High Court of Fiji

(c) turt may, at any time befo before the final determination ofapplication, direct the Dire Director of Public Prosecutions to-

(i) give notice of the application to anyon who, in the opinion of t of the Court, appears to have an interest in the property;

(ii) publish in the Gazette or a newspaper published and circulating in Fiji, a notice of the application.

Non-conviction based forfeiture order for tainted property

19E.-(1) Subject to subsection (2), where the Director of Public Prosecutions applies to the Court for an order under this section and the Court is satisfied on a balance of probabilities that the property is tainted property, the Court may order that the property, or such of the property as is specified by the Court in the order, be forfeited to the State.

(2) Where a person claiming an interest in property to which an application relates satisfies the Court that the person-

(a) has an interest in the pryperty;

(b) did not acquire the interest in the property as a result of any serious offence carried o the person and-

(i) had the interest before any serious offencefence occurred; or

(icquired the interest for faor 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,

the Court shall order that the interest shall not be affected by the forfeiture order, and the Court shall declare the nature and extent of the interest in question.

(3) The Court may, when it makes a forfeiture order or at any time thereafter, make any other orders that it considers appropriate, including orders for and with respect to facilitating the transfer of property.

(4) The validity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.

(5) Sections 7, 8, 11(2), (3), (4) and (5), 12, 13, 16 and 17 shall apply with the appropriate modifications as are necessary to an application for a forfeiture order under this section."

25. Proceed of Crime is defined in sections 3 and 4(1)(A) of POCA as follows:-
    

"(a) proceeds of a serious offence; or

(b) any property that is derived or realised, directly or indirectly, by any person from acts or omissions that occurred outside Fiji and would, if the acts or omissions had occurred in Fiji, have constituted a serious offence."

"(a) wholly or partly derived or realised directly or indirectly by any person from the commission of a serious offence or a foreign serious offence;

(b) wholly or partly derived or realized from a disposal or other dealing with proceeds of a serious offence or a foreign serious offence; or

(c) wholly or partly acquired proceeds of a serious offence or a foreign serious offence,

and includes, on a proportional basis, property into which any property derived or realised directly from the serious offence or foreign serious offence is later converted, transformed or intermingled, and any income, capital or other economic gains derived or realised from the property at any time after the offence."

26. Tainted property in relation to a serious offence or a foreign serious offence is defined in s3 of POCA as follows:-

"(a) property used in, or in connection with, the commission of the offence; or

(b) property intended to be used in or in connection with the commission of the offence;

(c) proceeds of the crime."

27. This Court has discretion to Order that tainted property be forfeited to the State if the Court is "satisfied on balance of probabilities that the property is tainted".

28. The Applicant relied on the case of The Director of Public Prosecutions v. Anand Kumar Prasad & Ors. Lautoka High Court Civil Action No. 03 of 2010 and Mishra v. The Director of Public Prosecution [2012] Civil Appeal No. ABU0050 of 2010 (High Court of Lautoka Civil Action No. HBM 03 of 2010).

29. Whilst in Lautoka High Court Civil Action No. HBM 03 of 2010 his Lordship Justice Madigan (as he then was) made forfeiture Orders in respect to tainted properties subject to that action, with all due respect the Court created bit of confusion in respect to the standard of proof to establish that the property is tainted.

30. At paragraph 30, of the Judgment his Lordship stated as follows:-

"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. But then at paragraph 31, of the said Judgment his Lordship stated as follows:-
    

"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 ..."

32. It appears that what was said at paragraph 31 of the Judgment in Lautoka High Court Civil Action No. HBM 03 of 2010, was a mistake and not meant to be so.

Also section 19C is not section 19C of Proceeds of Crime (Amendment) Act 2004 but Section 19C of POCA which is inserted pursuant to section 11 of Proceeds of Crime (Amendment) Act 2004.

33. To clear any doubt this Court categorically states that the standard of proof that is required to prove that property is tainted property is civil standard and that is on balance of probabilities (s19 of POCA).

34. This view is supported by what was said by Fiji Court of Appeal in Civil Appeal No. ABU0050 of 2010, when the Court stated as follows:-

"Tainted means proceeds of an offence. When such an application is made and the court is satisfied on a balance of probability that the property is tainted property, the court may order that the property be forfeited to the State."

35. After analysing the Affidavit evidence and Submissions filed I hold that the Applicant proved on balance of probabilities that items listed in Schedule attached to the Originating Summons are proceeds of crime and as such tainted properties.

Whether this Court can make an Order for forfeiture of the properties

36. Section 28 and 30 of POCA provide as follows:-

"28. Warrant to search premises etc. for tainted property

(1) A police officer may apply to a Magistrate for a warrant to search premises for tainted property or terrorist property or property suspected of being tainted property or terrorist property in the same way as a police officer may apply for the issue of a search warrant under Part IV of the Criminal Procedure Code.

(1)(A) If the circumstances are such that an application on oath is not reasonably practicable, an application initially made-

(a) orally, including by telephone or

(b) by electronic transmission;

and followed within 48 hours by the application made on oath, is deemed to be an application under subsection (1).

(2) Where an application is made under subsection (1), the magistrate may, subject to conditions, issue a search warrant under Part IV of the Criminal Procedure Code and, subject to this Division, the warrant may be executed in the same manner as if it had been issued under Part IV of the Criminal Procedure Code."

