Harre CJ
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN SCA 196/91 BETWEEN CHARLES H. HAYLOCK APPELLANT AND THE ATTORNEY GENERAL RESPONDENT For the Appellant： Norman Hill Q.C. and Mr. S. McCann For the Mr. Ivor Archie HARRE C was Th JUDGMENT which J. appeal concerns the forfeiture of the vessel "Real Thing", and a $1 lay in George Town Harbour on 3rd October 1990. After the vessel pur unloaded the Captain (who was not the present appellant) purported to declare all firearms aboard by declaring one shotgun and a quantity of ammunition to the Customs Department. On Id a 7th January 1991 police came aboard the vessel, which had not left harbour in the meantime, and discovered other firearms and ammunition, including an AK 47 Assault Rifle, a Browning Rifle, a pistol and an revolver, after forcibly entering the captain's locked cabin. Customs Department seized the vessel, acting under s 59 (1) (c) (nt) of the Customs Law. ```
```markdown This appeal involves interpretation of the Customs Law and the Firearms Law. I here set out the most relevant provisions of these enactments in full, and there will be others to which I shall refer.
**THE CUSTOMS LAW 1990** "59. (1) Where— (c) any goods being chargeable with any duty or 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; those goods shall be liable to forfeiture. (2) Where anything has become liable to forfeiture under this law— (a) any ship, aircraft, vehicle, animal, container (including any article of passengers' baggage) or other thing 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, shall also be liable to forfeiture."
**THE LAW (Revised)** II of the Law deals with the importation and exportation of firearms. Sections 7 and 40 read as follows— For the purpose of this Part, a person shall not be deemed to import any firearm into the Islands merely by reason of such firearm being in his possession or under his control on some vessel within the territorial waters of the Islands or on some aircraft flying over the Islands unless he causes or attempts to cause or permit such firearm to be disembarked from such vessel or aircraft in the Islands otherwise than for the purpose of being ```
```html 3 delivered to a customs Officer in accordance 40. The provisions of this Law shall not apply- (b) to any firearm forming part of the equipment of any ship or aircraft or of any aerodrome at any time when such firearm is on board of such ship or aircraft or at such aerodrome, as the case may be; (e) to any officer or member of the crew of any ship or aircraft or any employee of any aerodrome in respect of his possession on board of such ship or aircraft or at such aerodrome, and in his capacity as an officer or member of the crew of such ship or aircraft or an employee of such aerodrome, as the case may be, of any firearm referred to in the paragraph (b);". grounds of appeal as originally lodged were as follows- "GROUND S OF APPEAL "The Learned Magistrate erred in Law in his finding that the seizure of the vessel 'Real Thing' by the Cayman Islands Customs Department under the provisions of Section 59 part (2) of the Customs law was lawful." amended supplementary grounds address that general ground with me rejucularity and I will deal with the appeal by reference in number sequence to those. "1. The learned Magistrate erred in finding that forfeiture of the said vessel Fi 1990 did not depend upon the commission of any offence or conviction thereafter, whether under the Customs Law 1990 or other Law." I refer to two English cases. ```
```html Denton v John Lister Ltd.& Anor.(1971) 3 All ER 669 was a case of importation of prohibited goods. Such goods were liable to forfeiture under section 44 of the English Customs and Excise Act 1952. That also provided a power of seizure and in Schedule 7 was a procedure whereby the liability to forfeiture could be challenged. The following propositions are taken from the judgment of Lord Widgery C.J. with which the other judges of the Court concurred " I observe again that Schedule 7 and the procedure which it lays down is concerned in my judgment with the single issue of whether the article in question is liable to forfeiture under the Act or the Acts, because there may be others relevant in other cases. In this case the question whether the thing is liable to forfeiture under the Act is determined by the provisions of section 44 which I have read. Although in form the summons alleges that the respondents were the importers, there is no allegation of a criminal offence in this information, nor are the proceedings criminal proceedings against an importer. These are forfeiture proceedings under Schedule 7 of the 1952 Act. It seems to me quite clear that the forfeiture proceedings in schedule 7 are, as counsel for the appellant submits, proceedings in rem and not in personam, that is to say the issue which is to be dealt with in forfeiture proceedings is whether the goods in question are liable to be forfeited. If they are liable to be forfeited then those proceedings are not interested in the identity of the Un.Sch. persons who imported them. Forfeiture or no depends on whether the goods were imported or of contrary to a prohibition." ... issue arose again some 20 years later in Customs and Excise ioner v Air Canada (1991) 1 All ER in relation to the forfeit an aircraft under the Customs and Excise Management Act 1979. 3 of that act was an express provision that the ```
