Mohammed Ahmad V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Mackay of Drumadoon,Lord Wheatley |
| Neutral Citation | [2011] HCJAC 21 |
| Court | High Court of Justiciary |
| Date | 01 February 2011 |
| Published date | 25 February 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Bonomy Lord Wheatley | [2011] HCJAC 21 Appeal No: NO. OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION AND SENTENCE by MOHAMMAD AHMAD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Gilchrist, Q.C.; Paterson Bell
Respondent: A N Brown; Crown Agent
1 February 2011
[1] On 10 March 2006 the appellant was found guilty by unanimous verdict of charge 1 and by majority verdicts of charges 2 and 3 of the indictment. Following an earlier hearing - see Ahmad v HM Advocate [2009] HCJAC 60, 2009 SCCR 821 - at which certain grounds of appeal were refused, and further procedure thereafter in which the appellant abandoned any further challenge to his conviction on charges 2 and 3, there remained for consideration by us the challenge to his conviction on charge 1 in terms of grounds of appeal 2, 4 and 5 and his appeal against the concurrent sentences imposed on charges 1, 2 and 3, viz 2 years, 6 years and 6 years. We refused the appeal against conviction and the appeal against sentence so far as relating to charge 1. However, we allowed the appeal against sentence in respect of charges 2 and 3, quashed the sentences of 6 years and imposed sentences of 4 years on each charge to be served concurrently with each other and with the sentence of 2 years on charge 1. We now explain our reasons for reaching these decisions.
Appeal against Conviction on Charge 1
[2] Although the appeal is confined to charge 1, it helps to understand the whole circumstances to be aware of the terms of charges 2 and 3. The co-accused Zohaib Assad was convicted on all three charges and also on charge 4, but died before his appeal could be determined. Verdicts of not proven on each of charges 2 and 3 were returned in respect of the co-accused Gurie. The four 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)
(4) you ZOHAIB ASSAD, MOHAMMAD AHMAD and WILLIAM ANTHONY GURIE did no 26 September 2003 at the shop at 159 Kenmure Street, Glasgow, occupied by Makkah Travel Ltd, at the house at 54 Waukglen Crescent, Darnley, Glasgow occupied by you ZOHAIB ASSAD and elsewhere, have possession of criminal property, namely £384,760.00 of money; CONTRARY to the Proceeds of Crime Act 2002, Section 329(1)(c)"
[3] There were three strands to the argument in support of the appeal: firstly, that there was insufficient evidence for conviction on charge 1; secondly, that there was insufficient evidence to exclude the "training limitation" or defence under section 330(6) and (7) of the Proceeds of Crime Act 2002 ("POCA"), which in the circumstances the Crown were bound to exclude; and thirdly, esto the evidence was sufficient to meet the point made in strand two, the trial judge's directions to the jury on that matter were inadequate and amounted to a misdirection.
General Sufficiency of Evidence on Charge 1
[4] Charge 1 alleges a contravention of section 330(1) of POCA. That subsection provides that an offence is committed if each of three conditions is satisfied. The three conditions are set out in subsections 2, 3 and 4 as follows:
"(2) The first condition is that he -
(a) knows or suspects, or
(b) has reasonable grounds for knowing or suspecting,
that another person is engaged in money laundering.
(3) The second condition is that the information or other matter -
(a) on which his knowledge or suspicion is based, or
(b) which gives reasonable grounds for such knowledge or suspicion,
came to him in the course of a business in the regulated sector.
(4) The third condition is that he does not make the required disclosure as soon as is practicable after the information or other matter comes to him".
The debate centred on the sufficiency of evidence to establish the first condition. There was no dispute that the appellant was involved in a business in the regulated sector and that the information or material relied upon by the Crown, if it came to him, came to him in the course of that business. It was also accepted that the third condition had been satisfied.
[5] The appellant's note of argument addressed the issue of sufficiency of evidence on charge 1 in the context of all the evidence before the jury, including that of the appellant and his co-accused Gurie. However, before us Mr Gilchrist also relied upon a "fallback position", that in any event at the end of the Crown case there had clearly been sufficient evidence to warrant the conviction of the appellant on charge 1. While he presented that as a fallback position, it emerged in the course of the discussion that that had to be his principal case. Although there was no ground of appeal directed to insufficiency at the close of the Crown case, a submission had been made in terms of section 97 at the trial. The Advocate depute, therefore, did not object to the extension of the appellant's case to include insufficiency at the close of the Crown case, and also conceded that, were the court to be satisfied that there was insufficient evidence at that stage, the appeal against conviction on charge 1 should be allowed on that ground.
[6] In support of his submission Mr Gilchrist stressed the significance of the particular terms of the charge. It depended exclusively on the Crown being able to demonstrate knowledge on the part of the appellant of deliveries of "unexplained quantities of cash" by the co-accused Gurie. Only if there was evidence of such knowledge would it be open to the jury to conclude that the appellant had reasonable grounds for suspecting that Gurie was engaged in money laundering which was the essence of the charge. As the result of surveillance carried out by...
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