Yin Yong Ho+po Lam Ho+wong Meng Hong+sun Lin Chin For Judicial Review Of A Seizure Of Cash
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Date | 03 June 2003 |
| Docket Number | P443/03 |
| Court | Court of Session |
| Published date | 03 June 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| P443/03 P444/03 P445/03 P446/03
| OPINION OF LORD CLARKE in the petitions of YIN YONG HO, PO LAM HO, WONG MENG HONG AND SUN LIN CHIN Petitioners; for Judicial Review of (a) a seizure of cash under section 294 of the Proceeds of Crime Act 2002 and (b) detention under section 295(1) of cash seized under section 294 and (c) an order under section 295 of that Act to extend the period for which cash may be detained ________________ |
Petitioners: Di Rollo, Q.C., Mackay; Cannons
First Respondent (Lord Advocate): Docherty, Q.C., Crawford; Scottish Executive
Second Respondent (Advocate-General for Scotland): Drummond; Shepherd & Wedderburn, W.S.
3 June 2003
Introduction
[1]In these four petitions for judicial review, the petitioners seek reduction of certain acts of Customs and Excise officers and reduction of certain orders pronounced in the Sheriff Court. They, furthermore, seek return to them of sums of cash seized from them and which continue to be kept from them as a result of the foregoing Sheriff Court orders. The petitioners also seek damages for what is said to be the loss, injury and damage they have suffered as a result of unlawful conduct on the part of the customs officers. The petitions were served on the Lord Advocate and the Advocate General for Scotland. In Article 1 of each of the petitions, it is averred as follows:
"The respondents are the Lord Advocate representing the procurator fiscal and the Scottish Ministers and the Advocate General representing HM Customs and Excise."
Beyond that there is no attempt by the petitioners to aver for which of the various decisions and acts, which they seek to attack, the respective ministers are responsible. The matter came before me for a first hearing in advance of which answers had been lodged on behalf of both of the ministers. There is no point taken in those answers about the failure of the petitioners to distinguish, as between the respondents, the acts and decisions for which the petitioners claim they are respectively responsible. At the hearing before me each minister was represented by counsel and no point was taken regarding any failure by the petitioners in this respect. Both respondents have, however, taken pleas to the competency of the petitions. Because of the lack of time available (the first hearing having been initially set down for one day only) it was agreed that the discussion at the first hearing should be restricted initially to the respondents' pleas as to competency.
Factual Background
[2]All four of the petitions are concerned with the seizure of cash from the petitioners under the provisions of the Proceeds of Crime Act 2002. The initial seizure of the cash in the cases of the petitions of Yin Hong Ho, Po Lam Ho and Wong Meng Hong took place on 27 January 2003 at Glasgow Airport. Yin Yong Ho and Po Lam Ho are husband and wife. It is averred in the petition of Wong Meng Hong that he was introduced to Mr and Mrs Ho at the airport and that prior to that he had not met the couple. All three of the petitioners had both sterling and Hong Kong dollars in their possession which was seized by customs officers at the airport. In respect of the total sum seized from all three of the petitioners, interlocutors were pronounced by the Sheriff at Greenock, on 29 January 2003 in the following terms:
"The Sheriff having considered the foregoing Application at the instance of the Procurator Fiscal, and being satisfied that the terms and conditions set out in terms of Section 295(5) of the Proceeds of Crime Act 2002 have been met, Grants an Order at 14.40 hours, in terms of aforesaid Act for the continued detention of the sum of £33,360 Sterling and Hong Kong $5910 of cash referred to therein for a period not exceeding 3 months from this date."
The interlocutors then provide for the intimation to these petitioners of the application that had been made to the Sheriff and the order itself.
[3]The seizure of the cash from the fourth named petitioner Sun Lin Chin, took place on 28 January 2003 at Glasgow Airport. That petitioner had in his possession bankers drafts and Hong Kong dollars which were seized from him by customs officers at the airport. In the petition in relation to Mr Sun Lin Chin it is averred that by interlocutor dated 30 January 2003 the Sheriff at Paisley made an order in the following terms:
"The Sheriff having considered the foregoing Application at the instance of the Procurator Fiscal, and being satisfied that the terms and conditions set out in terms of Section 295(5) of the Proceeds of Crime Act 2002 have been met, Grants an Order at 12.14pm in terms of aforesaid Act for the continued retention of the £7,410 sterling, £7,900 bankers drafts HK $1,210 of money referred to therein for a period not exceeding 3 months from this date."
