Andrew Aishmail Koroma v Director of Border Revenue [2011] UKFTT 506 (TC) (26 July 2011)
DECISION
1. The
Appellant, Mr Koroma, appeals against a decision by the Respondents (“UKBA”)
that following a departmental review, his gold would not be restored following
seizure on 4 September 2010.
Mr Koroma’s application and our decision on it
2. On
10 June an application had been made on behalf of Mr Koroma for the hearing to
be adjourned. That application had been refused by a Judge on that day on the
basis that it would be open to Mr Koroma to renew the application at the
hearing. Mr Abu made the renewed application at the start of the hearing.
3. He
explained that his firm had been instructed on 24 May. The file papers had not
been received until 10 June. The documents consisted of “bits and pieces”. He
had also requested the return of original documents from UKBA.
4. Particular
issues had arisen in relation to Mr Koroma’s witness statement as prepared by
Mr Koroma’s previous advisers and the Statement of Case submitted on his
behalf. In his present solicitors’ view, Mr Koroma had been given inadequate
advice by his previous solicitors; the witness statement had been prepared by
them following a meeting which had lasted only 45 minutes, and Mr Koroma had
had no participation in the preparation of his Statement of Case.
5. Mr
Abu explained that his firm had prepared a new witness statement for Mr Koroma,
who wished the previous witness statement to be withdrawn.
6. Mr
Abu had been sent the bundle from UKBA; he would have liked more time to digest
that. He submitted that there should be an adjournment of, say, four weeks to
allow for preparation of the case. He referred to the application which had
been made on the previous Friday, 10 June; this had been refused. For the reasons
given, he submitted that the adjournment should be granted.
7. For
UKBA, Miss Hale opposed the application. The main witness had had to travel
from Plymouth, and the expense of a hotel stay had had to be incurred. The
three week period from 24 June had been more than adequate for Mr Koroma’s new
advisers to review the questions raised by the appeal. Documents had been
obtained from the previous solicitors; Mr Koroma could have obtained the file
from them. The request to UKBA for original documents was entirely new;
photocopies were available. It was a very late stage for the application to be
made; UKBA was here and ready to deal with the appeal. Her understanding was
that a reason for adjourning was the need on Mr Koroma’s behalf for the UKBA’s
intercepting officer to be present at the hearing. She submitted that this was
not necessary in the circumstances.
8. In
reply, Mr Abu indicated that one of the reasons for requesting the original
documents was the reference in UKBA’s Statement of case to “clear evidence of
manuscript doctoring”. Mr Koroma needed to show that the document was an
official document from the relevant Sierra Leone authority. The Sierra Leone
Embassy needed to see the original documents to authenticate them. The request
for the original documents had been made to UKBA on Friday 10 June.
9. Other
issues of fact needed to be resolved. The Review Officer had arrived at his
conclusion based on the officer’s notes. These had been signed only by the
officer and not by Mr Koroma. Mr Abu had asked for the officer to attend the
hearing in order to clarify some of the facts in his notes. Miss Hale submitted
that a request made on Friday, the last working day before the hearing, was
inadequate.
10. After
discussion, we decided that the reasons put forward on Mr Koroma’s behalf were
not sufficient to outweigh the expense and inconvenience which would have
resulted from the postponement of the hearing; we considered that it was in the
interests of justice to proceed with the hearing after allowing a delay to
permit Mr Abu to confer with Mr Koroma.
The substantive hearing
11. Following Mr
Abu’s discussion with Mr Koroma, the hearing commenced one hour later than the
time originally listed.
The facts
12. The evidence
consisted of a bundle of documents, including witness statements given by Mr
Koroma and by Mrs Deborah Hodge, the UKBA Review Officer. Two witness
statements made by Mr Koroma were included in the documentation provided to us;
the second was dated 10 June 2011. However, in the light of Mr Abu’s
submissions that the original witness statement prepared for Mr Koroma by his
previous advisers was defective in a number of respects, we ignored that
original statement. Both Mr Koroma and Mrs Hodge gave oral evidence.
13. From the
evidence we find the following background facts. We consider disputed evidence
later in this decision.
