State v Fiji Islands Revenue and Customs Authority, ex parte Western Wreckers Ltd [2010] FJHC 103; HBJ10.2009 (1 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 10 OF 2009

BETWEEN:

THE STATE

AND:

THE FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
RESPONDENT

EX PARTE:

WESTERN WRECKERS LIMITED
APPLICANT

Appearances: Mr. V. Kapadia for the Applicant.
Ms. T. T. Rayawa for the Respondent.

Date/Place of Hearing: Tuesday, 22nd September, 2009 at Suva.
Date/Place of Judgment: Thursday, 01st April, 2010 at Suva.
Judgment of: The Hon. Acting Justice Anjala Wati.

JUDGMENT OF THE COURT
(Leave for Judicial Review and Stay

ADMINISTRATIVE LAW – APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND STAY- Investigation by Fiji Islands Revenue And Customs Authority (FIRCA) against applicant- applicant advised that certain offences have been committed by the applicant - statutory provisions on power of Comptroller of Customs Department to compound offences brought to the attention of the applicant-offender admits the offence and requests for an out of court settlement-subsequent decision by Comptroller to prosecute the offender-whether leave should be granted-interference by court with the criminal process.

The Application

1. On the 13th day of August, 2009 the applicant filed an application for leave to apply for judicial review and stay of the criminal proceedings against the applicant.
   
2. The application is supported by an affidavit filed on the same day.
   
3. The application for leave is against the decision made by the Fiji Islands Revenue and Customs Authority hereinafter referred to as "FIRCA" whereby the respondent declined to deal with the alleged offences under section 155 of the Customs Act after drawing the applicants attention to the provision of section 155 of the Customs Act and after the applicant had admitted the offences and had requested that the matter be settled out of court.
   
4. The application for stay is against all criminal proceedings including Lautoka Criminal Action Number 28 0f 2009 until the hearing and final determination of the judicial review proceedings or until the further order of the court.
   
5. The substantive reliefs sought are:-
   
   1. An order for certiorari to quash the decision of the respondent in its letter dated 14th May, 2009 in which the respondent indicated to the applicant that the Comptroller has decided not to settle the matter out of court as requested but to refer the same for criminal proceedings;
      
   2. A declaration that in any event the respondent failed to take into account and accede to the applicants intention to settle under section 155 of the Customs Act;
      
   100. A declaration that the respondent was arbitrary in its said decision and acted contrary to the intention of Section 155 of the Customs Act when making its decision after inviting the applicant to use section 155 of the Customs Act for an out of Court settlement;
        
   4. A declaration that the respondent has acted in breach of the rules of natural justice and/or unfairly and/or abused its discretion in refusing to deal with the matter pursuant to section 155 of the Customs Act;
      
   5. A declaration that the respondent acted arbitrarily and unreasonably and/or acted in breach of the applicant’s legitimate expectations and/or exceeded its jurisdiction and/or made errors of law by instituting criminal proceedings against the applicant for the said offences after inviting the applicant to make submission under section 155 of the Customs Act;
      
   6. An order for mandamus against the respondent directing it to deal with the offences pursuant to Section 155 of the Customs Act;
      
   7. Damages;
      
   8. Interim stay of the Lautoka Magistrate’s Court Criminal case No. 28 of 2009 pending the final determination of the proceedings; and
      
   9. Costs of the action on indemnity basis to be quantified at the hearing of the Judicial Review.
      
6. The grounds for the relief as outlined in the application are:-
   
   1. That the respondent has acted unfairly and in breach of the rules of natural justice in declining to proceed under Section 155 of the Customs Act when the applicant had agreed to settle the offences in accordance with section 155 of the Customs Act after his attention was drawn to that section by the respondent.
      
   2. That the respondent abused its discretion in that it did not take into account the following consideration:-
      
      • (i) That the applicant had admitted the offences with a view to settlement after being invited to do so by the respondent in its letter dated 6th May 2009.
        
      • (ii) The applicant had relied in good faith on the respondent’s invitation for settlement under section 155 of the Customs Act.
        
   100. That the respondent has committed the following errors of law:-
        
        • (i) It acted contrary to the purpose and intention of Section 155 of the Customs Act.
          
        • (ii) The delegated officer making the decision was biased in making the decision not to proceed under section 155 of the Customs Act after obtaining an admission of guilt from the applicant.
          
