Mohammed Ahmed V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Marnoch,Lord Kingarth |
| Neutral Citation | [2009] HCJAC 60 |
| Published date | 24 June 2009 |
| Docket Number | XC261/06 |
| Date | 24 June 2009 |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Kingarth Lady Paton Lord Marnoch | [2009] HCJAC 60 Appeal No: XC261/06 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by MOHAMMAD AHMAD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: G. Bell Q.C., Lindhorst; Patterson Bell
Alt: Dr. A. Brown A.D.; Crown Agent
24 June 2009
[1] On 10 March 2006 at the High Court in Glasgow the appellant was found guilty by unanimous verdict on charge (1) and by majority verdicts on charges (2) and (3). The charges were in the following terms:
"(1) you ZOHAIB ASSAD and MOHAMMAD AHMAD, being engaged in a business in the regulated sector (namely transmission of money) and, as a result of information or other matter which came to you in the course of said business (namely repeated visits to you by WILLIAM ANTHONY GURIE to deposit large, unexplained quantities of cash for transmission to a jurisdiction with which he had no legitimate connection known to you) knowing, suspecting or having reasonable grounds for suspecting that WILLIAM ANTHONY GURIE was engaged in money laundering did, between 23 February 2003 and 26 September 2003, both dates inclusive, at the shop at 159 Kenmure Street, Glasgow, occupied by Makkah Travel Ltd, fail to make the disclosure required by Section 330(5) of the aftermentioned Act as soon as was practicable after the information or other matter came to you; CONTRARY to the Proceeds of Crime Act 2002, Section 330(1);
(2) you ZOHAIB ASSAD, MOHAMMAD AHMAD and WILLIAM ANTHONY GURIE did, between 23 February 2003 and 26 September 2003, both dates inclusive, at the shop at 159 Kenmure Street, Glasgow, occupied by Makkah Travel Ltd, at the premises at 14 Blythswood Square, occupied by National Westminster Bank plc and at the premises at 221 Albert Street, Glasgow occupied by Clydesdale Bank plc have possession of criminal property, namely quantities of cash amounting to £2,442,318.75 of money: CONTRARY to the Proceeds of Crime Act 2002, Section 329(1)(c);
(3) you ZOHAIB ASSAD, MOHAMMAD AHMAD and WILLIAM ANTHONY GURIE did, between 23 February 2003 and 26 September 2003, both dates inclusive, at the premises at 14 Blythswood Square, Glasgow, occupied by National Westminster Bank plc, Leslie Street, Glasgow and elsewhere in the United Kingdom, transfer and remove from Scotland criminal property namely quantities of cash amounting to £2,256,646.00 of money by paying said cash into said bank and transmitting its value to Pakistan, United Arab Emirates and China: CONTRARY to the Proceeds of Crime Act 2002, Section 327(1)(d) and (e)"
[2] The appellant was found not guilty on charge (4), which alleged a further contravention of s.329(1)(c) of the Proceeds of Crime Act 2002 ("the 2002 Act"). The appellant's co-accused Zohaib Assad ("Zohaib") was convicted of charges (1), (2), (3) and (4). The appellant's co-accused William Gurie ("Gurie") was acquitted by not proven verdicts on charges (2) and (4), and was found not guilty of charge (3).
[3] On 11 April 2006 the trial judge sentenced the appellant to two years' imprisonment in respect of charge (1), and six years' imprisonment in respect of each of charges (2) and (3), all periods to run concurrently and to date from 10 March 2006.
[4] Although Zohaib has also appealed against his conviction, he is, it appears, seriously ill, and by interlocutor of 18 September 2008 it was determined that the appellant's appeal should be heard separately. In addition, although the appellant has seven grounds of appeal (including in particular grounds 4 and 5 which challenge the sufficiency of evidence in respect of charges 1, 2 and 3), it was directed in the same interlocutor that grounds 6 and 7, which involve questions of statutory interpretation, should be determined first.
