Hemisphere Enterprises Ltd v Chief of Police

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Joseph, Monica J.
• Judgment Date: 06 November 1984
• Neutral Citation: AI 1984 HC 3
• Docket Number: Civil Suit no. 2 of 1983
• Date: 06 November 1984

High Court

Joseph, J.

Civil Suit no. 2 of 1983

Hemisphere Enterprises Ltd.

and

Chief of Police

Mr. I.D. Mitchell for applicant

Honourable Attorney General for respondent

Constitutional law - Fundamental rights and freedoms — Property rights

Statute - Interpretation — Dangerous Drugs Act, Cap. 212 — Section 23 — Defendant was charged on a complaint by the Chief of Police with being in possession of a bank account in his name the proceeds of which were connected with drug trafficking. The issues were whether s.23 of the Dangerous Drugs Act, Cap. 212 created a procedure that permitted such monies to be forfeited and whether such forfeiture would be in contravention of the Anguilla Constitution — Finding that s.23 merely described the procedure to be followed where the police have reasonable cause to suspect that monies held in a bank account are the proceeds of illegal drug trafficking. The section did not provide that lands be registered in the name of the defendant with absolute title.

Facts: The defendant was charged on a complaint by the Chief of Police to the effect that he was in possession of a bank account in his name the proceeds of which were connected with drug trafficking. The issues were whether section 23 of the Dangerous Drugs Act, Cap. 212 created a procedure that permitted such monies to be forfeited and whether such forfeiture would be in contravention of the Anguilla Constitution

Held: Section 23 merely described the procedure to be followed where the police had reasonable cause to suspect that monies held in a bank account were the proceeds of illegal drug trafficking. The section did not provide that a specified act was prohibited. Section 7(2) (h) of the Constitution did not apply as there was no offence created by section 23(3) of the Act. The section did not fall within the exception provided in section 7(2) of the Constitution. The appellant's rights under 7 of the Constitution have been infringed by section 23 of the Act. Judgment for the applicant.

Joseph, Monica J.

1 This case was partly heard by the Magistrate who, upon application made on 6th April, 1983, by learned counsel for a Stephen Trapinia transferred the case to the High Court of Justice under section 16(1) and (3) of the Anguilla Constitution, 1982. The section reads -

• (1) If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, or is being, contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

• (3) If in any proceedings in any court (other than the Court of Appeal, the High Court or a court martial) any question arises as to the contravention in any of the provisions of section 2 to 15 (inclusive) of this Constitution, the person presiding; in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.

2 The defendant was charged on a complaint by the Chief of Police which reads:

“The said Hemisphere Enterprises Ltd. on the 1st October, 1982, at the Valley in the island of Anguilla is in possession of certain monies standing to the credit of a bank on account with Barclays Bank International, Anguilla Branch, in the name of the defendant, which there is reasonable cause to suspect to be the proceeds of, or connected with illegal drug trafficking and the said complaint prays that the said defendant may be summoned to answer the said complaint and for an order that the said monies be forfeited to Her Majesty in accordance with section 23(3) of the Dangerous Drugs Act, Cap. 212.

3 The facts given in evidence before the magistrate were that the defendant is a company that was incorporated in Anguilla 7th October, 1981. The authorised capital of the company is $10,000 divided into 4,000 shares of $10.00 each. At the date of incorporation the issued capital was $20.00: two shares of $10.00 having been issued to two Anguillans, Mona Hughes and Dagna Hughes, employees of a company registered as K and M Consultants. These two persons were the directors of the company and Dagna Hughes was also the secretary. It seems that a Mr. Stott was employed by the company as a Companies Registration Agent.

4 The two directors by letter dated 5th April, 1983 resigned from the company and advised the registrar by letter that they had transferred their shares to K and M Consultants N.V. St. Maarten. From the date of the letter, the company was without directors or secretary, (Dagna Hughes having resigned as secretary) and had one shareholder, K and M Consultant N.V.

5 A Hennicus Antonious Kagie, a Dutch national, was asked by a Mr. Chelders to form the company,...