14. Mr Koroma was
born in Sierra Leone in 1970, and came to the UK in 1992; he is now a British
citizen. Together with his brother he runs a small family business, run as a
limited company. The business is a high street shop, with no other branches and
no persons employed in the business apart from Mr Koroma and his brother.
15. Mr Koroma wished
to expand his business in a way that would ensure some connection with Sierra Leone. As he was aware of other persons from the UK buying goods in the UK and selling them in Sierra Leone, he wished to do so as well, taking goods purchased in the UK to Sierra Leone and selling them at a profit. He travelled there from the UK on 6 April 2010, taking a range of goods.
16. During his time
there he succeeded in selling all the goods that he had bought in the UK. He came into contact with Edna M Kamara, a licensed gold exporter. She advised him that
with the profits which he had made he would be able to buy gold and sell this
in the UK. She informed him that there were a number of formalities which
needed to be fulfilled in Sierra Leone before he would be allowed to take the
gold to the UK. He arranged to buy gold through her.
17. He made the
purchase through Ms Kamara. On 3 September 2010 he accompanied her to the
Government Gold and Diamond Office of the Ministry of Mineral Resources at
their office in the Bank of Sierra Leone where he completed a number of
official forms. He was aware that the gold was weighed and valued and export forms
were completed; he paid an export charge. In evidence, he stated that he would
not have been able to follow the procedure in Sierra Leone without the
assistance of Ms Kamara; he did not know what the procedure was and he was
completely reliant on her advice. He believed her to be competent to provide
him with advice, because she provided him with a copy of her licence. He
believed that once the gold had been through the Ministry of Resources, he
would be free to take it back to the UK. Ms Kamara told him that there were no
other formalities for him to follow and he could freely take the gold back to
the UK and sell it once he arrived.
18. The gold had
been put in a box at the Bank of Sierra Leone. The bank seal had been put on
the box and the bank stamp had been put on the four corners of the box. To
travel back to the UK, Mr Koroma put the box in his hand luggage bag; it was
not hidden, and Mr Koroma did not attempt to conceal the box in his luggage.
19. When Mr Koroma
left Sierra Leone he left through Lungi Airport. Ms Kamara had explained to him
that he needed to inform the officials at the airport that he was carrying
gold; he did so, in accordance with those instructions. He was given further
documentation at Lungi Airport relating to the gold.
20. On 4 September
2010 at Heathrow Airport, Mr Koroma was stopped by a UKBA officer in the green channel
(for persons arriving from “Third Countries”, ie non-EU countries, having
nothing to declare). He had arrived on a flight from Sierra Leone.
21. According to the
officer’s notes, Mr Koroma answered the officer’s questions as follows:
(1)
He confirmed to the officer that he was travelling alone, and had
travelled from Sierra Leone. He lived in Tottenham.
(2)
He had been away for two months. What he did for a living was that he
and others had a family business, a supermarket. His brother had been running
this while he had been away.
(3)
He confirmed that the bag which he had with him was his own, that he had
packed it, and that everything in it belonged to him.
(4)
When the officer referred to Mr Koroma being in the green channel and
asked him whether he had anything to declare, he answered “No”.
(5)
In response to the question whether he had any cigarettes, tobacco or
meat, Mr Koroma stated that he did not.
22. The officer then
examined Mr Koroma’s baggage. Within it he found a small box; he asked Mr
Koroma what was in it. The officer’s notes record Mr Koroma’s answer as
follows:
“A bar of gold. It’s a sample. I want to by [ie,
buy] and do some business like export. If it doesn’t work then I’ll turn it
into jewellery.”
[The form which the gold took was a matter of dispute; we
consider this later in this decision.]
23. In response to
the question how much he had paid for the gold, Mr Koroma produced a receipt
and export papers for the gold. He stated the cost [and Sierra Leone export duty] in Sierra Leone currency. The officer recorded the approximate sterling
valuation as £9,327.48 purchase price and £279.82 in duty, totalling £9,607.30.
24. The officer
included the following further details in his notebook:
“AK is a director of Koroms International Ltd @
[address, telephone number, Company number, VAT registration number].
