R v Saik
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 24 November 2004 |
| Neutral Citation | [2004] EWCA Crim 2936 |
| Docket Number | Case No: 2003/02173/D2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 November 2004 |
[2004] EWCA Crim 2936
Lord Justice Scott Baker
Dame Heather Steel Dbe And His Honour Judge Roberts Qc
Case No: 2003/02173/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON —UPONTHAMES
(Judge Binning)
Ivan Krolick for the Appellant
Nigel Peters QC (instructed by HM Customs & Excise) for the Respondent
The appellant, Abdul Rahman Saik, appeals by leave of the Full Court against conviction for conspiracy to launder the proceeds of crime. He pleaded guilty to this offence on 18 October 2002 in the Crown Court at Kingston-Upon—Thames and on 22 October 2002 was sentenced by Judge Binning to 7 years imprisonment. He is now aged 39 and was of previous good character. He also applies for leave to appeal against sentence and this application has been referred to us as the Full Court hearing his conviction appeal.
The appellant's plea was tendered on a very specific basis, which was committed to writing and signed by him. The document reads:
"1. The defendant Saik pleads guilty on the basis of laundering money which he suspected was the proceeds of crime.
2. He only became suspicious from about December 2001 when the number of transactions became more.
3. As to the matrimonial home, the Crown concede that this is a joint asset and that there is no evidence, to date, that it is funded in any way from his business activities at the bureau."
The third paragraph has no obvious relevance to the basis of plea. We shall return later to the circumstances in which this provision came to be incorporated in the document.
It is necessary at this stage to set out in full the count, which was count 3 in a 16 count indictment, and the only one that involved the appellant. It alleged: "conspiracy to convert the proceeds of drug trafficking and/or criminal conduct contrary to s.1(1) of the Criminal Law Act 1977." The particulars of offence read:
"German Lemos, Abdul Rahman Saik and Jose Alvarez between the 1st of May 2001 and the 1st of March 2002 conspired together and with persons unknown to convert property, namely banknotes for the purpose of assisting another to avoid prosecution for a drug trafficking offence and/or a criminal offence or avoiding the making of or the enforcement of a confiscation order, knowing or having reasonable grounds to suspect that such property in whole or in part, directly or indirectly, represented another person's proceeds of drug trafficking and/or criminal conduct."
There were other defendants. It is unnecessary at this juncture to set out the offences to which each pleaded guilty. The sentences were Lemos 8 years imprisonment, Ruiz 6 years, Cano and Bickenbach each 3 1/2 years; Alvarez and Di Lemme each 3 years. An eighth defendant Funtez-Benitez was later acquitted of importing cocaine.
The main ground of appeal is that the appellant pleaded guilty because he was given erroneous advice in two respects, first the length of sentence he was likely to receive and second as to the security of his matrimonial home in confiscation proceedings.
The second ground of appeal is that reasonable grounds for suspicion or indeed actual suspicion (the basis on which the plea was tendered) is inadequate to found a conviction for conspiracy to money launder and that the plea tendered by the appellant was to a non-existent offence.
Because his grounds of appeal involve criticism of his former legal advisers, the appellant has waived privilege. We have detailed notes made by his former legal advisers as well as their observations. We have not, however, felt it necessary to hear oral evidence from them apart from Mr Paley.
An overview of the facts
The Crown's case was that the appellant and his co-accused formed a major money-laundering organisation converting the proceeds of sale of Columbian Cocaine into US dollars, which were then taken overseas, principally to Columbia. Lemos was at the heart of the conspiracy, as a knowing party to the exchange of over $U.S8m between May 2001 and February 2002. The appellant was the manager of the Sirafa Administration Bureau near Marble Arch where all the money was exchanged. There was observation evidence linking Lemos to the appellant and also evidence of telephone links between Lemos and Ruiz who was Lemos' friend and also a courier. Cano, Di Lemme and Bickenbach were other couriers employed to take the money back to Columbia. Alvarez's job was to keep the money for passing on to Lemos. A great of deal money was recovered when arrests were made on 28 February 2002.
