Lee Co Liong Ha vs. Commissioner of Customs

DECISION

This appeal involves the forfeiture of foreign exchange, which amount of a lofty ONE MILLION TWENTY- ._ FIVE THOUSAND FIFTY-SIX AND FORTY CENTS (US$1,025,-. 056,43) US dollars, lends special eloquence to the case at bar, as follows:

1. FOREIGN CURRENCIES

Kind of US Dollar

currency Box No. 1 Box No. 2 Total § Equivalent US Dollar US$423,655,00 $457,010.00 $885,665.00 $885,665.00 Australian $ A$ 6,976.00 12,842.00 19,818.00 22,289.30 Canadian $ C$ 137.00 1,221.00 1,358.00 1,087.79 Deutsche Mark DM 2,200.00 12,270.00 14,470.00 5,779.32 English Pound L 8,388.00 2,963.00 11,351.00 20,608.88 French Franc FF 7,000.00 - 7,000.00 1,177.40 Hongkong §$ HK$ 6,260.00 57,270.00 63,530.00 10,857.28 Japanese Yen ¥288 ,000.00 88,000.00 376,000.00 1,545.74 Singapore $ ss 350.00 2,450.00 2,800.00 1,283.24 Swiss Franc - 500.00 500.00 229.60 Saudi Rial R 5,480.00 14,515.00 10,995.00 3,225.93 Scotland Pound ~ 1.00 1.00 $953,749.48

OF

B7 544,158.39

DECISION =

Ii. CHECKS FOUND IN SUITCASE NO. 1 US Dollar 23,659.71 plus 7,480.00 = $31,139.71 or #246,315.11 Canadian § 950.00 761.05 6,019.91 Australian § 10,090.00 11,348.22 89,764.42 Swiss Frane 600.06 275.52 2,179.36 Deutsche Mark 1,098.00 438.54 3468.85 English Pound 4,269.15 __ 1,751.07 61,310.96 Sub-Total A. . $51,714.11 B409,058.61 III. CHECKS FOUND IN SUITCASE NO, 2 US Dollar 10.00 10.00 79.10 Deutsche Mark 4,630.00 1,857.21 14,690.53 Australian § 8,590.00 9,661.17 76,419.85 Canadian § 1,475.00 1,181.62 9,346.61 English Pound 3,146.00 5,711.88 45,180.97 Swiss Franc 2,530.00 1,170.96 9,262.29 Sub-Total B « « » US$19,592.84 P154,979.35 GRAND TOTAL .. ». US$71,306.95 2564 ,037.96 The aforementioned foreign currencies in cash and checks were turned over to the Central Bank of the Philippines for safekeeping pending termination of the seizure and forfeiture proceeding therefor. The Central Bank, on the other hand, encashed the various checks to the corresponding drawee banks or financial institutions to avoid their becoming stale. (pp. 55- 57, Record; pp. 160-161, CTA Record) © It appears that petitioner, a resident of Hongkong carrying British Passport No. 258338, and an outbound passenger on Philippine Airlines Flight 306 for Hongkong on August 3, 1981, while at the

DEC IS I ON

CTA CASE

O. 3407 - 3 - pre-boa:ding area o f the Manila I nte r nationa l Air por t wa s t agged owner of t he two (2) _s uitcases unamb iguousl y singled out on a c ue f o llowed by t he o peratives of t he Finance Min i str y I ntelligence Burea u and Bureau o f Customs pe rsonnel fr om a mong t he baggage s a t the check-in loadi ng zone , which upon verific a tion found as suspected to conta in f oreign cu r r encies in cash and checks (above i nventory r eport) _wi thou t t he neces- sary s upporting papers r equired nde r ex i s ting r egu- l at i ons , as foll ows :

CB CIRCULAR NO. 265 date d November 20e 196 8 "No per son s hal l take o ut or e xport f rom the Philippines fore ign currenc y or any other f orei gn exchange except as othe r wise authorized by the Centr al Bank."

(Pa r . 3 ) CB CIRCULAR NO. 534 dated J uly 19 , 1976 "Unless specifi cally authori zed by the Central Bank or allowed unde r existing inter - national agreements o r Ce ntr al Bank regulations, no person shall take or t ransmi t or attemp t t o take or tr a nsmit fo r e ign excha nge , i n any f orm , out of t he Philippines directly, t hrough other per sons , t hrough mails o r throug h international carriers .

