Supreme Court
Action No. 23 of 1992
26th May, 1993
G. B. SINGH, J.

Mr. Dean Barrow, S.C. for Applicant
Mr. Dons Waithe for Respondent

Application for the return of money forfeited by Comptroller of Customs as undeclared goods - Whether US currency "goods" within the meaning of the Customs Act - Section 1 Part III of Fourth Schedule and Section 19 Part IV of Exchange of Control Regulations - Offence to import into Belize, Belize currency or any foreign currency specified by the Exchange Comptroller except with his permission - No foreign currency specified as being prohibited by Comptroller - Under Exchange Control Act, imported foreign currency unless specified is not deemed to be "goods" within meaning of Customs Act - US currency notes brought in by persons entering Belize for their own private use not "goods" within meaning of Customs Act - No legal requirement to declare possession of such currency upon entry into Belize - Appeal allowed on this ground - Forfeiture by Comptroller null and void - Sum to be returned to Applicant at expiration of 21 days - Costs to the Applicant.

D E C I S I O N

This is an application for the return of a sum of money forfeited by the Comptroller of Customs as undeclared goods. The facts of the matter leading to this application are as follows:

On 17 August 1991 a 1979 FORD Bronco, property of the Applicant, entered Belize by way of the Belize-Mexico border post at Santa Elena, Corozal. Assessed customs duties were paid on this motor vehicle on the 19th August by the applicant's sister, whereupon the vehicle was released to her.

On 20 August 1991, a joint police/customs party carried out a search of the motor vehicle at the sister's premises. Concealed in the panels of the vehicle the party discovered a .32 revolver and a quantity of United States currency. These were later declared by the Comptroller of Customs to be forfeited, as goods which should have been declared, but in fact were not, upon their entry into Belize. The currency amounted to U.S. $99,700.00. This application is for the return of this currency. No issue is made concerning the firearm.

It is common ground that the currency entered Belize concealed in the panels of the Ford Bronco.

Counsel for the Applicant based his application on three grounds, viz:

1. That Ss. 56 and 81 of the Customs Regulation Act, under which the Comptroller purported to act, has no application, as in the present case, to goods imported by overland carriage;

2. That the currency was not "goods" within the meaning of the Customs Acts; and

3. That the Comptroller acted in breach of the principles of natural justice, in failing to afford to the Applicant the opportunity to make representations before forfeiting the money.

In support of his first ground, Mr. Barrow submitted that it was clear that Ss. 56 and 81 under which the Comptroller purported to act, dealt only with goods imported by sea, and not by any other means.

Mr. Waithe countered by submitting that the Act be read as a whole, and not be sectionalized with different interpretations being given to different sections. If read as a whole, he argues, then the fact that Ss. 118 to 121 refer to seizures of "ship, boat, aircraft, vessel, vehicle, animal or goods", should indicate that the Act as a whole is intended to cover importation into Belize by any of the recognized means, viz: by sea, air or overland by inland carriage.

S. 51 of Cap. 39 states:

"If any goods are imported, exported or carried coastwise contrary to this Act, they shall be forfeited, and the master of the ship in which they are so imported, exported or carried coastwise, shall, be liable to a fine not exceeding five hundred dollars, except where any other penalty is especially imposed".

S. 81 imposes penalties for goods concealed in other goods, or goods which are wrongly classified so as to evade customs duties.

In its original form, our Customs Regulation Act was imported from the United Kingdom and promulgated here on 25 July 1878. At that time, trafficking in goods by air or inland carriage was unknown. There have been many subsequent amendments, which, being of a largely minor and consequential nature, have left the original purpose of the Act basically unchanged.

The basic tenor of the Act still concerns transit of goods by sea.

I must however, take judicial notice that goods are imported into Belize also by aircraft and by overland carriage. indeed, by S.I. No. 51 of 1972 the Minister of Finance made rules to govern the importation of goods by inland carriage. At that time, these rules were made under s. 51 of the old Customs Regulation ordinance, Cap. 36. Under the 1980 revision, Cap. 36 became Cap. 39 and s. 51 became s. 50. By revisionary amendment, therefore, these rules, until revoked, must be taken to be made under s. 50 of Cap. 39.

Rule 2 of these regulations states:

"Goods shall be imported into or exported from British Honduras (Belize) by inland carriage only at the following places:-

2. Santa Elena, on the Rio Hondo in the Corozal District.

(b) The town of Benque Viejo, on the western branch of the Belize River, in the Cayo District".

From this, it becomes obvious that one cannot limit the Customs Regulation Act to goods imported or exported by sea, but must extend its provisions to goods imported and exported by whatever recognized means, into and out of Belize. This view is in complete harmony with that expressed by Ungoed - Thomas J. in In re Maryon - Wilson's Will Trusts [1968] Ch. 268, 282, where he said,

"If the court is to avoid a statutory result that flouts common sense and justice it must do so not by disregarding the statute or over-riding it, but by interpreting it in accordance with the Judicially presumed parliamentary concern for common sense and justice".

