Mauritian Constitution v Money Laundering Provisions
In the case of DPP v AA Bholah (2011 UKPC 44) the Board
had to consider whether the anti-Money Laundering Provisions in
Mauritius contravened section 10(ii)(b) of the Mauritian
Constitution.
The respondent was a director of Apparel Exports Limited in
Mauritius. The company had an account with Delphis Bank. On three
occasions large sums of money were transferred into this account
from the account of a Mr Nunez a customer of ABM 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 the
respondent to various bank accounts outside Mauritius. The
respondent had been instructed to make these transfers by his
superior who was not in Mauritius at the time.
The information provided that the respondent 'did wilfully and
unlawfully transfer from Mauritius property which in whole,
directly represents, the proceeds of crime, where (the respondent)
had reasonable grounds to suspect that the property was derived in
whole, directly or indirectly from a crime'.
The Particulars of Charge provided that 'The respondent did
transfer outside Mauritius a sum of USD $1,822,968.40 from Delphis
Bank…/ which said sum of money are the proceeds of crime'.
During the course of the trial at first instance, the magistrate
ruled that by virtue of the Money Laundering Provisions, the
prosecution was not required to specify or to prove the particular
crime of which it was alleged the money was the proceeds. The
magistrate held that she was able to infer from the evidence that
the monies were the proceeds of criminal activity. Accordingly, the
Respondent was fined.
The Supreme Court quashed the conviction on two grounds. Firstly
it held that the Money Laundering Provisions were repugnant to the
fair trial provisions of section 10 of the Constitution. The
Supreme Court concluded that that section required of the
prosecution that it particularised and proved the precise offence
said to have generated the proceeds of crime.
Secondly, it decided that since the Respondent had been deprived
of the right to be informed 'as soon as reasonably practical…/ and
in detail, of the nature of defence' he had not had adequate time
to prepare his defence, and that his trial had been unfair.
The Board concluded that proof of a specific offence was not
required in order to establish guilt under the Money Laundering
Provisions. It was sufficient that it be shown that the property
possessed, concealed, disguised, or transferred etc, represented
the proceeds of crime – in other words any criminal activity – and
it was not required of the prosecution to establish that it was the
result of a particular crime or crimes. In the Board's view, the
section required that the nature of the offence of which the
accused person must be informed is that with which he is charged in
this case the offence of money laundering.
Proof of a particular predicate crime is not an essential
'element' of the offence of money laundering. The Board also
considered the English cases. It said that the decisions were
informative beyond their firm conclusion that proof of a specific
predicate offence is not required. They are unanimous in suggesting
that where it is possible to give particulars of the nature of a
criminal activity that has generated the illicit proceeds, this
should be done. All are agreed that where it is possible to give
the accused notice of the type of criminal activity that produced
the illegal proceeds, fairness demands that this information should
be supplied.
In this particular case, the Board concluded that the
particulars supplied in the Information were less than wholly
informative about the nature of the criminal activity involved and
it may well have been that, in its unvarnished form, they did not
fulfil the requirements of the legislation. It concluded,
however:
"That any deficiency in that regard was more than cured by
the way in which the proceedings were conducted and by the
interviews of the Respondent before trial. He and his legal
advisers cannot have been in any doubt that the nature of the
criminal activity alleged to have produced the proceeds of crime
was the illegal procuring of the transfer of funds from Mr Nunez's
account to the company account of the Respondent."
It concluded that no unfairness had resulted and therefore the
Appeal was allowed.
In the course of its judgment, the Board considered approaches
in other jurisdictions and in Europe, and concluded that dispensing
with a requirement to identify and prove a predicate offence is an
unusual approach to the problems of proof that money laundering
offences can present.
This case will be read with interest by those involved in the
prosecution and defence of money laundering offences.
Blake Lapthorn acted for the respondent.
