an application by NEIL McKAY for Leave to apply for Judicial
of a purported forfeiture of $99,700.00 United States
Currency (the property of the said NEIL McKAY) by the
Comptroller of Customs
of the Customs Regulations Act Chapter 39 of the Laws
of Belize, Revised Edition 1980, and in particular sections
56 and 61 of the said Act
the Customs and Excise Duties Act, Chapter 38 of the Laws
of Belize, Revised Edition 1980
Action No. 23 of 1992
26th May, 1993
G. B. SINGH, J.
Barrow, S.C. for Applicant
Mr. Dons Waithe for Respondent
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.
E C I S I O N
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:
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.
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.
common ground that the currency entered Belize concealed in
the panels of the Ford Bronco.
for the Applicant based his application on three grounds,
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
the currency was not "goods" within the meaning
of the Customs Acts; and
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.
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
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.
of Cap. 39 states:
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
imposes penalties for goods concealed in other goods, or goods
which are wrongly classified so as to evade customs duties.
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.
tenor of the Act still concerns transit of goods by sea.
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.
of these regulations states:
shall be imported into or exported from British Honduras
(Belize) by inland carriage only at the following places:-
Elena, on the Rio Hondo in the Corozal District.
The town of Benque Viejo, on the western branch of the Belize
River, in the Cayo District".
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  Ch. 268,
282, where he said,
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".
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
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.
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.
tariff, under the heading numbered 49.07.1 appears the entry:
& Currency notes; unused postage, revenue & similar
stamps - Free (of duty)".
is the basis of Mr. Waithe's reply to Mr. Barrow's argument
on this point.
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.
posed here are twofold:
Is United States currency to be treated as 'goods' for purposes
of our Customs laws, and if so,
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-
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:
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".
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.
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-
the wider interpretation, Mr. Waithe cited two cases. The
first, ALLGEMEINE GOLD-UND SILBERSCHEIDEANSTALT vs.
CUSTOMS AND EXCISE COMMISSIONERS  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.
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".
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.
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.
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
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:
(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.
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
Part IV of the Regulations , S. 20 which deals with exports,
(at page 17 ibid) states:
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".
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.
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:
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".
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 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.
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
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.
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".
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.
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
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
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.
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
is to have his costs.