DPP v Bholah
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] UKPC 44 |
| Court | Privy Council |
| Docket Number | Appeal No 0059 of 2010 |
| Date | 20 December 2011 |
[2011] UKPC 44
Privy Council
Lord Phillips
Lord Brown
Lord Kerr
Lord Wilson
Sir Malachy Higgins
Appeal No 0059 of 2010
Appellant
Geoffrey Cox QC
Simon Gledhill
Ms Sulakshna Beekarry
(Instructed by Royds Solicitors)
Respondent
Simon Stafford-Michael
Ms Rosa Zaffuto
(Instructed by Blake Lapthorn Solicitors)
Heard on 6 October 2011
In 2002 an information was lodged against the respondent and another, Mohammed Laffir, before the Intermediate Court of Mauritius. The information charged both with the offence of money laundering under sections 17(1)(b) and 19 of the Economic Crime and Anti-Money Laundering Act 2000 (ECAMLA). It was in the following terms:
"THAT in or about the month of April in the year two thousand and one, at Delphis Bank Ltd, in the District of Port Louis, 1. AHMUD AZAM BHOLAH, 32 years, residing at Morcellement Antelme, Forest Side and 2. MOHAMMED IRFAN MOHAMMED LAFFIR, 31 years, residing at Boulet Rouge, Riche Mare, Flacq, both Directors at Apparel Exports Ltd., did wilfully and unlawfully transfer from Mauritius property which in whole, directly represents, the proceeds of crime, where the said. 1. Ahmud Azam Bholah and 2. Mohammed Irfan Mohammed Laffir had reasonable grounds to suspect that the property was derived in whole directly or indirectly from a crime.
PARTICULARS OF CHARGE
That in or about the month of April 2001, the said 1. Ahmud Azam Bholah and 2. Mohammed Irfan Mohammed Laffir did transfer outside Mauritius a sum of USD 1,822,968.40 from Delphis Bank account no 4170599, operated by them at the Delphis Bank Ltd., Port Louis Branch, which said sum of money are the proceeds of crime."
On 21 September 2004 the respondent and Mr Laffir were convicted of the offence. The magistrate found that the respondent had transferred money, which he had reasonable grounds to suspect was the proceeds of crime, from his company bank account to bank accounts outside Mauritius. In the course of the trial the magistrate ruled that, by virtue of section 17(7) of ECAMLA, the prosecution was not required to specify or to prove the particular crime of which it was alleged the money was the proceeds. (ECAMLA has now been replaced by the Financial Intelligence and Anti-Money Laundering Act 2002, section 6(3) of which re-enacts section 17(7) in the same terms). The magistrate held that she was able to infer from the evidence that the monies were the proceeds of criminal activity.
The magistrate imposed a fine on both the respondent and Mr Laffir. The latter paid the fine and a preliminary objection that he could not, as a result, pursue an appeal against his conviction was upheld. The respondent did not pay the fine, however, and appealed his conviction to the Supreme Court. On 11 December 2009 that court quashed the conviction on two grounds. First it held that section 17(7) of ECAMLA was repugnant to the fair trial provisions of section 10 of the Constitution. The Supreme Court concluded that section 10(2)(b) of the Constitution required of the prosecution that it particularise and prove the precise offence said to have generated the proceeds of crime. Secondly, the Supreme Court decided that, since the respondent had been deprived of the right to be informed "as soon as reasonably practicable…and, in detail, of the nature of the offence", and that therefore he had not had adequate time to prepare his defence, his trial had been unfair. The second finding derives from and is dependent on the first but it will be necessary to examine separately the question of what fairness requires even if it is concluded that proof of a specific predicate offence is not required by section 10(2)(b) of the Constitution.
The respondent was a director of Apparel Exports Ltd. This company had an account with Delphis Bank Ltd. On three occasions in 2001, large sums of money were transferred into this account from the account of Mr Jose Maria Martin Nunez, a customer of the ABN Amro Bank (Miami Branch). The transfer came via the Hong Kong and Shanghai Banking Corporation in New York. The money was in turn transferred by both accused to various bank accounts outside Mauritius.