[5] As appears from the report of the trial judge the evidence related essentially to the activities of a company trading in Glasgow known as Makkah Travel. It was set up in about 2002 by a Pakistani citizen known as "Mr Bhatti", who was the father of Zohaib, who himself participated in the operation of the company shortly after it started to trade. The business was set up to operate as a travel agency (selling airline tickets, through a London agency, for flights to Pakistan) and a money services bureau (effecting money transfers from Asians employed in the United Kingdom to their relatives in Pakistan). It was a business in the regulated sector within the meaning of section 330, and Schedule 9, of the 2002 Act. The appellant was the secretary of the company, a director and a 50/50 shareholder with Mr Bhatti.
[6] Over a period of time suspicions were aroused in HM Customs about the company's activities. As a result surveillance was kept on the business from about April 2002. For present purposes it is enough to record that, as reported by the trial judge, the Crown case depended on evidence inter alia that on a number of occasions large heavy holdalls were seen to be taken from the boots of cars and taken into the premises. The carrier later left without the holdall. Sometimes the carrier was Gurie. In due course a sum of about £200,000 was found in the safe in the back shop of the company's premises, the said sum having been brought by Gurie. That sum had been given to him by a Mr William McDonald (described by the trial judge as a self confessed criminal) in two plastic carrier bags in the car park of a burger bar. On another occasion Gurie was seen to arrive at the premises in a car. Zohaib emerged from the premises. A large heavy holdall was transferred from the boot of Gurie's car and placed in the boot of Zohaib's car. Both cars drove off. Zohaib was followed to his home after the exchange of holdalls from boot to boot. Two holdalls were found in his wardrobe. Each was stuffed with cash amounting to £384, 760, as specified in charge 4 (of which charge the appellant was acquitted). During the period of surveillance the appellant and Zohaib were seen on numerous occasions taking large sums of money to the bank, usually the branch of the National Westminster Bank in Blythswood Square. On such occasions the money was transported simply in plastic carrier bags, with no form of security in place. The bags were taken into the bank, the money handed over and international transmission forms completed. On some occasions the money was to be "routed" through several banks in different countries before ending up in Islamabad. On a number of such occasions the amount of money was so large, bulky and heavy that it could not be passed to the bank teller in the normal way. Members of the bank staff gave evidence of a considerable number of cash transfers totalling in excess of six figures. Many such payments were made more than once a day. The payments were made sometimes by the appellant and sometimes by Zohaib. The payments were noticeable as being more than was ever paid in by other Asian businesses. It was obvious that the amounts of cash paid into the bank and transmitted by them abroad at the behest of Makkah Travel were far in excess of those paid in on a day to day basis by individual Asians. For these reasons and, in accordance with their legal obligations, reports of the transactions were sent by the bank to HM Customs. No reports of suspicious transactions were made by Makkah Travel itself. The sums referred to in charges 2 and 3 were those found, after analysis of the company's records, to represent sums possessed or transferred which could not be accounted for as forming part of the company's ordinary business.
[7] At the time of the alleged offences (and in particular prior to its amendment, with effect from 1 July 2005, by the Serious Organised Crime and Police Act 2005) the relevant sections of part 7 of the 2002 Act were in the following terms:
"PART 7
MONEY LAUNDERING
Offences
327 Concealing etc
(1) A person commits an offence if he -
(a) conceals criminal property;
(b) disguises criminal property;
(c) converts criminal property;
(d) transfers criminal property;
(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland.
(2) But a person does not commit such an offence if -
(a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.........
328 Arrangements
(1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.
(2) But a person does not commit such an offence if -
(a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or any other enactment relating to criminal conduct or benefit from criminal conduct.
329 Acquisition, use and possession
(1) A person commits an offence if he -
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.
(2) But a person does not commit such an offence if -
(a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;
(b) he intended to make such a disclosure but had a reasonable excuse for not doing so;
(c) he...
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