R v Agathine (MC 3 of 2024) [2024] SCSC 228 (29 November 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 14 In the matter between: THE REPUBLIC (Represented by Mrs Nissa Thompson) And FRANK AGATHINE (Represented by Mr Joshua Revera) Reportable MC 03/2024 Applicant Respondent Neutral Citation: Before: Summary: Heard: Delivered: Rep vs Agathine (MC 03/2024) (29 November 2024) Adeline J Order for forfeiture of cash seized/Section 74(2) and 76(1) of the Anti-Money Laundering and Countering the Financing of Terrorism Act, 2020 (AMLCFT) as amended. By submissions. 29th November 2024. RULING ON MOTION Adeline, J [1] This is a ruling on motion on notice dated 9th April 2024, brought by the Republic ("the Applicant") against one Frank Agathine of St Louis, Mahe, Seychelles ("the Respondent"), which motion is supported by an affidavit of facts and evidence deposed by one Sergeant Terence Dixie ("Sgt Dixie"), to which are exhibited the necessary documentary evidence in support of the averments therein. [2] By its motion, pursuant to Section 74 (8) and Section 76 (1) of the Anti-Money Laundering and Countering of Financing of Terrorism Act, 2020 as amended, ("the AMLCFT Act"), the Republic applies to this court for the following orders; Page Z of 14 "1. An order to hear the application as a matter of extreme urgency. 2. An order pursuant to Section 74 (8) ofthe AMLCFT Act for the cash seized to continue to be detained by FC1U pending a determination of the case. 3. An order pursuant to Section 76 (1) of the AMLCFT Actforforfeiture of the seized cash in foreign exchange, namely, USD 20,000.00 amounting to the sum ofSCR 288,122.00 when converted. 4. An order providing for notice of any such order to be given to the Respondent or any other person directed by the court, and 5. Such further or other order as the court shall deem just and proper in all circumstances a/the case". [3J The salient facts upon which these orders are being sought for as alluded by the Applicant are that, in the morning of Tuesday the 19th December 2023, the Respondent was searched in the guardroom at the Seychelles International Airport at a time when he was about to travel to Dubai. Prior to the search, the Respondent was asked whether or not he was travelling alone. In his response, he did not answer the question, instead, he said that he was travelling to Dubai. The Respondent was asked whether he had any money to declare, and his answer was that he only has in his possession Seychelles Rupees Fifty Thousand (SR 50,000.00). [4J Given that his answer sounded suspicious, a search was conducted in the Respondent's luggages and cash in US dollars Twenty Thousand (USD 20,000.00) amounting to the equivalent of Seychelles Rupees Two Hundred and Eighty-Eight, One Hundred and Twenty-Two Thousand (SCR 288,122.00) was found in two separate bundles concealed in the pocket of a black short in the Respondent's luggage. Upon questioning him, the Respondent stated, that the source of the cash found in his luggage was partly savings from the previous Dubai trips he has undertaken in the past on a monthly basis, and partly money given to him by family members for the trips. The Respondent did not support or substantiate his answers with any documents. Page 3 of 14 [5] As a consequence, the cash was seized pursuant to Section 74 (2) of the AMLCFT Act as amended. The source of the cash seized could not be accounted for by the Respondent and still remains unknown, that the Investigator had reasonable ground to believe, that the Respondent was concealing the true origin of the cash seized, and that concealment is an element of money laundering. [6] In it answer to the application, through learned counsel, the Respondent pleads the following in plea in limine litis; "1.1 The Respondent hereby raised thefollowing plea in limine litis against the application filed by the Applicant on the ground that the Applicant has not complied with the relevant provision of the law. 1.2 The Applicant has not complied with the statutory provisions of the Anti-Money Laundering and Countering the Financing of Terrorism Act, 2020". [7] As regards to the merits of the Applicant's application, in answer, the Respondent pleads the following; "Save that the cash was seized in the possession of the Respondent, the Respondent denies each and every averment made by the Applicant and will rely on the affidavit herewith attached ". [8] The Respondent prays this court to, inter alia, dismiss the application and order the return of the cash seized to the Respondent. [9] It is on the court's record of proceedings in this case, that on the 16th July 2024, leamed counsel for the Respondent undertook to tender written submissions on behalf of the Respondent for consideration by this court, addressing both, the points of law raised by the Respondent and the merits ofthe Applicant's