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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBM 03 OF 2010
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
of the Republic of the Fiji Islands, Level 3, Gunu House, 25 Gladstone Road,
Suva, for and on behalf of the State.
Plaintiff
AND:
ANAND KUMAR PRASAD
s/o Alfred Shiri Prasad
1st Defendant
DEO NARAYAN SINGH
s/o Ram Brij Singh
2nd Defendant
BHAGWATI
d/o Ramji Lal
3rd Defendant
ARUN KUMAR PRASAD
s/o Alfred Shiri Prasad
4th Defendant
SHIRLEY SANGEETA CHAND
d/o Alfred Shiri Prasad
5th Defendant
REENAL PRANEEL CHANDRA
s/o Rajendra Chandra
6th Defendant
REENAL RAJNEIL CHANDRA
s/o Rajendra Chandra
7th Defendant
ARTISHMA KIRTI SINGH
8th Defendant
RAJENDRA PRASAD UDIT MISHRA
9th Defendant
SPOR FIJI LIMITED t/a Turtle Island Resort
10th Defendant
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
11th Defendant
Ms N. Tikoisuva for the State
1st, 2nd, 6th, 8th and 9th Defendants in Person
3rd and 7th Defendants not appearing
Mr. H.A. Shah for the 5th and 6th Defendants
Ms B. Narayan for the 11th Defendant
Dates of Hearing: 2 & 23 July, 3 September 2010
Date of Judgment: 10 September 2010
JUDGMENT
1. By Originating Summons dated 27 May 2010 with affidavit in support, the plaintiff applies for civil forfeiture orders over various properties owned by the defendants.
2. The fifth defendant filed an affidavit in response to the application, and none of the other defendants filed affidavits or wished to make submissions.
3. The application is made pursuant to sections 19C, 19D and 19E of the Proceeds of Crime (Amendment) Act No. 7 of 2004 which allow for non conviction based forfeiture orders if property is found to be "tainted", as redefined in section 2 of that Act.
4. The application arises from a criminal investigation involving offences committed in 2006, 2007 and 2008 at "Turtle Island Resort", a resort owned and operated by SPOR Fiji Ltd, a company having as its Directors Mr. Richard Evanson and Ms. Milika Cokotiono.
5. The affidavit of Acting Inspector Aiyaz Ali, a police officer being both the investigating officer as well as an investigator with the Anti-Money Laundering and Proceeds of Crime Unit ("AML") deposes to the facts that 84 company cheques belonging to SPOR Fiji Ltd were forged and issued without authority passing through the hands of the defendants and ultimately being paid into the bank accounts of the first, second, fourth, sixth and seventh and eighth defendants. Furthermore; substantial discrepancies were found to exist within the bank accounts belonging to SPOR Fiji Ltd held with the ANZ Bank.
6. The first defendant was an accounts payable clerk at the resort and between May 2006 and May 2007 had falsified cheques; making himself the payee in 44 of them and banking them in two accounts he held with Westpac and Colonial respectively. These deposits commenced soon after he started working at Turtle Island and ceased as soon as he left. He was able to deposit $481,134.47 into the two accounts at a time that his fortnightly salary was but $345.00. This laundering of funds derived from criminal activities constitutes a crime contrary to section 69 of the Proceeds of Crime Act 1997.
7. Between February 2007 and July 2008, the first defendant purchased four vehicles for cash (at values ranging from $14,000 to $21,450), at a time when he earned but $170 per week.
8. It is noted that the vehicle FB 384 was for some reason only known to the first defendant transferred to the 3rd defendant, his mother, at a time when the mother had no means to give good consideration for the transfer, she being unemployed and impecunious. This purported transfer does nothing to dilute the nature of the first defendant's interest in the vehicle.
9. I am satisfied on the balance of probabilities that these four vehicles are "tainted" property, within the definition of such under section 2 of the Proceeds of Crime Act (Amendment) 2004, and as such and pursuant to section 19H(1) of that Act, I order that the four vehicles be forfeited.