The Sirafa Administration Bureau was owned by the appellant's sister and another person. The appellant was described in the annual report as the company secretary. He appeared to be the only person who worked there. It was not, on the face of the books, a successful business or one that did much trade. In the year ended March 2002 the turnover was around £1,000 per week with a profit of about £8,000 per annum. In 1999 the appellant had commenced buying small amounts of foreign currency from a wholesaler, but in October 2001 his pattern of dealing changed and he started buying large quantities of $U.S100 bills. From December 2001 he exchanged some $U.S8m. Many of his meetings with Lemos were observed by surveillance officers. Most were not in the bureau but in Lemos' car in the Edgware Road or other local streets where sacks containing sterling were seen. Then there would be a further transfer from the appellant to Lemos of $U.S. The Crown's case was that from December 2001 the appellant knew exactly what was going on but made no report to the authorities of suspicious transactions, as he was obliged by law to do.
When arrested the appellant accepted he had engaged in transactions with Lemos but said he thought he was an honest businessman. He denied any part in a conspiracy.
The lead up to the plea of guilty
The appellant pleaded guilty on Friday 18 October. Pleas of guilty had been entered the previous Tuesday (15 October) by Bickenbach and Alvarez. Di Lemme and Cano also entered pleas of guilty on the Friday. Lemos and Ruiz had pleaded guilty on the Thursday (17 October). Sentence was passed on the following Tuesday (22 October).
During the week beginning 14 October there was a good deal of toing and froing between the prosecution and the defence to see if pleas acceptable to the Crown could be negotiated whilst the judge waited patiently to start the trial. In the event all the defendants bar Fuentez-Benitez, who was subsequently tried and acquitted, tendered acceptable pleas of guilty at some point during that week. It is necessary to look in a little detail at how events unfolded with regard to the appellant. He was represented by Daniel Janner Q.C and William Saunders. Stephen Paley and John Williams were representatives of his solicitors.
The trial had originally been listed to begin on the Monday of the previous week, 7 October, but was adjourned due to a family bereavement affecting counsel for the Crown. The appellant saw leading counsel, Mr Janner, that day, who told him that prosecution counsel had been in touch to say the Crown might be prepared to accept a deal. The appellant's response was that he was going to contest the case to the end. But he said:
"It's up to you. If you want to see what is on offer, then that is up to you, but I am pleading not guilty."
He was back at court the following Monday and was advised by his defence team. We heard evidence from the appellant as to what he says occurred and the advice he was given between then and his plea of guilty the following Friday. He has waived privilege as to the advice he was given and we have full notes of what transpired from leading and junior counsel and his solicitors. He called Mr Paley to give evidence before us. Leading and junior counsel were available at court to give evidence if necessary, and had it been necessary the court would have called them so that they could be cross-examined by those now representing the appellant and by the prosecution. In the event it was not necessary because taking the appellant's evidence at its highest in his favour we are unpersuaded that there is any basis for setting aside his plea of guilty.
Monday 14 October
Following a prior conversation between leading counsel and counsel for the Crown, the appellant met with his legal team when the following points were made to him. The Crown would accept a plea on the basis that the money laundered was the proceeds of crime rather than drug trafficking; there would be further negotiation about the start date of the appellant's criminal conduct. The prosecution were contending for October or possibly November.
There was discussion about the pros and cons of pleading guilty. The appellant was told that if convicted he would almost certainly lose his matrimonial home because of the amount of money involved. Leading counsel thought that if he pleaded guilty he would retain his home albeit he could make no promise.
The appellant was obviously interested in the likely sentence. He was advised that after a trial this was 10 – 12 years but if he pleaded guilty there was a chance it would be as low as 3 – 4 years of which he would have to serve half.
Discussions continued on and off all day until 3.20 pm when the judge agreed to adjourn until the next day. He encouraged the parties to try and avoid a trial. During that Monday the defence team discussed with the appellant in some detail the advantages and disadvantages of...
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