Summerfield CJ
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN
BEFORE TH-1606
JUDGE JOHN SUMMERFIELD CBE QC JP CHIEF JUSTICE
CASE NOS. 93/83
APPEAL NO. 05
REGINA VS.
**ANNA M. STALLA DE ZENKER &**
**THOMAS MUNROE**
FOR APPEAL
**IMPORTATION OF GANJA**
FOR RESPONDENT
**POSSESSION OF GANJA**
APPEAL
Mr. Smell (with him Miss Dilber)
Mr. Voade Wind S.
JUDGMENT
This appeal is by way of case stated at the instance of the Attorney General under refusal of the trial Magistrate to order the forfeiture of a vessel, in respect of section 14(2) of the Misuse of Drugs Law.
FACTS
Both 14th November 1983, the respondent was on the Wind Song at the relevant time pleaded guilty to the offence of unlawful possession of ganja and the offences of unlawful importation of ganja. A third person on the boat was charged with the same offences, but no evidence was offered against him and he was discharged.
The respondent Munroe was the owner and Captain of the Wind Song and in view of the words of section 14(2), it is only necessary to consider the facts in relation to him as the only relevant respondent and will be referred to as the respondent.
The Wind Song sailed from Jamaica and arrived at George Town dock at about 7:00 a.m. on 4th November 1983. Its original destination was elsewhere. There had been no intention to visit Grand Cayman, but a shortage of fuel and ice developed on the journey and the respondent decided to put into Grand Cayman to replenish them. He brought the boat in voluntarily. On arrival the boat was searched and the respondent accepted the search. One half pound of ganja was found on board. The case against him proceeded on the basis that the ganja was his. The case against him proceeded on the basis that the ganja was in his actual or constructive possession and that it was for his personal use only. Another small quantity of ganja found on board was in the possession of the other person on board.
CONCLUSION
The judgment concludes with the decision of the court regarding the forfeiture of the vessel under section 14(2) of the Misuse of Drugs Law, based on the facts and legal arguments presented.
Transcription of the Document
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Section 1: Introduction
- **Board Indictment**: The board is petitioned solely to the other respondent and not to the respondent. It is alleged that the respondent brought half a pound of ganja into the waters of the Cayman Islands.
Section 2: Sentencing
- **Fined and Imprisoned**: The respondent was sentenced to one day's imprisonment for the offence of possession and a concurrent one day's imprisonment for the offence of importation. He was sentenced to a fine of $3000.00 or 6 months' imprisonment in default.
Section 3: Magistrate's Decision
- **Magistrate's Refusal**: The Magistrate refused to order forfeiture, which was said to be within U.S. $40-60,000.
Section 4: Legal Provision
- **Section (a) h.2**: The relevant section reads as follows:
- A person is convicted of an offence against this Law, and the court is satisfied that any vessel or aircraft used in or for the purpose of committing the offence, or intended by him to be used for that purpose, or in his possession or under his control at the time of his apprehension, was used in connection with or for the purpose of committing the offence.
- The court may order the forfeiture of such vessel or aircraft.
Section 5: Case Analysis
- **Vessel's Connection**: It is clear that the vessel had no connection with the offence of possession. The only reason for the conviction is that the Wind Song was "used" in connection with the importation of the half pound of ganja. The commission of the offence of importation would not have been committed without the boat entering the territorial waters. The possession was subsidiary or ancillary to the possession of the ganja.
Section 6: Legal Interpretation
- **Section 14(2)**: All the conditions of section 14(2) are fulfilled on the agreed facts, and the court is mandatory to order forfeiture. One factor that makes the penalty become wholly disproportionate to the agreed facts is the mandatory nature of the forfeiture.
Section 7: Conclusion
- **Disproportionate Penalty**: The penalty becomes wholly disproportionate to the agreed facts due to the mandatory nature of the forfeiture.
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- 3 -
offence
sequence the appearance of an injustice. But that, unfortunately, can
be the consequence of taking the discretion away from the courts and providing
for mandatory provisions of Misuse of Drugs Law and the only remedy would appear to be a petition to
the Governor in the exercise of the prerogative of mercy.
I have invited to mitigate the harshness of the operation of this
provision in a way which would introduce parameters to its
operation. The case of Seaford Court Estates Ltd. v. Asher [1949] 2 All ER 155
has been cited as authority for a court so interpreting a harsh provision.
With respect, there is no authority for interpreting a statute otherwise
than in accordance with its plain and ordinary meaning when the language and
intent is clearly, the language and intent of section 14(2) (having regard to
the legislative history of this provision) could not be clearer. I cannot introduce conditions for its operation.
That is final.
Accordingly, the Wind Song is ordered forfeit.
Sir John Summerfield
Dated this April 1984.
The text is transcribed faithfully as it appears on the page, with headings and structure preserved. There are no tables or mathematical expressions present, so no additional formatting beyond Markdown is required.