|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Intermediate Court of Mauritius Decisions |
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Download]
[Help]
[Context
] [Hide Context]
IN THE INTERMEDIATE COURT OF MAURITIUS
IN THE MATTER OF:
V.
Lynette Akeyo Abongo
CN: 320/2005
Accused stands charged for breach of limitation of payment in cash contrary to Sections 5 and 8 of the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA). It is averred that the accused had willfully accepted a payment in cash in excess of RS 350 000 in foreign currency (USD 38000) from one Maita Fabre. It is further averred that the money is in whole or in part, directly or indirectly the proceeds of crime. The accused entered a plea of not guilty and was represented.
After the start of the trial, counsel for the accused argued that Section 8(2) of the FIAMLA 2002 is unconstitutional in so far as it shifts the burden of proof from the prosecution upon an accused who is convicted of an offence of money laundering and falls foul of Sections 1, 5, 8 and 10 of the Constitution which concerns the protection against the deprivation against property and which ensures that everybody shall benefit from a fair trial. The prosecution is objecting to the motion.
Counsel for the defence submitted that being given the definition of property in the FIAMLA and the fact that Section 8(2) refers to any property, the scope of the law would cover not only the property subject matter of the offence but also the other properties of the accused even found in Kenya. The law places the burden on a convicted person to prove that all her properties are not derived from a crime. Such a situation amounts to double jeopardy or double punishment on the convicted person, there is no fair balance between the demands of society and the demands of the rights of an accused party which is not reasonably justifiable in a democratic society. Given that situation the accused will have no choice than to adduce evidence at the trial to establish that her properties have not been obtained in a fraudulent manner otherwise all her properties even in Kenya runs the risk of forfeiture which is contrary to the protection against deprivation of property under Sections 1and 8 of the Constitution. The shifting of the burden is also repugnant the fundamental right to a fair hearing under Section 10 of the Constitution.
Counsel for the prosecution submitted that Section 8(2) of the FIAMLA has to read in the light of Section 6 (3) and refers to specific property, subject matter of an offence. He submitted that the accused has not yet been convicted and as such the motion is premature. He further submitted that the accused has to establish some kind of proprietary interest before there could be any protection against deprivation of property as guaranteed under Section 8 of the Constitution and even assuming that such a proprietary interest has been established Section 8(2) of the FIAMLA falls within the derogation provided by Section 8(4)(a)(ii) of the Constitution.
Section 2 of the Constitution provides that “This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”
Sections 17 and 83 of the Constitution further provide that the Supreme Court shall have original jurisdiction in matters relating to the interpretation of the Constitution and in constitutional questions. It is thus not within the power of this court to declare certain provisions of the FIAMLA unconstitutional as this entails the interpretation of the Constitution. It is thus understood that the motion of the defence is that this court is to refer the present matter to the Supreme Court under Section 84 of the Constitution.
Section 84(1) of the Constitution provides that “Where any question as to the interpretation of this Constitution arises in any court of law established for Mauritius (other than the Court of Appeal, the Supreme Court or a court martial) and the court is of the opinion that the question involves a substantial question of law, the court shall refer the question to the Supreme Court.”
The basic principles governing a referral under Section 84 however were examined in the case of Accountant General V. Baie du Cap Estates [1988] MR 1 where it was held that a referral should not be granted for the mere asking. It was held that “under section 84 of the Constitution, a lower Court is not automatically bound to refer a matter to the Supreme Court simply because there is a motion to that effect on the ground that the matter raises a question relating to the interpretation of the Constitution. If the same legal issue has already been pronounced upon, the lower Court should itself deal with the matter or, at least, in appropriate cases, examine so much of the matter as to satisfy itself that the interpretation in question has not already been the subject of a decision. The whole range of our criminal law or civil law affects in one way or another some provision or other of the Constitution and it would simply be unacceptable if matters were, for this reason alone, automatically upon application, to be referred to the Supreme Court.”
The argument of defence counsel can be summarized as follows: that the burden that is placed on a convicted person to prove that the property is not derived from a crime is unfair, disproportional, against the principle of fair hearing, and not justifiable in a democratic society and an accused party has no option than to adduce evidence to show that her properties have not been derived from a crime; And secondly, that, upon conviction, the liability to forfeiture of the whole of the property of the convicted person is against the protection against the deprivation of property.
