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Chastanet Writes Controller of Customs over Decision to Withdraw Hilaire’s Case

Comptroller of Customs (Ag.),

As the Leader of the Opposition, I write to you on a matter of great public interest and importance, concerning your recent decision to withdraw the criminal case against Dr. Ernest Hilaire in regards to the importation of a Range Rover Discovery Sport motor vehicle.

Allen Chastanet - Micoud South (UWP)
Leader of Opposition Allen Chastanet – MP Micoud South (UWP)

The proper conclusion to this longstanding case is critically important to our country’s reputation and the public’s and our international partners’ trust in our Government, its institutions and the rule of law.  In particular, we are concerned about the integrity of our Department of Customs (Customs) and its officers, the reputation of our Foreign Office and its adherence to its Diplomatic agreements and obligations. It is my hope that in your deliberations[1] ,  you equally considered these important concerns as you would be duty bound to do.

On November 20, 2017, the Director of Finance issued a letter to the Comptroller of Customs highlighting a conflict of information regarding the ownership of the subject vehicle purported to belong to Dr Hilaire. The letter, among other things, requested that Customs confirm the ownership of the vehicle. It was subsequently discovered that the same vehicle was astonishingly still on a customs pre-delivery entry, a fact that still existed up to your appointment as Acting Comptroller of Customs, and which you would also appreciate as an experienced customs officer, was quite anomalous.[2]

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The following is an outline of the facts as we know them:

1.     On December 23, 2015, Dr. Hilaire imported the subject Land Rover into Saint Lucia and was given a pre-delivery on Customs Entry number C58050 by the then Acting Comptroller of Customs, Mr. Rody Alcindor, pending submission of documents required by law to perfect the entry;

2.     Customs entry C58050 was cancelled and re-registered as C32754 on July 14, 2017;

3.     On February 02, 2018, Customs Officer Mr. Paul Noel, along with Customs Officer Mr. Edmund Charlery, conducted an interview with Dr. Hilaire in the presence of his attorney-at-law, Thaddeus Antoine, wherein Dr. Hilaire , as the importer, was requested to, inter alia, produce to the Customs Department, his supplier’s commercial invoice in order to perfect and close the entry;

4.     Dr. Hilaire, through his attorney, refused to provide the said documentation requested and insisted that the Customs Department write to his attorneys to make that request;

5.     Dr. Hilaire during his interview on February 02, 2018, informed the Customs Department that the dealers for the Land Rover could not offer him a diplomatic discount because he had previously bought another car within the year under his diplomatic discount. He further indicated that he had purchased that other vehicle, a Range Rover Sport, for Paul Hilaire, his brother, for export to Saint Lucia. Hilaire told the Customs Department that he would have had to wait for nine (9) months before he could acquire another vehicle with the benefit of a diplomatic discount. He suggested that it was for that reason that he bought the subject Land Rover in the name of the High Commission, namely in order to obtain the diplomatic discount. He also claimed that, since he was not in the United Kingdom at the relevant time, the High Commission took delivery of and exported the Land Rover on his behalf;

6.     Based on Dr. Hilaire’s explanation, the Customs Department had reason to enquire into this earlier transaction and discovered that on or about May 2015, during his tenure as the Saint Lucia High Commissioner, Hilaire had purchased, in his own name, a Range Rover Sport motor vehicle and had claimed and obtained from the United Kingdom (UK) Government a waiver of VAT on the vehicle by virtue of his diplomatic status and had also obtained a diplomatic discount from the Jaguar car dealership. That vehicle was exported directly to Saint Lucia and is now registered in the name of his brother, Paul Hilaire.

 

The Customs Department then had cause to review the following documents in the course of its investigation, namely:

1.     “Application for Exemption from import duties and taxes” made by Paul Hilaire dated May 5th 2015 and a Bill of Lading dated May 19th 2015, identifying the shipper as “Ernest Hilaire” and the consignee as “Paul Hilaire”.