In my opinion, therefore, the Customs Regulation Act can properly be construed to include any mode of importation or exportation of goods into and out of Belize. The Applicant's first submission therefore fails.

For his second ground, counsel for the Applicant submits that the currency notes forfeited by the Comptroller of Customs are not to be classified as 'goods' for purposes of the Customs Acts. According to the Acts, "'Goods' means all kinds of goods, wares, merchandise and other articles to which the provision of any customs law may be applicable". If therefore, the forfeited currency notes are to be classified as goods which should have been declared but were not, then they were subject to forfeiture.

At the material. time, 'goods' for the purposes of the customs laws, were regulated by the Brussels Tariff and Trade Classification. This meant that all articles listed in this tariff, whether attracting customs duties or not, were required to be declared upon importation into Belize.

In this tariff, under the heading numbered 49.07.1 appears the entry:

"Bank & Currency notes; unused postage, revenue & similar stamps - Free (of duty)".

This entry is the basis of Mr. Waithe's reply to Mr. Barrow's argument on this point.

Mr. Barrow argues that the term 'Banknote' appearing in the customs tariff, must be read 'ejusdem generis' with the other items under the same heading, i.e. unused postage or revenue stamps, etc. and is clearly intended to refer to the importation of unused currency notes in bulk by government or a government agency such as the Central Bank of Belize for local banking use. Not so, counters Mr. Waithe. By being specifically mentioned, the term 'banknote' stands by itself, and indicates that currency notes of whatever country are 'goods' within the meaning of the Customs Regulation Act, and as such, should be declared whenever and by whoever they are brought into Belize.

The questions posed here are twofold:

(1) Is United States currency to be treated as 'goods' for purposes of our Customs laws, and if so,

(2) Should such currency be limited to that brought in for local banking use or should it be extended to money brought in by individuals for personal use-

In an explanatory note to the customs tariff, to be found in Vol. 2 of a loose leaf binder entitled "HARMONIZED COMMODITY DESCRIPTION AND CODING SYSTEM" issued by the Customs Co-operation Council of Brussels, and sub-titled "EXPLANATORY NOTES" appears the following at page 697:

"(D) BANKNOTES. This term covers promissory notes of all denominations issued by the State or approved issuing banks for use as currency or legal tender either in the country of issue or elsewhere. It includes banknotes which at the time of presentation, are not legal tender in any country".

The use of the terms "approved issuing banks", "or elsewhere", and "in any country" makes it clear that the tariff entry is not limited to local currency, but extends to all foreign currency, including U.S. dollars, issued by local banks for personal or commercial use.

Is such currency limited to that imported by the Banks for sale to the public, or should it be extended to cover currency brought in by individuals for personal use-

In proposing the wider interpretation, Mr. Waithe cited two cases. The first, ALLGEMEINE GOLD-UND SILBERSCHEIDEANSTALT vs. CUSTOMS AND EXCISE COMMISSIONERS [1980] 2 All, E.R. 138, concerned the smuggling of 1,500 gold Krugerrand coins into England. The English Court of Appeal, decided that the gold coins were to be classified as 'goods' for purposes of the Customs and Excise Act (U.K.). The main reason given for this classification was that "Krugerrands were used and valued according to the substance they contained, rather than their face value as an instrument of exchange, and that substance, i.e. gold, clearly amounted to goods". Gold, silver and copper coins were expressly classified as goods under the U.K. Customs Act.

That case was decided on the fact that the gold coins were valued and classified according to their gold content, rather than their face value. This is clearly distinguishable from the instant application. In the Explanatory Notes referred to above, in the headnote to the section covering banknotes, appears the following: "The characteristic of the products of this heading is that on being issued by the appropriate authority, they have a fiduciary value in excess of the intrinsic value".

It goes without argument that the intrinsic value of a gold coin cannot be compared with the intrinsic value of a promissory note such as a currency note. That case therefore does not assist in determining this application.

The second case PAUL BURNETT v. SMULEK FRANKEL (1974) 21 W.I.R. 319 offers a bit more assistance. In this case, the respondent, having taken a quantity of U.S. currency with him into Guyana, attempted to take it out with him the following day without the permission of the Minister concerned. He was charged under the Customs Acts. The Guyana Court of Appeal, reversing a decision of the Full Court, held that he was guilty of an offence under the Exchange Control, Act, to which part of the Customs Act applied. U.S. Currency notes were held to be 'goods' within the meaning of the Customs Act of Guyana, for purposes of export.

