Ahmad & Anor v R

This appeal concerns what is believed to be the largest confiscation orders ever made – two orders each in the same sum of £92,333,667. The confiscation proceedings were governed by the Criminal Justice Act 1988. Leave was granted by the Full Court.

The appeal concerns two principal issues. The first issue relates to benefit and the meaning of the words in “in connection with its commission” in section 71(4) which states that “a person benefits from an offence if he obtains property as a result of or in connection with its commission”. Similar language is to be found in section 76(4) of the Proceeds of Crime Act 2002, which provides: “A person benefits from conduct if he obtains property as a result of or in connection with the conduct”.

The second issue relates to realisable assets and the consequence of a conclusion that a defendant has hidden assets.

The statutory assumptions in section 72AA did not apply.

The judge, Flaux J, found that the prosecution had proved on the balance of probabilities that each appellant had benefited in the sum of some £72 million uplifted for changes in the value of money due to inflation to £92,333,667 being the sum that had passed through bank accounts under their control in furtherance of what was a massive carousel fraud (Footnote: ¹). The judge also found that they had not proved on the balance of probabilities that they did not have realisable assets in that sum.

None of the money has been paid and any sum eventually realised is likely to be far less than the £184,667,334 owed. The unpaid sum is presumably represented in the reported £1.26 billion of unpaid confiscation orders shown as an asset in the accounts of the Ministry of Justice (Footnote: ²) and for which the Minister has received public blame (see e.g. The Sun 23/11/2011 under the headline “SOFT JUSTICE SCANDAL” “YOU KEN NOT BE SERIOUS” and 24/11/2011, under the headline “KEN FINES RAP”).

Both appellants claim that they have no realisable assets, a claim which was unsurprisingly rejected by Flaux J in a very careful and necessarily lengthy judgment. He described the appellants as unscrupulous and deeply mendacious, particularly about their assets. The evidence that the appellants gave to the effect that they were penniless was described by the judge as “frankly ludicrous”. In so far as revealing their assets the appellants were “complete liars”. Both appellants were very uncooperative throughout the confiscation proceedings. The judge comprehensively rejected submissions that the confiscation proceedings were an abuse of process. He was fully entitled to reach all of these conclusions.

On 28^th March 2007 in the Crown Court at Northampton (H.H.J. Alexander Q.C. and a jury) the appellants were each convicted of conspiracy to cheat the public revenue (count 1). On 30^th March 2007 before the same constitution, they were each sentenced to seven years’ imprisonment. Each was disqualified from acting as a company director for 12 years under section 2 of the Company Directors Disqualification Act 1986. To avoid confusion, the appellant Ahmad will be referred to as Shakeel and the appellant Ahmed as Syed.

On 11^th June 2007 in the Court of Appeal Criminal Division Shakeel’s renewed application for leave to appeal against conviction was refused. His renewed applications for leave to appeal sentence and for an extension of time (two weeks and three days) were adjourned. On the same date Syed’s renewed conviction application was abandoned with the leave of the Court and his renewed application for leave to appeal sentence was refused.

On 31^st October 2008 the Court of Appeal Criminal Division granted Shakeel the appropriate extension of time and leave to appeal sentence. The appeal was refused.

On 5^th July 2010 in the Crown Court at Leicester Flaux J, after a hearing which had lasted 31 days, gave a 110 page judgment in which he made a confiscation order (in identical terms for each appellant) under s.71 of the Criminal Justice Act 1988 in the sum of £92,333,667 to be paid within two months and in default to serve ten years’ imprisonment consecutive to the sentence for the substantive offence. Having dispensed with his counsel Shakeel ultimately represented himself at the confiscation proceedings and Syed was ultimately represented under a representation order by Mr Ken Berry, an ex-police officer with no legal qualifications employed by Burton Copeland Solicitors. This made the judge’s task even more difficult than it already was.

On 16^th June 2011 the full Court granted the appellants leave to appeal against the confiscation order on grounds relating to the benefit and realisable assets and referred to the Court the application for leave to appeal the order that in the event of non-payment of the total amount within two months, the 10 years’ term of imprisonment would have to be served consecutively. The period of two months was not chosen because it was realistically expected that the full amount could be paid in that time but because it was feared that the appellants might abscond if released on licence.

