Assets Recovery Agency v Rowe and Others

JurisdictionJamaica
JudgeSykes J
Judgment Date24 January 2014
Neutral Citation[2014] JMSC Civ 2
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2012 HCV 02120
Date24 January 2014

[2014] JMSC Civ. 2

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2012 HCV 02120

Between
The Assets Recovery Agency
Claimant
and
Audrene Samantha Rowe
First Defendant

and

Andrew Sital Rowe
Second Defendant

and

Chamen Andrea Lewis
Third Defendant

and

Basil Jeffrey Gallimore
Fourth Defendant

Charmaine Newsome and Susan Watson Bonner for the claimant

Yualande Christopher Walker instructed by Yualande Christopher & Associates for the first and second defendants

APPLICATION FOR DISCHARGE OF RESTRAINT ORDER — ABUSE OF POWER — CIVIL RECOVERY UNDER POCA — SECTIONS 32, 33, 34, 84, 85, 86, 87, 88,119, 120, 121 OF THE PROCEEDS OF CRIME ACT — SECTIONS 2 AND 17 OF THE FINANCIAL INVESTIGATIONS DIVISION ACT

IN CHAMBERS
Sykes J
1

This is the written reasons for judgment following delivery of decision on January 15, 2014. The Assets Recovery Agency (ARA) secured restraint orders over a number of real and personal properties including a red 2002 Lexus ES 300 motorcar which has Miss Audrene Samantha Rowe (ASR) as the registered owner. In the application for the restraint order, the ARA stated that money laundering and civil recovery investigations had commenced in Jamaica in respect of the four named defendants and the properties in question. A claim form for a civil recovery order has been filed.

2

Miss ASR feels hard done by and is strongly of the view that the restraint order was improperly obtained. In keeping with this view, she has applied for the order to be discharged in its entirety and if that fails, that it be varied to exclude the Lexus. The basis of this application is that she has mounting legal and living expenses and thus the car is needed to meet those expenses. The basis was not supported by affidavit evidence but simply by counsel's words. ARA, naturally, resists the application.

3

In addition to the basis stated in the immediately preceding paragraph, Mrs. Christopher Walker, counsel for ASR, submitted that section 32 of the Proceeds of Crime Act ( POCA) was not properly applied at the time when the restraint order was granted and thus there is a fundamental and fatal flaw which puts an end to the order. Learned counsel submitted that (a) ARA had not made out a good arguable case for the grant of a restraint order and so the order should be vacated; and (b) there was an abuse of power by ARA in that it relied on information procured under section 17 of the Financial Investigations Divisions Act (FIDA) thereby depriving Miss ASR of the protection she would have had under POCA had the information relied on been secured using a customer information order (cio) under sections 119 to 121 of POCA.

The allegations
4

It is necessary to set out the allegations made by ARA when it applied for the restraint order. The evidence before the court comes from the affidavit of Mr Lincoln Johnson, an investigator assigned to the Financial Investigations Division (FID). It should be pointed out that he has exhibited statements obtained from a number of persons including Miss ASR. The narrative about to be given comes from the body of the affidavit and the statements exhibited.

5

There are four main persons mentioned in the narrative. These are Mr Gauntlet Linton Gallimore (GLG), deceased (murdered on September 6, 2008 in Exchange, St Ann); Miss ASR, girlfriend of Mr GLG; Mr Basil Gallimore (BG), the father of Mr GLG and Miss. Chamen Lewis, childhood friend of Miss ASR.

6

In a statement exhibited to Mr Johnson's affidavit given by Miss ASR, in the presence of an attorney at law, Miss ASR stated that she met Mr GLG sometime in 2002. A relationship commenced and he became her paramour. In 2004, she began receiving cash in the form of British Pounds Sterling from Mr GLG which she placed in an account at a financial institution, on the advice of Mr GLG, who told her he did not want to have the money placed in his name. Some of the money was physically transported, across international borders, by couriers alleged to be friends of Mr GLG, from the United Kingdom to Jamaica. Other sums came through money remittance services. According to Miss ASR, he did not say why he did not wish to have the money in his name. It appears that she did not ask.

7

Miss ASR continued by saying that when the money got to a certain sum she desired to purchase a house. She communicated her desire to Mr GLG who readily agreed. Miss ASR identified the property to be bought which was in Exchange in the parish of St Ann. The sale price was £83,000.00. According to her, Mr GLG further advised that the property should be purchased in the name of Mr Andrew Sital Rowe, brother of Miss ASR. Miss ASR added that she was advised by an agent that it would be better to have two names placed on the title rather than one. This was done. The property purchased was bought in the names of Miss ASR and her brother, Mr Andrew Rowe. It is property registered at volume 1209 folio 295 of the Register Book of Titles.

