Omar Guyah v Devon Rowe Financial Secretary
| Jurisdiction | Jamaica |
| Judge | Wint-Blair, J,Nembhard J,Hutchinson J,Wint-Blair J |
| Judgment Date | 26 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2015 HCV 04694 |
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[2022] JMFC Full 04
THE HONOURABLE Mrs Justice S. Wint-Blair
THE HONOURABLE Miss Justice A. Nembhard
THE HONOURABLE Miss Justice T. Hutchinson
CLAIM NO. 2015 HCV 04694
CLAIM NO. SU 2019 CV 00456 [Formerly 2018 CD 00143]
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CONSTITUTIONAL DIVISION
CIVIL DIVISION
Interdiction — Whether there should be a hearing before a public officer is interdicted — Whether there should be a hearing before salary is withheld upon interdiction — Whether salary constitutes property
Tort — Malicious prosecution — Whether the customs officers acted with malice in prosecuting the claimants — Whether the customs officers acted with reasonable and probable cause in prosecuting the claimants —
False imprisonment — Whether the claimants were falsely imprisoned — Whether the initial arrest of the 1st claimant was lawful — Whether the detention of the 1st claimant was unduly long and unexplained — Whether the customs officers acted with reasonable and probable cause in detaining the claimant — Whether the customs officers acted with malice
Misfeasance in public office — Criminal charges against the claimants dismissed for want of prosecution in the court below — Whether the plea of autrefois acquit applies
Administrative law — Administrative orders — Declarations sought
Constitutional law — Constitutional relief — Right to a fair trial within a reasonable time — Right to liberty — Right to property
Whether dismissal of criminal charge is an acquittal within the meaning of Public Service Regulations
Constitution of Jamaica — Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 — sections 14, 15, 16(2) — The Jamaica (Constitution) Order in Council, 1962 — sections 32, 125, 127 — Public Service Regulations — 28, 32, 34, 43, 47, Revenue Administration Act — sections 6, 8 1 13 — Customs Act — sections 2, 3, 91, 203, 210, 219, Constabulary Force Act — section 13, 33
Mr Christopher Townsend and Mesdames Terry Ann Guyah, Gina Chang and Simone Gooden instructed by Guyah Tolan & Associates for the 1 st Claimant
Mr Chukwuemeka Cameron instructed by Carolyn C. Reid & Company for the 2 nd Claimant
Ms Althea Jarrett QC. and Mr Ricardo Maddan instructed by the Director of State Proceedings for the Defendants
These claims stem from criminal charges that were laid against the Claimants, Mr Omar Guyah and Ms Cordelia Brown, in the Resident Magistrate's Court for the Corporate Area (Criminal Division) (as it then was), in or around March 2012.
On 6 February 2015, those criminal charges were dismissed for want of prosecution. The Claimants contend that crown servants from the Revenue Protection Division (“RPD”) and the Jamaica Customs Department (“Customs”) acted with malice, in their pursuit of the prosecution of those criminal charges. The Claimants are public officers employed to Customs. The first claimant and Ms Brown were employed to Customs as Director of Customs in the Contraband Enforcement Team (“CET”) and Deputy Director of Customs, respectively. Their duties included the enforcement of the customs laws of Jamaica inter alia.
In or around November 2009, a Suzuki Swift motor vehicle (“the Suzuki”), one of fourteen motor vehicles, entered Jamaica in a container on board the vessel Zim Shanghai. It was unloaded and placed in a bonded facility operated by the wharfinger, Kingston Logistics Centre Limited (“KLC”). The importer of the vehicle took no steps to clear it through the customs department.
In 2010, customs officers, acting on the instruction of the first claimant, seized the Suzuki and thirteen (13) other vehicles in a similar situation. On 11 November 2010, the Commissioner of Customs issued a memorandum concerning the procedure for the disposal of goods under requests made by the wharfinger pursuant to section 91 of the Customs Act.
On 15 March 2011, CEC Customs Brokers & Freight Forwarding Ltd, acting on behalf of Kingston Logistics, submitted a Bill of Sight for the Suzuki to the Customs Valuation Branch. The parts of the Bill relating to the value of the goods were left blank. On 17 March 2011, a CIF value of US$6,800.00 for the Suzuki was provisionally accepted by the senior valuation certification officer.