In determining the applicability of this case to the instant application, one important difference to bear in mind is that in Burnett's case, the respondent was attempting to export foreign currency. Here, the Applicant imported foreign currency into Belize.

I first wish to refer to the Exchange Control Regulations, commencing with the Fourth Schedule, Part III, headed "Import and Export". This may be found at Vol. I of the Subsidiary Laws of Belize 1991, Cap. 43, pg. 39:

"1. (i) The enactments relating to customs shall, subject to such modifications, if any, as may be prescribed to adapt them to these Regulations apply in relation to anything prohibited to be imported or exported by any of the provisions of Part IV of these Regulations except with the permission of the (Exchange) Comptroller as they apply in relation to goods prohibited to be imported or exported by or under any of the said enactments, and any reference in the said enactments to goods shall be construed as including a reference to anything prohibited to be imported or exported by any of the provisions of the said Part IV except with the permission of the (Exchange) Comptroller.

2. Any declaration required to be given under Part IV of these Regulations shall, for the purpose of any Laws relating to Customs be deemed to be a declaration in a matter relating to Customs".

Under Part IV of the Regulations , S. 20 which deals with exports, (at page 17 ibid) states:

"(1) The exportation from Belize of any notes of a class which are or have at any time been legal tender in Belize or in any other territory, is hereby prohibited except with the permission of the (Exchange) Comptroller".

These two sections which are identical to the Guyanese provisions, make it an offence under the Customs Act for anyone to export local or foreign currency from Belize except with the permission of the Exchange Comptroller, or to make any false declaration in connection therewith. It is the Guyanese equivalent of these sections under which the respondent in Burnett v. Frankel (supra) was convicted.

In the application before me, the Applicant imported foreign currency into Belize. The law applicable to the importation of foreign currency is to be found at S. 19 of Part IV (page 16) ibid. This section states:

"(1) The importation into Belize of any notes of a class which are or have at any time been legal tender in Belize; and any such other notes as may be specified by order of the (Exchange) Comptroller, being notes issued by a bank or notes of a class which are or have at any time been legal tender in any territory, is hereby prohibited except with the permission of the (exchange) Comptroller".

This section, read along with S.1 of Part III of the Fourth Schedule (supra), makes it an offence under the Customs Act to import Belize currency into Belize and also to import any foreign currency specified by the Exchange Comptroller, except with the permission of the Comptroller.

As far as I have been able to ascertain, no foreign currency has been specified as being prohibited by the Exchange Comptroller, the importation of which requires an import permit. Consequently, under the Exchange Control Act, imported foreign currency, unless specified, is not deemed to be 'goods' within the meaning of the Customs Act.

The whole scheme of this part of the Exchange Control, Act as it now stands; is to provide unrestricted entry into Belize of foreign currency, but to regulate its exportation. The case of Burnett v. Frankel (supra) does not therefore apply to the case before me.

Referring back to the Customs Act, Mr. Waithe's proposition, if true, would mean that any traveller entering Belize with any amount of foreign currency in any form, on his or her person would be subject to prosecution and penalties if he or she failed to declare such currency to customs. This would not only lead to an absurdity, but would adversely affect the tourist trade, with its concomitant influx of foreign capital. Surely this is not what the law intends.

Much assistance on this point is to be gained by again referring to the 'Explanatory Notes' to the customs tariff referred to above. S. 49.07 at page 696 deals with the importation of "unused postage, revenue or similar stamp-impressed paper; banknotes; cheque forms; stock; share or bond certificates and similar documents of title". This is the section which contains the definition of banknotes referred to earlier. A footnote to this section reads: "Products of the kinds described fall in this heading when in quantity as a commercial transaction, usually by the issuing authority, whether or not the documents (e.g. share certificates) require completion and validation".

This makes it clear that customs tariff item No. 49.07.1 refers only to banknotes imported in quantity by local issuing banks for their own use in commercial transactions.

It must necessarily follow, therefore, that United States currency notes brought in by persons entering Belize for their own private use, are not 'good' within the meaning of the Customs laws, or restricted under the Exchange control Act. There is therefore no legal requirement to declare possession on scuh currency upon entry into Belize. This ground therefore succeeds.

The third ground of Mr. Barrow's submission, that is, that the Comptroller of Customs failed to observe the rules of natural justice when purporting to forfeit the currency, was not actively pursued. This is just as well, since I find no merit in this ground.

For the reasons given above, I find that the purported forfeiture of the sum of U.S. $99,700.00 by the Comptroller of Customs for non-declaration upon entry, is null and void. This sum must be returned to the Applicant at the expiration of twenty-one days from this date unless otherwise ordered.

In the absence of any, or any sufficient evidence, as to damages occasioned to the Applicant by the wrongful detention of his money, I make no award of damages against the Comptroller of Customs.

The Applicant is to have his costs.

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