5 The process invoked was a civil proceeding. That process was a forfeiture on the ground that an aircraft, which was a commercial jet on a scheduled flight had been "used for the carriage of a thing liable to forfeiture". That thing was cannabis resin, the importation of which was prohibited. After an extensive review of the statutory history and the authorities Purchas LJ accepted the submission that section 141 of the 1979 Act and its predecessor sections in the 1952 Act and the 1876 Act provided: - A process in rem against any vehicle, container or other proper article which was in fact used in the commission of smuggling, to use a crude expression, to be liable in the legislation as the carriage of goods object de to forfeiture at the time of carriage. The object de to be seized under the provisions is the existable of motive or state of mind which can only be recited in the proprietor, user or other person proved in the smuggling. Thus the confiscatory provisions, as was said in the judgments already cited, operated against the thing and were wholly independent of the knowledge, motive or attitude of the owner or other persons associated with the thing. The wording of the knowledge, motive or attitude of the owner or other persons associated with the thing. The wording of section 141 is, in my view, clear and unambiguous and does not permit of any construction so as to import an element equivalent to mens rea nor does it involve in any way a person in the widest sense whether as
6 user, proprietor or owner but depends solely on the thing being used in the commission of the offence which rendered the goods liable to forfeiture. I take the following from the concurring judgments of Balcombe LJ and Sir David Croom-Johnson. Balcombe LJ said this: "In my judgment the wording of S 141 (1) of the 1979 Act is clear and free from ambiguity. It does not itself create a criminal offence so that the authorities on which the judge below and counsel for Air Canada before us, relied to justify servamplication of requirement of knowledge on the of Air Canada (by its appropriate offices of Sir D par Croom-Johnson said this: It and E.S with (s not possible say that S 141 of the Customs thing docise Management Act 1979 has no connection create ccrime. Mr. Laws has submitted that S 141 (1) does not create an offence. That is true. It criminal necesses a liability to forfeiture, which may arise owner the commission of an offence without the view sary criminal intent having been that of the Jol of the ship, aircraft, vehicle or other com. If that happens, then section 141 (3) here trae an offence by the owner, master or crim)om-nder of the ship who may be innocent of any gression. That is indeed harsh, but in my on of 'it is the Law." David C connenson dealing with the relationship between the goods and r"O is another interesting passage in the judgment of Sir commiss a criminal offence and forfeiture. It is this - inal offences, as opposed to forfeiture, are ed by S 50. It covers both those committed in ction with failure to pay duty on chargeable and those committed by importing prohibited estriicted goods.". rc ic
```html 7 He then refers to ss (2) and (3) of S 50 which cover those and continues as follows - "S 50 (2) and (3) therefore create criminal offences in connection with those matters for which goods are liable to forfeiture under section 49 (1) (a) and (b). In each case as specific criminal intent is required. A wholly innocent importation is not an offence under that section but that does not affect the liability to forfeiture." (my emphasis) The last passage from the judgment of Sir David Croom-Johnson to which I wish to refer is this - pe composition of the owner of the aircraft in and (3) wct of forfeiture and of the owner and under the penal provisions of section 141 here they have no knowledge or means of 1970 knowledge of the presence of the cannabis resin or harriminal intent on the part of the Webster eventually to avoid paying duty, seems to forfeiture indeed. One would turn with sympathy to Mr. AC 25 is arguments based on Warner v Metropolitan Commissioner (1968) 2 All ER 356， (1969) 2 Bradley and