On 4 April 2011, the duties and taxes payable on the importation of the Suzuki were paid to Customs using the first claimant's credit card. A receipt for that payment was issued to KLC.
On 26 April 2011, the supervisor of the Queen's Warehouse issued a certificate for the Suzuki, certifying that the vehicle had been sold to KLC at public auction. No such auction had in fact taken place.
By letter dated 27 April 2011, KLC notified the Jamaican tax authorities that they had purchased the Suzuki from Customs and had sold it to a Ms Audrey Carter. As evidence of the purchase, they produced the Customs Department's certificate that the vehicle had been sold to them at auction. On or about 2 June 2011, Ms. Carter had the vehicle registered in her name and licensed to be operated on the island's roads.
On 15 February 2012, the Suzuki was seized by customs officers from Kerri-Ann Guyah and taken to the premises of the Customs Department.
The evidence before this court in the case at bar is that the claimants were charged after an investigation by the Revenue Protection Division. That investigation led to charges of breaches of section 210 of the Customs Act, simple larceny, conspiracy and breaches of the Corruption Prevention Act. The first claimant was taken into custody on March 9, 2012 and charged with the offences aforesaid. At the time of the arrest, the first claimant was appointed in the post of Director, assigned to the Contraband Enforcement Team, and the second claimant was appointed a Deputy Commissioner of Customs.
The allegations which were before the then Corporate Area Resident Magistrate's Court (Criminal Division) were set out in a document entitled:
Prosecution's submissions for the non-disclosure of certain documents requested by the defence 1. Under the sub-head “The allegations” the prosecution advanced the following in written submissions:
“19. In summary, the allegations are that in June 2010 and January 2011 while being the Director of the Contraband Enforcement Team of Jamaica Customs, the first claimant seized a number of vehicles from the Kingston Logistics Centre (KLC) on the basis that they were brought into Jamaica in breach of the Customs Act. These vehicles were later forfeited by the Commissioner of Customs, and as such became the property of the Crown. It is further alleged that between June 2010 and April 2011 The first claimant, with knowledge that the Minister of Finance is the only competent authority to order the disposal of goods forfeited to the Crown under the Customs Act, coordinated a scheme to unlawfully and fraudulently dispose of the 14 motor vehicles itemized in the informations laid before the Court, without the authority of the Minister of Finance.
20. This scheme allegedly involved coordinating the unlawful removal of these motor vehicles from the customs area at Kingston Wharves, the fraudulent preparation of correspondence to give the appearance that the motor vehicles were sold by KLC, the soliciting of persons to “purchase” these motor vehicles from KLC, the use of the first claimant's position of authority at Customs to prepare correspondence purporting to authorize the entry of the motor vehicles by Customs and to process the payment of “duties” at the Queen's Warehouse in Montego Bay, in the parish of Saint James by the “purchasers” of these motor vehicles in order to make it
appear that the motor vehicles were lawfully processed by Jamaica Customs.21. Ms. Brown, who was a Deputy Commissioner of Customs is alleged to have conspired with the first claimant to defraud the Government of Jamaica of one of the motor vehicles. The evidence on which the Crown intends to rely to establish the conspiracy is the alleged use by Ms. Brown of her credit card to ‘pay’ the ‘duties’ in respect of one of the motor vehicles and the alleged receipt by Ms. Brown from Ms. Cater of a sum of money representing the refund of the sums paid in respect of the disposal of the motor vehicle as well as an additional sum of money. Ms. Carter, who is the only accused not employed to Jamaica Customs, is alleged to have been associated with the disposal of 4 of the 14 vehicles.”
The evidence before us disclosed that KLC had been granted free zone status by the Ministry of Industry and Commerce in 2006. Ministerial approval had been given for KLC to operate a Customs private bonded Warehouse. KLC was allowed to provide services to international customers without having to pay duties as the Free Zone is considered international space.
The prosecution's case was based on correspondence and other documents prepared for the processing of the fourteen motor vehicles by Customs, which had been used by the first claimant to create the impression that the motor vehicles had been dealt with in accordance with customs laws. The first claimant had procured these documents by dishonest means and with whom the second claimant had conspired.
On 6 February, 2015,...
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