application. Unfortunately, although learned counsel was given ample time to tender such written submissions for consideration, no submissions were received by this COUlt. [10] Therefore, it is the view of this court, that the Respondent having not submitted on the points of law raised, has effectively abandoned or withdrew the plea in limine litis. As Page 4 of 14 such, this court cannot pronounce itself on the plea in limine litis for a determination. It is however noted, that in response to the Application, the Respondent did file an affidavit in reply which the court has to consider to determine the merits of the application. (See the case of James Lesperance vs Allan Ernestine and Marie Alise Ernestine SCCA 14 (26 April 2023, Civil Appeal seA 1612021 (Arising in CS 133/2019) for guidance. [11J In his sworn affidavit in support of the Applicant's application, Sgt Dixie of the Financial Crime Investigation Unit of the Seychelles Police Force ("FCIU") in part makes the following averment amongst others; "That 1make this affidavit ji"0111 facts within my own personal knowledge save where otherwise appears, and where so appearing believe the same to be true". [12J The Applicant's case against the Respondent for forfeiture of the cash seized as bome out .in the affidavit evidence ofSgt Dixie as to the reason why the cash seized must be forfeited, is that based on the facts and circumstances of the case, these facts give rise to Sgt Dixie's reasonable ground for suspecting that the cash seized from the Respondent on the 19th December 2023 in the sum of USD 20,000 equivalent to SCR 288,122.00 represents proceeds of crime or is intended to be used in connection with criminal conduct, namely, money Laundering. [13J As regards to the discovery of the cash seized, it all began after receipt of credible intelligence that the Respondent was travelling to Dubai for only 1 or 2 days, and retuming back without carrying any luggage. The intelligence received, was that the Respondent was going to Dubai on the 18th December 2023, carrying with him large amount of undeclared cash. On the 18th December 2023, Sgt Dixie, WPC William and WPC Jean Baptiste, all officers from the FCIU, proceeded to the Seychelles International Airport. The following day, Sgt Dixie, WPC William and WPC Jean Baptiste again went to the Seychelles International Airport, There, they went to the Emirates Office to make the necessary enqumes. [14J The FCru officers were told, that the Respondent had booked the flight that was scheduled to depart at 0835 hours on that particular day. Sgt Dixie and others, waited for the Page 5 of 14 Respondent to arrive for its flight. Just before the checking counter was about to close and checking stop, the Respondent arrived seeking to be checked in by the airport checking staff. [15] Sgt Dixie accompanied by other officers, approached the Respondent. Sgt Dixie and others, identified themselves as FCrU officers. It is deposed by Sgt Dixie, that the Respondent insisted that he would check in his luggage first. The Fcru officers insisted that he keeps his luggage with him. [16] The Respondent was asked by FCIU officers whether he had declared the money that was in his possession, and his answer to the officers was that he was going to do so after check in. When asked for supporting documents for the money that was in his possession, the Respondent's reply was "no" because the money was what was left from his previous trips to Dubai as well as money given to him by family members for the purpose of his trips. [17] As the questioning of the Respondent continued about his travel to Dubai and as to whether he was travelling with cash, Sgt Dixie searched the Respondent's luggage in the presence of WPC William and WPC Jean Baptiste. Sgt Dixie found two bundles of cash concealed in the pocket of a black Sh011. One of the bundles contained 100 brand new notes of USD 100 adding up to USD 10,000. The other bundle also contained 100 notes of USD 100 adding up to a total of USD 10,000. It is averred by Sgt Dixie, that cash found in the possession of the Respondent that he could not account for its source amounted to a total of USD 20,000.00, equivalent to Seychelles rupees Two Hundred and Eighty-Eight Thousand and One Hundred and Twenty-Two (SCR 288,122.00) as at the 15th December 2023 rate of exchange. [18] It was agreed by Sgt Dixie and the other police officers present at the time of the search, that the Respondent did not have any supporting documents to prove the source of the cash in his possession, and that in the circumstances, they had the lawful authority to seize the cash. It is averred by Sgt Dixie that he did point out to the Respondent that he was committing the offence of Money Laundering, and that as a consequence, the cash found in his possession would be seized under the provisions of Section 74 of