It is proposed to take those issues in a whole as they are closely related to each other. First Counsel referred to the provisions of Section 1 of the Constitution which gives the definition of Mauritius as being a sovereign democratic State to argue that the provisions of the FIAMLA are undemocratic. On this issue there have been a number of pronouncements of the Supreme Court. In Lincoln and Others V. Governor General and Others [1974] MR 112 the Supreme Court held that that the definition of democracy is to be found within the provisions of the Constitution itself. The Court held as follows: “It may still be useful to add a few words concerning section 1 of the Constitution. As rightly observed by counsel, this Court in Vallet v. Ramgoolam held that by that section our Constitution-makers had intended to bestow upon our people a form of democracy akin to the British democracy. The section, however, if left to itself, would say either too much or too little. Actually the idea of a democratic form of government which it proclaims in the abstract is concretized by those other provisions of the Constitution which create and regulate the essential components of a democracy . Such are those provisions which deal with fundamental rights and freedoms of the citizens…So Parliament could, if supported by the appropriate majority, legally change much of the original structure of our Government and endow our democracy with a new face, be it prettier or less attractive.”
The above decision was quoted with authority in the case of UDM and anor V. The Governor General and Others [1990] MR 118 . The Court stated: “…to resolve the question of the meaning of the phrase “democratic state” in section 1 of the Constitution. This, we hasten to add, may, or may not be the same as attempting to define the concept of a “democratic society” in order to discover what, for the purposes of certain sections of Chapter II, is or is not reasonable. We have formed the opinion that, with respect to the other Judges of this Court who have been called upon to formulate such a definition for the purpose of section 1, the approach of Ramphul J., as explained in Lincoln v. Governor General & Ors is the correct one. In short, this is that it is neither necessary nor appropriate to travel outside our supreme law for the purpose of discovering what the framers of our Constitution had in mind when they used the words “democratic state”, and still less to invoke certain conventions which underlie British constitutional law . What section 1 means is that our State is to be administered in accordance with the other provisions of the Constitution, which contain the essence of the democratic principles governing us.”
On the above authorities the test of whether a piece of legislation is democratic or not is to be found within the framework of the Constitution itself. Indeed Section 3 of the Constitution enacts that there have existed and shall continue to exist a number of human rights and fundamental freedoms listed in Chapter II but that it also holds that there are certain limitations in the enjoyment of those rights being limitations designed to ensure that the enjoyment of those rights do not prejudice the rights and freedoms of others and the public interest. It is thus plain that the protections afforded by the Constitution can be subjected to certain limitations. These limitations are to be found in the provisions of Chapter II itself. What the law lords were saying is that the sections of the Constitution have to be read as a whole.
Indeed in the case of Matadeen V. Pointu [1999] 1 AC 98 the Judicial Committee held that “the provisions of Chapter II must, so far as possible, be read as a whole”. In that case the Law lords considered Sections 3 and 10 of the Constitution and it was decided that “The construction given to the words the "protection of the law" in section 3 must have regard to section 10, which is headed “Provisions to secure protection of law" and is plainly intended, as section 3 says, to have effect for the purpose of affording “protection" to that right…Their Lordships do not suggest that section 10 is necessarily exhaustive of the rights conferred by those words in section 3( a ). That would be contrary to the construction given to section 3 by the Privy Council in Société United Docks v. Government of Mauritius [1985] A.C. 585, where Lord Templeman, giving the advice of the Board, said that section 3 was not a mere preamble but a freestanding enacting section which had to be given effect in accordance with its terms. But their Lordships consider that section 10 must throw light upon the question of what kind of rights are encompassed in the concept of the protection of the law. It would be surprising if those words in section 3 had been used to mean rights of a radically different kind from those detailed in section 10. ”
In the case of Bishop of Roman Catholic Diocese of Port Louis and Others V.Suttyhudeo Tengur and Others [Privy Council Appeal 21 of 2003] [2004] UKPC 9 Their Lordships had this to say “Their Lordships do not regard this case as deciding more than that the words of section 3 should be given their natural and ordinary meaning and that they should not be artificially restricted by reference to subsequent sections, even though the latter are said to have effect for the purpose of affording protection to the rights enumerated in section 3. Their Lordships would not wish in any way to detract from this statement of principle but it cannot mean that either section 3 or the later sections can be construed as creating rights which they do not contain. ”
From the above authorities it stands to reason that the provisions of chapter II have to be read, as far as possible, as a whole so as to avoid conflicting interpretations. In the present case therefore, Sections 1, 5, 8 and 10 of the Constitution which have been referred by counsel for the defence, have to read as far as possible as a whole but at this very juncture it is pertinent to point out that Section 5 relates to the right of an individual to his personal liberty. It is common ground that the accused is not in custody pending her trial and that there is only a prohibition against departure against her. I fail to see how the provisions of the FIAMLA would fall foul of Section 5 of the Constitution.
