of the learned judge is erroneous in law in holding that the three conspiracy charges ought to proceed against the appellants notwithstanding her finding that it was not an exceptional case for the prosecution to file conspiracy charges along with the charges for the substantive offences. The learned judge erred in law in not holding that the prosecution and/or continued prosecution of the appellants on the conspiracy charges amounted to an abuse of process, and contravened their fundamental rights as claimed in their claim.

  • 2. The decision of the learned judge is erroneous in law in holding that the three charges of conspiracy which named Mr. Gene Lawrence as an alleged conspirator with the appellants ought not to be proceeded with against Gene Lawrence but ought to be proceeded with against the appellants.

  • 3. The learned judge erred in law in holding that the State could proceed with the three charges of conspiracy against the appellants although she found that it was an abuse of process for the prosecution to proceed with the charges for the substantive offences against the appellants although the conspiracy charges are based on the same evidence upon which the charges for the substantive offences were preferred and prosecuted.

  • 4. The learned judge erred in law in not holding that the prosecution and/or the continued prosecution of the appellants on the conspiracy charges amounted to an abuse of process since the prosecution manipulated and abused the process of the Court in prosecuting the appellants on the charges for the substantive offences and/or charges of conspiracy. The learned judge was not entitled in law to permit the...

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