Sir Derek Spencer QC submits, emphatically, that the confiscation orders made by Flaux J were the orders which he was required to make by virtue of the confiscation legislation and that the result corresponds to the intention of Parliament in passing that legislation. Mr Tedd QC disagrees.

The appellants were directors and shareholders (Syed 51% and Shakeel 49%) of MST (Associates) Limited (hereafter “MST”) which was incorporated in 1997 and registered for VAT. It operated as a computer parts broker dealing mainly with central processing units (CPU’s). The conspiracy concerned 32 transactions which took place between 13^th and 30^th April 2002, MST acting as a second line ‘buffer’ company. Unsurprisingly the judge held that MST had engaged in no lawful trade and “pierced the corporate veil”.

The fraud involved five companies in Ireland purporting to export large quantities of CPU’s to a “missing trader” (five in total) in the UK. The goods were zero rated on import to the UK. The missing trader was either a registered company which went “missing” or a genuine company the identity of which was hijacked by the fraudsters.

The missing trader then ostensibly sold the goods to GW224, the first line buffer company which then sold the goods to MST.

GW224 was an apparently genuine company interposed to make it more difficult for the authorities to identify the fraud. On paper the missing trader sold the goods to GW224 at a loss enabling everyone else in the supply chain ostensibly to sell on at a profit. The missing trader issued a VAT invoice to GW224 enabling it to deduct the amount shown as VAT as input tax from the amount due from GW224 to Customs in respect of output tax on the onwards sale to MST, a second line buffer company. Notwithstanding that GW224 was purporting to sell the goods to MST, on nine occasions MST paid the company in Ireland directly thus by-passing GW224.

MST then sold the goods on to an exporting company, usually Harringtons, for an amount which included VAT. The exporting company then exported the goods back to the company in Ireland which had originally sold the goods. In many cases the whole chain of transactions took place on the same day.

No VAT was payable on the export. The exporter however then reclaimed the VAT which it had paid to MST. The amount of the VAT which was fraudulently reclaimed by the exporter was £12,662,822 (which we shall call for convenience £12.6 million). If the transactions had been genuine and there had been no missing trader then there would have been no loss to HMRC. The fraudulently obtained £12.6 million was used to fuel the fraud or laundered through various accounts and withdrawn in cash or used to buy gold bullion, none of which could be traced.

The judge having pierced the corporate veil held that the benefit obtained by MST was the benefit of the appellants and, following now well-established authority, that the benefit for each appellant was therefore the amount of the benefit obtained by MST. He was right to pierce the corporate veil.

It is undisputed (on the law as it now stands) that where a benefit is obtained jointly, each of the joint beneficiaries has obtained the whole of the benefit and may properly be ordered to pay a sum equivalent to the whole of it. See R. v. May [2008] 1 AC 1028, para. 43. This is subject to one possible exception which Lord Bingham referred to in paragraph 45:

The total amount of VAT loss to HMRC on the 32 MST transactions was £12.6 million. On the judge’s findings the appellants obtained that amount as result of the commission of the offence. That was not the appellants’ profit, but the confiscation legislation is not concerned at the benefit stage with profit, although the amount of the profit may well be relevant when considering a person’s realisable assets. The judge said that about the £12.6 million (para. 6):

On the face of the accounts of the buffer companies, the “profit” is, as we understand it, usually in the region of between 1 and 2% of the VAT of which HMRC is to be defrauded. However, such was the role of MST and the appellants in the fraud, the benefit represented the total loss to the HMRC on the 32 transactions, that loss being property obtained by the principal conspirators as a result of the commission of the offence. (Footnote: ³)

The appellants, at an earlier stage of the proceedings and whilst represented, had accepted £12.6 million as the benefit. Later they resiled from that position and argued that the benefit was only £1.3 million. Mr Tedd QC accepted the correctness of the figure of £12.6 million. He was, in our view, right to do so.

In the light of May, each appellant had benefited in the sum of £12.6 million, subject to the possible exception identified in paragraph 21 above, an exception which seems unlikely to apply in this case given the difficulty of obtaining any money from the appellants.

Stopping at this point the benefit figure would have been £12.6 million for each appellant.