08:30: Goods seized. I issued & explained notice
1, 12A, C156 and C162. Seal No [number].The Gold was placed in a clear plastic
bag and sealed in front of AK. I wrote the Seal No on the C156 and AK signed
it.”
The officer put his initials at the end of the note in
his notebook, but the notes were not signed by Mr Koroma; we refer to this
later.
25. The duplicate
copy of the form C156 (Seizure Information Notice) included in the evidence
showed, under the heading “Schedule of things seized”, the quantity as being
446.54 grams, the description as “of gold”, and the condition as “Gold Bar”. The
form contained the following acknowledgment:
“I acknowledge receipt of Form C 156 (Original) and
agree that the above description of the things seized is correct.”
Beneath these words appeared Mr Koroma’s signature, the
date and his name in block letters (but not his full name). The officer’s
“unique identifier” [a number] appeared before the acknowledgment; as this
identifier was shown, the officer’s signature was not required.
26. In the same way,
Mr Koroma’s signature appeared on the duplicate copy of form C162,
acknowledging receipt. The officer’s unique identifier was shown, but no name
stated.
27. On 7 September
2010 Mr Koroma’s then solicitors wrote to UKBA on his behalf. Their letter
explained that, before his interception by the officer at Heathrow, there had
been nobody to whom he could speak in order to declare the gold. The letter
enclosed various documents (considered below). Although the letter referred to
a letter of authority signed by Mr Koroma and addressed to his solicitors, the
version enclosed was a photocopy rather than an original. The letter stated that
Mr Koroma was a genuine businessman, both in the UK and Sierra Leone; he paid tax in both countries, and had no intention to deceive Customs [ie
UKBA]. Nor had Mr Koroma intended to smuggle the gold into the UK.
28. On 29 September
2010, in response to a letter from UKBA dated 22 September 2010, that firm
provided the original letter of authority and repeated their request for the
gold to be restored to Mr Koroma.
29. On 8 October
2010 an officer of UKBA’s National Post Seizure Unit wrote to the solicitors.
The officer emphasised that the decision in the letter concerned the question
whether the gold should be restored. In considering restoration, the officer
had looked at all of the circumstances surrounding the seizure but did not
consider the legality or the correctness of the seizure itself. If Mr Koroma
had contested the legality or correctness of the seizure, his appeal would be
heard in a Magistrates’ Court in due course, as had been explained in Customs
Notice 12A given to Mr Koroma at the time of the seizure.
30. The officer’s
conclusion was that there were no exceptional circumstances that would justify
a departure from the UKBA’s policy, and confirmed that on this occasion the
gold bar would not be restored.
31. By letter to
UKBA dated 15 October 2010 Mr Koroma’s solicitors requested a review of the
decision not to restore the gold. They contended that the decision not to do so
was unfair, unreasonable and not in accordance with the law.
32. On 21 October
2010 the solicitors wrote to UKBA, seeking to appeal against the legality of
UKBA’s seizure of the gold. UKBA subsequently advised that this appeal was out
of time.
33. On 16 November
2010 the Review Officer, Mrs Hodge, wrote to the solicitors setting out the
results of her review. Her conclusion was that the gold should not be restored.
On 26 November 2010 the solicitors gave Notice of Appeal on Mr Koroma’s behalf
to the Tribunals Service.
The law
34. Section 49(1) of
the Customs and Excise Management Act 1979 (“CEMA 1979”) provides:
“49 Forfeiture of goods improperly imported
(1) Where—
(a) except as provided by or under the
Customs and Excise Acts 1979, any imported goods, being goods
chargeable on their importation with customs or excise duty, are, without
payment of that duty—
(i) unshipped in any port,
(ii) unloaded from any
aircraft in the United Kingdom,
. . .
(iv) removed from their
place of importation . . . or . . .
those goods shall . . . be liable to forfeiture.”