The Statutory Background
[4]These petitions are concerned with the application of certain of the provisions of the Proceeds of Crime Act 2002. Section 289(2) provides as follows:
"If a customs officer or constable has reasonable grounds for suspecting that a person (the suspect) is carrying cash -
(a)which is recoverable property or is intended by any person for use in unlawful conduct, and
(b)the amount of which is not less than the minimum amount,
he may exercise the following powers.
Section 298(3) then provides:
"The officer or constable may, so far as he thinks it necessary or expedient, require the suspect -
(a)to permit a search of any article he has with him,
(b)to permit a search of his person."
"Recoverable property" is defined in Section 304(1) in the following way "property obtained through unlawful conduct is recoverable property". "Unlawful conduct" is defined by Section 241 of the Act as follows "conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part". "The minimum amount" is defined in Section 303 of the Act as follows:
"(1)in this Chapter, the minimum amount is the amount in sterling specified in an order made by the Secretary of State after consultation with the Scottish Ministers.
(2)For that purpose the amount of any cash held in a currency other than sterling must be taken to be its sterling equivalent, calculated in accordance with the prevailing rate of exchange."
I was informed that, at present "the minimum amount" is fixed at £10,000 Sterling.
Section 289(4) of the Act provides as follows:
"An officer or constable exercising powers by virtue of subsection (3)(b) may detain the suspect for so long as is necessary for their exercise".
Section 289(5) is in the following terms
"The powers conferred by this section -
(a)are exerciseable only so far as reasonably required for the purpose of finding cash,
(b)are exerciseable by a customs officer only if he has reasonable grounds for suspecting that the unlawful conduct in question relates to an assigned matter (within the meaning of the Customs and Excise Management Act 1979 (c.2))".
"Cash" is defined by Section 289(6) as follows:
"(a) notes and coins in any currency,
(b)postal orders,
(c)cheques of any kind, including travellers' cheques,
(d)bankers' drafts,
(e)bearer bonds and bearer shares.
found at any place in the United Kingdom"
The powers of search conferred in section 289 of the Act are circumscribed in various ways. In the first place Section 290 provides as follows:
"(1)The powers conferred by Section 289 may be exercised only with the appropriate approval unless, in the circumstances, it is not practicable to obtain that approval before exercising the power.
(2)The appropriate approval means the approval of a judicial officer (or if that is not practicable in any case) the approval of a senior officer.
(3)A judicial officer means -
(a)in relation to England and Wales and Northern Ireland, a justice of the peace,
(b)in relation to Scotland, the sheriff.
(4)A senior officer means -
(a)in relation to the exercise of the power by a customs officer, a customs officer of a rank designated by the Commissioners of Customs and Excise as equivalent to that of a senior police officer,
(b)in relation to the exercise of the power by a constable, a senior police officer.
(5)A senior police officer means a police officer of at least the rank of inspector.
(6)If the powers are exercised without the approval of a judicial officer in a case where -
(a)no cash is seized by virtue of Section 294, or
(b)any cash so seized is not detained for more than 48 hours,
the customs officer or constable who exercised the powers must give a written report to the appointed person.
(7)The report must give particulars of the circumstances which led him to believe that -
(a)the powers were exerciseable, and
(b)it was not practicable to obtain approval of a judicial officer.
(8)In this section and Section 291, the appointed person means -
(a)in relation to England and Wales and Northern Ireland, a person appointed by the Secretary of State,.
(b)in relation to Scotland, a person appointed by the Scottish Ministers.
(9)The appointed person must not be a person employed under or for the purposes of a government department or of the Scottish Administration; and the terms and conditions of his appointment, including any remuneration or expenses to be paid to him, are to be determined by the person appointing him."
Section 293 of the Act then goes on to provide as follows:
"(1)The Scottish Ministers must make a code of practice in connection with the exercise by constables in relation to Scotland of the powers conferred by virtue of section 289.
(2)Where they propose to issue a code of practice they must -
(a)publish a draft,
(b)consider any representations made to them about the draft,
(c)if they think it appropriate, modify the draft in the light of any such representations.
(3)They must lay a draft of the code before the Scottish Parliament.
(4)When they have laid a draft of the code before the Scottish Parliament they may bring it into...
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