In the past many judges would have stopped at this point and have treated the VAT, which HMRC has paid out as a result of the fraud, as the only benefit. In this case Flaux J took a different view. He held that the benefit was the total amount of money which had passed through the MST bank accounts in furtherance of the fraud, concluding that that was property obtained in connection with the commission of the offence. To commit an MTIC fraud it is, as the judge found, a necessary part of the deception on HMRC that an amount representing the value of the goods and the VAT thereon should pass through the accounts of the buffer companies.

Thus, in so far as benefit is concerned, the appeal therefore concerns the meaning of “in connection with the commission of the offence”. Mr Tedd argues that an over wide interpretation should not be given to these words.

We give a number of examples of the issues raised by these words, assuming that D buys 10,000 genuine cigarettes for £1,000 in Belgium, smuggles them into England and sells them wholesale for £1,200, the retail price being £3,500. Let us assume that no statutory assumptions apply. He is convicted of cheating the Revenue of the excise duty and VAT. His benefit is certainly £1,200 (he obtained £1,200 as a result of the commission of the offence) and he cannot offset the costs, e.g. of the purchase of the cigarettes and of the transport. In addition he has, on the authorities, obtained a pecuniary advantage, namely the evaded duty, which we shall assume to be £1000, (Footnote: ⁴) and the evaded acquisition VAT which we shall assume to be £400. His benefit is therefore £2,600. If the cigarettes which he bought in Belgium can be said to have been obtained “in connection with the offence” then the value of those cigarettes would also form part of the benefit. That would be a further £1,000, in the light of section 74(6)). Thus not only is D unable to deduct the costs, but a significant part of those costs would be added to make up the benefit figure. D’s benefit for a fraud that cost the Revenue £1,400, would be £3,600.

To take another example, again assuming no statutory assumptions apply. D is convicted of cultivating cannabis and supplying it. He has sold cannabis which he has cultivated for £100,000. He has obtained that as a result of the commission of the offence and that is certainly a benefit. To cultivate that amount of cannabis he has had to buy equipment to the value of say £30,000. If he obtained the equipment “in connection with the commission of the offence” for the purposes of section 71(4), then his benefit would increase by £30,000. His benefit would then be increased by the value of at least some of the costs which he had incurred. As to expenditure on such things as wages and rent, see James, discussed below.

Whilst these two examples may not, on the face of it, seem similar to the facts of this case, they are in fact similar. In a carousel fraud the conspirators have to put up a significantly large sum of money to “prime the pump”. That money then passes through the accounts of the buffer companies. As we have said, to commit an MTIC fraud, it is a necessary part of the deception on HMRC that an amount representing the value of the goods and the VAT thereon should pass through the accounts of the buffer companies. The fact that money has to be put up to prime the pump is part of the cost of committing the fraud. It may well be that the money used to prime the pump is itself a benefit from earlier VAT or other frauds but that would only be relevant in the calculation of the benefit if statutory assumptions apply, which they did not in this case.

We add that, during the course of argument, we were concerned by the fact that it may have effectively been the “same money” passing through the accounts in each of the 32 transactions. Whilst the profit (the VAT of which HMRC was being cheated) was being siphoned off, it seemed to us likely that the money used to prime the pump was effectively the same money and that therefore the figure of £72 million was wrong for that reason. In the light of our decision it is not necessary to resolve that issue. If we had decided that the figure of £72 million was wrong or probably wrong for this reason, we would have sent this issue back to Flaux J.

It would, in our view, be surprising if Parliament intended the costs of committing an offence to form part of the benefit of the offence. In Crown Prosecution Service v. Jennings [2008] 1 AC 1046, Lord Bingham giving the considered view of the Committee said:

In R v Olubitan [2004] 2 Cr App R(S) 14, May LJ said, at page 78:

To make a confiscation order which includes within the benefit the costs of committing a crime seems to be contrary to the object of the legislation and that part of the confiscation order would, it seems to us, operate by way of a fine.