10. The second defendant worked as a mechanic at the resort from early March 2006 and 10th June 2006 and since then has owned the business of "Shahil and Sohil Machinery and Grocery Repair Ltd" ("Shahil") located at Sigatoka with his wife, the 8th defendant. This defendant being aware of the 84 forged cheques created by the first defendant, had the first defendant make his company ("Shahil") the payee on 9 of those cheques, and thereafter the cheques were deposited into his company's account. He also had 7 of the forged cheques paid to him personally which were banked into his personal account. The cheque butts name different payees being usual creditors of the resort.
11. The bank records of "Shahil" show a total deposit of $152,719.58 from the 9 forged cheques into the Shahil account and $63,182.62 into his personal account between 21 January 2008 and 22 February 2008.
12. In addition, on the 28th December 2007, the ANZ received a letter via fax instructing them to transfer $36,000 from the SPOR Fiji Ltd account to the "Shahil" account at ANZ. The letter faxed was a forgery and Shahil had never been a creditor of SPOR Fiji Ltd.
13. On the 15th February 2008, the second defendant purchased a Toyota twin cab Hilux from Nazakat Ali Khan. It was EK 997 and the price agreed $23,500.00. The second defendant wrote an ANZ cheque which he cashed at ANZ, Samabula in the presence of the vendor and he paid this cash for the vehicle.
14. I am satisfied that EK 997 was purchased with cash being the proceeds of crime and as such the vehicle is tainted property. I order that it be forfeited pursuant to section 19H (1) of the Proceeds of Crime Amendment Act 2004.
15. The fourth defendant is the brother of the first defendant. Investigations have revealed that 11 of the first defendant's forged cheques were made payable to the fourth defendant and deposited into his account; the total being $105,955. These deposits were made between 10 September 2006 and 1st August 2007 but the current balance is but $5,191.01. He has never been a creditor of SPOR Fiji Ltd and there is no reason for him to have received the monies represented by these cheques.
16. I have no hesitation in finding on the balance of probabilities that this sum ($5,191) represents the remainder of the money deposited by way of forged cheques and therefore the $5,191.01 is tainted property and I order it to be forfeited.
17. The fifth defendant was employed from 1998 until April 2008 as a Senior Prime Banker at the ANZ Bank, Nadi Branch. As such she was in a prime position to be able to assist transfers of money between ANZ bank accounts and at times, totally without authority she placed stop orders on 21 SPOR Fiji Ltd cheques, and subsequently removed the stop order on 9 of those. She was instrumental in effecting the bogus transfer of $36,000 from the SPOR Fiji Ltd account to the "Shahil" account.
18. On the 29th June 2007, she bought a Toyota Corolla vehicle FH 079 from Automart Nadi for $24,000. To purchase the vehicle she received $16,000 from the first defendant who withdrew the monies from his fraudulently funded Westpac Bank account. The balance she paid from her own funds.
19. The vehicle (FH 079) has changed ownership several times since she bought it, but she remains in effective control and possession of the said vehicle.
20. The fifth defendant is the sister of the first defendant, and represented by Mr. H.A. Shah, she has filed an affidavit in response to the Notice of Motion. In her affidavit she deposes that she did not pay the $36,000 to "Shahil" and she "takes issue" with the fact that $16,000 for the purchase came from the first defendant and that that money is the proceeds of crime. She further "takes issue" with the fact that the car has changed ownership three times and that she is effectively in control and possession. She maintains that the within application is premature because criminal charges against her are "pending".
21. Whatever the fifth defendant means by "taking issue" is unclear. In clauses 2 and 3, she "categorically denies" certain allegations, so one must assume that "taking issue" is not a denial but perhaps more of a feeling of "discomfort". It is not for the Court to say. In any event, the fifth's defendant's "issue" with payment of the $16,000 flies directly in the face of her counsel's submission at hearing that $16,000 was paid by the first defendant and that her own $8,000 should be "protected" under section 19E (2) of the Proceeds of Crime (amendment) Act 2004, a section which seeks to protect the interest of an "innocent party".