35. Section 78(1)
and (4) CEMA 1979 provides:
“78 Customs and excise control of persons
entering or leaving the United Kingdom
(1) Any person entering the United Kingdom shall, at such place and in such manner as the Commissioners may direct,
declare any thing contained in his baggage or carried with him which—
(a) he has obtained outside the United Kingdom; or
(b) being dutiable goods or chargeable
goods, he has obtained in the United Kingdom without payment of duty or
tax,
and in respect of which he is not entitled to
exemption from duty and tax by virtue of any order under section 13 of the
Customs and Excise Duties (General Reliefs) Act 1979 (personal reliefs).
. . .
(4) Any thing chargeable with any duty or tax which
is found concealed, or is not declared, and any thing which is being taken into
or out of the United Kingdom contrary to any prohibition or restriction for the
time being in force with respect thereto under or by virtue of any enactment,
shall be liable to forfeiture.”
36. Section 167(1)
CEMA 1979 sets out further circumstances in which goods may be liable to forfeiture:
“167 Untrue declarations, etc
(1) If any person either knowingly or
recklessly—
(a) makes or signs, or causes to be made
or signed, or delivers or causes to be delivered to the Commissioners or
an officer, any declaration, notice, certificate or other document whatsoever;
or
(b) makes any statement in answer to any
question put to him by an officer which he is required by or under any
enactment to answer,
being a document or statement produced or made for
any purpose of any assigned matter, which is untrue in any material particular,
he shall be guilty of an offence under this subsection and may be arrested; and
any goods in relation to which the document or statement was made shall be
liable to forfeiture.”
37. Section 16(4) of
the Finance Act 1994 (“FA 1994”) provides:
“16 Appeals to a tribunal
(4) In relation to any decision as to an ancillary
matter, or any decision on the review of such a decision, the powers of an
appeal tribunal on an appeal under this section shall be confined to a power,
where the tribunal are satisfied that the Commissioners or other person making
that decision could not reasonably have arrived at it, to do one or more of the
following, that is to say—
(a) to direct that the decision, so far
as it remains in force, is to cease to have effect from such time as the
tribunal may direct;
(b) to require the Commissioners to
conduct, in accordance with the directions of the tribunal, a review
or further review as appropriate of the original decision; and
(c) in the case of a decision which has
already been acted on or taken effect and cannot be remedied by a review or
further review as appropriate, to declare the decision to have been unreasonable
and to give directions to the Commissioners as to the steps to be
taken for securing that repetitions of the unreasonableness do not
occur when comparable circumstances arise in future.”
Arguments for Mr Koroma
38. Mr Abu argued
that the facts relied on in the Review Officer’s letter were inaccurate. He
submitted that many of the questions recorded had not actually been asked.
Although the entry in the officer’s notebook showed the officer’s signature,
there was no confirmation by Mr Koroma that the notes were true and accurate.
39. In relation to
the facts, Mr Koroma had provided a new witness statement. Mr Abu reviewed in
detail the facts as set out in that statement. (We consider the relevant facts
later in this decision.)
40. The advice and
assistance which Mr Koroma had received from his previous solicitors had been completely
inadequate. Following his instructions to Mr Abu’s firm, grave errors had been
discovered in the original witness statement, which was why the new statement
had been presented at the hearing. Mr Koroma had only become aware of the
Statement of Case prepared for him by his previous solicitors when they sent it
to the Tribunal; there were grave errors in this also, and therefore no
reliance should be placed on either the original witness statement or that
Statement of Case.
41. Mr Abu submitted
that it would be unreasonable for the gold not to be restored to Mr Koroma, and,
given his personal circumstances, that there were exceptional grounds for the
gold to be restored; his appeal should be allowed.
Arguments for UKBA
42. Miss Hale put
the main points of UKBA’s case; reliance on another person was not an
exceptional reason justifying restoration of the goods, and there had been no
argument relating to proportionality.
43. She explained
that the goods had been seized pursuant to the power under s 49 CEMA 1979, which
made them liable to forfeiture. The importer had a right to challenge the
forfeiture. If there was no such challenge, the goods were deemed to be
forfeited. Section 14 of the Finance Act 1994 (“FA 1994”) enabled the person
liable to duty to request a review of the decision not to restore the goods.
The appeal to the Tribunal concerned the question whether or not the goods
should be given back to the importer after forfeiture.