the Anti-Money Laundering Act. Page 6 of 14 [19J As per Sgt Dixie's deposition the Respondent was told of his constitutional rights and his answer was that he knows the law. Sgt Dixie avers, that the Respondent agreed for the cash to be seized, and said that he would sort things out when he returns to Mahe from Dubai. Sgt Dixie depones, that the cash seized was photographed, placed in an evidence envelop and sealed in the presence of WPC William and WPC Jean Baptiste. Thereafter, a case for Money Laundering involving the Respondent was registered at the Anse Aux Pins Police Station as CB No 101112/2023. [20J Sgt Dixie avers, that on the 27th December 2023, a statement under caution was recorded from the Respondent after he was informed that he had committed the offence of Money Laundering. According to Sgt Dixie's deposition, the Respondent was informed of his constitutional rights. In his statement made to the FCIU officers, the Respondent states, that he has been an employee of Air Seychelles for more than six years. He travels to Dubai once every month to visit two Seychellois friends, one by the name of Oneil Tambara, the . other by the name of Julius Nancy who works for Emirates. The Respondent also stated, that he has two other friends, one by the name of Hussein and the other by the name of Zathia both of whom are businessmen in Dubai, and that he does pay them a visit whenever he is in Dubai. [21J In his statement, the Respondent also states, that when he goes to Dubai on holiday, he normally spends 6 days to 1 week there, whereas, otherwise when he goes there he spends two days. The Respondent also states, that when travelling on holiday to Dubai he would take with him USD 800 to USD 1500, and that this was the first time that he was travelling with such large sum of cash. In his statement, he adds, that he only declared that he had in his possession fifty thousand rupees (SCR 50,000.00) because he was scared when the Fcru officers approached him and asked him questions about whether he had cash in his possession to declare. [22J Contrary to what the Respondent had said before about the cash having received from family members, he told the officers, that he got the cash from two Arabic friends who own businesses in Dubai, one by the name of Zathia and the other by the name of Hussein. He told FCIU officers that he could not remember their full name. The Respondent also added, Page 7 of 14 that whenever he goes to Dubai and meet them, be normally gets around USD 1000 to 1500 from them, and that he does not normally declare the cash because the total sum does not exceed USD 3,500 and that the cash is savings he has made in the last three years that he has known them. [23] It is stated by the Respondent, that when he was leaving the country on the 19th December 2023 travelling to Dubai, once in Dubai, one of the two Arabic friends, Hussein, was going to help him to open a bank account with Emirates because of his intentions to move to Dubai permanently and Hussein was to help him with his visa application. It is also stated by Sgt Dixie, that he was told by the Respondent, that although Hussein had been giving him money in US Dollars, he has never tried to open a USD bank account in Seychelles because had he done so, the bank would have given him Seychelles rupees in return when withdrawing money from the account. As per Sgt Dixie's testimony, the Respondent also said that Hussein once tried to send him money through his MCB Bank account but did not receive it because the money bounced back. [24] It is deponed by Sgt Dixie, that the Respondent did point out to them that his only source of personal income is the monthly salary that he earns as an employee of Air Seychelles. According to Sgt Dixie's testimony, the Respondent who at the time the cash was seized from him had told Fcru officers he received some of the money from family members, subsequently told FCIU officers, that he received the money seized from him from two Arabic friends, one by the name ofZathia and the other by the name of Hussein. Sgt Dixie depones, that the Respondent gave an undertaking to provide documentary proof of the source of the cash seized from him. As per Sgt Dixie's testimony, the Respondent also undertook to give the Fcru full details of the two Arabic friends who gave him money but these details have since not been furnished by the Respondent. [25] As per Sgt Dixie's deposition, the only documents which the FCrU has since received in an attempt by the Respondent to prove the source of the cash seized, are two separate emails and identification cards from one Zahid Kunnie and Hossain Zomordi both of whom claim to give the Respondent money when they come to Dubai (the email exhibited as TDIA). Sgt Dixie remarks, that the name of the two men on their identification card who allegedly Page 8 of 14 give money to