'The provisions o f t h is section shall not apply . to t ourists and non-resident temporary vi si~or s who are t aking or sending out of t he Philippines the ir own for eign exchange brough t by t hem ."

(Section 3)

The Distric t Collector of Customs, Manila Inte r- na tion a l Airport Customshouse, instituted sei zure pr oc e edings gainst t he s ubject f or eign exchange

DECISION -

CTA CASE NO. 340 7 - 4 - "the expo tation o f which i s e ffecte d or attempted contrary to law" pu r suant to Section 2530(f) ?f the Tariff and Cus toms Code and accordingly decreed t he f or feitu re t hereof i n f avor o f t he gove r nment on September 17 , 1 981 (Seizure I dentification No . 44 71- 81) ~ which on appeal by t he petitioner - claimant, was affir med by t he respondent Commiss i one r of Customs on November 18, 1981 (Customs Case No . 81-35) ~

Pe-

ti tioner had this r ecourse .

Petitioner disputes the l egality of the f or - fe i ture .

She holds herself as a t our i st and i nvokes t he exceptive proviso of the 2nd par~graph of Sect ion 3 o f CB Cir cular No . 534, _§Upra, providing t hat "The prov i sions of t his section shall not apply to tour i sts and non-resident temporary vi s itors who are taking or sending out of the Philippines t heir own f o r eign exchange brought by them."

She claims t ha t t he confisca ted foreig n cu r rencies wer e all along with her upon arriva l from Hongkong on August 1, 198 1 . She opted not to dec l are the same, there being no r equirement to do so.

She had this amount for a spree at t he Phil ipp ine Village Hotel casino . He r plans fi zz l ed and abandoned a ltogethe r upon sight of a black butterfly wande r ing a bit too f ~r over her mother's t omb buried some t ime in 1979) on he r 58

DECISION -

CTA CASE NO. 34 07 - 5 - visit at the Manila Chinese cemete ry, the day a fter arr ival.

Immerse d somehow in Chinese super s tition, such a kind of close encounter augurs not so well for a comfortable b inge at gambling. Thus her dec is ion to return to Hongkong after a two-day stint bring i ng along t he foreign exchange s he brought, including some 64 4 for eign checks with an amount equivalent to US$ 71, 306.95, wh ich she exchanged with c ash US dollar s a t the casino when she dropped by a nyway on the eve of her departure for Hong kong. Respondent poses the r ub wrapped up th is wise: "In the cas e at bar, probable cause was establ ished even prio r to the i nstitution of the forfeitu re proceeding, on t he basis of the undisputed fact that petitione r wa s apprehensive and evasive when her two ( 2) _suitca ses repo r ted to contain big amounts of forei gn currencies were rec a lled f or verif ication f r om among t he l uggages to be loaded in a van for l oading in the p l ane; that at f i r st she disclaimed owne r ship thereof ; that she even tried to prevent the open ing of said suitcases by first claim ing that she d id not have t he keys thereto when all along she had these keys; that she refused to give t he co r rec t n umbers for the combination locks thereof; t hot her t wo (2) suitcase s contained different kinds o f for e ign

5U

-

- 6 - currencies (cash a nd c hec ks) totalling the huge amount o f US$1,025,0 56 .4 3 conve r ted at the prevailing ratesi t ha t whe n c onfronte d , she c ou ld no t explain where t he said fore ig n c urrenc i es came from; and that she could no t prese nt a ny Central Ban k a uthority to take said foreign currencies out of the country. In- d ubitably, t he for e goi ng f acts l e ad to t he inescapable conclus i o n t hat the f o reign currencie s in question we re being s mugg l ed ou t o f the c oun t ry when pe t i tioner wa s apprehended ."

The preci se issue is nothing more than whether or not t he forfeit ure of the subject foreign c urrenc ies i s in acco r d wi t h law a nd evidence. What we have in the case at bar is a virtual Pa ndora's box of inc riminating evidence. The suit- cases i n ques t i on, after a demanding wringer at veri- fication , yielde d forei g n currencies in cash and checks of a n amount equivalent to some US $1,025,056 .43 at the preva i ling ra t es, which as earlier sta t ed were traced to the peti t ioner as the owner thereof. Mur phy's law must have taken over because everything that c ould go wrong has, so to spe a k. The inter- ception could but be a fitting fi nale for a seeming reckless insatiety and altogether needless frus- tration.