The defence did not dispute that the sums from Mr Nunez's accounts had in fact been transferred into that of Apparel Exports account at the Delphis Bank. Evidence was led by the prosecution to the effect that there had been forgery of Mr Nunez's account and that the Miami Branch of ABN-AMRO had filed a suspicious activity report with the branch of the U.S. Government concerned with investigations of financial crimes. This had happened after Mr Nunez had indicated that he had not authorised the bank transfers. Although these transfers purported to have been authorised by Mr Nunez, a comparison between the signatures on the transfer documents and his original bank signature card led the magistrate to conclude that Mr Nunez had not signed the transfers.
Money laundering offences were provided for in section 17 of ECAMLA. In its material parts, section 17(1) provided:
"(1) Any person who…
(b) receives, possesses, conceals, disguises, transfers, converts, disposes of, removes from or brings into Mauritius any property which is, or in whole or in part directly or indirectly represents, the proceeds of any crime, where he suspects or has reasonable grounds for suspecting that the property is derived or realized, in whole or in part, directly or indirectly from any crime, shall commit an offence."
Section 17(7) of ECAMLA provided:
"In any proceedings against a person for an offence under this section, it shall be sufficient to aver in the information that the property is, in whole or in part, directly or indirectly the proceeds of a crime, without specifying any particular crime, and the Court, having regard to all the evidence, may reasonably infer that the proceeds were, in whole or in part, directly or indirectly, the proceeds of a crime" (emphasis supplied)
The necessary contents of the information are provided for in section 125(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act as follows:
"The description in the information of any offence in the words of the law creating such offence, with the material circumstances of the offence charged, shall be sufficient."
Section 10(2)(b) of the Constitution provides:
"Every person who is charged with a criminal offence…
(b) shall be informed as soon as reasonably practicable, in a language that he understands, and in detail, of the nature of the offence;"
The appellant submits that it is unnecessary to specify a predicate crime. Section 10(2)(b) of the Constitution entitles the alleged offender to be informed of the detail of the charge but the actus reus of the charge under section 17(1)(b) can be the transfer of property which represented the proceeds of criminal activity generally. It need not be proved that it had been generated by a particular crime. It was accepted that if a specific crime is known to have produced the illicit proceeds and this forms the basis of the prosecution's case, fairness may require that the offender be informed of this but the nature of the information depends on how the case is to be presented. If the prosecution does not aver that the unlawful proceeds were obtained from an individual crime or a particular species of criminal activity, it is not required to identify a predicate offence.
Counsel for the appellant argued that section 17(7) was a proportionate restriction on the right of an accused to receive information about the charge against him. While section 10 of the Constitution recognises as absolute the right to a trial which is fair in an overall sense, individual elements of the trial designed to secure that outcome need not be protected in absolute terms. They may be subject to proportionate qualification in the public interest. Section 17(7) was just such a restriction. It was necessary in order to suppress the crime of money laundering which, by its very nature, was one where the particular criminal activity that produced the illegal proceeds was not always easy to identify. Indeed, the very purpose of money laundering is to conceal the provenance of illegally acquired wealth. It can be notoriously difficult to gather evidence of the specific criminal origin of the laundered property. This was particularly the case in Mauritius where money laundering may be the product of predicate offences committed abroad.
The DPP claims, therefore, that the respondent received a fully fair trial before the magistrate. He was given particulars of the criminal conduct from which the funds in his company bank account were produced. He was told that there had been a fraud on the bank account of Mr Nunez. It was made clear that the prosecution case was that Mr Nunez's signature had been forged. The respondent had been interviewed about these allegations and had made a statement after caution in which he claimed that the transactions were authentic. There could be no question, therefore, the appellant argues, that the respondent was other than fully aware of what was being alleged as to the nature of the criminal conduct which produced the unlawful proceeds.
The respondent claims that the Constitution of Mauritius affords any defendant to a criminal charge the absolute right to particulars of the crime with which he is charged. These particulars require to be sufficiently detailed to enable the accused person to understand the nature of the offence that he faces. It is, says the respondent, unnecessary and wrong in law to draw any distinction between substantive and predicate offences. Both are covered by section...
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