   4. That the respondent is estopped from relying on its discretion under section 155 of the Customs Act not to proceed with out of Court settlement after it has invited the applicant to make that submission and after the applicant had made that submission.
      

The Opposition

7. The respondent filed its notice of opposition on the 21st day of August, 2009 challenging the application for leave and stay as sought by the applicant.
   

The Affidavit Evidence

8. The applicant and the respondent filed an affidavit each in support of the application and response.
   
9. The applicants affidavit raises the following:-
   
   1. The applicant is engaged inter-alia in a number of businesses involving sales and service of Japanese used vehicles and providing all types of motor vehicle parts and associated appliances and equipments throughout Fiji.
      
   2. The applicant has a private bonded warehouse at Navutu, Lautoka and another bonded warehouse in Suva.
      
   100. On or about the 25th day of March, 2009, there was a public auction held by the respondent at the applicant’s bonded warehouse in Lautoka. The auction was held by the respondent because some vehicles in the said warehouse were not removed under a new time limit of 4 months imposed by the respondent.
        
   4. Due to the economic situation in Fiji and the fiscal duty being set too high, the general public had been unable to afford to purchase of a new vehicle. Therefore the applicant was not in a position to pay customs duty and have the vehicles cleared from the bonded warehouse within the shortened time frame. One of the directors Mohammed Faizal wrote a letter on the 10th day of February, 2009 to the Debt Management Unit of FIRCA for a reduction in the payment of the tax by the applicant.
      
   5. Due to non payment of the tax, FIRAC conducted a public auction on the 25th day of February, 2009 and on 25th day of March, 2009.
      
   6. Due to heavy rain and flooding in the early part of the year in Lautoka, most of the vehicles in the bonded warehouse were damaged. In particular seven vehicles were extensively damaged after being submerged in the water. The applicant had to repair these vehicles before the public auction could be held by FIRCA. The director had received the notice of public auction on the 24th day of March, 2009. The notice stipulated that the auction would be held on the 25th day of March, 2009. The cleaning and repairs to the vehicle could be done after removing some parts from the said vehicles, as the vehicles were covered with mud and debris from the flooding. The applicant had brought this to the attention of FIRCA and the employees of FIRCA had inspected the bonded warehouse and had seen the condition of the vehicles.
      
   7. FIRCA apparently relied on a local newspaper article dated the 26th and the 27th day of March, 2009 that the vehicles were illegally stripped. The vehicles were under repair and the media had misreported and misled the FIRCA. The removed parts were always kept in the bonded warehouse and not removed at any time. The applicant responded to these reports to the newspaper to correct the misreporting but this has not been printed in the newspapers.
      
   8. On the 6th day of May, 2009, Mr. Lorima Vosa from FIRCA wrote to the applicant setting out the offences in accordance with s. 9 (1) and s. 137 (g) of the Customs Act relating to goods in a bonded warehouse. In the said letter Mr. Vosa had invited the applicant to make the proposal for settlement pursuant to section 155 of the Customs Act. In view of the proposal for settlement, the applicant admitted the offence vide a letter dated the 13th day of May, 2009. The admission was due to commercial reasons as the applicant did not wish to get involved in a lengthy and commercial court hearing on the matter.
      
   9. On the 14th day of May, 2009, Mr. Lorima Vosa wrote back to the applicant saying that the Comptroller had considered the admission of the said offence and the request to settle the same out of court and has exercised his discretion to decline the request for settlement under section 155 of the Customs Act and refer the same for criminal prosecution.
      
   10. On the 2nd day of June, 2009, the applicant’s solicitors wrote to the respondent requesting them to reconsider the matter and apply section 155 of the Customs Act. The respondent replied on the 3rd day of June, 2009 indicating that it would not deal with the matter under section 155 of the Customs Act.
       
   11. The respondent thereafter initiated criminal proceedings in the Magistrates Court in Lautoka against the applicant for two counts. The decision made by the respondent is prejudicial to the applicant and the reason for declining the submissions under section 155 of the Customs Act is arbitrary and contrary to the intention of the provision of section 155 of the Customs Act to promote out of Court settlement. The decision sought to be impugned is unreasonable and arbitrary. The decision of the respondent has gravely and irrevocably prejudiced the defence of the criminal proceedings.
       
10. The respondent also filed an affidavit which states the following:-
    
    1. On or about April, 2009 the applicants licence to operate a private bonded warehouse in both Suva and Lautoka was cancelled. Since the date of this letter the applicant has not been allowed to import any further vehicles.
       