2.     The “Single Administrative Document C24384” dated May 31st 2015, in the name of “Paul Hilaire” with an attached invoice with the purchaser named as “H.E. Ernest Hilaire.”

The investigations of the Customs Department also revealed that in June 2015, Tafawa Williams (“Mr. Williams”), an employee of a Dr. Walid Juffali at the material time, who was assigned to the Saint Lucia High Commission, attempted to purchase the subject Land Rover Discovery Sport motor vehicle. Mr. Williams had applied in his own right, by form TX26 titled, “Application to purchase a British car at a tax-exclusive price”, to the British Foreign & Commonwealth Office (“FCO”) for VAT exemption in respect of the purchase of Discovery Sport on the basis that he was a diplomat. Mr. Williams’ application was supported by a letter dated 17th August 2015, bearing the letterhead of the Saint Lucia High Commission and sent by Ernest Hilaire, acting in his capacity as High Commissioner. The letter requested that Mr. Williams be extended the usual courtesies. There was no indication in the letter that the said Land Rover Discovery Sport vehicle was being purchased for Ernest Hilaire.

When it became apparent that Mr. Williams was not entitled to the claimed duty exemption, his application was subsequently withdrawn and the purchase of the said Land Rover Discovery Sport by Mr. Williams was apparently aborted, at least in representations being made to the relevant UK authorities, in relation to its purchase. An email dated September 01, 2015, which was sent by Amanda Ellis of the FCO to the Saint Lucia High Commission, confirms that Ernest Hilaire’s personal assistant, Linda Hamilton, informed the FCO that Mr. Williams’ application had been “submitted in error”, and that the Discovery Sport was in fact “an official Embassy fleet vehicle rather than a new duty-free vehicle purchased by Mr. Williams”.

The Customs Department also obtained, in the course of its investigations, the following documents:

1.     a form “Application to purchase a British car at a tax- exclusive price” (TX26) dated November 16th 2015 indicating that the Saint Lucia High Commission applied to purchase the Land Rover and bears the Commission’s official stamp;

2.     a form “Application to dispose of a Diplomatic Registered Vehicle” (T23) bearing the official stamp of the Saint Lucia High Commission, which states that the owner of the subject Land Rover Discovery Sport is the “High Commission for Saint Lucia”. It states that the Land Rover was registered in the United Kingdom on November 18th 2015;

3.     a “Diplomatic Sales Vehicle Quote form” which bears the name of Tafawa Williams for the purchase of a Land Rover Discovery Sport vehicle dated June 30th 2015 (the colour of the vehicle was described as “Kaikoura Stone”) and a letter from the High Commission to the Land Rover dealership dated August 17th 2015;

4.     another “Diplomatic Sales Vehicle Quote form” for the same Land Rover dated November 26th 2015 (the colour of the vehicle was described as “Kaikoura Stone”) in the name of the Saint Lucia High Commission as purchaser. It also states that the customer type was an “Embassy” and type of sale was for “Diplomatic Retention”. The Customs Department also had sight of a “Vehicle Acceptance Receipt” which lists the Saint Lucia High Commission as purchaser and confirming receipt of the subject the Land Rover;

5.     a “Jaguar Land Rover Limited Invoice” No # 900337267 of October 20th, 2015 in the name of the Saint Lucia High Commission for the Land Rover (the colour of the vehicle was described as “Bronze”) but bearing the same VIN number;

6.     a “Payment Credit Advice” slip in the amount of £21,756.16 (pounds sterling) which was credited to Mr. Tafawa Williams; and

7.     a “Vehicle Registration Document – Diplomatic and Consular Officials” where the Land Rover was registered in the Name of the High Commission with a London plate “286D124” dated 20th November 2015 (the colour of the vehicle was described as “Grey”). No mark was entered on this form with respect to the “Selling or transferring a vehicle”;

The investigations showed that the Land Rover was purchased in the name of the Saint Lucia High Commission. Again, a duty waiver was claimed and was granted by the UK Government, this time on the basis that the Land Rover formed part of the Saint Lucia High Commission’s fleet of vehicles.

