Naing (Aye Aye) v Attorney General and another

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 05 April 2006
• Judgment citation (vLex): [2006] 4 JJC 0501
• Date: 05 April 2006
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2005 HCV 00025

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005 HCV 00025

BETWEEN

AYE AYE NAING

CLAIMANT

AND

THE ATTORNEY GENERAL

1 ^ST DEFENDANT

AND

COLLECTOR OF CUSTOMS

2 ^ND DEFENDANT

AND

FINANCIAL INVESTIGATIONS DIVISION

3 ^RD DEFENDANT

ALLEGED BREACH OF CONDITION OF DUTY CONCESSION-SEIZURE OF MOTOR VEHICLE - WHETHER SEIZURE LAWFUL

MOTOR VEHICLES - Duty concession - Unlawful detention

BROOKS, J

1 Dr. Aye Aye Naing is a District Health Medical Officer assigned to the Hanover Health Department. In that post she is eligible to benefit from a concession on the import duty on a motor car. She duly applied for and was granted the concessionary rate of 20% of the regular import duty on a motor vehicle which she wished to import. The vehicle, a Mercedes Benz, was imported in April 2002 and the duty paid at the concessionary rate.

2 On 16 ^th December 2004, officers attached to the Financial Investigations Division of the Ministry of Finance, seized the vehicle while it was in the possession of someone other than Dr. Naing. They claimed that Dr. Naing had breached the conditions of the duty concession. Dr. Naing's claim herein is for a declaration that the seizure was unlawful, that the motor vehicle be ordered returned to her and that damages be awarded for its wrongful detention. She has, since filing the claim, discontinued it as against the Commissioner of Customs.

3 The officers of the Financial Investigations Division insist that the seizure was and is lawful because Dr. Naing did not have exclusive use of the vehicle as was required by one of the conditions of the concession. They have deposed that they observed the operation of the vehicle for a period of four months, and that during that time the vehicle was not used by Dr. Naing, but by another person. That vehicle, they say, was based and used in the Corporate Area, while Dr. Naing lived and worked in Lucea in the parish of Hanover and used other means of transportation there.

4 The issues to be determined are what conditions, if any, were imposed on Dr. Naing in respect of this motor vehicle, whether they were brought to Dr. Naing's attention and whether there was sufficient evidence of a breach.

5 The documents which the Defendants rely on as being binding on Dr. Naing are the following:

• 1. A letter from the Financial Secretary dated April 17, 2002 by which the Commissioner of Customs was informed of Dr. Naing's eligibility in respect of the vehicle. The relevant part of the document is a typewritten note at the foot thereof which was intended for Dr. Naing's attention. It stated:

  "Dr. Naing is reminded that in the event that he (sic) leaves the Government Service or disposes of the vehicle within a period of three(3) years after receiving this concession, then full duties become payable."

• 2. A Supplementary Import Entry (C78A Form) which is used by the Commissioner of Customs as part of the documentation for the importation of the vehicle. The document contains a number of declarations typed thereon, including, under the heading "Description of Goods and Special Declarations", the following:

  "I Dr. Aye Aye Naing, Medical Officer in the Ministry of Health HEREBY DECLARE THAT I HAVE BEEN GRANTED A 20% CONCESSIONARY RATE OF DUTY VIDE MINISTRY OF FINANCE LETTER NO. 564/014 DATED 17th April, 2002 APPROVED BY THE MINISTRY OF FINANCE....

  "I FURTHER DECLARE THAT THE VEHICLE SHALL BE USED EXCLUSIVELY FOR THE PURPOSE OF DR. NAING AND FURTHER DECLARE THAT THE VEHICLE MENTIONED ON THIS LICENCE SHALL NOT BE OFFERED FOR SALE OR COMMERCIAL EXCHANGE.

  (sgd.) Aye Aye Naing

  ..............................

  Dr. Aye Aye Naing"

6 I think that it is obvious that the former document would not have brought to Dr. Naing's attention any requirement of exclusive use by her; which is the condition which the Defendants have alleged that she has contravened. Nor, in my judgment, would Dr. Naing be fixed with any knowledge of such a condition by virtue of Section 32 (1) of the Customs Act, as that section only speaks to the requirement of forfeiture in the event of breach of conditions which have been imposed. The section does not seek to itself impose any conditions. It states as follows:

"32. (1) If any goods which are ordinarily liable to duty at a given rate are allowed by law to be, and are...