    2. There was an auction at the applicant’s bonded warehouse on the 25th day of March, 2009 to sell the LO50 cars which were imported before year 2002. These cars were to have been sold within 3 years.
       
    100. The tax issues have no bearing on the issues pertaining to Customs.
         
    4. No advice was forwarded to Customs Department as regards the condition of the seven cars mentioned or any repairs intended to be done to the same.
       
    5. The Manager, Revenue Collections of the Customs Department had verbally advised the applicant on the 24th day of March, 2009 that an auction sale would be scheduled to sell off the motor vehicles which were more three years old. It is not within the Customs knowledge that the flooding had occurred and had affected the vehicles as alleged by the applicant.
       
    6. The respondent did not rely on the newspaper articles for its investigations. The reports of the missing parts were submitted to the Customs Department on the morning of the auction from potential buyers at the auction. Based on the potential buyers’ complaint the CEO instructed that the investigations begin on the complaints. The newspaper article appeared after the day of the investigation.
       
    7. A letter was written to the applicant but it was not an invitation to admit the offences and to request an out of court settlement with the Comptroller of Customs. The procedures under section 155 are statutorily provided for and are offered to any and all offenders of the customs law; however it must be emphasised that the decision to accept the admission and request for settlement is at the discretion of the Comptroller.
       
    8. The decision to prosecute was also in the public interest as the issue on missing parts was advertised in the papers.
       
    9. A letter was sent to the applicant advising that the applicant’s admission and request for settlement under section 155 would not be used in the criminal proceedings since the respondent had sufficient evidence to charge the applicant otherwise.
       

Applicant’s Submission

11. Succinctly the applicants counsel has submitted the following:-
    
    1. On an application for leave one must only show an arguable case in favour of granting the reliefs claimed.
       
    2. The key issues in this application is breach of legitimate expectation of the applicant, the prejudicial and unfair exercise of the discretionary power by the Comptroller pursuant to section 155 of the Customs Act after having drawn the applicants attention to settlement pursuant to section 155 of the Customs Act.
       
    100. The decision not to proceed with an out of court settlement of the charges is plainly wrong, ultra vires, unreasonable, prejudicial and in breach of the legitimate expectation of the applicant.
         
    4. The issue is not whether there is a discretionary power available to the Comptroller of the Customs under s.155 of the Customs Act. The issue is merely that the respondent after having set in train the procedure under section 155 and calling for an admission of the offence is estopped from not proceeding under that provision.
       
    5. The applicant has prejudiced its position after he has admitted the offence for reasons of commercial viability. Now the Comptroller has filed criminal proceedings, which, assuming that the charges are proven, will have the same effect as if the matter had been dealt with under section 155 of the Customs Act. The damage and prejudice to the applicant in terms of adverse publicity, time and legal costs were factors that the applicant took into account in making the admission under section 155 of the Customs Act.
       
    6. There is a notice by the Comptroller in its letter dated the 6th May, 2009 to one of the directors namely Mr. Faizal where he is named as the offender whereas the actual charges are against Western Wreckers Limited.
       
    7. In support of the application for stay the applicant submitted that the applicant has raised strong grounds for judicial review and that the proceedings must be stayed until such time a final decision is made in this proceeding.
       
    8. The harm and damage done to the applicant far outweighs procedural considerations raised by the respondent. If criminal proceedings are not stayed then this judicial review proceedings would be an exercise in futility. In any event the admission by the applicant is damaging and the applicant would not get a fair trial of the matter in the Magistrates’ Court.
       
    9. There are serious questions to be tried on the wrongful exercise of the Comptrollers discretion. The refusal to grant the stay would cause the applicant irreparable harm and the adverse impact cannot be remedied by a decision in this proceeding should the criminal proceeding conclude before this proceeding. The balance of convenience lies with the applicant.
       

Respondent’s Submission

12. In its opposition the respondents counsel raised the following grounds:-
    
    1. Section 155 of the Customs Act is born out of international conventions particularly the Kyoto Convention on Customs Procedures which was agreed in Kyoto Convention in Japan in 1973 and came into force in 1974. A perusal of the Convention and its various annexes show that it is common for customs administrations world over to pursue two quite different types of offences referred to as criminal offences and administrative offences.
       
    2. Criminal matters are ones involving breach of the criminal law committed with intention or recklessness as to the consequences. It is usually punishable by a severe penalty, being imprisonment or a large fine.
       
