The Commissioner of Police v Medical Management Company Ltd

• Jurisdiction: British Virgin Islands
• Judge: Thom JA
• Judgment Date: 26 May 2022
• Neutral Citation: VG 2022 CA 012
• Judgment citation (vLex): [2022] ECSC J0526-1
• Docket Number: BVIMCRAP2020/0001
• Court: Court of Appeal (British Virgin Islands)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Dexter Theodore Justice of Appeal [Ag.]

BVIMCRAP2020/0001

Between:

The Commissioner of Police

Appellant

and

Medical Management Company Limited

Respondent

Appearances:

Ms. Patrice Hickson for the Appellant

Ms. Reynela Rawlins for the Respondent

Magisterial criminal appeal — Mutual Legal Assistance (Tax Matters) Act No.18 of 2003 as amended — Section 5(6)(i) of Mutual Legal Assistance (Tax Matters) Act — Limitation period — Magistrate's Code of Procedure Act No. 8 of 2006 — Section 73 of the Magistrate's Code of Procedure Act — Recognisance — Section 165 of Magistrate's Code of Procedure Act — Prosecution's failure to enter recognisance — Whether an appeal may be struck out due to the prosecution's failure to enter recognisance in accordance with section 165 of the Magistrate's Code of Procedure Act — Whether Crown and its representatives must enter recognisance — Mandatory nature of section 165 of the Magistrate's Code of Procedure Act — Whether section 165 of the Magistrate's Code of Procedure Act binds the Crown — Statutory interpretation — Presumption that statutes do not bind the Crown unless express provision to that effect or necessary implication — Continuing offence — Whether offence created under section 5(6)(i) of Mutual Legal Assistance (Tax Matters) Act is a continuing one — Court's reluctance to find continuing offences created by statute —‘Do notice’ — Offence triable either way — Whether the offence created under section 5(6)(i) of Mutual Legal Assistance (Tax Matters) Act is triable either way — Section 230(a) of the Magistrate's Code of Procedure Act — Whether time limit prescribed by section 73 of the Magistrate's Code of

Procedure Act is inapplicable in the circumstances

On 14 ^th November 2016, the International Tax Authority (“ITA”) of the Territory of the Virgin Islands (“the BVI”) issued and served a ‘Notice to Produce Information’ on Medical Management Company Limited (“Medical Management”), through its registered agent, seeking information believed to be in its possession. The ‘Notice’ required Medical Management to provide the information requested within 10 working days of the date of its issuance. Failure to comply with the Notice “without lawful or reasonable excuse” would deem Medical Management as having committed an offence pursuant to section 5(6)(i) of the Mutual Legal Assistance (Tax Matters) Act (“MLAA”). However, despite having acknowledged receipt of the Notice, Medical Management did not produce the requested information. Consequentially, the Commissioner of Police filed a complaint in the Magistrate's Court on 19 ^th May 2019, that Medical Management failed to comply with a notice contrary to section 5(6)(i) of the MLAA.

The matter was brought before the Magistrate's Court and heard by the learned magistrate who considered the arguments of both counsel for the Commissioner of Police and counsel for Medical Management. Counsel for Medical Management advanced submissions that the complaint had been filed by the Commissioner of Police outside of the limitation period prescribed under section 70 of the Magistrate's Code of Procedure Act (“Magistrate's Code”). However, counsel for the Commissioner of Police argued that the offence created under section 5(6)(i) of the MLAA was a continuing offence, and that as long as Medical Management failed to comply with the Notice filed on 14 ^th November 2016, a new breach occurred every day. Therefore, the complaint would have been filed within the prescribed time limit under section 70 of the Magistrate's Code. The learned magistrate in rendering her oral decision, held that the offence created under section 5(6)(i) of the MLAA was not a continuing offence and that Medical Management's failure to provide the information to the ITA by 29 ^th November 2016, meant that Medical Management was only in breach as of 29 ^th November 2016. The learned magistrate also held that the complaint was to be brought within 6 months of that date, the latest being 29 ^th May 2017 in accordance with section 70 of the Magistrate's Code. As such, she dismissed the complaint filed by the Commissioner of Police.

The Commissioner of Police, being dissatisfied with the learned magistrate's decision has appealed relying on two grounds. Medical Management, in response to the grounds filed, has raised in their submissions a preliminary issue, namely: that the appeal should be struck out due to the prosecution's failure to enter recognisance in accordance with section 165 of the Magistrate's Code. In addition to the preliminary issue, the main issues that arise for determination before this Court are: (i) whether the learned magistrate erred in finding that the offence created under section 5(6)(i) of the MLAA is not a continuing offence; and (ii) whether the offence created under section 5(6)(i) of the MLAA is triable either way thereby making the time prescribed under section 73 of the Magistrate's Code inapplicable in the circumstances.

