Ahmed Williams v The Supervisory Authority

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA
• Judgment Date: 13 July 2017
• Judgment citation (vLex): [2017] ECSC J0713-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2015/0035
• Date: 13 July 2017

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario F. Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

ANUHCVAP2015/0035

Between:

Ahmed Williams

Appellant

and

The Supervisory Authority

Respondent

Appearances:

Dr. David Dorsett for the Appellant.

Mr. Justin Simon, QC with him, Mr. Curtis Bird and Mr. Kwame L. Simon for the Respondent.

Antigua and Barbuda civil asset forfeiture regime — Whether regime infringes ss. 3(a), 7 and 15 of the Constitution of Antigua and Barbuda — Whether s. 20A(2) of the Money Laundering Prevention Act 1996 (as amended) unconstitutional, null and void — Whether judgment of learned judge in court below ordering that appellant's interests in properties be forfeited to the Crown ought to be set aside

The appellant, Mr. Ahmed Williams (“Mr. Williams”), was convicted of the offences of possession of cocaine with intent to supply and possession of cocaine with intent to sell contrary to sections 6(3) and 12(1), respectively, of the Misuse of Drugs Act (as amended). After Mr. Williams was sentenced, the respondent, The Supervisory Authority (“the Authority”), applied to the High Court in its civil jurisdiction pursuant to the Money Laundering Prevention Act 1996 (as amended) (“the MLPA”) for an interim freeze order in relation to real properties that were registered in Mr. Williams' name. The application for the freeze order was granted and Mr. Williams subsequently applied to have it discharged. Prior to the hearing of the discharge application, the Authority filed a claim pursuant to section 20A(2) of the MLPA to have the frozen properties forfeited to the Crown. This claim was vigorously opposed by Mr. Williams on the basis that the frozen properties were not obtained from the proceeds of criminal activity and therefore were not subject to forfeiture under section 20A of the MLPA. Mr. Williams further argued that section 20A(2) of the MLPA violated sections 3(a) and 15 of the Constitution and that it amounted to a finding of a criminal conviction in civil proceedings and in relation to which there was no criminal charge.

Mr. Williams was unsuccessful at discharging the freeze order. The judge who heard the discharge application found that there was evidence on which Mr. Williams' properties could have been frozen since he had engaged in ‘money laundering activity’, as defined in section 2H of the MLPA. In relation to the forfeiture proceedings commenced by the Authority, it was ruled (by a different judge) that the forfeiture claim pursuant to section 20A(2) of the MLPA had been established and Mr. Williams' properties were to be forfeited to the Crown. The judge who heard the Authority's claim also found that the civil asset forfeiture regime is not criminal in nature and therefore, Mr. Williams could not avail himself of the protection which section 15 of the Constitution provides to persons charged with a criminal offence. The judge also held that the civil asset forfeiture regime was not disproportionate in nature and accordingly, there was no breach of Mr. Williams' constitutional rights as urged by him. The judge further concluded that the Authority had satisfied the court that Mr. Williams had engaged in ‘money laundering activity’ as defined in section 2H of the MLPA.

Mr. Williams appealed to this Court. The main issue raised on appeal was whether the learned trial judge erred as a matter of law in concluding that section 20A(2) of the MLPA did not infringe sections 3(a), 7(1) or 15 of the Constitution.

Held: dismissing the appeal; upholding the ruling of the learned judge that section 20A(2) of the MLPA is constitutional; and ordering that each party bear its own costs, that:

• 1. The civil asset forfeiture regime which was introduced with the amendments made to section 20A of the MLPA, is distinct and separate from the criminal asset forfeiture regime which had been in existence for several years in the MLPA in its original form. In the case of civil asset forfeiture, there is absolutely no requirement for the defendant to have been charged with a criminal offence. In particular, in this regime, the Crown is able to recover property identified as being obtained merely from ‘money laundering activity’; the owner of the property need not have been charged with a money laundering offence for forfeiture to take place. On the other hand, the legislature stipulates that criminal asset forfeiture can only follow a conviction. The two separate and distinct regimes should not be conflated.

  Walsh v Director of Asset Recovery Agency [2005] NICA 6 applied; Allen v The United Kingdom ECHR 2013 IV distinguished.

• 2. The civil asset forfeiture regime provides extensive due process of law guarantees, which guarantees Mr. Williams took full advantage of. He had a full trial and was given the opportunity to oppose the freeze order, lead evidence, and also cross examine witnesses. He therefore cannot properly complain that he was not afforded procedural fairness as provided by section 3(a) of the Constitution. Section 3(a) was not infringed, but rather, the appellant was afforded the full due process of law.

