Just over a year ago, on April 7, President Jagdeo sounded off on what he said was orchestrated fraud at Customs involving Fidelity Inc and employees of the GRA. He sternly warned that there would be hell to pay and all the culpable would be held accountable. An investigating panel was duly convened, headed by the Auditor General, Mr Deodat Sharma.
Even then, there had been great skepticism about President Jagdeo’s declarations. Other major investigations especially where senior government functionaries or persons believed to be close to the government were involved have fallen away through a combination of rigmarole proceedings and twisted decisions. The duty-free concessions scam which had ensnared a senior Ministry of Finance official comes to mind right away. Yet, many in the public were prepared to give this investigation a chance because in a democratic society no matter how challenged our investigating institutions and dispensers of justice are they must be allowed to operate without hindrance so that the public can judge them by their fruits.
Unfortunately, this long drawn out process to investigate Fidelity and its intersections with corruption at the GRA has descended into a well-knotted farce that will require much undoing but which undoing is mandatory if this society truly aspires to a rules-based and ordered existence.
The discontinuation by the Office of the Director of Public Prosecutions of the charges against the Fidelity Head Mr Safeek has occasioned much consternation on the street. It was always felt that in an investigation of this order it would have defied logic that charges could have been preferred against a dozen customs employees and two customs brokers but that the company itself which potentially would have profited the most from the transactions would be completely unscathed. Such an outcome would suggest that the brokers and the customs employees operated this scam in such a manner that they didn’t require the blandishments of the company. The whole thing strains credulity.
Unless, of course, this is the local version of the yet-to-be-tested plea bargaining legislation. That is, the small people would be prosecuted on the evidence of those of means. It’s actually supposed to be the other way around so even if this was the upshot of the discontinuation of the charges against Fidelity it would be the most perverse use of this law. There isn’t even a sign that perhaps someone more senior in the ranks of the GRA could be targeted in a plea deal which would at least be more palatable to the public.
Thus far, there is no real light on the plea bargaining except for an offhand remark by President Jagdeo at the conference of Caribbean police commissioners in Georgetown earlier this month. It was he who first revealed a plea bargain in relation to the Fidelity case. How he knew about the plea bargaining should be explained as not even the special prosecutor assigned to the Fidelity case had been shown the courtesy to be properly notified by the DPP’s Chambers of the discontinuation of the charges and to be advised of the reasons for the decision. More importantly, the public – either through the media or through the DPP’s Chambers itself – must be told explicitly why the charges were discontinued by the DPP against Fidelity and how exactly the plea bargaining legislation will be employed in this case.
Otherwise, this investigation choreographed by President Jagdeo on April 7th last year will implode into nothingness and add to the image of the country as one lacking in transparency and riddled with corruption. It must be remembered that it was the team headed by the Auditor General which was entrusted by President Jagdeo with the task of deciding what had transpired in the polar beer scam and to present the basis for an ensuing prosecution. Whether or not the Auditor General engaged in overreach by recommending charges against not only the customs officers but Fidelity is beside the point. What the Auditor General presented was a credible enough depiction of what transpired to warrant charges against the main players who were embroiled in a conspiracy to defraud the Treasury.
There were telling findings which would now raise questions about the DPP’s decision to discontinue charges. For the purposes of valuation, the polar beer in question had been listed by Fidelity at a value of US$2.15 per case. The Auditor General’s team, following a visit to Venezuela, determined that Fidelity had been sold the beer at US$4.40 per case. Could the broker alone have been complicit in this deceit?
It was held by the Auditor General’s team that customs duties totalling $321.5M were allegedly evaded by Fidelity and that the requisite fines should be paid by it. Further, the probe team maintained that Fidelity submitted false documents during the investigations, and therefore recommended that the relevant charges be instituted against the importer for producing false documents to the task force with the intention of misleading it.
Telling
There was a particularly telling sequence of documentation presented by Kong Inc which was said to have sold the polar beer to Fidelity. Kong was supposed to have purchased its beer from Refrescos San Jose C.A located in Venezuela.
The Auditor General’s team was however unable to verify the existence of this company. Further, shipping records in Venezuela showed that exports were made to Fidelity and not Kong Inc. though Fidelity had insisted that Kong imported the polar beer from Venezuela.
A certificate of registration was produced for Refrescos San Jose C.A by Fidelity Investment, which stated that the company was registered in Saint Vincent and the Grenadines on July 31, 2008, but customs records showed that Kong Inc made purchases from the company in 2007. When confronted with this, a second certificate of registration was produced by Fidelity, which showed that the company was registered in July 2007. However, the task force’s report pointed out that the first invoice from the mysterious Refrescos was dated even before this – June 22, 2007. Said the report: “This clearly proves that (Fidelity or someone on its behalf) fabricated the invoices produced to GRA via customs declarations and the invoice produced to the task force”. Could a broker acting on behalf of Fidelity have been capable of such paperwork or even been a part of the process at the time?
Further, the task force found that the exporter’s stamp, ‘Refrescos San Jose, C.A’, were all evident on the invoices produced by the importer, however it pointed out that the stamps were in a particular angle, adding that “it would be almost impossible for a person manually shipping a document, to do so at a particular angle every time”. Also, the invoices on ten customs declarations had signatures of the Export Manager of the Exporter which appeared to be different, although the same name was signed, the report said.
Such exquisite sameness and artfulness could not have been the work of a broker only.
It must also be recalled that on January 15, 2008 a team of customs officers had raided Fidelity and found in excess of 73,000 cases of polar beer for which no import documents could be produced.
The Internal Affairs Department of the GRA then conducted its own investigation and arrived at the following conclusions on March 28, 2008:
The polar beer had been smuggled into the country;
Some of the beer was smuggled via trawlers and discharged at a Parika landing;
The rest of the beer was illegally brought in at the rear of containers which were declared to contain only aerated beverages. How could a broker or brokers with a handful of customs officers alone been responsible for this mess of pottage?
The Chambers of the DPP has a lot of explaining to do. The Criminal Procedure (Plea Bargaining and Plea Agreement) Bill 2008 makes arrangements for the Director of Public Prosecutions (DPP) or any prosecutor, police prosecutor or attorney authorized by the DPP and the accused to enter into a plea agreement.
The explanatory memorandum of the bill says the proposed law “seeks to reward a person who has entered into a plea agreement and is cooperating with law enforcement authorities or whose cooperation is beneficial to the administration of criminal justice.”
Clause 5 of the bill says that a prosecutor who improperly induces an accused person to participate in plea bargaining is liable on summary conviction to a fine of $25,000 and imprisonment of five years.
Clause 8 says that a prosecutor shall obtain the views of the victim or a relative of the victim before concluding the plea bargaining unless the circumstances make it impracticable to do so.
Clause 17 states that a judge or magistrate may reject a plea agreement if he/she considers it is not in the interest of justice. Legal aid may also be granted to an accused in relation to the conduct of plea bargaining.
This Act extends much greater powers to the Chambers of the DPP and by its very nature there is a concomitant obligation on the Chambers to act judiciously and with clarity and equanimity while ensuring that the public in whose interest these functions are being discharged is kept well in the loop. The public awaits the explanation.
