Haylock v Att Gen

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 09 October 1994
• Date: 09 October 1994
• Court: Grand Court (Cayman Islands)

Grand Court

(Harre, C.J.)

HAYLOCK

and

ATTORNEY GENERAL

N.W. Hill, Q.C. and S.T. McCann for the appellant;

I.F. Archie, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Clarke v. Customs ComptrollerUNK(1987), 39 W.I.R. 29.

(2) Customs & Excise Commrs. v. Air Canada, [1991] 2 Q.B. 446; [1991] 1 All E.R. 570, dictum of Purchas, L.J. applied.

(3) Denton v. John Lister Ltd., [1971] 1 W.L.R. 1426; [1971] 3 All E.R. 669, applied.

(4) Tuck & Sons v. PriesterELR(1887), 19 Q.B.D. 629.

Legislation construed:

Customs Law, 1990 (Law 17 of 1990), s.10(3):

‘The import . . . of the following goods is restricted to such goods as may be permitted under this or any other law or under the licence of the Governor in Council in that behalf-

(a) firearms and ammunition, unless accompanied by a permit signed by the Commissioner of Police.’

s.59: The relevant terms of this section are set out at page 273, lines 2–20.

s.64(4): ‘Any person claiming that any thing seized as liable to forfeiture is not so liable, may within one month of the date of the notice of seizure . . . appeal to a summary court.’

Firearms Law (Revised) (Law 17 of 1964), s.4(1):

‘Every traveller who disembarks in the Islands shall, on being required to do so by any Customs Officer, make a declaration in the prescribed form stating whether he has any, and, if so, what, firearms or ammunition in his possession or under his control.’

s.7: The relevant terms of this section are set out at page 273, lines 23–30.

s.40: The relevant terms of this section are set out at page 273, lines 31–43.

Firearms-forfeiture of vessels-requirements-under Customs Law, 1990, s.59(2), vessel liable to forfeiture if used to conceal goods subject to import restriction-not necessary that criminal offence committed or prosecuted-importation of firearms expressly restricted by s.10(3), irrespective of Firearms Law (Revised)-mere failure to declare firearms on board is concealment

Firearms-forfeiture of vessels-appeal against forfeiture-under Customs Law, 1990, s.64(4), claim that vessel not liable to forfeiture is appeal-onus on appellant to prove non-liability on balance of probabilities

The appellant brought an action in the Summary Court under s.64(4) of the Customs Law, 1990, seeking the return of a vessel forfeited by the Customs Department under s.59(2) of the Law.

The captain of a vessel entering George Town Harbour failed to declare all firearms on board, as required by the Firearms Law (Revised), s.4(1) and the police subsequently discovered further weapons locked in his cabin. The Customs Department seized both the firearms and the vessel on the authority of the Customs Law, 1990, s.59(1)(c) and (2) which provided for such seizure whenever restricted goods were found concealed on board a vessel. The importation of firearms was restricted both under the Customs Law, 1990, s.10(3) and the Firearms Law (Revised).

The Summary Court refused to hear the Customs Department”s application for the forfeiture of the firearms, ruling that s.59 created neither a criminal offence nor imposed a penalty and that the power of forfeiture was administrative rather than judicial.

When the Department then claimed the forfeiture of the vessel, the

appellant brought the present proceedings in the Summary Court under s.64(4) of the Customs Law for the return of the vessel on the ground that it was not liable to forfeiture. The magistrate conducted the hearing on the basis that it was an appeal from the decision of the Customs Department and dismissed it.

On appeal, the appellant submitted that (a) the vessel was not liable to forfeiture under the Customs Law, s.59(2) since (i) the power of forfeiture was dependent upon the commission of a criminal offence and none had been committed; (ii) the firearms in question were part of the equipment of the vessel since they were a necessary protection against piracy and, under the Firearms Law, s.40(b), were not subject to the restrictions on importation established by that Law; and (iii) there had been no concealment within the meaning of the Customs Law, s.59(1)(c) since the firearms were merely locked up for reasons of security; and (b) the Summary Court hearing was a judicial review of the Customs Department”s administrative decision to forfeit the vessel and the magistrate had erred in treating it as an appeal.

The Crown submitted in reply that (a) the power of forfeiture under s.59(2) arose whenever a given state of affairs existed and did not depend upon a criminal prosecution arising out of the same circumstances; (b) the importation of firearms was expressly restricted by the Customs Law, s.10(3) itself and consequently it was unnecessary to consider whether it was similarly restricted under the Firearms Law; (c) the failure to declare all firearms aboard the vessel was concealment within the meaning of s.59(1)(c); and (d) the Customs Law, s.64(4) expressly stated that a Summary Court hearing to reverse a forfeiture was an appeal.

Held, dismissing the appeal:

(1) The discovery of undisclosed firearms on board the vessel entitled the Customs Department to forfeit the vessel under the Customs Law, s.59(2), since (i) the importation of firearms was expressly restricted by s.10(3), irrespective of whether the particular firearms were exempt from restrictions imposed by the Firearms Law as being part of the equipment of the vessel; and (ii) the mere failure to declare their presence on board amounted to concealment within the meaning of s.59(1). As the power of forfeiture was a process in rem exercisable whenever these specified circumstances existed, it did not depend on the commission of any criminal act and had been validly exercised (page 276, line 38 – page 277, line 19; page 277, line 32 – page 278, line 2; page 278, lines 12–18).

(2) Although the Summary Court proceedings refusing to set aside the forfeiture of the vessel had elements in common with judicial review of administrative action, the magistrate had correctly treated the hearing as an appeal against forfeiture, since it was so described in the Customs Law, s.64(4). The onus properly lay on the appellant to prove on the balance of probabilities that the vessel was not liable to forfeiture, which in this case he had failed to do (page 278, lines 23–31).

HARRE, C.J.: This appeal concerns the forfeiture of the vessel ‘Real
Thing,’ which lay in George Town Harbour on October 3rd, 1990. After
the vessel was unloaded, the captain, who was not the present appellant,
35	purported to declare all firearms aboard by declaring one shotgun and a
quantity of ammunition to the Customs Department. On January 27th,
1991 police came aboard the vessel, which had not left the harbour in the
meantime, and discovered other firearms and ammunition, including an
AK47 Assault Rifle, a Browning Rifle, a pistol and a revolver, after
40	forcibly entering the captain”s locked cabin. The Customs Department
seized the vessel, acting under s.59(1)(c) and (2) of the Customs Law,
1990.
This appeal involves the interpretation of the Customs Law, 1990 and
the Firearms Law (Revised). I here set out the most relevant provisions of
45	these enactments in full and there will be others to which I shall refer.

The Customs Law, 1990, s.59 reads as follows:
‘(1) Where-
. . .
(c) any goods being goods chargeable with any duty or
5	goods the importation of which is for the time being
prohibited or restricted by or under any enactment, are
found, whether before or after the unloading thereof, to
have been concealed in any manner on board any ship or
aircraft;
10	those goods shall be liable to forfeiture.
(2) Where any thing has become liable to forfeiture under this
law-
(a) any ship, aircraft, vehicle, animal, container (including
any article of passengers” baggage) or other thing
15	whatsoever which has been used for the carriage,
handling, deposit or concealment of the thing so liable to
forfeiture, either at a time when it was so liable or for the
purpose of the commission of the offence for which it
later became so liable;
20	shall also be liable to

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