the Respondent when in Dubai is different from the name of the two men which the Respondent gave FCIU officers in his written statement. Sgt Dixie also remarks, that the signature of the two men in the letter they each sent to the FCIU is different to that on their identification card. According to Sgt Dixie's testimony, a letter of request bas been sent to Interpol to provide the status of the two Arabic men based on tile two identification cards received. [26] As part of the FCIU's investigation into the Respondent's alleged involvement in money laundering, it is averred by Sgt Dixie, that he has written to several authorities and entities for information regarding the Respondent, including, the Seychelles Revenue Commission, the Immigration Department, the Seychelles Pension Fund, the Seychelles Licensing Authority, the Registration Division, the Mauritius Conunercial Bank and the Absa Bank (Seychelles) Ltd, and that the only entity that has so far responded is Air Seychelles which has confirmed, that the Respondent has been in their employment since February 2017 to date. [27]~ It is the testimony of Sgt Dixie, that through their investigation, the FCIU has discovered, that the Respondent holds two bank accounts in Seychelles. One at the Absa Bank (Seychelles) Ltd, account number 0104174760, the other at the Mauritius Commercial Bank, account No 603473. As regards to the Respondent's account held at the Absa bank, it is deposed by Sgt Dixie, that the account was opened on the 19th November 2015 with a cash deposit of only SCR 950.00. Examining the Respondent's bank account statement, it is observed by Sgt Dixie, that the sum of SCR 16,497.91 was being credited into its account monthly as salary, and that for the year 2023, a total sum of SCR 187,412.62 was credited into the account representing the total salaries for the year 2023. It was also observed by Sgt Dixie, that a sum of SCR 4,080.85 was being deducted from the Respondent's bank account monthly as loan repayment, and that he was sometimes sending a small amount of money taken from this account into his instant savings account. [28] It is averred by Sgt Dixie, that the Respondent's bank statement also indicates, that several cash deposits were made into the account for the year 2023 in the total sum of SCR 295,525.00, and that upon the FCIU's analysis of the deposits, it was discovered, that the Page 9 of 14 deposits were made soon before the Respondent left the country travelling abroad, and soon after its return into the country. It is averred by Sgt Dixie, as an example, that on the 27th January 2023, the Respondent travelled to South Africa and returned back 011 the 27th January 2023, and that upon his return, he made a deposit of SCR 9750.00 into his bank account. [29] It is also averred by Sgt Dixie, that before the Respondent left the country on the 24th November 2023, he made a deposit of SCR 17,000.00. The Respondent travelled to Dubai the next day following the day he made the deposit into its account. Sgt Dixie avers, that the following day after the Respondent returned from Dubai on the 27th November 2023, that is on the 28tU November 2023, he made a deposit in the total sum ofSCR 5,950.00 into the account. It is averred by Sgt Dixie, that the source of those deposits into the Respondent's bank account could not be accounted for and remains unknown to date. [30] Sgt Dixie avers, that frequent and repeated direct credits were made into the Respondent's bank account by individuals and the Respondent itself totalling the sum ofSCR 217,862.68 for the year 2023, and that when adding the cash deposits and the direct credits together it adds up to a total of SCR 511,387.60 for the year 2023. Sgt Dixie observes, that the cash seized from the Respondent did not come from its Absa bank account. [31] It is averred by Sgt Dixie, that the Respondent also had a Regular Savings Account held at the Mauritius Commercial Bank, which account was opened on the 25th January 2019 with an opening balance of SCR 5,000.00 according to the bank statement exhibited as TD5. As a result of an analysis of the account based on the Respondent's statement of account for the period from l " January 2023 to 06 February 2024, Sgt Dixie observes, that not many cash deposits were made for the year 2023, which only added up to SCR 23,925.00. Sgt Dixie also observes, that different individuals were transacting into the account, and that he suspected, that the Respondent was buying goods abroad and selling them locally, and that the purchasers of those goods were transferring funds into the account as payments. [32] Sgt Dixie avers, that for the year 2023, transfers in the total sum ofSCR 374,198.71 were made into the account and that for the period from January 2024 to 6th February 2024, transfers in the total sum of SCR 56,065.71 were made into the account. It