"30. In the course of a search under a warrant issued under section 28 a police officer may seize:

(a) any property that the police officer believes, on reasonable grounds, to be tainted property or terrorist property in relation to any serious offence, or

(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence,

if the police officer believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or any other offence."

37. Criminal Procedure Code was repealed by Criminal Procedure Decree 2009 (Decree No. 43 of 2009) ("CPD"). Section 98 and 99 of CPD provides as follows:-

"s98.-(1) Where it is proved on oath to a magistrate or a justice of the peace that in fact or according to reasonable suspicion anything relevant to the commission of an offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by a search warrant authorise a police officer or other person named in it to search the building, ship, carriage, box, receptacle or place named or described in the warrant.

(2) If, during the authorised search-

(a) anything searched for is found; or

(b) any other thing reasonably suspected as having been stolen or unlawfully obtained is found -

the police officer or other person authorised by the search warrant may seize it and take it to the court issuing the warrant, or some other court, to be dealt with according to law.

s99. Every search warrant may be issued on any day (including Sunday) and may be executed between the hours of sunrise and sunset, but the magistrate or justice of the peace may by the warrant, specifically authorise the police officer or other person to whom it is addressed to execute it at any hour."

38. In Ali's 1st Affidavit he states that together with investigation into the alleged offence under Illicit Drugs Act, the Police Department also investigated about the properties of the Defendant to find out if those properties were tainted.

39. It is not in dispute, that the Police Officers seized the properties listed in Schedule attached to the Originating Summons from the Defendant.

40. However, the Applicant has not provided any evidence to show that the Police Officers had obtained search warrant to seize the properties listed in the Schedule attached to the Originating Summons under Section 28 of POCA.

41. At paragraph 18 of 2nd Defendant's Affidavit in Opposition he states as follows:-

"In response to paragraph 27 of the affidavit in support of the originating summons, I would say that the seizure of my household and personal items by the police during the raid was illegal because there was no search warrant produce by the police to search and hold my household and personal items relevant to the commission of an offence as required by Section 98 of the Criminal Procedure Decree 2009 and Section 28 of the Proceed of Crime Act 1997 respectively."

42. Applicant at paragraph 8 of Ali's 2nd Affidavit responds as follows:-
    

"That in response to paragraph 18, I state that the search was legal and that the Police have powers to seize items reasonably suspected of being derived from the commission of an offence under the Illicit Drugs Control Act without a warrant in emergencies to prevent concealment under section 22 of the Illicit Drugs Control Act. Annexed hereto and marked "AA 1" is a copy of the search list containing a list of items seized by Police."

43. With all due respect I do not agree with what has been stated by the Applicant at paragraph 8 of Ali's 2nd Affidavit.

44. Applicant in Ali's 1st Affidavit has clearly stated that Police officers were also investigating for tainted properties.

45. If they were doing so, then they should have complied with the provision of section 28 and 30 of Proceeds of Crime Act 1997.

46. In this time and age, we have such advanced technology and as such there was nothing stopping the Police Officers concerned to obtain a search warrant.

47. This is supported by the fact that s28(1)(A) was inserted by Proceeds of Crime (Amendment) Act 2004, which permits Police Officer to make application for search warrant by phone or electronic transmission.

48. I therefore hold that the seizure of the properties listed in the Schedule attached to the Originating Summons was without a search warrant and in breach of Section 28 of POCA.

49. Section 31(4) of POCA provides as follows:-

(4) Where:

(a) property has been seized under this Division, otherwise than because it may afford evidence as to the commission of an offence; and

(b) no forfeiture order has been made against the property within the period of 14 days after the property was seized and the property is in the possession of the Commissioner at the end of that period,

the Commissioner shall, subject to subsections (5) and (6), arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

50. The properties listed in the Schedule attached to the Originating Summons were seized on or about 13 January 2012.

51. In terms of s31(4) the Forfeiture Order was to be made on or about 27 January 2012.

52. It is not in dispute, that no forfeiture Order was made as the Application for Forfeiture Order in this action was filed on 12 December 2013, and therefore the items listed in the Schedule attached to the Originating Summons were held by Police Department in breach of section 31(4) and therefore illegally.

53. The Applicant cannot expect this Court or any Court to make Orders in respect to items that were seized illegally (breach of sections 28 and 30 of POCA) and held by Police Department illegally (breach of section 31(4) of POCA.

54. There is no evidence to suggest that the properties listed in the schedule attached to the Originating Summons would afford evidence as to commission of the offence because the only property that would afford evidence to the offence under Illicit Drugs Act is the Marijuana Plants seized by the Police Officers.

Costs

55. I have taken into consideration the fact the 2nd Defendant filed Affidavit and Submissions but the Defendants failed whether by themselves or their Counsel to attend the hearing on 3 July 2014.

Order

56. I make following Orders:-

(i) Originating Summons dated 11 December 2013 and filed on 12 December 2013, is dismissed and struck out;

(ii) Applicant do arrange release of all the items listed in Schedule attached to the Originating Summons to the Defendants forthwith

(iii) There be no Order as to costs.

K. Kumar
JUDGE

At Suva
14 April 2016

Office of the Director of Public Prosecutions for the Applicant
Vakaloloma & Associates for the Defendants