It is noteworthy that in one of the leading cases it was never suggested that the costs of purchasing the smuggled cigarettes was part of the benefit. In R v Smith [2002] 1 Cr App R 35; [2002] 1 WLR 54 Smith the facts were as follows. Smith bought a motor vessel, The Vertine, with £55,000 provided by his co-defendant, John Marriott. In the words of the judge when imposing sentence, the respondent allowed himself to be used as Marriott's ship owner and captain. The boat was used in April 1998 on a run to Heligoland to buy cigarettes and to smuggle them into this country without paying duty. On 8 May 1998 the respondent, Marriott and another man, David Russell, set sail once more for Heligoland. Two days later, on 10 May, they sailed The Vertine, laden with cigarettes, into the Humber estuary, past the customs houses at Immingham and Hull and so on for some 50 miles up the River Ouse until she reached Ocean Lock at the entrance to Goole. There is no customs house at this point. When the boat arrived at Goole, customs officers stopped and searched her. They found 1.25 million cigarettes on board. The excise duty payable on that quantity of cigarettes would have been £130,666.40. The House of Lords held, overturning the CACD, that an importer of uncustomed goods, in this case cigarettes, who intends not to enter them for customs purposes and not pay any duty on them, derives a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods are forfeited by HM Customs following importation, before their value can be realised by the importer. We note in passing in Waya, UKSC 2010/0088, which will be re-argued before the Supreme Court in March, the parties have been sent a note which, amongst other things, asks the question: “Did Parliament intend that confiscation proceedings should be brought in respect of property that has been restored by or recovered from the defendant.” The note also states that “it may be that the Court should reconsider” whether Smith was correctly decided.

Whether Smith was or was not correctly decided on the evasion issue, it was never suggested at any stage of the proceedings that the 1.25 million cigarettes found on board were property obtained in connection with the commission of the offence.

At trial the prosecution claimed and the judge included within the benefit figure was the purchase value of The Vertine used for the smuggling. The Court of Appeal (Mance LJ, Newman and Burton JJ Friday 16 June 2000 No. 2000/00449/X4) quashed that finding saying:

The certified question did not concern this conclusion. In the House of Lords Lord Rodger said:

Whilst therefore no concluded view was expressed about the boat, it was not suggested at any point that the cost of purchasing the smuggled cigarettes was a benefit.

Although not referred to during the course of argument before us, R. v Waller [2008] EWCA Crim 2037 raises the issue whether goods bought in order to commit a crime are part of the benefit. The appellant was stopped at the Channel Tunnel by British customs officers, who found 250 kg of undeclared hand rolling tobacco in the boot of his car. The defendant admitted to buying the tobacco for himself, his family and his friends. He said that he had spent £2,000 of his own money and £12,000 given to him by others. The appellant had pleaded guilty to being knowingly concerned in the fraudulent evasion of the duty payable on the importation of 250 kilograms of tobacco. In the subsequent confiscation proceedings the Crown contended that the defendant's benefit amounted to £41,505, being the total of the evaded duty of £27,505 (applying Smith) and £14,000, being the cost of the tobacco. It was held on appeal that the judge had rightly decided that the cost of the tobacco was part of the benefit, notwithstanding that, at least in every day parlance, the appellant had obtained no benefit at all and the Revenue, unlike the appellant, had lost nothing and indeed had, presumably, confiscated the cigarettes.

The Court in Waller, in an unreserved judgment, gave six reasons for its conclusion. Giving the first reason Silber J relied upon passages in May and, in particular, the passage which states that a person ordinarily obtains property if in law he owns it, whether alone or jointly. In our view the fact that a defendant owned the tobacco cannot of itself be decisive of the issue of whether the purchase price of the tobacco is a benefit.

The second reason was expressed in this way:

Although the Court relied upon Smith, the fact that no-one suggested in Smith that the cigarettes in Smith were part of the benefit is not mentioned.

The third reason relied upon the words “benefit” and “in connection with”. The Court said:

Although the Court in this passage states that the appellant must have benefited from the offence, it is difficult to see how it can be said that he benefited other than by interpreting the words "in connection with" to reach that conclusion.

The fourth and fifth reasons were expressed as follows:

With all respect we do not follow these two reasons. The fact that the tobacco which he bought is “property” is, in our view, of little help in resolving the issue. As far as “profit” is concerned, it is one thing to say that in determining the benefit, the costs must be ignored and another thing to say that the costs can be added on to the benefit.

Giving the sixth reason, Silber J cited a decision from Northern Ireland, in which the judge reached the same conclusion as the Court in Waller reached.

Waller has been the subject of criticism both in Archbold, para. 5-1051 and in the Criminal Law Week, 08/35/30:

We see considerable force in this criticism (albeit that we would not have adopted the same tone).