is averred by Page 10 of 14 Sgt Dixie, that the cash deposits into the account added together with the transfers for the year 2023 added up to a total sum of SCR 398,123.71. It is noted by Sgt Dixie, that these transactions took place without the Respondent holding a business license and registered for tax purposes. Letter of response from SLA and SRC jointly exhibited marked as TD6. [33] Sgt Dixie avers, that the Respondent's travel history for the period from the year 2003 to 2023, has been provided to the FCIU by the Immigration & Civil Status Department as per letter of response from the Immigration Department exhibited as TD7. It is averred, that in 2023 only, the Respondent travelled in January, February, March, April, June, July, August, September, October and November to Dubai or Czech Republic. It is also averred by Sgt Dixie, that to facilitate its travelling, the Respondent did transact in different Bureau de change, namely, Unimoni Ltd, Jambo Money Exchange Ltd, Mason's Money (Pty) Ltd and JPL Exchange (Seychelles) Co. Ltd. Sgt Dixie notes, that the cash seized from the Respondent before it travelled on the 19th December 2023 was not purchased at any of those Bureau de Change, nor the banks and that to date, the source of the cash seized remains unknown. SUBMISSIONS [34] Learned counsel for the Applicant did tender closing written submissions, whereas, learned counsel for the Respondent did not. In her written submissions, Mrs Nissa Thompson ("Mrs Thompson") invites this court to grant the application by making the order of Forfeiture sought for by the Applicant. It is the contention of Mrs Thompson, that the affidavit evidence of Sgt Dixie makes out a strong case for forfeiture of the cash seized from the Respondent on the 19th December 2023. In a nutshell, referring to the affidavit evidence of Sgt Dixie, Mrs Thompson submits, that in the morning of Tuesday 19th December 2023, the Respondent was searched in the guard room at the Seychelles International Airport just before it was bound to Dubai. Mrs Thompson submits, that prior to a search, the Respondent was asked whether it was travelling alone, and his answer was that he was travelling to Dubai. The Respondent was asked if it has any money to declare and its answer was that he has SCR 50,000. It is the submission of Mrs Thompson, that a search was carried out in the Respondent's luggage, and that it was during the search that cash Page 11 of 14 amounting to equivalent Seychelles rupees Two Hundred and Eighty-Eight Thousand, One Hundred and Twenty-Two (SCR 288, 122.00) was found in two separate bundles concealed in the pocket of a black short in the Respondent's luggage. Upon questioning him, the Respondent stated, that the source of the cash was savings from his previous Dubai trips, and money given to it by family members for the purpose of the trip without providing any documents to support its claim. [35] It is the submission of Mrs Thompson, that seizure of the cash on the 19th December 2023, was pursuant to Section 74 (2) of the AMLCFT Act, and that to date, the source of the cash seized remains unknown, the Respondent having not accounted for its source. As such, Mrs Thompson submits, that she has reasonable ground to believe, that the Respondent is concealing the true origin of the cash seized, and that concealment of the origin of the cash is an element of money laundering. It is also the submission of Mrs Thompson, that because of the concealment coupled with the evidence laid before this court, particularly the affidavit evidence ofSgt Dixie, the Applicant has made out a case for an order for forfeiture of all the specified properties, [36] On the law, it is submitted by Mrs Thompson, that for the making of the forfeiture order of the cash seized, the court ought to be satisfied, that the cash seized is not less than the prescribed sum. It is also submitted by Mrs Thompson, that the Judge must have reasonable ground for suspecting that the cash seized directly or indirectly represents any person's benefit from, or is intended by any person for use in connection with any offence. Mrs Thompson quotes the provisions of 76 (1) - (5) of the AMLCFT Act under which the application for the forfeiture order of the cash seized has been made, and submits, that there are reasonable grounds based on the application for suspecting that the specified property directly or indirectly represents benefits from or is intended by the Respondent for use in connection with an offence as is obvious from the evidence laid before this court by the Applicant through the affidavit of Sgt Dixie. Mrs Thompson remarks, that the Respondent has failed to provide supporting documentation to show that the cash seized does not constitute directly or indirectly the benefit from criminal conduct or was not intended by any person to be used in connection with criminal conduct. Page 12 of 14 DETERMINATION [37] 1have carefully examined the affidavit and documentary evidence of Sgt Dixie in the light of the grounds upon which the Applicant seeks for the order specified at paragraph [2J above. 