    100. There are many customs offences which are either minor or where the nature of the offence is such that a smaller penalty is warranted. Rather than bringing proceedings before a court of law, customs authority may themselves be empowered to impose a penalty. If customs is empowered to adopt this approach it is often referred to as administrative offence. Such offences can be dealt with simply and efficiently. The sanction imposed will normally be a monetary penalty set out in the legislation. In many jurisdictions, administrative offences are easier to prove as the penalty is incurred for an error under the customs law regardless of the intention of the offender. Such administrative offences regimes are also known as infringement notice schemes and payment of the penalty automatically acquits the liability.
         
    4. The discretion lies with the customs administration regarding whether they will use their compounding process to accommodate serious cases to be settled by the Comptroller or have the matter dealt with by the court.
       
    5. Section 155 of the Customs Act gives the Comptroller discretion whether or not to prosecute the offence or compound the same. This section also accords to the applicant fairness in the sense that adequate information about matters being considered against the applicant is provided to him and an opportunity given for him to respond accordingly. The process provided for under section 155 of the Customs Act is far from being arbitrary or unreasonable.
       
    6. The courts do not interfere with the criminal process when it is brought by a public officer. The case of RE WONG TUNG KIN [1988] HKCFI 385 was cited in support.
       

The Law

13. I will very briefly state the relevant law in respect of the application for leave and stay.
    
14. No application for judicial review shall be made unless the leave of the court has been so obtained. The application must be made inter partes. Leave must not be granted, unless the applicant has sufficient standing.
    
15. Where leave to apply for judicial review is granted, then, if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders. If any other relief is claimed, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by the writ.
    
16. The law on leave is well set out by Lord Diplock in the case of INLAND REVENUE COMMISSIONERS V NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD. [1981] UKHL 2; [1981] 2 ALL ER 93 at 106:-
    

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called on to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application".

The Determination

17. The main thrust of the applicants case is that the respondent has acted unfairly and in breach of the rules of natural justice in declining to proceed under Section 155 of the Customs Act and subsequently deciding to prosecute the applicant when the applicant had agreed to settle the offences in accordance with section 155 of the Customs Act after his attention was drawn to that section by the respondent.
    
18. There is no dispute that the applicant has sufficient standing to bring this matter to court.
    
19. The correspondences between the applicant in regards the alleged offence starts of on the 6th day of May, 2009 wherein the respondent writes to the applicant to the following effect, and I quote only the material parts of the same:-
    

"The case concerns certain warehouse vehicles stored at your Bonded Warehouse that were due for auction but were discovered to be stripped off parts ranging from engines, bumpers, tyres, radiators, doors, etc, during the time of auction of same on 25th March 2009.

Investigations on the case began on the said day of auction when the matter was reported with photos of stripped vehicles taken and other evidentiary notes, besides caution statements from witnesses-some of whom had bought the same vehicles, including a caution interview that was conducted with you-being the director of the company at Navutu.

The matter is of a serious nature and the Comptroller of Customs, after going through the case file report, is convinced that you, namely, MOHAMMED FAIZAL f/n Mohammed Hannif have committed the following offences under the Customs Act, 1986.

1. That Pursuant to Section 9 (1) of the Customs Act, 1986:
   

That you namely MOHAMMED FAIZAL f/n Mohammed Hannif did on or about 25th March 2009, at the Western Wreckers Limited Warehouse Number 50, Navutu, Lautoka, interfered with goods subject to Customs control without any Customs authority.

2. That pursuant to Section 137(g) of the Customs Act, 1986:
   

That you MOHAMMED FAIZAL f/n Mohammed Hannif did on or about 25th March 2009, at the Western Wreckers Limited Warehouse Number 50, Navutu, Lautoka, withdrew and removed goods subject to customs control without Customs authority.

Your attention is however drawn to section 155 of the Customs Act 11, 1986. Regarding the settlement of cases by the Comptroller, if you so admit to the offences and request for an out of court settlement by the comptroller in writing.

However in the event you choose to defend your actions, Customs will, upon your advice, institute criminal proceedings immediately, with the subject goods seized.

You are now requested to advice this office in writing of your intentions on the matter within seven (7) days from the date of this letter. A default will be assumed, as intent to defend your case, hence, will result in the aforesaid action and subsequent seizure of Catamaran Boat."

20. The applicant replies to the letter of 13th May, 2009 and says the following:-
    

"Reference was made to your letter dated 6th May 2009, that I admit the offences and request for an out of court settlement by the comptroller in writing.

