The Court of Appeal has been asked to decide the fate of two failed attempts by the T&T Police Service (TTPS) to seize the assets of two families allegedly linked to drug trafficking.
Presenting submissions on behalf of the State during a virtual hearing before Appellate Judges Allan Mendonca, Mark Mohammed, and Maria Wilson, yesterday, Senior Counsel Fyard Hosein claimed that a judge got it wrong when she reversed her decisions to grant preliminary unexplained wealth orders against the families, based on their claims of insufficient evidence.
Hosein claimed that such preliminary orders were investigative tools under the Civil Asset Recovery and Management and Unexplained Wealth Act 2019 and the judge could not have expected the TTPS to provide additional information as investigations into the families’ finances were still ongoing.
He also maintained that the legislation has an expressed retroactive effect on the property that was acquired before the act took effect in 2019.
Hosein also noted that while similar provisions exist in other jurisdictions including the United Kingdom and Jamaica, those countries’ laws are different as they require a person to be convicted before the forfeiture proceedings are commenced.
Hosein also claimed that while members of both families were last charged with drug offences before the legislation was enacted, the investigations into both incidents continued afterwards.
Responding to Hosein, attorney Jagdeo Singh, who led the legal team of a couple from St Helena, said that the judge’s decision in his client’s case was correct.
He repeatedly noted that the TTPS failed to adduce sufficient evidence linking his client’s property to alleged drug trafficking for which the husband was charged.
Singh sought to give a hypothetical example which he said would be lawful. He suggested that if police officers had been able to get statements from contractors and hardware stores that indicate that the couple used cash to construct their home then the application would have been stronger.
He also noted that a valuation of the property in 2016 did not consider that the couple purchased the land in 2009 for $80,000 and that there would have been an appreciation of the value of the property over time.
“There must be a distinction between the acquisition value and market value,” Singh said, as he noted that the applications did not reveal when the couple constructed the house.
Singh also pointed out that for a preliminary unexplained wealth order to be granted, either the Comptroller of the Customs and Excise Division, the Chairman of the Board of Inland Revenue, or the Police Commissioner must reasonably suspect that wealth over $500,000 was obtained through specified criminal activity.
While he admitted that the Police Commissioner may delegate his functions to a high-ranking officer, as was done in his clients’ case, he questioned how the officer could have formed the requisite suspicion over the couple’s assets, when he was delegated a week before the application was made in 2019.
In his submissions, attorney Navindra Ramnanan, who is representing the other family, claimed that the TTPS needed to present cogent evidence to succeed in utilising the legislation.
He also noted that one family member of the three listed in his unexplained wealth order passed away while the issue was being determined.
Ramnanan said that while the legislation allowed the State to go after the estate of a dead person identified under the legislation, his surviving clients have a pending case over the constitutionality of the provision.
“You cannot call upon a dead person to explain their wealth,” Ramnanan said.
The legislation introduced a criminal assets agency to recover and manage the criminal property through forfeiture.
While the legislation was being debated in Parliament, Attorney General Faris Al-Rawi said that it was designed to aid in the fight against crime by taking away the profits derived from it.
The Opposition expressed reservations over the impact of the legislation on citizens but eventually voted along with Government MPs for it to be passed.
After hearing the submissions, the appeal panel reserved their decision for a date to be fixed.
The couple from St Helena is also being represented by Kiel Taklalsingh and Karina Singh, while Gilbert Peterson, SC, Ravi Rajcoomar, and Tiffany Ali also represented the State.