The same issue arose in R. v James and another [2011] EWCA Crim 2991 (decided after the hearing in this case). Edwards-Stuart J, giving the judgment of the Court, distinguished Waller (albeit saying that the result was unsurprising). In James the appellant had bought items to assist the process of converting raw tobacco into hand rolling tobacco. The judge had held that the items purchased were part of the benefit and that the rent and wages which he had paid were a pecuniary advantage and also part of the benefit. The Court quashed that part of the confiscation order which encompassed these items, saying:

In our view there are a number of central flaws in the reasoning in Waller. First, Smith does not assist the conclusion that the purchased tobacco was part of the benefit and, although the Court in Waller did not say this, Smith points very much the other way. Secondly, in May, Lord Bingham pointed out that if the total of the confiscation orders made by the judge exceeded the sum of which the Revenue had been cheated, then an issue of proportionality would arise (see para. 21 above). In this case the Revenue was cheated of £12.6 million but the judge made two confiscation orders in the sum of £72 million (before uplift). Thirdly we refer to the passages from Jennings and Olubitan which we have already cited (paras. 33 and 34 above). Fourthly, as James shows, the words “in connection with” must be construed with the word “benefit” in mind. To say that in assessing the benefit the Court does not take into account the costs incurred by the criminal in committing the offence is very different from saying that the costs should be added on to the benefit. The robber’s benefit is what he steals, the robber cannot deduct the costs of undertaking the robbery but surely those costs should not be added on to the benefit?

In our view Waller was clearly wrong. Are we bound by it?

The principles can be found set out in R v Rowe [2007] EWCA Crim 635; [2007] QB 975 by the then Lord Chief Justice, Lord Phillips:

We bear in mind that this Court is not rigidly bound by the doctrine of stare decisis. If we were to depart from Waller then our decision would be in favour of the two appellants serving a long sentence with a ten year sentence of imprisonment to be served consecutively. It cannot realistically be suggested that the appellants have the means each to pay £92 million, a figure that, if unpaid, is also subject to interest at the rate of 8%. The mere fact that a loss to the Revenue of £12.6 million leads to two confiscation orders in the sum of twice £72 million (before uplift) shows, we believe, that something has gone wrong. We also infer from the fact that Waya is being reargued and from the questions being asked that there is concern about how the law of confiscation has developed.

Our view is much strengthened by the fact that, as we understand it, Flaux J was the first judge in a carousel fraud (and there have been many of them) to take the approach which he did. In Sangha [2008] EWCA Crim 2562 (discussed by Flaux J), another carousel fraud, the very experienced judge who heard the confiscation proceedings, HHJ McCreath, explicitly rejected the submissions made by the prosecution in that case that the benefit was the total value of each sale by the buffer company. He held that the benefit was the VAT element only. In the Court of Appeal the issue was mentioned but left open.

Sir Derek Spencer supports the judge’s reasons for reaching the conclusion that he did and argues that Parliament intended that the words “in connection with the commission of the offence” were intended to cover the obtaining of property (or pecuniary advantage) in the circumstances of this case. We do not agree.

He submits (Footnote: ⁵) that this case differs from both Waller and Smith in that this case is concerned with money received by the appellants in connection with the goods that were sold or were purportedly (Footnote: ⁶) sold in furtherance of the commission of the conspiracy. Sir Derek points to a passage in Smith at paragraph 27 in which Lord Rodger said that if the cigarettes had been sold, then the money received would have been property in terms of section 71(4). As we have already said in the example we gave in paragraph 29 above, the sale price of the smuggled cigarettes would be a benefit. Sir Derek submits that the appellants’ sales or purported sales of the goods are analogous to the cigarettes. We do not agree. On the assumption that the goods in this case existed then, if the appellants had obtained the goods by theft or by fraud and sold them on, the resulting sale price would be a benefit. In this case the offence was cheating the revenue of the VAT, the selling or purported selling of the goods was a mechanism by which the fraud was committed and the necessary costs involved in the selling or purported selling were the costs of committing the offence. We stress again that if any statutory assumptions applied (for example, the criminal lifestyle provisions in the Proceeds of Crime Act 2002) then the expenditure on committing the fraud would be assumed to be a benefit, being property obtained as a result of general criminal conduct.

In our view the benefit for each appellant should have been set in the sum of £12,662,822, to which will be added the necessary uplift to reflect the changes in the value of money as at the date of the confiscation orders made by Flaux J.