44. Miss Hale
referred to the evidence of Mr Koroma and Mrs Hodge. The UKBA’s case, put at
its highest, was that Mr Koroma had lied. Even if the intercepting officer’s
notes were not correct, Mr Koroma’s evidence still indicated that his own
behaviour had been misleading.
45. On Mr Koroma’s
evidence, his lack of knowledge was said to mean that the decision not to
restore the gold was unreasonable. Miss Hale contended that lack of knowledge
was not a reason for the return of the goods. It was well known that duty was
owing on goods coming into the UK. The decision of Mrs Hodge, the Review Officer,
had not been unreasonable in the Wednesbury sense (Associated
Provincial Picture Houses, Ltd v Wednesbury Corporation [1948] 1 KB 223).
Discussion and conclusions
46. As no effective attempt
was made to challenge the validity or correctness of the seizure by taking an
appeal to the Magistrates’ Court, no questions relating to those matters can be
raised in these proceedings. That this is the correct approach has very
recently been confirmed by the Court of Appeal in HMRC v Jones and another
[2011] EWCA Civ 824. We accept the evidence that at the time of the
seizure Mr Koroma received from the intercepting officer the information
relating to his rights following the seizure; such information included the
methods of appeal both for proceedings in the Magistrates Court to challenge
the seizure and for proceedings in the Tribunal to reconsider the decision not
to restore the goods. This information was there for Mr Koroma to read himself,
as well as to pass on to his then advisers. The letter dated 21 October 2010 from
Mr Koroma’s previous solicitors was clearly outside the 30 day time limit for
an appeal challenging a seizure. The reason for that delay is not apparent, but
this is not a question within our jurisdiction.
47. Under s 16(4) FA
1994 the powers of the Tribunal in relation to an appeal against refusal to
restore goods are limited. We would emphasise that if an appellant in such
proceedings is successful, this does not mean that the Tribunal can order the
restoration of the goods. It is clear from Lindsay v Customs and Excise
Commissioners [2002] STC 588 at [68]-[69] that such an order cannot be
made.
48. In order for an
appeal to succeed so as to enable the Tribunal to take any of the steps listed
in s 16(4), it is necessary for the Tribunal to be satisfied that UKBA or the
person making the decision could not reasonably have arrived at it. The test
adopted in relation to such matters is that set out by Lord Greene MR in the Wednesbury
case at p 229:
“For instance, a person entrusted with a discretion
must, so to speak, direct himself properly in law. He must call his own
attention to the matters which he is bound to consider. He must exclude from
his consideration matters which are irrelevant to what he has to consider. If
he does not obey those rules, he may truly be said, and often is said, to be
acting "unreasonably."”
49. In Mr Koroma’s
case, the question is therefore whether UKBA’s decision, as confirmed on
review, not to restore the gold was one that it could not reasonably have
arrived at. This requires further consideration of the facts, before we examine
the review letter.
50. Mr Koroma’s
arrival at Heathrow was stated in his witness statement of 10 June to have been
through Terminal 4. This is not consistent with the information set out in the
officer’s handwritten notes and in form C156, both of which stated the location
as “LHR T1”. As Mr Koroma signed this form at the time when the gold was
seized, we find that this evidence is to be preferred to that in his witness
statement.
51. In his witness
statement Mr Koroma referred to the officer’s handwritten notes, and stated
that the notes of what he had said were not accurate or true; during the time
while he was with the officer, the officer had made no notes of the
conversation with Mr Koroma. Mr Koroma’s evidence was that when approached by
the officer, he had told the officer that he was travelling alone and had come
from Sierra Leone; the first thing that the officer had asked him was if he
could search Mr Koroma’s suitcase. In oral evidence, Mr Koroma stated again that
the officer had not written any notes while Mr Koroma had been present.
52. In relation to
the officer’s notebook, Mrs Hodge stated in oral evidence that there were
initial questions which officers always asked; these were standard questions.
Every person who was stopped would be asked those questions. In carrying out
her review she had to rely on the officer’s notebook as a prime source of
evidence. She accepted that the officer should have asked Mr Koroma to sign the
notebook, and that this had not been done. Her view was that the person stopped
should always be asked to sign the notebook; this made the reviewer’s job
easier and fairer.
