Margeson v R

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A.)
• Judgment Date: 22 March 1991
• Court: Court of Appeal (Cayman Islands)
• Date: 22 March 1991

Court of Appeal

(Zacca, P., Georges and Kerr, JJ.A.)

MARGESON

and

R.

Mrs P. Levers and G. Hampson for the appellant;

I. Archie, Crown Counsel, for the Crown.

Cases cited:

(1) Power v. R., 1990–91 CILR N-2., XYZZYXYZZY

(2) R. v. CairdUNK(1970), 54 Cr. App. R. 499; [1970] Crim. L.R. 656, dicta of Sachs, L.J. applied.

(3) R. v. Nazari, [1980] 1 W.L.R. 1366; [1980] 3 All E.R. 880; (1980), 71 Cr. App. R. 87, dicta of Lawton, L.J. applied.

(4) Tatum v. R., 1986–87 CILR 38, overruled.

Legislation construed:

Caymanian Protection Law, 1984 (Law 24 of 1984) s.59: The relevant terms of this section are set out at page 255, line 19 – page 256, line 11.

Court of Appeal Law (Law 9 of 1975), s.2: The relevant terms of this section are set out at page 256, lines 39–41.

Criminal Procedure Code (Law 13 of 1975), s.156(1): The relevant terms of this sub-section are set out at page 256, lines 27–37.

Caymanian Protection-deportation-recommendation for deportation-recommendation is sentence for purposes of appeal under Criminal Procedure Code, s.156(1)-made ‘in connection with’ conviction under Caymanian Protection Law, 1984, s.59-‘sentence’ to be given extended meaning of Court of Appeal Law, s.2

Caymanian Protection-deportation-recommendation for deportation-considerations before making recommendation-whether offender”s continued presence detrimental to country, seriousness of offence and offender”s previous criminal record, innocent persons affected-anticipated hardship in country of origin not appropriate consideration

Caymanian Protection-deportation-recommendation for deportation-opportunity to be heard-offender to be given notice that recommendation likely to be made and counsel invited to address issue

The appellant was charged in the Magistrate”s Court, George Town with evading customs duty.

The appellant, a non-Caymanian, had imported goods into the Cayman Islands for which he presented to the Customs false invoices understating their value. The appellant was charged with evading customs duty contrary to s.54 of the Customs Law, 1990 and was convicted and sentenced under s.61 to pay fines with imprisonment on default. In addition, the magistrate recommended his deportation without holding an enquiry into the suitability of the recommendation or hearing him on the issue.

The appellant”s appeal to the Grand Court (reported at 1990–91 CILR 144) was dismissed. With respect to the recommendation for deportation, the court held that although it was unlawfully made, it could not set it aside as it was not a ‘sentence’ but it could advise the Governor (with whom the final decision lay) accordingly.

On appeal to the Court of Appeal, the appellant submitted on the recommendation that (a) it was a part of the ‘sentence’ and was therefore subject to an appeal under the Criminal Procedure Code, s.156(1); and (b) the magistrate had wrongly exercised his discretion in making it.

The Crown submitted in reply that a recommendation for deportation was not part of a ‘sentence’ and therefore no appeal could lie against it by virtue of the Criminal Procedure Code, s.156(1) or otherwise.

Held, allowing the appeal in part:

(1) The recommendation for deportation had been validly made under s.59 of the Caymanian Protection Law, 1984. It constituted a ‘sentence’ for the purposes of s.156(1) of the Criminal Procedure Code, since it was made in connection with the appellant”s conviction (in the absence of which it could not be made at all). The word ‘sentence’ in s.156(1) should be given the same extended meaning as in s.2 of the Court of Appeal Law, which includes any order of the court made ‘in connection with’ as well as ‘consequent upon’ a conviction. The appellant therefore had a right of appeal against the recommendation (page 256, lines 22–41; page 258, lines 13–19).

(2) Prior to the making of a recommendation for deportation, the court should consider (a) whether the offender”s continued presence in the Cayman Islands would be to the country”s detriment; (b) the seriousness of the offence and the length of the criminal record of the offender (which would be obvious reasons for recommending deportation whereas a minor offence would not merit such an order); and (c) the effect the order would have upon others who were not before the court and who were innocent persons. On the other hand, the court was not the appropriate forum for considering questions such as the political regime in the offender”s country of origin and whether he would suffer unduly harsh consequences after his compulsory return there (page 259, line 31 – page 260, line 28; page 261, lines 13–17).

(3) In addition, the court should not treat a recommendation for deportation as a mere adjunct to its observations about a sentence of imprisonment or a fine. A full enquiry should be made into all the circumstances before the recommendation were made. The offender should be given notice of the possibility that such a recommendation could be made so as to allow him to prepare an answer or defence in the event that one were made. In this respect, it would be advisable for the court to invite counsel to address the issue specifically. Since none of these guidelines had been followed, the order recommending the appellant”s deportation would be quashed (page 261, lines 18–30).

ZACCA, P.: On December 5th, 1990, we dismissed the appeal
against conviction but allowed the appeal against sentence in that
the order made by the learned magistrate recommending
deportation was vacated. We promised to put our reasons into
10	writing and this we now do.
The appellant is an American citizen having a 40% partnership
in a business in the Cayman Islands, known as Two Johns Ltd.
Two Johns Ltd. was the importer of certain items of furniture.
The appellant was responsible for clearing the items imported
15	through the Customs. It was alleged that the appellant presented
invoices on which duty was to be paid and that the invoices were
false as they did not accurately represent the dutiable value of the
goods. The goods were released on the basis of the invoices
submitted.
20	Subsequently, the apartment of the appellant was searched and
invoices similar to the ones submitted to Customs were found in
the apartment. These invoices indicated a higher price than that
declared to Customs. The appellant was charged under five
informations with breaches of s.54 of the Customs Law, 1990.
25	In the Summary Court two of these charges were withdrawn
and at the end of the Crown”s case, a third charge was dismissed
on the basis of a no-case submission on behalf of the appellant.
The appellant was convicted of the two remaining charges. On
each information he was fined $2,000 or six months” imprison-
30	ment. The magistrate also recommended deportation.
On an appeal to the Grand Court, the convictions and
sentences were upheld. The appellant appealed to this court
against his convictions and sentences.
Mrs. Levers, on behalf of the appellant, argued four grounds of
35	appeal as follows:
‘1. That the learned appellate judge erred in law in
holding that the evidence, namely the documents signed by
the appellant and the subsequent documents found, was
evidence sufficient to justify a finding of misrepresentation
40	under s.54 of the Customs Law, 1990.
2. That the learned appellate judge erred in law in holding

that the learned magistrate directed himself adequately and/
or if at all on the burden of proof required to:
(a) discharge the onus cast on the prosecution and/or
(b) discharge the onus cast on the defence as to the
5	question of knowledge.
3. That the learned appellate judge misdirected himself in
the most crucial aspect of the defence case and erred in
coming to the finding that there was ample proof of guilty
knowledge.
10	4. That the learned magistrate erred in law in that he
exercised his discretion wrongfully in making the deportation
order against the appellant.’
Section 54 of the Customs Law, 1990 reads:
‘Whoever directly or indirectly by any misrepresentation,
15	act, omission or device evades or attempts to evade payment
of the whole or any part of the duty or package tax payable
on any goods or who wrongfully obtains or attempts to
obtain drawbacks thereon is (except in the absence of guilty
knowledge, proof of which is upon such person) guilty of
20

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