Looking forward for your kind response".

21. The respondent replies on the 14th day of May, 2009:-
    

"We acknowledge receipt of your letter dated 13th May, 2009 in response to charges laid against your person as per our letter dated 6th May 2009.

We wish to advise that the Comptroller of customs has considered your admission to the said offences committed and request for settlement of same by his office under the provisions of the Customs Act and thus decided in his discretion to decline your request for settlement under section 155 of the Customs Act but rather to refer the same for criminal prosecution proceedings in a Court of competent jurisdiction.

We trust that the above clarifies the comptroller’s position on the matter."

22. The application effectively boils down to asking the court for an order that the respondent be ordered to pursue out of court settlement and not to prosecute the case.
    
23. The issue before me to decide at the leave stage is whether on a quick perusal of the materials before me, there is an arguable case to grant the applicant leave to apply for the reliefs sought.
    
24. Section 155 of the Customs Act 1986 reads as follows:-
    

"PART XX – SETTLEMENT OF CASES BY THE COMPTROLLER

Power of Comptroller to compound offence by agreement

155 (1) Subject to such procedure as may be prescribed, the Comptroller may, where he is satisfied that a person has committed an offence against this Act in respect of which a pecuniary penalty is provided or in respect of which any goods are liable to forfeiture, compound such offence and may order such person to pay such sum of money, not exceeding the maximum amount of the pecuniary penalty to which such person would have been liable if he had been prosecuted and convicted for the offence, as he may think fit; and he may order any goods liable to forfeiture in connection therewith to be condemned:

Provided that the Comptroller shall not exercise his powers under the provisions of this section unless such person in writing admits that he had committed the offence and requests the comptroller to deal with such offence under the provisions of this section..."

25. Section 155 of the Customs Act 1986 gives the Comptroller an unfettered discretion whether or not to compound an offence against the Act in respect of which a pecuniary penalty is provided or in respect of which any goods are liable to forfeiture. The discretion can only be exercised if the offender admits in writing the offence and requests for the Comptroller to compound the offence. In my judgment once the Comptroller exercises his discretion and makes a decision, it is not reviewable by the court.
    
26. Section 155 is a statutory provision to which the applicant could take advantage of if the respondent in its discretion allows an out of court settlement. Because this provision could benefit the offenders, the respondent is obliged to bring to the offender’s attention this provision so that they are not seen to be biased and acting unfairly in knowing the existence of the provision and not bringing the same to the attention of the offenders under which there may be a possible escape for the offenders.
    
27. The bringing of the settlement provision to the attention of the offender is not equivalent to asking the applicant to admit the offence and make a request to settle. It also does not amount to submitting to the settlement.
    
28. Courts cannot force public prosecuting authorities to settle issues out court and not to prosecute the offence. The section clearly stipulates then once the offence is admitted and a request is made for settlement then the comptroller may or may not compound the offence. The provision states that the Comptroller has powers to compound the offence by agreement. This means that the offender must admit and request for settlement and the Comptroller must agree to settle. The provision does not in any way indicate that once the offender admits and requests for a settlement, the Comptroller is bound by the request.
    
29. I do not see how the applicant can say that it decided to admit the offence with a definitive view that the matter would be settled and that the decision to prosecute is prejudicial to the applicant because the very purpose of admitting the offence was for commercial reasons of saving money and reputation. The applicant chose to admit the offence hoping to get a possible advantage of an out of court settlement. If he expected that there would definitely be a settlement then his expectation is unreasonable.
    
30. The basic principle of law is that settlement of issues between parties is an amicable process and not binding as soon as one party is ready for settlement.
    
31. I agree that the applicant would have wanted a settlement for commercial reasons but that does not mean that his reasons to settle must bind the prosecuting authorities or compel them to settle. Of course the request must be considered which the respondent did after which settlement was declined and matter referred for prosecution.
    
32. The courts do not and must not interfere with the criminal process when it is brought by a public officer as the legislation has entrusted these officers with the prosecution of the offences.
    
33. I also do not see how the decision to prosecute will not ensure a fair trial. The decision to prosecute is by a public officer, the respondent in this case. To ensure fair trial is the duty of the criminal trial magistrate in Lautoka Magistrates' Court. If fair trial is not accorded to the applicant then of course there are appeal provisions to remedy the shortfalls of the trial magistrate. This court cannot speculate and say that the learned magistrate before whom the applicant would be tried will not afford a fair trial to the applicant. There is absolutely no basis for such speculation.
    