53. We accept Mrs
Hodge’s evidence as to the general practice in asking questions of persons at UK entry points, being a standard series of questions. She did not specify that it was
standard practice for notes to be taken during the interview, but two factors
persuade us that this is the case. The first is that in the majority of cases
which reach the Tribunal, the person stopped has signed the officer’s notes.
The second is the time entries on the notes taken by the officer who
intercepted Mr Koroma. The first is at 07:50 – “Green channel at LHR T1”. The
second is at 08:30 – “Goods seized. I issued and explained Notice 1, 12a, C156
and C162 . . .” Thirdly, the officer stated at the end of the notes: “I wrote
the Seal No on the C156 and AK signed it.” Below this the officer added his
initials, “04/09/10” and “09:15 hrs”. On the balance of probabilities, we find
that the notes were contemporaneous with the interview, as otherwise the
officer would have had to keep separate notes of the timings. The matter would
have been put beyond doubt if the officer had asked Mr Koroma to sign the
notebook. We make the general suggestion that UKBA should issue instructions to
officers that they should always ask the person stopped to sign the officer’s
notebook, to avoid disputes of this nature.
54. We accept the
officer’s notebook as the best evidence of the questions put by the officer to
Mr Koroma and the answers given by Mr Koroma to the officer on 4 September
2010. As Mr Koroma did not refer to any record which he might have kept of the
interview, his evidence was necessarily based on his recollections after the
event, rather than from contemporaneous notes. We accept the evidence based on
the officer’s notes, as set out earlier in this decision. We therefore reject
Mr Koroma’s evidence that the officer’s first question was whether he could
search Mr Koroma’s suitcase, and also Mr Koroma’s evidence that he was not
asked if he had anything to declare and that he was only told that he needed to
declare the gold in the UK. We also reject the evidence that the officer did
not make any notes while Mr Koroma was with him.
55. Mr Koroma stated
both in his witness statement and in oral evidence that the officer had told
him that he needed to declare the gold and that Mr Koroma offered to declare
it. We do not accept this evidence. Nothing to this effect appears in the
officer’s notes. Further, by going through the green channel and failing to
draw the officer’s attention to the box containing the gold, Mr Koroma had
already brought himself within s 78(1) and (4) CEMA 1979. If the gold was for
personal use, the limit for personal importations as set out in the Schedule to
the Travellers’ Allowances Order 1994 (SI 1994/955) is £390, a small fraction
of the actual sterling value of £9,607.30 inclusive of duty. As Mr Koroma’s
evidence in his 10 June witness statement was that he had told the officer that
the gold was for marketing purposes, and as the officer’s notes report Mr
Koroma’s response to the question as being that set out at paragraph 22 above,
we find that Mr Koroma intended to use the gold for commercial purposes. By
failing to declare the gold before the officer found it as a result of the
search of Mr Koroma’s baggage, Mr Koroma was clearly within s 78 CEMA 1979.
Further, by not declaring the gold to the officer when asked “Do you have
anything to declare?”, Mr Koroma also brought himself within s 167 CEMA 1979.
Thus there were two separate reasons for the gold to be forfeited. At that
stage, therefore, it would not have been appropriate for the officer to tell Mr
Koroma that he needed to declare the gold.
56. Mr Koroma’s
evidence was that he believed that once the gold had been through the Ministry
of Resources in Sierra Leone, he would be free to take it back to the UK; he
was told by Ms Kamara that there were no other formalities for him to follow
and he could freely take the gold back to the UK and sell it once he arrived.
We find that whatever advice he may have received in Sierra Leone, this did not
absolve him of his responsibility to check the position when he returned to the
UK. Ms Koroma’s comments presumably reflected the position in Sierra Leone, but without any express indication to the contrary, could not reasonably be expected
to amount to definitive advice on the duty and tax position in the UK.