1 have also given the necessary consideration to the averments made by the Respondent in its answering affidavit. At the outset, I observe, that the Respondent has tendered no evidence to contradict the evidence of Sgt Dixie, and to show that the cash seized from him at the Seychelles International Airport on Tuesday the 19th December 2023 comes from legitimate sources and does not therefore constitute directly or indirectly the benefit from criminal conduct, or was not intended by any person to be used in connection with criminal conduct. [38] The Applicant in this application, seeks for an order of forfeiture of the cash seized in foreign exchange being USD20,000.00 which when converted in Seychelles rupees is Seychelles rupees Two Hundred and Eighty-Eight Thousand, One Hundred and Twenty Two (SCR 288,122.00). The Applicant applies for the order of forfeiture under Section 76 (1) of the AMLCFT Act which empowers this COUlt to make such order, where, on merits, the case for the making of such order is made out. [39] For ease of reference, Section 76 (1) of the AMLCFT Act is couched in the following terms; "76 (1) A judge may order forfeiture of any cash which has been seized under sub section (2) of Section 74 if satisfied, on an application submitted by the Attorney General, a prosecutor on behalf of the Anti-Corruption Commission of Seychelles, that the cash seized is not less that the prescribed sum or the judge has reason able ground for suspecting that it directly or indirectly represents any person's benefit from or is intended by any person for use in connection with any offence. (underlined emphasis is mine) [40] Therefore, the cash having been seized and detained pursuant to Section 74 (2) and (3) of the AMLCFT Act, for this application to succeed, pursuant to Section 76 (1) of the AMLCFT Act, this court had to be satisfied, that there are reasonable grounds for Page 13 of 14 suspecting that it directly or indirectly represents any person's benefit from or is intended by any person for use in connection with any offence. [41] The word "may" in the provisions of Section 76 (1) indicates, that once satisfied that the cash seized is not less than the prescribed sum coupled with the fact that it has reasonable grounds for suspecting that it directly or indirectly represents any person's benefit from, or is intended by any person for use in connection with any offence, the court has a discretion as to whether or not to make the 'order of forfeiture of the cash seized. Therefore, like any judicial discretion, it has to be exercised according to rules of reason and justice, not according to private opinion, according to law, not according to humour. [42] Therefore, to exercise this court's discretion to make the order of forfeiture sought for pursuant to Section 76 (1) of the MMLCFT Act, as the presiding judge over this legal proceedings, I must have reasonable grounds for having the suspicion that the cash seized represents any person's benefit from, or is intended by any person for use in connection with any offence. Clearly, the Applicant correctly opted to make this application for a forfeiture order under Section 76 (1) of the AMLCFT Act. [43] Having meticulously examined the affidavit evidence of Sgt Dixie as well as the documentary evidence exhibited, I am satisfied, that there are sufficient evidence laid before this court for me to have reasonable grounds for suspecting, that the cash seized from the Respondent on the 19th December 2023 at the Seychelles International Airport, directly or indirectly represents the Respondent's benefit from or was intended by the Respondent for use in connection with the offence of money laundering. That is to say, I am satisfied, that the Applicant has made out a strong case for a forfeiture order of the cash seized. Therefore, pursuant to Section 74 (8) of the AMLCFT Act, I order continued detention of the case seized and detained by the FCIU with retrospective effect from the date the last order of detention expired. [44] Furthermore, in exercise of the powers conferred upon this court by the virtue of Section 76 (1) of the AMLCFT Act, I order the forfeiture to the Republic, the entire sum of USD 20,000.00 equivalent to Seychelles Rupees Two Hundred and Eighty-Eight Thousand, One Hundred and Twenty-Two (SCR 288,1200.00). Page 14 of 14 [45] The Respondent in this application shall be notified of this order by copy of the same to be served on it. [46] The FCIU of the Police Force, shall be notified of this order by copy of the same be served on them. Signed, dated and delivered at Ile du Port 29th November 2024.