By LAMECH JOHNSON
Tribune Staff Reporter
COURT of Appeal judges yesterday questioned whether the new Gaming Act, in its present state, legitimised previous unlawful conduct of web shop gaming operators.
The dispute arose in the substantive appeal hearing of FML Group of Companies CEO and President Craig Flowers who is contesting his conviction for permitting his premises to be used for a lottery and promoting, organising and conducting a lottery in connection with an April 28, 2009 raid on one of his web shops on Wulff Road.
A magistrate ordered Flowers to pay a total of $10,000 in fines or spend two years in prison when he convicted the web shop operator of the offences in Magistrate’s Court on October 3, 2011.
Police had also seized $834,629.32 from the premises, which the court had ordered confiscated as the proceeds of illegal gambling.
Flowers retained Sir Richard Cheltenham, QC, Alfred Sears, QC, and Charles McQuay to argue his appeal.
Franklyn Williams and Ambrose Armbrister are the Crown respondents.
In yesterday’s proceedings before Justices Anita Allen, Abdulai Conteh and Jon Isaacs, Mr Sears commenced the appeal with reliance on an affidavit filed by his client with respect to the recent passing of the Gaming Act.
He noted that his client, in order to get a licence to continue his operations in accordance with the law, paid upwards of $750,000 in penalties and taxes for six years of gaming activity going back to 2008 after making full disclosure of profits and earnings to the minister responsible for gaming in December 2014.
“It will be our respectful submission that this Act made lawful the alleged activities he was charged and convicted of,” Mr Sears said.
“Does it really legitimise previous unlawful conduct?” appellate President Justice Allen asked.
“It is our submission that the provision is for retroactive effect,” said Flowers’ lawyer.
“Was there not a penalty imposed?” Justice Isaacs asked.
Mr Sears said his client’s situation “is a classic case of separation of powers.”
Justice Conteh noted that Parliament used its powers to create said provision, which he likened to an indemnity.
“It’s the only way Parliament can do it,” said Justice Conteh.
“Does it do that or does it make it lawful from that date prospectively, going forward?” Justice Allen added.
Mr Sears emphasised that the provisions spoke to gaming taxes, business licenses and penalties with respect to 2008-2014 where gaming operators, who made full disclosure to the government, were required to pay six years worth of licenses and fees for gaming “as though it was lawful” for the mentioned period.
Justice Allen, however, still did not appear to be convinced.
Justice Conteh said the Act allowed “for the government to devise a way to get back money.”
Mr Sears said the Gaming Act had a “very narrow objective” and added that “the three deeming provisions are taken together with the fulfilment of the various requirements, have the effect of legitimising the activities of the appellant…retrospectively for the six-year period.”
The court asked the lawyer if there were case authorities to reference. Mr Sears said there were none for this jurisdiction.
The judges noted that the new gaming laws were not simple or clear in its wording.
Mr Sears conceded that Parliament could have made the provisions clearer on whether or not they would apply retroactively.
Nevertheless, he said, his client had fully complied with the conditions set out by the provisions “which is as close to a gaming provision as one gets.”
Mr Sears emphasised that the “object of the Act is to regularise the existing gaming enterprises.”
“The question is whether it wipes away the convictions,” Justice Allen replied.
“We submit that having fulfilled the conditions and the financial exposure the appellant assumed, that the review period would have had the effect of regularising and legitimising the conduct of the enterprise,” said Mr Sears, adding that the court had the power to interpret otherwise, “if there is any doubt or ambiguity in the Act.”
Justice Isaacs pointed out the socio-economic exclusivity of the provisions and that based on the penalties and fees the government required in order to continue operations “it would have to be a very profitable establishment.”
In spite of Mr Sears’ arguments, Justice Allen, however, still questioned how the new Gaming Act, “wipes away convictions under the old Act.”
“I believe the conditions set were to allow persons going forward to partake in the industry but it doesn’t necessarily make the Act retrospective,” said Justice Isaacs.
“To the extent of nullifying offences that were committed,” Justice Conteh said in agreement.
Justice Isaacs asked Mr Sears if Prime Minister Perry Christie, “in his communication to the House, in his speech, was it clear that it would nullify the previously unlawful conduct?”
“It is the implication,” said Mr Sears.
The hearing is scheduled to continue on April 29.