57. Mr Koroma also stated
that as he had paid tax in Sierra Leone and had not been informed that he would
have to declare the goods in the UK, he did not think that he had to check the
position or speak to any officials when he arrived at Heathrow. Had he been
aware, he would have asked. In his previous advisers’ letter dated 7 September
2010, which was part of the documentation reviewed by Mrs Hodge, it was stated
that Mr Koroma had gone through UKBA-Customs, but there had been no-one he
could speak to in order to declare what they referred to as “his gold bar”.
These respective statements are inconsistent with each other. In any event, Mrs
Hodge stated in the review letter that the officer at Heathrow had confirmed
that the red channels were manned at the time when Mr Koroma had arrived, but
that Mr Koroma had opted to walk through the green channel. In his oral
evidence, Mr Koroma said that he had not been informed in Sierra Leone that he would have to declare the gold; if he had been aware of this, he would
have asked. We conclude from his oral evidence and his 10 June witness
statement that the assertion in the advisers’ letter dated 7 September 2010 was
incorrect; the case now put on his behalf is that he was ignorant of the
requirement to declare the gold and therefore did not seek to make any
enquiries of UKBA officers when he arrived at Heathrow.
58. There was a
dispute as to the exact form which the gold was in, namely whether it was a
gold bar or gold dust. The documentation supplied to UKBA contained
inconsistencies in this respect. The handwritten note of examination at Lungi
Customs on 3 September 2010, which was on plain paper with a stamped imprint
reading: “National Revenue Authority: Collector: Lungi” referred to a package
examined externally and said to contain gold dust samples. The “Gold Valuation
and Exports Form”, with a heading referring to the Sierra Leone Government and
subtitle “Ministry of Mineral Resources: Government Gold and Diamond Office”,
referred to the same weight of “granules samples”.
59. A further
document, which may have been provided after the event with a note from Ms
Kamara dated 27 September 2010, described the gold as “bar samples”. This
document appears to us to be of dubious provenance. It purports to be an export
clearance certificate from the Sierra Leone Ministry of Mineral Resources
“Mines Monitoring Office”. However, the letterheading contains errors. Although
the details are in block capitals, the second letter “i” in the word “Ministry”
is in lower case. The word “Import” in the title of the certificate has been
deleted by a number of pen strokes and the word “Export” in block capitals
inserted in pen rather than in print. The next word in the title, instead of
“Clearance”, is “Clearamce”. Above a pressed stamp showing the details “Mines
Division: Senior Mines Monitoring Office: Lungi Airport” and impressed upside
down on the document but with a signature the right way up, there is an
annotation “Verefied” [sic]. We are not convinced that this document is
genuine.
60. As we have set
out at paragraph [22] above, the officer’s notes of the seizure interview at
Heathrow record Mr Koroma as having referred to the gold as a bar of gold. No
additional evidence was adduced at the hearing to enable us to decide whether
the gold was in the form of a bar or was “gold dust samples”. However, we do
not consider it material to our decision to establish what form the gold took.
The question at issue is the importation of this quantity of gold; its form
does not affect that question. Accordingly we make no decision or finding as to
the form of the gold.
61. Whatever the
doubts may be as to any or all of the documents relating to the export from Sierra Leone, they are not in our view material to the question of the importation of the gold into
the UK. We therefore make no findings concerning those documents.
62. A material part
of the evidence and submissions related to Mr Koroma’s lack of international
business experience, and his consequent lack of knowledge of the requirements
relating to the importation of the gold into the UK. These matters concern Mr
Koroma’s subjective state of knowledge. The same is the case for his
understanding derived from the information provided to him in Sierra Leone by Ms Kamara, whether or not that understanding was justified by the actual
advice given. Liability in respect of duties and taxes on import, and the
obligation to declare goods on importation where their value is in excess of
the “personal relief” level of £390, are matters which do not depend on the
state of knowledge of the importer. The only relevance of Mr Koroma’s state of
knowledge is to the question whether there were exceptional circumstances justifying
restoration.
63. In the light of
our findings of fact, we now consider the review letter written by Mrs Hodge.
Her letter set out the background; we accept her evidence that she relied on
the officer’s notes, and consider it reasonable for her to have done so. She
referred to the £390 limit for importations from “third countries” without
payment of duty and/or tax. She indicated that the officer had seized the gold
because, by entering the green channel, Mr Koroma had failed to declare goods
in excess of his allowance. Although (for the reasons given above) this is not
within our jurisdiction, we regard this as a reasonable justification for the
seizure.