The Customs Department was also aware that the Jaguar car dealership delivered the Land Rover to the Saint Lucia High Commission;

The Land Rover (ostensibly a vehicle owned by the Saint Lucia High Commission), was subsequently exported from the UK to Saint Lucia and at the time the TX23 Form “Application to dispose of a Diplomatic Registered Vehicle” was submitted to the UK authorities.

On arrival in Saint Lucia, the Land Rover was registered in Saint Lucia in Ernest Hilaire ’s name.

The Customs Department also obtained a copy of a memorandum from the Permanent Secretary in the Ministry of Finance concerning a “Report of Missing Government Property/Asset” dated November 17, 2017.

Based on the above findings, the documents contained patent discrepancies both as to the description and ownership of the Land Rover. Accordingly, the Customs Department, on September 16th 2020, wrote a letter to Dr. Hilaire, inviting him to submit the supplier’s commercial invoice pertaining to the Land Rover establishing his ownership of the same, as the Land Rover vehicle had been pre-delivered to him in good faith.

On September 25, 2020, the acting Comptroller Chicot issued a further letter, along with all supporting documents, explaining the irregularities on the face of the documents and made a second request for Dr. Hilaire to produce his supplier’s commercial invoice. The Customs Department had, in the said letter, brought to Ernest Hilaire’s attention, that the supplier’s commercial invoice (Number 900337267) in its possession, was in the name of the Saint Lucia High Commission.

It was also brought to Dr. Hilaire’s attention in the said letter, the various Departmental circulars numbers 58 of 1980 and 7 and 8 of 2008, instructing Customs Staff that the original supplier’s invoice must be submitted with the Single Administration Document for clearance of all imported goods.

At all material times, Dr. Hilaire, through his attorneys, refused to produce the said document and consequently, left with no alternative, charges were laid against Dr. Hilaire under section 102 (3) of the Customs Act.

It is averred that, based on the information in the possession of Customs and as a result of Dr. Hilaire’s refusal to produce the required documents, together with his Hilaire’s various inconsistent statements (public and otherwise) with respect to the purchase, ownership and importation of the subject Land Rover, the acting Comptroller had reasonable grounds for concluding, and did in fact conclude, that Dr. Hilaire’s declaration that the Land Rover belonged to him was untrue. The Customs Department also deemed that the Land Rover in his custody was uncustomed goods. Accordingly, the Customs Department also determined that the Land Rover was liable to be be detained and/or forfeited pursuant to sections 113 and 130 of the Customs Act. On  November 05, 2020, a customs writ was issued for the detention of the Land Rover vehicle.

You will agree, that  until Dr. Hilaire resolves these irregularities, the Land Rover remains an uncustomed good pursuant to Customs law and procedure of which you are intimately aware, which requires the Land Rover to be and remain in the custody of the Customs Department. For all the foregoing reasons, it is pellucid that there were and continue to be reasonable grounds for the detention and continued detention of the Land Rover.

It is also undisputed that Dr. Hilaire has to date, provided no valid or lawful reason or explanation why, if the Land Rover belongs to him, the supplier’s commercial invoice, in the possession of the Customs Department, reflects that the Saint Lucia High Commission purchased the Land Rover and said Land Rover is registered in the United Kingdom as a Saint Lucia High Commission vehicle. Neither has Dr. Hilaire  provided to the Comptroller any valid or lawful reason why he cannot provide a supplier’s commercial invoice in his name, or any other satisfactory evidence, establishing his ownership of the said Land Rover.