We view with ease therefore respondent's 60 ' ' ,

DECISION -

CTA CASE NO. 34 97 - 7 - righteous indignation that the subject foreign currencies ~ the necessary authority from the Central Bank incurred the liability of forfe i ture under Section 25 30 (f) of t he Tariff and Customs Code , as amended, supra .

The actual findings are not short of tractable data laid open and fully disclosed, such are:

First, the denial a nd dis- claime r then grudging admission of ownership of the s uitcases and contents thereof seem eerily irre- levant to the ebullient stance that the same have been brought by petitione r from Hongkong . We dis- trust the logic of such kind of intriguing colloquy. Second, petitioner's definite refusal to surrender the keys and reluctance to reveal the correct combi- nation numbers to the locks of the suitcases im- placably demonstrate a defensive clumsiness at further deception.

We find these sciamachies un- acceptable and indeed unthinkable. Third, the exchange of the cash US dollars with quite a number various instruments of foreign drawee banks and financial institutions nego t iated with loca l paye es and/or endorsees come s as a random quirk which cannot be easily reconciled with the evident needs nor advantage of the petitioner.

At th i s point i t seems appropriate to pose the question, why? The 61

J

- a - stark and staring evide,nc:e however remains that the for eign exchang,e checks we're proc:ure·d locally. Fourth, the prospect of a substanti al financial stakes re- presente·d of a family gros:s income over a period of more than two years (U S $~25,056.00) ~ loan obli- gation (US $400, 000.00) .and inheritance (US$100,0 00.00) ~ solely and pr ecise l y thrust on a derring-do of a gambling novice, as petitioner in the case at bar, seems more of a comedy of errors unless for dubious mot ive s as s urmised.

Suc:h particul ar malarky is incomprehens i ble.

We are not prepared to attach i m- portance to such a conundrum.

Petitioner must come to terms wi th the facts obt a ining, nothing more.

Her claim of having brought the foreign currencies cannot remain nestled on the exceptive proviso of second paragraph of Section 3 of CB Circular No.

~34, supra, which is not of such a br oad s pectrum with open ended featu~es as would s i re the proposi t ion that every foreign exchange being taken out by a tourist had been brought by him .

The attendant circumstances in the case at bar do not necessarily equa te.

The privilege, ge- nerously tolerated, must find confinement to the "foreign exchange brought by them". But, "Con- trary to petitioner's assertion, the foreign

S2

- 9 - currencie s seized were obtained in the Philippines, Proof of this are the und isputed facts heretofor e mentioned , as well as t he uncontrove rtible fact tha t the payees and endorsees of the foreign c ur- r ency che~cks were ei t he:r Filipinos or residents of the Philipp ine s (pls. s.ee Exh s . "I", "I-1" to "I-84"1 "J", "J-1" to "J-323"; "K", "K-1" to "K 32"; "L", "L-1" t o "L-23"; "M", "M-1

11 to " 1- 12" • "N"

.

I

I

"N-1" to "N-r3 .. ,

Record)~"

(CTA Records, p.

1 65 )~ Just so and apt ly enough, we share such findings. Accord i ngly, t he caveat that "No person shall take out or export from the Philippines foreign cur rency or any othe r f or eign exchange except as othe r wise aut horized by the Central Bank 11

(CB Cir-

cular No. 265·) .i nsofar as the same is brought to bear upon t he circumstance s of the petitioner r e tains. its po t ency.

Petitioner must bear the burden of proof requ ir ed unde r Section 2535 of t he Tariff and Customs Code, as amended, thus, 11Sec. 2515.

Burden of Proof in Seizure

and/or Forfeiture. - In all pr oceedings taken for t he sei zure and/or for feiture of any vessel, vehicle, aircraft, beast or articles unde r t he provisions of tariff and customs laws, t he burden of proof shall lie upon the cla i mant : Provided:

T h at~b able cause shall fir s t be shown for t he institution of such proceedings and that seizure anc1/o r forf~itur c was made under the circumstances anJ i n the manner described in the pr eceding sections of this Code ."

(Underscoring supplied) 63 ...

- 10 - And petitione r has not pried herself loose from the grip of t he narrative implausibilities and internal contradictions as would prove her entitlements to a favorable determination as a matter of law and evidence.

This Court can do little in leading petitioner out of what could be a l egal cul de ~ ·

WHEREFORE, t he petition for rev1ew is hereby dismissed wi t h costs against pe ti t ioner.

WE CONCUR:

64