We turn now briefly to the issue of realisable assets. The judge rightly found that MST and therefore the appellants had been involved in carousel fraud over a period commencing in early 2001. Also involved in the fraud was another company Alldech Ltd, the appellants being involved in that company in the same way as they had been involved in MST. The profits of the two companies together were over £30 million and the net profits were calculated by the prosecution in the first prosecutor’s statement to be in the region of at least £24 million. The judge accepted a later figure of in excess of £25 million. The judge meticulously traced, in so far as he was able to do so given the obduracy of the appellants, where the money had gone.

Flaux J rightly concluded that the appellants had hidden assets. They had both failed to disclose their assets and, to the extent to which there had been disclosure, they had not done so in such a way as to enable the true value of the assets to be determined. The judge rightly concluded that the appellants had failed to discharge the burden on them of demonstrating that their realisable assets were less than the value of the benefit (para. 137). Applying, in particular, a passage in the judgment of Moses LJ Telli v. Revenue and Customs Prosecution Office [2007] EWCA Civ 1385, [2008] 2 Cr App R (S) 48, paras. 10-11 and 30 Flaux J concluded (para. 138) that:

Sir Derek Spencer submits that that is the correct approach. Mr Tedd submits that the judge was wrong particularly in the light of a later judgment given by Moses LJ in R. v McIntosh and Another : [2011] EWCA Crim 1501; [2011] 4 All ER 917. In this judgment Moses LJ sets out the statutory provisions, the competing approaches and concludes that, in a hidden assets case, the court may conclude that a defendant's realisable assets are less than the full value of the benefit on the basis of the facts as a whole. He said:

We agree with this comprehensive analysis.

If McIntosh had been available to Flaux J, we doubt very much whether he would have reached the conclusion that the confiscation order should be in the sum of the total benefit as found by him.

We add this. It seems to us that a confiscation order which, due to its magnitude, exceeds by far the likely assets of the defendant may operate as a disincentive to co-operate. In the present case even if the appellants produced say £25 million, the default period would have to be served (unless a certificate of inadequacy could be obtained, which would be difficult, see Glaves v CPS [2011] EWCA Civ 69 and McKinsley v Crown Prosecution Service [2006] EWCA Civ 1092).

Given our conclusion that the benefit figure for each appellant should now be £12,662,822 uplifted to reflect changes in the value of the money as at the date of the confiscation orders made by Flaux J, we have no doubt, given in particular the profits made by the appellants through the two companies, that the confiscation figures should be in the same amount and to that extent we allow the appeals.

We turn to the third ground on which leave is sought. Mr Tedd submitted that a period of two months to pay the sum was too short given the complexity of unwinding the assets. Sir Derek Spencer had asked that the judge give no time to pay, given the deliberate flouting of court orders. As we understand the situation, the period of two months would have expired shortly before the appellants were due to be released from their sentence. If released there seemed little doubt that they would leave the country, given, in particular, the scale of their assets abroad as found by the judge. In the unusual circumstances of this case it is unarguable that the judge was not entitled to set a very short period and we refuse leave to appeal on that ground.

Finally the appellants themselves have submitted grounds of appeal and some 100 pages of documentation in support. Mr Tedd declined to argue any of them but had no authority to abandon them. The three principal grounds may be summarised in this manner:

In refusing permission to both appellants the single judge wrote:

To the extent to which the single judge is dealing with the points not argued by Mr Tedd, we agree wholeheartedly with these comments and reject the renewed applications on the grounds not the subject of submissions by Mr Tedd.

In conclusion we quash the two confiscation orders of £92,333,667 and substitute for them confiscation orders for each appellant in the sum of £12,662,822 uplifted to reflect changes in the value of the money as at the date of the confiscation orders made by Flaux J. That uplifted amount is £16,145,098.00.

Given that the maximum period of imprisonment in default is a period of ten years for an amount exceeding £1 million, we leave in place the default period ordered by Flaux J, namely ten years to be served consecutively to the sentence of imprisonment of seven years passed by HHJ Alexander on 30 March 2007. Given our rejection of the third ground and given the failure to pay any money, we will leave in place the order made by Flaux J that payment had to be made within two months of the confiscation order.

We certify that the following point of law of general public importance is involved in our decision:

We refuse the respondent leave to appeal.