You will further agree that a diplomatic concession is personal to the diplomat and is not transferable. There is nothing in the documents in the possession of the Customs Department to suggest that the Land Rover, which was registered in the name of the Saint Lucia High Commission, was the subject of a concession that could be applied personally to Ernest Hilaire. Nothing has changed since your assumption of office in relation to the documentation concerning the importation of the vehicle and Dr. Hilaire has failed to produce the documentation requested by your department. Accordingly, the importation of the Land Rover remains irregular and defective.

Further, the supplier’s commercial invoice in the Customs Department’s possession, which states on its face that the Land Rover was purchased by the Saint Lucia High Commission, could not be relied on by Dr. Hilaire for the purpose of claiming any diplomatic concession,  he having exhausted his entitlement to same, nor was it capable of being used, without gross administrative abuse, to perfect and make good any customs entry in favour of Dr Hilaire, with respect to his personal importation of what is ostensibly a vehicle imported as a State asset utilizing diplomatic concessions and accommodations extended by the UK Government to the State of Saint Lucia..

I reiterate that Dr. Hilaire, based on the documents of importation, did not and could not satisfy the requirements for perfection of the still pending customs entry on the basis of a supplier’s commercial invoice bearing the name of the High Commission as purchaser. The onus is on the importer, which Dr. Hilaire was and is, to produce the relevant customs documents, as requested, in order to obtain the concession for the subject vehicle and for the necessary customs entries to be made. Dr. Hilaire has not only failed to do so but has defiantly refused to do so, thereby flagrantly flouting the laws of the State he has vowed to honour and uphold, a matter made even more egregious by the fact that Dr. Hilaire is now a member of the legislature and the SLP administration. The manner in which you have facilitated the disposal of this matter, to the exclusion of your predecessor and the Director of Public Prosecutions, under whose purview the prosecution was being conducted, in a matter of such great public interest, without any explanation to the public and civil society, cries out for public enquiry.

Furthermore, Dr. Hilaire’s untrue and/or inconsistent declarations or statements, to wit:

i) the assertion that Mr. Tafawa Williams bought the Land Rover on his behalf by virtue of an invoice dated June 30, 2015; and

ii) the assertion that the Saint Lucia High Commission merely exported the Land Rover on his behalf, contravene section 113(1) of the Customs (Control and Management) Act and the Land Rover was, accordingly, liable to forfeiture and detention pursuant to sections 113(1) and 130 of the said Act.

Sir, given the well documented events of this case and your very recent appointment to the position of Comptroller of Customs (Ag.) the following questions must be answered by you:

1.     Is it not a fact that you failed to consult with the Director of Public Prosecutions, under whose office this prosecution was being conducted and under whose office and authority the prosecutor was acting, prior to your purported decision to withdraw the case and to support the request for the Court to “dismiss” the case;

2.     Is it not a fact that you consulted with the current Attorney General, Hon Leslie Mondesir, prior to your withdrawal of the case, supposedly seeking his advice on the matter? Did it not occur to you, that Mr Mondesir was conflicted in the matter, having represented Dr. Hilaire as one of his co-counsel in the very case on which you sought his advice supposedly on behalf of the State or Customs department; what advice did you receive from Mr Mondesir?

1.   3.     Is it not a fact that you failed to consult the Director of Finance to understand the relevance of the two letters that were sent to the Comptroller on this matter and have you now satisfactorily answered the question as to whom the vehicle belongs?

2.

4.     Is it not a fact that you failed to consult the previous acting Comptroller of Customs ?

It is also important to understand why you have not given any public statements explaining your decision to the public. The only statements that have been offered are that of Dr. Hilaire’s attorney and the Prime Minister. Their statements are bewildering and inconsistent with the facts and law and it requires for you to publicly clarify the rationale for your decision.

Thaddeus Antoine, one of Hilaire’s lawyers, said that your office accepted the Bill of Lading as evidence of ownership, and that the Saint Lucia High Commission was allowed to unilaterally register the vehicle in its name and to also deregister the vehicle.