Held: allowing the appeal; remitting the matter to the magistrates' court to be heard before a different magistrate; and ordering each party to bear its own costs, that:

• 1. Section 165 of the Magistrate's Code provides that an appellant shall enter recognisance within 7 days before a magistrate in order to prosecute an appeal.

  Section 165 of the Magistrate's Code is mandatory in nature and an appellant's failure to comply with this section will result in his/her appeal being struck out.

  Section 165 of the Magistrate's Code of Procedure Act No. 8 of 2006, Revised Laws of the Territory of the Virgin Islands applied; Tomy v Agdoma (1968) 12 WIR 490 applied; Daniel v Elva (No. 1) (1970) 17 WIR 177 applied; Tai v Charles (1959) 1 WIR 346 applied and Ramdwar v Weeks Ors. Julien Reports. Vol. 20, Pt.1, 97 applied.

• 2. The Magistrate's Code does not bind the Crown in the BVI and therefore there is no requirement that the Crown or its representatives must enter into recognisance in accordance with section 165 of the Magistrate's Code to prosecute an appeal. The general presumption in statutory interpretation is that statutes do not bind the Crown unless there is an express provision to that effect, or it arises by necessary implication. In the Magistrate's Code, there are no words to the effect that: “This Act binds the Crown”. The legislature would have included that express provision if it so intended that the Magistrate's Code should bind the Crown. Furthermore, the Magistrate's Code does not bind the Crown by necessary implication. Upon considering the surrounding provisions within the act and comparable legislation, it is apparent that there is no need for the Director of Public Prosecutions or Commissioner of Police in the BVI to enter into a recognisance in accordance with section 165 of the Magistrate's Code to prosecute an appeal.

  Sections 73 and 165 of the Magistrate's Code of Procedure No. 8 of 2006, Revised Laws of the Territory of the Virgin Islands applied; Section 5(6)(i) of the Mutual Legal Assistance (Tax Matters) Act No. 18 of 2003 as amended by Acts No. 16 of 2005, No. 11 of 2011, No. 11 of 2012 and No. 10 of 2013, Revised Laws of the Territory of the Virgin Islands applied; Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 applied; Lord Advocate v Dumbarton District Council [1990] 2 AC 580; R (Revenue and Customs Comrs) v Liverpool Coroner [2014] EWHC 1586 (Admin) applied and R (Black) v Secretary of Justice 27 UKSC 81 applied.

• 3. The court is cautious not to create a formula to differentiate a continuing offence from a single offence. Instead, the court determines this on a case-by-case basis. The court is also cautious in its approach to finding continuing offences within statute without express words which make it clear that that was the intention of parliament when the statute was passed. In this case, when looking at the wording of section 5(6)(i) of the MLAA it is clear that there is no obligation that the offence continues indefinitely where requirements of the notice remain unfulfilled. Section 5(6)(i) is simply crafted to state that a person who fails to comply with a notice is liable to be tried summarily or indictably. It goes no further to set out an obligation nor are there surrounding provisions within the legislation that give an indication that the offence is to be interpreted as a continuing one. The learned magistrate did not err in finding that the offence created under section 5(6)(i) of the MLAA was a single offence.

  Section 73 of the Magistrate's Code of Procedure No. 8 of 2006, Revised Laws of the Territory of the Virgin Islands applied; Section 5(6)(i) of the Mutual Legal Assistance (Tax Matters) Act No. 18 of 2003 as amended by Acts No. 16 of 2005, No. 11 of 2011, No. 11 of 2012 and No. 10 of 2013, Revised Laws of the Territory of the Virgin Islands applied; British Telecommunications plc v Nottinghamshire County Council [1998] EWHC Admin 989 considered; John Mann International Limited v. Vehicle Inspectorate [2004] EWHC 1236 (Admin) considered; R. v. Wimbledon Justices ex parte Derwent [1953] 1 QB 380 considered; Hodgetts v Chiltern District Council [1983] 2 AC 120 applied and Chandra Silochan et al v Rickie Cedeno POSMG Appeal No. P092 of 2019 applied.

• 4. The non-compliance with a notice under section 5(6)(i) of the MLAA is triable either way. Section 230(a) of the Magistrate's Code states that matters triable either way are to be dealt with as indictable offences. Further, indictable offences do not have a limitation period or prescribed time within which matters should be prosecuted. In this case, where section 5(6)(i) of the MLAA is a triable either way offence and section 230(a) of the Magistrate's Code provides that these...