22. There is no evidence before the Court in the Inspector's Affidavit, or in any other form, that the fifth defendant received any financial benefits into her own account from the fraudulent activities at the Resort. However it is indisputable that her vehicle was funded to the extent of $16,000 by illegal funds provided by the first defendant. To that extent the vehicle becomes tainted property and I order it to be forfeited. The provisions of section 19E of the Amendment Act allows the Court to protect the interest of any person who -
"(b) did not acquire the interest in the property as a result of any serious offence carried out by the person and –
(i) had the interest before any serious offence occurred; or
(ii) acquired the interest for fair value after the serious offence occurred and did not know or could not reasonably have known at the time of the acquisition that the property was tainted property,"
Obviously the fifth defendant's interest was acquired after the serious offence occurred, so it therefore becomes incumbent on this Court to determine if she had knowledge that the property was tainted.
23. In view of her activities as evidenced in the Affidavit of Inspector Ali, I am unable to find that the fifth defendant did not know of the illegal transactions passing through the first defendant's bank account at the ANZ, and that therefore she knew that his $16,000 was tainted. Pursuant to the provisions of section 19E (2) (b) (ii) the whole vehicle is tainted and forfeited and her claimed interest will not be declared or protected.
24. The eighth defendant is the wife of the second defendant, and a partner with the second defendant in the business of "Shahil". She had a personal account with the Colonial Bank, being Account No. 6054438. The activity on that account was frozen on 12th March 2008 when the Financial Task Force of the Police suspected it had been funded by illegal means. At the time it was frozen it held $17,307.94. The freeze order was lifted from the account on 5th November 2008 after a fax letter was received from the Police, this letter later being found to be a forgery. After that, and in the month of November, the 8th defendant emptied the account, (and was seen on video in the presence of the first and second defendants so doing at Colonial, Namaka Branch).
25. The 8th defendant in a cautioned interview admitted that she gave $3,000.21 to her sister for safe-keeping and that money was subsequently seized by Police.
26. I am satisfied on the balance of probabilities that this $3,000.21 is tainted property and I order it to be forfeited.
27. On the 29th January 2007, a property at Lot 18, Savunawai, Nadi (Native Lease No. 26130) was purchased by the 1st defendant. The sale price was $142,000 and was provided partly by $70,000 withdrawn from the first defendant's Westpac account, together with $57,800 from the first defendant's Colonial Bank Account. Both of these accounts had been funded by forged cheques of SPOR Fiji Ltd. At the time of transfer, the first defendant instructed his solicitor to transfer the property into the name of the third defendant, his mother. His mother (the third defendant) is elderly, unemployed and impecunious.
28. On the 15th April 2008, the ninth defendant purchased the property from the third defendant for $10,000. Immigration records show that the ninth defendant was not even in Fiji at the time, yet the transfer was purportedly signed in the presence of Mr. Iqbal Khan, solicitor. Nor is there any record of the $10,000 being paid or received by the third defendant. The purchase price of $10,000 is in any event a totally inadequate and unrealistic sum to pay for the property and that together with the obvious forgery of the ninth defendant's signature on the transfer suggests that the whole deal was bogus.
29. There is evidence before me that the property is still in the effective control and possession of the first defendant. The first defendant manages the property and collects rent from it.
30. I am satisfied on the balance of probabilities that the property was purchased largely with tainted money and as a consequence it is tainted property, no matter who the registered owner. I order the land to be forfeited.
31. In the premises and being satisfied beyond reasonable doubt that all of the subject property was obtained by illegal activities; pursuant to section 19C of the Proceeds of Crime (Amendment) Act 2004, I make the following non-conviction based forfeiture orders:
I hereby make further orders for disposal as follows:
Paul K. Madigan
JUDGE
At Lautoka
10 September 2010
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URL: http://www.paclii.org/fj/cases/FJHC/2010/394.html