Parsley (1969) 1 All ER 347， but for two matters. The first is of this claim for forfeiture is an action in rem. identrecursor of section 141 of 1979 Act was S 277 Customs and Excise Act 1952， which was an technical term and on which the judgment of Lord Shasbas CJ in Customs & Excise Commissioners v Jack of te (Accrington) Ltd. (1958) 3 All ER 219 is ba In e 1952 Act it must have done so in the ledge of the cases to which Purchase LJ has deference. The explanation may well lie in special importance to be attached to statutes ny criing with Customs and Excise." admitted these cases statutory provisions which differ from those in Caym being reviewed against different facts， and Mr. Hill's argument to ask not on the question of whether a criminal act has been committed by the person whose goods are liable to forfeiture but whether a criminal act has been committed by anyone at all. He urges mt opt a liberal construction of the statute. ```
```html 8 Forfeiture is undoubtedly a penalty and the phrase "penal statute" is used to cover both statutes creating criminal offences and those providing for recovery of penalties in civil proceedings. As Lord Esher said in Tuck & Sons v. Priester (1887) 19 QBD 629 at 638- "If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for constructions of penal sections". As to ept that that is the correct approach, but despite the reference I a the commission of an offence in the passages to which I have juru, their clear import in my view is that the wording of a fo id, of e provision is to be construed on the basis that it is the stare, infeairs described therein which is the basis of the forfeit Both the respective of such extraneous considerations as mens rea or even l entity of any suspected wrongdoer. As, with the English cases to which I have just referred were involve in what was acknowledged to be an illegal importation of goods - of asmission of an offence - and the judgments are expressed on that orfeitar. But they all proceed on the basis that the nature of the pro of used t particular state of facts - in the two English cases the imp of prohibited goods liable to forfeiture - which in on c case led to the secondary stage, the forfeiture of the aircraft t test to carry them. In the present case the factual basis for the ur of the goods is that they were goods, the importa C cert which was prohibited or restricted (as firearms clearly ce bd t or ti f ```
```markdown 9 are under S. 10 (3) (a) of the Customs Law) and that they were found, whether before or after the unloading thereof to have been concealed aboard the vessel "Real Thing". In my judgment the wording of the provision is quite clear. If that state of affairs can be shown the goods are liable to forfeiture, and if that can be shown that the vessel is liable to forfeiture also. I acknowledge that there are references to an offence or a suspected offence in S. 59 (2) (a) and 64 (2). Clearly there are some matters described in S 59 (1) which will also be the subject of criminal proceedings in personam. I do not conclude from that that there is a requirement to show, in relation to each element in S 59, a basis for such proceedings. I do not intend to reject the proposition in Ground I and turn to the second part of appeal. 2. The Learned Magistrate erred in law in finding that the said firearms in question did not form part of the equipment of the said vessel pursuant to section 40 (b) of the Firearms Law (Revised). 3a) We already set out section 40 (b) which excludes, inter alia, arms forming part of the equipment of and on board any ship from the provisions of the Firearms Law. but I find an affidavit by the appellant in which he relates to the stories of pirates in the Caribbean area on the basis of which he was informed by the captain of the "Real Thing" that the arms had been acquired and secured by him solely for the purpose of protecting the vessel and its crew while at sea. It is hearsay and would have dealt with the point nevertheless were it not for the fact that the question of whether or not the firearms were ```
The document discusses the legal aspects of firearms importation and exportation, referencing specific sections of the Customs Law and the Firearms Law. It addresses the issue of whether firearms are prohibited or restricted under any enactment and whether there was concealment of prohibited or restricted imports. The document also mentions the appearance of a hollow victory, where the protection of Section 7 of the Firearms Law with regard to interpretation is lost. It concludes by referring to the third ground of appeal and the Learned Magistrate's error in law in finding that the vessel was in fact used for the concealment of firearms and ammunition within the meaning of Section 53 (1) of the Customs Law 1990.
