Guyah v Commissioner of Customs and another

Under the Customs Act, goods seized under customs laws are deemed condemned after one month unless claimed under section 215(1). Once condemned, they may be disposed of only as the Minister directs, subject to limited statutory powers. The Commissioner cannot use section 91 to release seized goods or section 259 to bypass the forfeiture scheme. Statutory limits cannot be overcome by estoppel, and the presumption of regularity yields where circumstances indicate irregularity. Goods dealt with contrary to customs law are uncustomed goods under section 2 and may be seized under section 214. A warrant under section 203 is not required where detention does not involve entry or search of a building. The Board left open whether Jamaican law implies a temporary investigative detention power.

The appellant, a senior customs officer, sought declarations concerning the customs status and seizure of a Suzuki Swift motor vehicle acquired through a procedure authorised by the Commissioner. The Supreme Court of Jamaica held that the vehicle was not uncustomed goods and that its seizure was unlawful to that extent, but declined to declare an abuse of power.

The Court of Appeal of Jamaica allowed the respondents’ cross-appeal in part, set aside the first-instance orders and declared that the vehicle was uncustomed goods and subject to seizure: [2015] JMCA Civ 17. The appeal concerned the vehicle’s status, the legality of its seizure, and adverse comments made by the first-instance judge about the appellant’s conduct.

Lord Reed delivered the single judgment of the Board, which unanimously advised that the appeal be dismissed.

1. Effect of seizure. On the evidence, the appellant had sworn that the vehicles were seized and forfeited under the Customs Act. He could not recast those acts as merely purported or irregular seizures on appeal. Under section 215(1), seized goods were automatically condemned after one month because no claim had been made by or on behalf of the master or owner. Court proceedings were therefore unnecessary.
2. Disposal and restoration. Condemned goods could be disposed of only as the Minister directed under sections 215(1) and 216, subject to the exceptional Governor-General power under section 218. Even assuming section 219 remained relevant after automatic condemnation, it required Ministerial approval. Section 91 could not be used to release seized goods, and section 259 could not be used after forfeiture because the statutory scheme placed forfeited goods under Ministerial control. The purported public-auction sale, when no auction had occurred, was a significant indication of irregularity. The presumption of regularity was therefore unavailable. Nor could estoppel assist: there had been no representation about the scope of the Commissioner’s powers and the appellant had not been misled. There was no analogy with Robertson v Minister of Pensions [1949] 1 KB 227.
3. Uncustomed goods and seizure. Goods dealt with contrary to customs laws were uncustomed goods within section 2, irrespective of whether duty was payable or had been paid. Because the Suzuki had not been lawfully disposed of, it remained uncustomed and was liable to forfeiture under section 210(1) and seizure under section 214. Customs and Excise Comrs v Tan [1977] AC 650 concerned a different situation and question and did not prevent that conclusion.
4. Warrant and detention. Section 203 concerned entry and search of a house or other place and seizure of goods found there. Read with sections 204 and 205, its reference to a place was primarily to buildings other than dwelling-houses. It did not apply where the vehicle was detained without entry or search of a building. The Board noted that the United Kingdom Supreme Court had recognised an implied temporary investigative detention power in R (Eastenders Cash & Carry plc) v Revenue and Customs Comrs [2014] UKSC 34, but expressed no view on whether Jamaican law contained a similar power.
5. Conduct and costs. The first-instance judge was entitled to regard the appellant’s conduct as relevant to the costs discretion. On the evidence, it was reasonably open to him to conclude that the appellant had used his official position for personal advantage. The Board remained circumspect because disciplinary proceedings were pending.

The respondents were awarded the costs of the appeal, subject to submissions within 14 days of promulgation of the advice.

• Privy Council: Advised that the appeal be dismissed and that the respondents receive the costs of the appeal. [2018] UKPC 10.
• Court of Appeal of Jamaica: Dismissed the appellant’s appeal, allowed the respondents’ cross-appeal in part, set aside the first-instance judgment and declared that the Suzuki was uncustomed goods subject to seizure. [2015] JMCA Civ 17.
• Supreme Court of Jamaica: Held that the vehicle was not legally classifiable as uncustomed goods and that its seizure was unlawful to that extent. It declined to declare an abuse of power and made no order as to costs.