Six days ago, we took you to the Orange Walk Magistrate Court, where Kevin Xin, the naturalized Belizean owner of Caribbean International Brewery Company, was arraigned. The Immigration Department has charged him for employing nine persons who do not have valid employment permits.
The arraignment of both Xin and his fiance, Liping Shu, was the latest development in the saga between Belizean law enforcement and the Orange Walk-based beverage company. But, there's a separate court fight between the company and the Financial Intelligence Unit. The two sides have been attempting to convince Magistrate Deborah Rogers why she should or should not order the FIU to return 3.1 million dollars of the company's funds, which a multi-agency law enforcement team seized 20 days ago in a raid of their Carmelita Village compound.
The court case over those confiscated funds continued this afternoon when Magistrate Rogers returned with a ruling that she would allow the FIU to introduce evidence against the company from the Belize Tax Services Department that there had been tax evasion. Barrow objected to court procedure last week and asserted that his clients were being ambushed by evidence coming from an agency that did not confiscate the funds. Well, the magistrate disagreed, and shortly after she delivered her ruling, Barrow announced to the court that he would seek to trigger a review of that decision via constitutional challenge.
Those are heard at the Supreme Court, so this fight is now going to a higher court for review. Our news team was in Orange Walk this afternoon, and we spoke with both Barrow and Godfrey Smith, the attorney representing the FIU, shortly after they exited the hearing.
Here's how Smith explained that due to Barrow's intended challenge in the Supreme Court, the FIU achieved its goal of a 3-month lockdown of the money without a final order from the presiding magistrate:
Godfrey Smith, SC, Attorney For FIU
"What happened today was that the magistrate gave a ruling. When we were here last week Monday we attempted to lead from an Inspector, Inspector Lopez to show that there were tax evasion offences. Knowing that once that evidence was lead, the case is over for Caribbean International Brewery, their attorneys lodge took an objection. The magistrate asks for written submissions on this and she ruled on it today. Her decision was that you can actually lead this evidence. The dispute was over the law."
Dean Barrow, SC, Attorney for CIB
"Her finding that the FIU which did not seize the money. Remember the money was seize by the anti-trafficking in persons unit headed by Gian Young, that it is the FIU that can come to court to ask for continued detention of what the FIU did not seize and to ask for continued detention on the basis not of any justification from the police or the department that did seize the money, but on the basis of justification from FIU officers and Belize Tax Services officers. Again, that is outrageous. As I said look at it in terms of the analogy of a criminal matter - you charge me with theft and when I get to court, you lead evidence that I committed rape. That's a violation of my client's constitutional rights, because you must know when you go to court the case that you're being called upon to meet. You go to court on the basis that the case you will have to meet is the case made by Inspector Gian Young who seize the money and who must justify the continued detention. But you are faced then by the FIU, totally unconstitutional. That represents a violation of my clients' rights to equal protection under the law."
Godfrey Smith, SC, Attorney For FIU
"We said no, that's not the correct interpretation of the legislation. The legislation entitles you to hold on to it for 3 months if you can show to the magistrate how the investigation is developing. So if you find new things like tax evasion or money laundering, you can bring that before the magistrate. The magistrate accepted that. Naturally, the other side had to object, because once that evidence is in the FIU's application is made to hold on to the money for 3 months."
We turn now to the legal procedure through which Barrow and his clients want the case to be sent from the Magistrate's Court to the Supreme Court. It's what the attorneys call a "case stated," and here's how they explained the way it is expected to work:
Godfrey Smith, SC, Attorney For FIU
"So when the magistrate gave that ruling, counsel for Caribbean Brewery, Mr. Barrow immediately said he's going to do a case stated. What is a case stated? its a provision in the constitution that says if you believe that your human rights are being violated. You tell the magistrate you must state a case for the determination for the supreme court. So rather than wait for the case to be concluded, he's effectively saying, magistrate you must put this to the supreme court."
Dean Barrow, SC, Attorney for CIB
"The bottom line is this, I've ask her, you state a case for the supreme court. I know that the other side is saying no, we will object to your stating a case. Either way you take it if she agrees to state the case, if she doesn't agree to state the case, there is a way as I've said, we can go to the supreme court to oblige her to state a case. Any way you look at it we can't get to supreme court before 3 months would have expired, by which time this application before her would have become mute. So, we concede that that's no longer a possibility, but we get to the supreme court and we can establish that all that she did is in violation to my client's rights, then that will help to found what I've said from the beginning is the action in any event take to get redress in the form of damages for the violation of their rights. So the money will not come back before 3 months, The other critical element is this: on the other side's own submissions when you interrogate the scheme and the wording of the section under which the cash was seized, it is clear that that cash can only be held lawfully for 72 hours. Once 72 hours have passed and no order is made by the magistrate for the continued detention of the cash, that cash needs to be given back. The court had been focusing, has had I originally on the fact that as we thought we had shown the application for continued seizure was made outside of 72 hours and so that ought to have been the end of that. She finds that no, it was not after 72 hours, because she said the seizure didn't take place until in the evening which we dispute. But even if you concede that the application was made within 72 hours, the structure of the section of the act under which the application is brought, the structure and meaning of the section is clear. It is not just that you have to make the application to continue the detention within 72 hours, you must get the order for the order for the continued detention within 72 hours."
Godfrey Smith, SC, Attorney For FIU
"We have seen authorities to the opposite effect, so that argument we don't think can fly."
As you heard, the FIU is resisting Barrow's application for a case stated. The Magistrate has given the two sides deadlines for their legal submission of this matter. She will return with a decision on November 17.