11 The affidavit of the appellant gives his source of information and belief that all the guns and ammunition were not declared to the Customs in October 1990 because of the difficulty he had experienced in the past with the Customs' inability to return a weapon in their possession late at night. He decided to keep quiet about what he had. That was concealment, and the concealment took place on board the ship. The fourth ground of appeal was this:
The Learned Magistrate misdirected himself on the burden and standard of proof, and the nature of the proceedings and as a consequence his decision ought not to stand. The Learned Magistrate described the hearing before him as an appeal apart from the seizure of the vessel "Real Thing" by the Cayman Customs on the ground that he regarded the burden of proof as being on the appellant. As to standard of proof there was no express reference. He says that the Court was satisfied with a balance of probabilities that the firearms in question as part of the equipment of the Real Thing. The Learned Magistrate was quite right in referring to the proceeding as an appeal. That is how they are described in S. 64 of the Customs Act. A notice and grounds of appeal were filed and the order of directions followed those customary in an appeal, with the appellant being and ultimately responding to submissions made by the Crown. The appeal was lodged on the 28th April 1993, foe. D. L. an application that it should be struck out for want of prosecution. The only deviation from the normal course of any
```html 12 appeal which I have discovered is the fact that in opening Mr. Hill described the proceedings as an application under the provisions of the Customs Law supported by affidavit. That was the affidavit by Mr. Haylock to which I have already referred. The following passage in the transcript of the hearing of the appeal appears after the submissions on both sides, which related, except to the extent of what was contained in Mr. Haylock's affidavit, to matters of statutory interpretation. I think I have to read it in full. t is not very long- or the Hi rey in our T: I, however -- we need a background re need - facts here, especially as you have been Y, in THE on your Affidavit because you know I AR f - if this -- if I were to find a certain MR. t will go further and we really haven't THE CO LLJ: Let me put it this way, there was no further force -- THE COURT: I am not going to guess about it any MR. HIL fe CHIE: I was going to determine -- MR. ARUT: I am not going to guess about it any ne cessar, I need the transcript. assist CHIE: May it please you we had hoped to CU CIRCUT: Yes, I need a transcript. at Wir sLL: That's fine, in those of the circumstances, if there is any matter which as a result of that, if you feel it the tri nary for either of us to be of any or CIRCUT: We need to know what was done and ans't done since we are speaking about ate, by es and whatever." Refi transcripts of previous proceedings which are on the file are those e ruling by the former Senior Magistrate on an application by the Crown under S. 59 (1) (c) of the Customs Law 1990 for the forfeiture of the firearms on the vessel following a finding that the person who was charged with 8 offences under the Firearms Law, ```
13 had no case to answer and the hearing of the evidence against the mate. The learned Senior Magistrate rejected the application on the basis that section 59 creates no offence, nor does it prescribe a penalty for one, and that where there is no offence at law there can be no remedy at the criminal bar. He went on to say that as far as the provisions of section 59 are concerned the power of Customs which is the decision to forfeit, is not a judicial one, but rather administration. So the proceedings as an appeal have a hybrid element. They have else. It in common with a judicial review of administrative action. It is to be noted that our appeal process differs from that which shall be in England, and also in Barbados. A case from Barbados, to which I shall refer in a moment, was brought to my attention. As far as I pass, is concerned the procedure can be seen from the following table in the headnote of Customs and Excise Commissioners v Air Carriers (the Air Carriers Comptroller (1987)). The alternative line then gave notice under para 3 of the Customs Act, 1960, claiming that the aircraft was not fit for use and was liable to be condemned for condemnation of the aircraft. The Commissioners began proceedings for condemnation of the aircraft under para 6 of Sch 3 (which by para 8 were to be civil proceedings) or for an order that there were Actable grounds for seizing the aircraft. At that stage the matter went against the Commissioners and they were successful. It was appealed to the Court of Appeal, Civil Division. The case from Barbados is Clarke v Customs Comptroller (1987) in accordance with the procedure under the schedule of the Customs Act of Barbados, following seizure of a vessel, the owner of the vessel has notice of his claim to the Comptroller and the
```html 14 Comptroller applied to the court for an order for forfeiture. The burden of proof became crucial, since the Comptroller relied on the evidential provisions of paragraph 12 of the schedule to the Act which read as follows- "In proceedings arising out of the seizure of anything the fact form and manner of the seizure shall be taken to have been as set forth in the process without further evidence thereof, unless the contrary is proved." Neither the Comptroller nor the claimant led any evidence and it was held that the effect of paragraph 12 of the schedule was merely on to the burden of proving the fact form and manner of the seizure to, ship the claimants, and the onus remained on the Comptroller to satisfy the court by calling evidence, or by invoking the appeal. On the provisions of the Act, that the vessel was liable to forfeit in the event that basis the appeal was allowed and the order condemns of the ship as forfeited set aside. In the case that, light of the draconian provisions of the forfeiture provision addresses the Custom Law I would have preferred to see provisions on the those in England or Barbados. But I cannot escape the situation e I do not, and I find no fault with the way in which the magistrate exercised the burden and standard of proof. It is to be noted that 59 (5) rigours of the law are to some extent mitigated by the administrative powers of the Governor in Council under S. 70 and the Comptroller S. 64 (8) of the law, and the power of redemption under Sino. So, having reviewed all four grounds of appeal I find that all of them fail and the appeal must be dismissed. 11 ha onon G. E. Harre Chief Justice 7th October,