  Attorney-General of Barbados and Others v Joseph (Jeffrey) and Boyce (Lennox) (2006) 69 WIR 104 applied; Maya Leaders Alliance and Others v The Attorney General of Belize (2015) 87 WIR 178

• 3. Civil asset forfeiture is civil in nature and should not be classified as criminal proceedings. It does not amount to a trial for a criminal offence without due process for such a trial. Accordingly, the regime in no way infringes the fundamental rights that are provided in section 15(2)(a) and 15(5) of the Constitution, which speak specifically to criminal offences.

  R (on the application of the Director of Asset Recovery Agency) v Paul Ashton [2006] EWHC (Admin) 1064 applied; Walsh v Director of Asset Recovery Agency [2005] NICA 6 applied; Director of Asset Recovery Agency v Charrington [2005] EWCA Civ 334 applied; Gale and another v Serious Organised Crime Agency [2011] UKSC 49 applied.

• 4. With regard to Mr. Williams' alternative argument based on section 7(1) of the Constitution that the civil asset forfeiture regime amounts to cruel and inhuman punishment, it has long been settled that the fundamental right to protection from cruel and inhuman punishment has to do with a person's protection from bodily impairment. What is at issue in this matter is the seizure of one's property. The fundamental rights jurisdiction is a special jurisdiction and should only be used in appropriate circumstances. Mr. Williams' reliance on section 7(1) of the Constitution is misplaced.

  Harrikisson v Attorney General of Trinidad and Tobago (1980) AC 265 applied; Hinds v The Attorney General (2001) UKPC 56 applied.

Introduction

Blenman JA

1 This appeal raises an important question about the constitutionality of the civil asset forfeiture regime in Antigua and Barbuda. It interrogates the decision of learned Justice Claire Henry in which she held that the civil asset forfeiture regime in Antigua and Barbuda did not infringe sections 3(a) and 15 of the Antigua and Barbuda Constitutional Order 1981 (“the Constitution”) and was therefore valid.

2 Dr. Dorsett forcefully urged this Court to allow his appeal and order that section 20A(2) of the Money Laundering Prevention Act 1996 as amended by the Money Laundering Prevention Act 2002 (the “MLPA”) is unconstitutional, null and void. He also implored this Court to set aside the judgment of the learned judge in which Mr. Williams' interests in the relevant properties were forfeited to the Crown and to award him costs. The Supervisory Authority (the “Authority”) strenuously opposed his appeal and argued that the learned trial judge did not err in her application of the relevant law or in relation to the conclusions at which she arrived.

3 I propose to address the factual background to this appeal.

Background

4 Mr. Ahmed Williams (“Mr. Williams”) was convicted of two offences, namely: unlawful possession of cocaine with intent to supply contrary to section 6(3) of the Misuse of Drugs Act; 1 and possession of cocaine with intent to sell contrary to section 12(1) of the Misuse of Drugs Act. Upon his convictions he was sentenced to five (5) years imprisonment and fined $100,000.00 on the second offence. In relation to the first offence, he was reprimanded and discharged. His appeal against his convictions and sentences was dismissed by the Court of Appeal but the sentence imposed in default of payment of the fine was varied.

5 Subsequent to his convictions and sentence, the Authority, acting pursuant to the MLPA, applied to the High Court in its civil jurisdiction for an interim freeze order in relation to real properties that were registered in Mr. Williams' name. Indeed, the freeze order was granted by the High Court pursuant to section 19(1)(A). Mr. Williams filed an application pursuant to section 19(B)(5) of the MLPA to have the interim order discharged. After a full hearing, his effort to discharge the freeze order was unsuccessful since learned Justice David Harris held, in a closely

written judgment, that there was evidence on which Mr. Williams' properties could have been frozen on the basis that he had engaged in money laundering activity and therefore the properties remained frozen. 2

6 However, before the hearing of the discharge application, the Authority had filed a claim pursuant to section 20A(2) of the MLPA to have the frozen properties forfeited to the Crown. Mr. Williams vigorously opposed the forfeiture claim, on the basis that the frozen properties were not obtained from the proceeds of the criminal activity and therefore were not subject to forfeiture under section 20A of the MLPA. More importantly, Mr. Williams challenged the constitutionality of section 20A(2) of...