34. There is enough safeguard to the applicant when he appears before the trial magistrate. The applicant can always as a pre-trial issue resolve the aspect of whether or not the letter by the applicant admitting the offence and requesting for an out of court settlement will be tendered in as evidence. If it is going to be used then relevant objections could be made and the court be asked to rule upon the same. I do not lose sight of the fact that the respondent has in the affidavit in opposition undertaken not to use that evidence against the accused. Where then is the prejudice? Even if the prosecution decides to use the letter in the evidence, then the applicant can always challenge its admissibility. The trial court will then decide on the issue, which is the master of its own process.
    
35. I am also of the judgment that by bringing that settlement provision to the attention of the applicant, the respondent acted fairly by not failing to advise the applicant of statutory provisions which could possibly benefit the applicant. The respondent also acted fairly when it promptly responded to the applicant’s letter and advised that settlement would not be pursued but instead the matter would be referred for prosecution.
    
36. I am also of the judgment that the Comptrollers decision to prosecute is not reviewable and I shall be wrong in granting leave for judicial review of the decision of the Comptroller.
    
37. I must further cite a very comprehensive case of RE WONG TUNG KIN [1988] HKCFI 385. This case was brought to my attention by the respondent’s counsel and I thank her immensely for submitting to the court an authority as relevant as this which is the law on the matter at hand. I can do no better than quote excerpts of the judgment of his Lordship Justice Smears:-
    

".... I then turn to what is behind this application. First, it is said that the promise to compound permits this court to intervene and to declare that the commissioner was acting in some way unlawfully because he has now decided to prosecute.

...Mr. Swaine submits that as it was the Commissioner who, through his officers, had promised that if this doctor co-operated there would be no prosecution, this court should now interfere by declaring that he has acted unlawfully and stop the prosecution.

In my judgment, these courts do not interfere with criminal process when it is brought by a public officer, whether by the Attorney General or the Commissioner of Inland Revenue, the legislation has entrusted the criminal prosecution to public officers and this court should not influence or interfere with the criminal process....As far as this application is concerned, adequate safeguards are provided by the Court before whom the person appears, in this case the district court. If, for example, evidence is obtained by a promise or inducement, then it may be, on challenge, ruled inadmissible. It is the judge who makes that decision. Mr. Swaine submits here that what happened here strikes at the root of this prosecution and it is wholly unjust for his client to face trial. In my judgment adequate safeguard is provided to the Defendant, because he is entitled to make submissions prior to the indictment even being put. He could submit that the prosecution was so oppressive as to amount to an abuse of the court, or that the Commissioner had in reality exercised his discretion to compound. These are matters for the trial court to consider which is master of its own process.

...The Commissioner has an unfettered discretion whether or not to compound an offence. He has to satisfy himself first that there is an offence, or at any rate a prima facie offence, and secondly, whether or not he should compound it. In my judgment, that decision is not a reviewable decision. ... The Commissioner is under no duty to act judicially. He does not have to balance all the potentially conflicting issues. He does not have to ask the taxpayer what his views are before he reaches a conclusion....this Court does not sit in an appellate capacity, nor does it dictate what matters are of importance in the exercise of such discretion. These are matters essentially within the knowledge of those who run this important department of government. They know, for example, whether there is prevalence for a particular type of offence. They know the amount of tax which is avoided. They know the status of the person who makes the return and his culpability. They know all the relevant circumstances which entitles them and them alone to exercise a discretion to compound. If this court interferes with that discretion, it would be giving itself the power which the legislation has specifically entrusted the Commissioner. He is entitled to have his own policies within his own department and he will weigh all the relevant factors and then make his own decision.

....This is one of the category of cases which, in my judgment, is bound to fail "inlimine". It is an unarguable case".

38. This is a case which, in my judgment was doomed to fail in any event. The applicant must pay the costs. The counsel for the applicant however had been efficient in quick prosecution of this case. Not much paper work was involved either. Costs on a standard scale therefore would be appropriate.
    

Final Orders

39. The application for leave to apply for judicial review is refused and so is the application for stay of all criminal proceedings against the applicant.
    
40. There shall be costs in favour of the respondent to be taxed on standard basis if not agreed by the parties.
    
41. Orders Accordingly.
    

ANJALA WATI
Acting Judge

1.04.2010