DID the Customs Act of 2007 give a magistrate the power to order the forfeiture of US$24,000 from an elderly couple who failed to declare the currency in 2013?
The Court of Appeal has been asked to favour the couple’s complaints that the magistrate’s sentence was too severe: a fine of $80,000 and the forfeiture of US$22,208, which they said were winnings from a trip to the casino.
On February 13, 2013, the couple, Anthony Long Yuen Low, now 74, and his wife Theresa Yukmoy Low, now 71, were returning to Trinidad from the US, when a customs officer asked if they had any US currency in their possession.
Yuen Low said, “Yes, but I don’t know how much,” while his wife claimed it was “about US$8,000.”
The currency was checked. Yuen Low had US$10,078 and Yukmoy Low had US$11,130 and TT$2,801.
Any foreign currency over the value of US$5,000 must be declared, and since the couple did not have a permit from Central Bank to import the money, the notes were seized. They were later charged with four offences in total – two each – for making a false declaration on their immigration/customs declaration forms and importing prohibited goods.
When they appeared in the Arima magistrates’ court two days later, they pleaded guilty and the magistrate fined them and ordered the Customs and Excise division to seize the money.
The couple appealed against the severity of the sentence.
At the appeal hearing before Justices of Appeal Mark Mohammed and Maria Wilson, the Lows' attorney, Sean Cazabon, said there were many circumstances the magistrate had failed to take into account. He said in his clients’ case, there was no concealment or dishonesty on their part, nor did they try to shirk their responsibility as they pleaded guilty.
He also said the sums they had were only marginally over the legal limit and the order for forfeiture was too severe, as it was a discretionary power given to the magistrate.
In admitting the matter was of some importance, the judges asked attorneys for further submissions on the point, as counsel for the division, Shirley Sheppard, argued that the magistrate had the power to order the money forfeited.
While admitting there was an omission in the Customs Act of 2007, Sheppard said the forfeiture clause was in the 2000 act and reintroduced in the 2014 act, which also made it apply to both summary and indictable matters.
The judges also asked Sheppard to produce Hansard records to support her contention that it was an erratum in the 2007 legislation which left out the power of a judicial office to order forfeiture on conviction of an offence.
The judges have adjourned the hearing.