Is it not a fact that the High Commission is part of the Government of Saint Lucia and despite being located in the UK its operations are subject to the same regulations and control as any department of Government? Antoine’s astonishing statements only lead to more questions. Which authorized Officer gave permission for the vehicle to be registered in the name of the High Commission and more importantly who gave permission for the vehicle to be disposed by the High Commission? Did the Minister of Foreign Affairs, Alva Baptiste or his PS give permission? Did the Minister of Finance, Kenny D. Anthony or the Cabinet Secretary, Darrel Montrope or the Director of Finance give permission or was permission granted under this new SLP administration by the current Prime Minister or relevant functionairies? Was there a Cabinet conclusion on the issue?

Mr. Antoine also indicated that the container with Hilaire’s personal items and the vehicle were consigned to Hilaire and that is sufficient proof of ownership. I trust you had investigated the facts of this matter before relying on the Bill of Lading as sufficient proof of ownership. If the car was purchased and registered in the name of the High Commission and the vehicle was delivered to the High Commission’s office, then who put the vehicle into Hilaire’s personal container? Who gave that same person permission to take an asset registered in the name of the Government  and place it into the personal container of Ernest Hilaire? If the vehicle was illegally placed into Ernest Hilaire’s personal container, can you still rely on the Bill of Lading as proof of ownership? Are there, in fact, two bills of lading for the same vehicle? Who presented these? Can they both be true or is one fraudulent? If so which one is fraudulent? Did you address your mind to this issue? Have you facilitated a fraud on the State and people of Saint Lucia?

Sir, I would hope that in the “private mediation” you were able to discover the evidence that proves the vehicle could only be registered in the name of the St Lucia High Commission, and then transferred back to Ernest Hilaire. It is imperative for the integrity of the Department of Customs and its reputation  and that of all of its officers, that we all understand how a vehicle could be allowed to be on pre-delivery for over 5 years, and how could the same vehicle now be cleared when we know the invoice, the registration and all applications for duty free concessions in the UK were done in the name of the Saint Lucia High Commission.

How was the vehicle registered in Saint Lucia without a perfected invoice? Who gave the Ministry of Transportation the permission to register a vehicle that was on pre-delivery? The then Comptroller of Customs? The Minister of Transportation, Phillipe Pierre or the PS. of Transportation, Alison Jean?

The Prime Minister who attended the court hearing on this matter, in an interview said “ that [he] attended the Court house to ensure that justice was served’…and that “justice has been served” yet, he offered no explanation as to how these longstanding questions and legalities where resolved. The Prime Minister’s presence and comments ought to confirm that this is not an ordinary case and now requires you to publicly reveal the details of your discussions or at least the facts you relied upon to make your decision, failing which the Office of the Leader of the Opposition will be forced to pursue all remedies available at law to compel you so to do. Please do note, that all rights are reserved with regard to challenging the purported withdrawal of the case by you.

Sir, I hope you treat this matter with the seriousness, respect, honesty and transparency it demands. The citizens of Saint Lucia and our diplomatic partners expect nothing less than clarity on this matter and that this matter has been treated fairly and impartially and consistent with the Laws of Saint Lucia. I look forward to your earliest response within 14 days of the date hereof.

We will be challenging whether he had the right to even make that decision, given the indications from the DPP that the prosecution was being conducted by the office of the DPP. That is not entirely correct. Customs can in fact and given the questions which arose once enquiry was made about the vehicle, ought to have conducted a full investigation which would have revealed the entire fraud and conspiracy to commit fraud by Hilaire, Tafawa and Fregis. See sections 113, 114 and 116 Customs Control and Management Act. Note also that the Comptroller’s actions are extremely egregious as under section 120 no action may be commenced by Customs for an offence under the Act, after 5 years of the date of commission of the offence. Which makes it even more crucial that the illegal decision to mediate the matter be reviewed and overturned.

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