Section 10 of the Constitution contains provisions to secure the protection of the law such as the right to a fair trial to an accused party. In Matadeen V. Pointu [1999] 1 AC 98 the law lords stated that “Section 10 is concerned with procedural rights such as that of an accused person to a fair trial and a civil litigant to an impartial tribunal.”
Section 10 (11) (a) of the Constitution provides that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of... (a) Subsection (2)(a) {presumption of innocence}, to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts…” As rightly submitted by counsel for the prosecution, the legal burden lies on the prosecution to establish the foundation of its case before there is any shift in the burden on an accused party to establish particular facts. There are a number of similar provisions in our criminal law such as possession of property obtained by means of a crime where the prosecution bears the burden of proving that an accused party has been found in possession of property obtained by means of a crime before there is any shift in the burden on the accused to show justification. Likewise under Section 5 and 8 of the FIAMLA, the prosecution bears the legal burden of establishing the guilt of an accused party and it is only then that the accused will have to show that the property is not the proceeds of a crime.
True it is that the definition of property in Section 2 of the Financial Intelligence and Anti Money Laundering Act 2002 (the Act) is very large and extensive and even includes any balance held in any currency with any bank outside Mauritius. Accused is however charged with a “Money Laundering” offence under Part II to the Act. Under Section 5 of the Act any person who makes or accepts any payment in cash in excess of RS 350000 commits an offence. The offence seems to be one of strict liability even where there is no fraudulent, corruptive or criminal intention and even where the payment or acceptance is in respect of an innocuous transaction but provided that the payment is a payment in cash which exceeds the sum of RS 350000. And whether the money is the proceeds of a crime or not, the burden is on the prosecution to establish only those two elements first and it is only then that the accused person has to prove on a balance of probabilities that the transaction is an exempt transaction, which is a legal defence. Such a situation is analogous to a charge of sexual intercourse with a minor under 16.
As pertinently submitted by counsel for the prosecution Sections 3, 4 and 5 falls under Part II and have to be read in conjunction with Section 6, particularly Section 6 (3) which provides that “In any proceedings against any person for an offence under this Part , 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 added). Even the forfeiture section which is found in Section 8(2) of the Act refers to any property subject of an offence under this part (Part II). Section 8(2) reads as follows “ Any property belonging to or in the possession or under the control of any person who is convicted of an offence under this Part shall be deemed, unless the contrary is proved, to be derived from a crime and the Court may, in addition to any penalty imposed, order that the property be forfeited.” It is clear therefore that for a prosecution for an offence under Part II, the prosecution has to specify the property which is in issue. In the present case the property in issue is the sum of USD 38000 which has been specifically averred in the information and at the end of the day it is in the discretion of the court to order the forfeiture of the specified property depending on the particular facts and circumstances of the case.
All the above relate to the trial of an accused party whereas the main thrust of the argument of counsel for the defence is regarding the forfeiture of the property after the conviction and the burden placed on such convicted person to show that the property is not the proceeds of crime. It is apposite to quote Section 8 (4) (a) (ii) and (iv) of the Constitution which provides that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that the law in question makes provision for the taking of possession or acquisition of property…(ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law or in consequence of the inability of a drug trafficker or a person who has enriched himself by fraudulent or corrupt means to show that he has acquired property by lawful means; (iv) in the execution of judgments or orders of courts…”
This exception and limitation to the protection afforded by Section 8 of the constitution is provided by the Constitution itself. Indeed Section 8 (4) (a) (ii) provides for a law which allows the forfeiture of property as a penalty for breach of the law and secondly, the Constitution allows a law to place the burden on (i) a drug trafficker or (ii) someone who has enriched himself by fraudulent or corrupt means to show that he has acquired the property by lawful means.
Since the Constitution itself allows such a shift in the burden and permits the forfeiture of property as a penalty for breach of the law and given the interpretation of democracy given by the Supreme Court in the cases referred to above, it cannot be said that Sections 5 and 8 of the FIAMLA are unconstitutional, unfair and undemocratic or that the issue involves a substantial question of law that should be referred to the interpretation of the Supreme Court.
For all the given reasons, I refuse the motion of the defence and order the case to proceed on its merits.
P.M.T. Kam Sing
August 23, 2005
[Context] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/mu/cases/MUIntC/2005/362.html