64. Mrs Hodge
referred to the history of the correspondence, and in particular to the letter
dated 15 October 2010 requesting a review of the decision not to restore the
gold. She summarised the contentions included in the advisers’ letter. She then
referred to the restoration policy for goods. The general policy was that goods
would not be restored; however, each case was examined on its merits to
determine whether, exceptionally, restoration might be offered.
65. Mrs Hodge then
set out her consideration of the case. She described the terms on which she had
considered the decision afresh, and the representations and other material
taken into account. We are satisfied that the general approach described and
adopted by her was reasonable. She stated that Mr Koroma’s advisers had not
provided her with details of exceptional circumstances that would result in her
deciding to restore the gold to their client under the UKBA’s policy.
66. Further, a
number of circumstances formed positive additional reasons for concluding that
the gold should not be restored:
(1)
Goods over the value of £390 should be declared in the Customs red
channel. The signs at Heathrow clearly directed travellers from outside the EU to
use the green or red channels. Mr Koroma had entered the green channel,
indicating that he had no goods of any kind to declare. In doing so, he failed
to declare his gold, worth almost £9,000. Mrs Hodge referred to s 78(1), (4)
and (3) CEMA 1979.
(2)
The red channels were manned at the time, but Mr Koroma had opted to
walk through the green channel and was then stopped by the officer. Mr Koroma
must have known that he was expected to answer questions truthfully and to
disclose the full quantities of any goods in his baggage. Even though he was in
the green channel, he was give ample opportunity to make a declaration to the
officer and yet when asked if he had anything to declare he responded by
answering “no”. The gold was only discovered when his bag was searched. Miss
Hodge stated that it was clear to her that this was a deliberate deception and
that Mr Koroma had made no attempt to enter the red channel or declare the
goods.
(3)
Mr Koroma had told the officer that he wanted to do some business like
export or turn the gold into jewellery. The advisers had stated that he was a
legitimate business man in the UK and Sierra Leone. If this were the case, he
should have been aware that if the gold was being imported for a commercial
purpose, it should have been properly entered as ‘Merchandise in Baggage’ using
a Form C88/SAD or he could have used a clearance agent. Details of the
procedure were published on the HMRC website in Notice 6. Not only had Mr
Koroma failed to investigate the proper methods of entering the gold, he had
also failed to mention the existence of the gold when given the opportunity.
(4)
Mrs Hodge had read the advisers’ letter carefully to see whether a case
had been presented for disapplying the UKBA policy and whether there were any
exceptional circumstances for doing so: she had found no reason for disapplying
the policy and no exceptional circumstances.
(5)
In her conclusion she stated her opinion that the application of the
UKBA policy in Mr Koroma’s case treated him no more harshly or leniently than
anyone else in similar circumstances, and she could find no reason in this case
to vary the policy not to restore. For the reasons which she had set out, she
concluded that the seized gold should not be restored.
67. Having
considered Mrs Hodge’s letter in the light of all the evidence, we are not
satisfied, in terms of s 16(4) FA 1994, that UKBA or the person making the
decision, ie Mrs Hodge, could not reasonably have arrived at it. We consider
that she took into account all relevant considerations and excluded from her
consideration all matters irrelevant to what she had to consider. There is
therefore no basis for us to take any of the actions listed in s 16(4) FA 1994.
68. In the light of
our conclusion, we dismiss Mr Koroma’s appeal.
Right to apply for permission to appeal
69. This document
contains full findings of fact and reasons for the decision. Any party
dissatisfied with this decision has a right to apply for permission to appeal
against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal)
(Tax Chamber) Rules 2009. The application must be received by this Tribunal
not later than 56 days after this decision is sent to that party. The parties
are referred to “Guidance to accompany a Decision from the First-tier Tribunal
(Tax Chamber)” which accompanies and forms part of this decision notice.
JOHN CLARK
TRIBUNAL JUDGE
RELEASE DATE: 26 July 2011
