Mauritius - Criminal law - Money laundering

Director of Public Prosecutions v Bholah: Privy Council (Lords Phillips, Brown, Kerr, Wilson and Sir Malachy Higgins): 20 December 2011

Section 17(7) of the Economic Crime and Anti-Money Laundering Act 2000, so far as material, provides: '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.'

Section 10(2)(b) of the Constitution of Mauritius, so far as material, 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 defendant was a director of Apparel Exports Ltd (the company). On three occasions in 2001, large sums of money were transferred into the company's bank account from the account of J, a customer of a bank in Miami, via a bank in New York. The money was then transferred by the defendant and J to various bank accounts outside Mauritius. The defendant was charged with money laundering under sections 17(1)(b) and 19 of the Economic Crime and Anti-Money Laundering Act 2000 (the 2000 act).

In the course of the trial, the magistrate found that, by virtue of section 17(7) of the 2000 act, the prosecution was not required to specify or prove the particular crime of which it was alleged the money was the proceeds. She held that it could be inferred from the evidence that the monies in question were the proceeds of criminal activity. The defendant appealed to the Supreme Court of Mauritius against conviction. His conviction was quashed on the grounds that: (i) section 17(7) of the 2000 act violated the right to a fair trial as guaranteed by section 10 of the Constitution of Mauritius (the constitution), which required that the prosecution particularised and proved the precise offence that allegedly generated the proceeds of crime; and (ii) that his trial had been unfair. The Director of Public Prosecutions appealed to the Privy Council.

The issue for consideration was whether proof of a specific offence was required in order to establish guilt under section 17(1) of the 2000 act. The appeal would be allowed.

Proof of a specific offence was not required in order to establish guilt under section 17(1) of the 2000 act. It was sufficient for the purposes of that subsection that it be shown that the property possessed, concealed, disguised, or transferred represented the proceeds of any crime, in other words any criminal activity, and that it was not required of the prosecution to establish that it was the result of a particular crime or crimes. It followed that a failure to identify and prove a specific offence as the means by which the unlawful proceeds were produced was not a breach of section 10(2)(b) of the constitution.

Section 10 of the constitution required that the nature of the offence of which the accused person had to be informed was that with which he was charged. Proof of a particular predicate crime was not an essential 'element' of the offence of money laundering. It was settled law (in England and Wales), however, that where it was possible to give the accused notice of the type of criminal activity that produced the illegal proceeds, fairness demanded that that information should be supplied (see [33]-[35] of the judgment).

In the instant case, the particulars supplied in the information that had been lodged against the defendant had been less than wholly informative about the nature of the criminal activity involved. But any deficiency had been in that regard had been more than cured by the way in which the proceedings had been conducted and by the interviews of the defendant before trial. He and his legal advisers could not 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 J's account to the company account of the defendant.

There could be no question therefore that the defendant and his legal representatives were not fully alerted to the case that he had to meet in relation to the charge of money laundering. No unfairness in the manner in which the defendant had been required to meet that charge could be detected (see [36] of the judgment). The decision of the magistrate would be restored (see [37] of the judgment).

Hurnan v The State [2005] All ER (D) 236 (Dec) considered; R v Gabriel [2006] All ER (D) 26 (Feb) considered; Director of the Assets Recovery Agency v Szepietowski [2007] All ER (D) 364 (Jul) considered; Prosecution appeal (No 11 of 2007); R v W [2008] 3 All ER 533 considered; R v Anwoir [2008] 4 All ER 582 considered.

Simon Stafford-Michael and Rosa Zaffuto (instructed by Blake Lapthorn Solicitors) for the defendant. Geoffrey Cox QC, Simon Gledhill and Sulakshna Beekarry (instructed by Royds Solicitors) for the Director of Public Prosecutions.