8

Miss ASR stated that Mr GLG at one point had a blue BMW 6 series motorcar registered in the name of Miss Chamen Lewis. This is how it came to be registered in Miss Lewis' name. This account is from the statements of Miss Lewis and Miss ASR. Miss Lewis is a self-employed hairdresser with her business place in Morant Bay, St. Thomas. Miss Lewis stated that she did not receive any money to conduct any business relating to the blue BMW and neither did she use any of her money to clear the car from the wharf. In other words, she did not contribute to the acquisition, importation and clearance of this motorcar. At no time did she meet Mr GLG in person. She spoke to him by phone when Miss ASR attended her beauty salon as a customer. It was during these hair-styling visits that Miss Lewis would exchange pleasantries, via the phone, with Mr GLG who would be speaking to Miss ASR when she was at Miss Lewis' salon.

9

Miss Lewis stated that sometime in 2007, she was asked by Miss ASR to clear a car from the wharf. She went to the wharf with Miss ASR and signed a number of documents. About two months later Miss Lewis went with Miss ASR to the Morant Bay Collector of Taxes and completed an application form for the blue BMW to be registered in her name. Miss Lewis, in early 2008, used the BMW as collateral for a loan from the Bank of Nova Scotia. She alleges that she has been servicing the loan in accordance with her legal obligations.

10

Miss Lewis filed an affidavit on January 7, 2013, stating that she has not attended court on previous dates because she has no desire to participate in the proceedings to contest the claims of ARA because (a) she cannot afford an attorney and (b) she has no interest in the car since she did not purchase the car with her own money and has no money invested in it.

11

In respect of the Lexus, the information is that it was imported into Jamaica by PG Investments Limited of 224 Mountain View Avenue, Kingston 6 and was registered to Miss ASR. The supporting documentation suggests that the Lexus was imported into the island sometime in 2006 and it was purchased by Miss ASR from PG Express, presumably a separate entity from PG Investments Limited.

12

In respect of a grey BMW 3 series motor car, the registered owner is Mr BG. Mr BG stated, in his statement, that he was asked by his son to clear this car for him. He added that he tried to tell his son that he was not interested in getting involved with clearing the car but his son prevailed on him and he, reluctantly, cleared the car. Mr BG indicated that he used his TRN, driver's licence and other documents to clear the car and register it in his name. Mr BG stated that he did not purchase the car in the United Kingdom, he did not use his own money to pay the duties and neither did he use his own money to licence and insure the car. All the monies were provided directly or indirectly by his son. Mr BG filed an affidavit on January 7, 2013 stating that he is not contesting ARA's action against the grey BMW and he does not wish to participate in the court proceedings.

13

The investigations led to information that caused ARA to believe that Mr GLG was involved in a car-stealing enterprise. According to ARA it is believed that Mr GLG and others would steal high-value motor vehicles in the United Kingdom and ship them to Jamaica using fraudulent documentation.

14

Mr GLG was not convicted in Jamaica or in any other country for larceny of motor vehicles. He was convicted, in the United Kingdom, of tampering with a motor vehicle and possession of false identity documents. He was deported to Jamaica on March 14, 2008.

15

To summarise ARA's case, Mr GLG had his last known employment in Jamaica as a cook in Brown's Town, St Ann. He entered the United Kingdom illegally in or around the year 2002 and because of his illegal entry he was not entitled to work and so was not issued with a National Insurance Number. There is no legitimate source of income which would explain Mr GLG's ability to purchase the real property and any of the three vehicles mentioned above. ARA is asking the court at this stage to infer that the unlawful conduct is the car-stealing enterprise and from that activity monies were used to purchase the vehicles and the real estate.

16

Miss ASR admitted in the statement that the money to purchase the house was provided by Mr GLG. The investigation so far suggests that Miss ASR has no source of legitimate or even illegimate income that would explain her ability to purchase the real estate or any of the vehicles in questions. Mr BG has said that in respect of the car it was his son who provided the money to clear, insure and licence the grey BMW 3 series motorcar. He has also said he does not wish to participate in this action any more.

17

Miss Chamen Lewis, likewise, has distanced herself from the purchase, shipping, clearing, licensing and...

To continue reading

Request your trial
1 cases
  • Dorrette Angella Reynolds v Constable Carol Kerridge
    • Jamaica
    • Court of Appeal (Jamaica)
    • 29 June 2023
    ...Recovery Agency and others) v Green and others [2005] EWHC 3168 (Admin); The Assets Recovery Agency v Audrene Samantha Rowe et al [2014] JMSC Civ 2; The Assets Recovery Agency v Adrian Fogo et al [2014] JMSC Civ 10; Laura Barnes v Commissioner of Customs [2015] JMCA Civ 55; and Angus v Unit......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT