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Fiji Independent Commission Against Corruption v Kumar [2025] FJHC 507; HBM139.2020 (14 August 2025)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION


Civil Action No. HBM 139 of 2020


BETWEEN: FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION of the Republic of Fiji, Rev John Hunt House, 3 Saint Forte Street, Suva for and on behalf of the State

PLAINTIFF


AND: RAHUL RAVIKASH KUMAR of Lot 60, Stage 1, Waidranu Place, Narere, Nasinu

FIRST DEFENDANT


AND: SHAYAL RACHNA PRASAD of Newtown Settlement, Lokia, Nausori

SECOND DEFENDANT


For the Prosecution/Applicant: Ms. L Mausio

For the 1st Defendant: Mr. J. Vulakouvaki

For the 2nd Defendant: Mr. B. Gosai


Date of Hearing: 17th March 2025

Date of Ruling: 14th August 2025


RULING ON NON-CONVICTION CIVIL FORFEITURE ORDER

  1. This is the application filed by the Prosecution by way of Originating Summons field on the 24th of September 2020, seeking the following orders: -

(ii) A FORFEITURE ORDER over all monies and properties listed above.


(iii) An Order for the 1st Defendant to pay an amount equivalent to the amount he misappropriated;


(iv) Any other order the Court sees fit;


(v) The costs of this application be costs in the cause.


  1. This application is made pursuant to Section 19A – 19E of the Proceeds of Crime Act 1997 and supported by the affidavit of Akosita Vunileba deposed on the 24th of September 2020 and filed on the 24th of September 2020.
  2. In addition, Akosita Vunileba filed 2 further supplementary affidavits as follows: –
  3. The Defendants filed the following affidavits in response: -
  4. The matter was fixed for hearing on the 17th of March 2025. Both parties made oral submissions at the hearing and later filed written submissions to supplement their oral arguments in Court.

The Submissions for the Prosecution/Applicant


  1. This is an application by the Prosecution for a non-conviction based civil forfeiture order pursuant to sections 19A to 19E of the Proceeds of Crime Act 1997.
  2. The Originating Summons seeks the following orders: -
    1. A Declaration on the following properties listed hereunder to be TAINTED PROPERTY namely:
      • The balance of $2, 925.55 in the Bank of South Pacific (BSP) Easysaver Account No. 89477909 under the name of Rahul Ravikash Kumar
      • The balance of $1, 623.94 in the BSP Easycard Account No. 10017933 under the name of Rahul Ravikash Kumar, and
      • The balance of $10, 616.41 in the Home Finance Company (HFC) S2 – Viti Drua Account for Client No. 21267 under the name Rahul Ravikash Kumar; and
      • All other properties listed in the Originating Summons from (d) to (s).
    2. A FORFEITURE ORDER over the monies and properties listed above; and
    1. AN ORDER for the 1st Defendant to pay an amount equivalent to the amount he misappropriated;
    1. Any other order the Court sees fit; and
    2. The costs of this application be costs in the cause.
  3. By way of background, the Prosecution sets out the following: -
  4. The Plaintiff has made this application under section 19A to 19E of the Proceeds of Crime Act 1997.
  5. Section 19C states that the FICAC Commissioner (or officers authorised by her) may apply to the Court for an order forfeiting to the State all or any of the property that is tainted property.
  6. Section 19E enables this Court to award a non-conviction based civil forfeiture order if it is satisfied on the balance of probabilities that the property is tainted.
  7. Section 3 of the Proceeds of Crimes Act defines tainted property as:

“tainted property in relation to a serious offence or a foreign serious offence means—


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

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

(c) proceeds of crime”


  1. Proceeds of Crime is defined in section 3 and 4 (1) (A) of the Act as follows:

“proceeds in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence”


  1. In the case of Director of Public Prosecutions vs Drivationo [2016] FJHC 280; HBM 137 of 2013 (14 April 2016) the Court stated as follows: -

“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."


  1. The preponderance of the evidence is all of the evidence available for assessment by Court after the Trial. The balance of probability standard means that a court is satisfied a fact or event occurred if the court considers that, on the evidence, the occurrence of the fact or event was more likely than not.
  2. The Applicant submits that they have met the threshold to prove that the property of Rahul Ravikash Kumar are tainted. The affidavit in support of Akosita Vunileba as well as her supplementary affidavit have intricately laid out all 56 fraudulent transactions with the accompanying annexures as proof.
  3. The Plaintiff has presented a flowchart at the hearing demonstrating the trail of the proceeds after they were obtained, showing the connections to the properties listed in the Originating Summons. The Applicants submit that there is enough nexus tying the gain of the monies and purchase of the various items in terms of the timeline as follows: -
  4. The Applicant submits that as a result of these offences, Rahul Ravikash Kumar caused the Ministry and ultimately, the public a total loss of $341, 981.81 and of this amount, only approximately $20, 000 in both monies and items have been restrained. The rest has been spent by Rahul Ravikash Kumar on hotels, gifts and other luxuries.
  5. In R vs May [2008] UKHL 28, the House of Lords found as follows: -

“It requires the court, before making a confiscation order, to address and answer three questions: see R v Johnson [1991] 2 QB 249, 252-255; R v Dickens [1990] 2 QB 102, 105-106. The first question is: has the defendant (D) benefited from the relevant criminal conduct? If the answer to that question is negative, the inquiry ends. If the answer is positive, the second question is: what is the value of the benefit D has so obtained? The third question is: what sum is recoverable from D?


... Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained. “Confiscation” is, as Lord Hobhouse of Woodborough observed in In re Norris [2001] UKHL 34, [2001] 1 WLR 1388, para 12, a misnomer”


  1. The Applicant submits that the Defendants should not remain enriched through proceeds gained illegally. This applies even if the proceeds are dissipated or spent through other means. The Applicant cites section 19 E (3) of the Act, which provides as follows: -

“19 E (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.”


  1. The Applicant therefore submits that, even if there is an ambiguity in whether the proceeds are indeed proceeds of crime, it is submitted that section 19E (3) and the above authorities assists in clarifying the issue and estbalishes that this Court has the discretion to make other orders as necessary and in the interests of justice.
  2. In light of the above, it s submitted that the Plaintiff has satisfied the threshold to prove that the items listed in the Originating Summons are all tainted property.
  3. The Applicant therefore seeks orders in terms of the Summons.

The submission for Rahul Ravikash Kumar


  1. This is the application for a non-conviction civil forfeiture order pursuant to section 19A to 19E of the Proceeds of Crime Act 1997 filed on 24 September 2020.
  2. There is a current restraining order on 3 bank accounts belonging to Rahul Ravikash Kumar. He has objected to the application specifically to the monies seized from home as well as those in the frozen accounts.
  3. Counsel cites the case of DPP vs Kerevi [2024] FJHC 98 where the Court said: -

“[27] The objective of the Legislation is very clear. That is to deprive persons of the proceeds, benefits and properties derived from the Commission of Serious offences and to assist law enforcement authorities in tracing those proceeds, benefits and properties. The DPP in order to assist law enforcement authorities, may apply to the High Court for forfeiture orders and restraining orders in connection with the tainted properties.”


  1. Rahul Ravikash Kumar admits most of the facts and circumstances. He only disputes the monies that were seized from his home and the monies in his bank accounts that have been frozen.
  2. He contends that the Applicant has failed to show from the bank statements that the amount of $9, 680 was withdrawn from Rahul Ravikash Kumar’s bank account.
  3. The Applicant has argued that it is unlikely that anyone with such an amount will have that “lying around the house.”
  4. He submits that no law says that you can’t have large amounts lying in your house.
  5. He has deposed that his mother used to work for a garment factory and when she turned 55, she retired and set up a small business to get her by. as for the foreign currency he claimed that this was gifted to his mother by her relatives.
  6. The foreign currency was not lying around in the house, insetad it was kept in a safe and they belonged to his mother and sister.
  7. The sum of $10, 616.41in the Home Finance Bank Viti Drua Account No. 21267, an account where his salary was deposited. He has explained the five separate bank deposits in the HFC bank account. 4 of the bank deposits were for work related to maritime areas to cater for meals, travelling etc. The 5th deposit was in relation to the car sold by Rahul Ravikash Kumar to his sister and brother in law, for $9, 000.
  8. The balance of $1, 082.10 was from his wages. He submits that he has demonstrated the source of the monies in this bank account therefore these monies are not tainted property.
  9. He cited the case of DPP vs Lata [2020] FJHC 1071 at paragraph 18, where the Court stated: -

`“18.As I have observed previously, the respondent has not sought seriously to persuade the court that the money found in her possession was legitimately acquired. As section 71K establishes, the issue must be determined on the civil standard of proof, the balance of probabilities, and that the court must assume that any property is not lawfully acquired unless the respondent establishes otherwise. Given that the property in question here is a sum of money found in the possession of the respondent, showing that it was legitimately acquired would require her to explain where she got the money from, and to disclose enough about the transaction to demonstrate that it was legitimate. Given her explanation that the money was from the sale of her car, I would have expected her to at least provide evidence as to her ownership of the car she claims to have sold, who it was sold to, when and for how much. Given the amount of money involved, I would also, in this case, expect some evidence to show how and in what circumstances she had acquired such a valuable vehicle. She might – for example – have been able to show that she initially purchased the vehicle, in which case she would have to explain how she paid for it, taking into account the evidence provided by the applicant about her modest income, and her prolonged period of unemployment. There is no evidence from her on these matters, and she has not shown – the onus being on her - that it is more likely than not that the money was obtained from the proceeds of sale of her vehicle, as she claims. This then means that the source of the money found in her possession is unexplained, and I so declare.”


  1. The Applicant has cited section 19E (3) and submitted that this empowers the Court to make order to deprive the Defendats from remaning enriched unjustly. Counsel submits that the wording of this section is very specific and should not be used loosely to acquire assets of an Accused person who had lawfully acquired the same.
  2. Counsel cites the case of DPP vs Singh [2018] FJHC 665 where Justice Tuilevuka made the following observations: -

“13 Section 19E(i), provides that if the Court is satisfied, on a balance of probabilities that the property is tainted property, the Court may order that the property or said property as is specified by the Court, in the order, be forfeited to the State.


  1. It would appear by the wording of Section 19E (i) that

(i) If the Court is satisfied

(ii) on a balance of probabilities

(iii) that the property is tainted property

(iv) the Court may then order

(v) that the property be forfeited to the State.

  1. In other words there is a discretion to order forfeiture to the State.
  2. My reading of the section is that the said discretion only becomes exercisable once the court is satisfied on the balance of probabilities that the property in question is tainted. In other words, the Court is not carte blanche to Order forfeiture once it becomes satisfied on the balance of probabilities that the property is tainted.”
  3. The Defendants therefore submit that the HFC Viti Drua Account is not tainted as Rahul Ravikash Kumar has clearly explained through the afiidavit of Akosita Vunileba and the statemet of Pita Vueti, the source of the monies.
  4. The Defendants submit that the original application does not contain a prayer for recovery therefore it would be improper for the Court to now make such orders. The Applicant is now asking the Court to make orders for prayers that have not been outlined in the original application.
  5. Because it was not included in the pleadings, Rahul Ravikash Kumar was not afforded an opportunity to respond to this. This is unfair and prejudicial to the intrest of the Defendants.
  6. In response to the authority of R vs May, the Defendants submit that the UK has amended its laws to allow the Court to seize or confisicate ill gotten gains such as the Drug Trafficiking Offence 1988 and so forth. Fiji however has not done so and section 19E (3) is not the right avenue to address this issue of recovery.
  7. In conclusion, Rahul Ravikash Kumar submits that the Court can make findings for properties that are tainted and these can be forfeited however he submits that the monies found at his home and the HFC Viti Drua account no. 21267 are not tainted as their origins can be traced.
  8. Those were the submisisons for Rahul Ravikash Kumar.

Analysis


  1. This is an application made pursuant to Division 2A of the Proceeds of Crime Act – Civil Forfeiture Orders.
  2. Section 19 E (1) of the Act provides as follows: -

“Non-conviction based forfeiture order for tainted property

(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.”


  1. Section 4A makes it clear that references in the Act to the Director of Public Prosecution also refers to the Commissionr for FICAC. The relevant section provides as follows: -

“References to the Director of Public Prosecutions


4AThe powers vested in the Director of Public Prosecutions by virtue of this Act are deemed to be vested in the Director of Public Prosecutions and the Commissioner of the Fiji Independent Commission Against Corruption, and any reference made in this Act to the Director of Public Prosecutions shall be construed as a reference to the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption.”


  1. The Applicant has sought a declaration that the properties and the monies seized from the Defendants be declared as tainted property. In addiiton the Applicant has sought an order from the Court to direct Rahul Ravikash Kumar to pay an equivalent amount to the amount that he stole.
  2. Rahul Ravikash Kumar admits that the white goods and properties that are in the list are tainted properties and does not oppose the forfeiture of the same. I therefore find that the items listed from (d) to (q) are tainted properties.
  3. For the accounts that have been frozen by this Court, he doe not oppose the forfeiture of his two BSP accounts as listed in (a) and (b).
  4. He objects to the seizure of the monies from his HFC Drua Savings account and the foreign currency seized from his home. He submits that the HFC account is where his salary was deposited and it also includes the proceeds from the sale of his vehicle.
  5. As to the foreign currency seized from his home, he states that these foreign denominations belonged to his mother and sister.
  6. The Act provides for such situations at section 19E (2) of the Act, which provides as follows: -

“19E (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 property;

(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,

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.”


  1. There is nothing before the Court from Rahul Ravikash Kumar’s mother and sister to establish the source of these foreign currencies and their interest in the same. That being the case I declare that these foreign currencies are tainted properties.
  2. For the HFC account, Rahul Ravikash Kumar relies on the Applicant’s own affidavit evidence to etsblish the source of these funds. There is no dispute that in the course of his 56 illegal transactions for which he is serving a sentence of imprisonment, he would route the vendor payments through all three of his bank accounts, inlcuding the HFC account. He has not been able to properly demarcate the sources of the current funds in the HFC account and I find on the balance of probability that the monies in this account are tainted properties.
  3. As to the orders sought that the Court direct that Rahul Ravikash Kumar pay an equivalent amount to the amount that he stole. This is pursuant to section 19 E (3), which provides:

“19 E (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.” (Emphasis added)


  1. Rahul Ravikash Kumar is currently serving a sentence of imprisonment. There is no evidence before the Court that he has assets equivalent to $320, 000. There is also no evidence that he has sequestered any assets away or transferred assest to relatives and acquaintances. I find that there is no basis to make this order.

This is the order of the Court:


  1. The balance of $2, 925.55 in the Bank of South Pacific (BSP) Easysaver Account No. 89477909 under the name of Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  2. The balance of $1, 623.94 in the BSP Easycard Account No. 10017933 under the name of Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  3. The balance of $10, 616.41 in the Home Finance Company (HFC) S2 – Viti Drua Account for Client No. 21267 under the name Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  4. 1 x York T600 Treadmill valued at $1, 655.75 purchased from Courts (Fiji) Limited by Rahul Ravikash Kumar is tainted property and forfeited to the State.
  5. I x York Gym Set valued at $528 purchased from Courts (Fiji) Limited by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  6. 1 x Pulsar ladies watch estimated value is $300 voluntarily given by Rahul’s fiancée by Shayal Prasad is tainted property and is forfeited to the State.
  7. 1 X Lenovo laptop Model No. V110-151SK Serial Number R90LHFKB valued at $2, 194 purchased from Courts (Fiji) Limited on 1 March 2018 by Rahul Ravikash Kumar, is tainted property and is forfeited to the State.
  8. 1 x Soundking 15” PA System and Mixer valued at $1, 550 purchased from Courts (Fiji) Limited by Rahul Ravikash Kumar, is tainted property and is forfeited to the State.
  9. 1 x white Aqua vehicle Registration number NAINA7 Chassis number NHP10-6000829 Engine number INZ-6105756, cc 1490 valued at $14, 950 purchased from Autoworld Trading (Fiji) Limited on 12 April 2018 by Shayal Rachna Prasad, is tainted property and is forfeited to the State.
  10. 1 x Hisense 9kg Top washing machine valued at $839 purchased from Courts (Fiji) Limited by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  11. 1 x Sewing machine valued at $535.65 purchased from Courts (Fiji) Limited by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  12. 1 x Samsung mobile phone S10 Plus 10 GB model number SM-J50Y IMEI number 353117070783761 valued at $2, 999 purchased from Vodafone Retail Shop, Shop 3 MHCC on the 9th of April 2019 by Shayal Prasad is tainted property and is forfeited to the State.
  13. 1x Alpha 3 burner cooktop estimated value of $440 purchased from Vinod Patel in 2017 by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  14. 1 x Alpha Rangehood estimated value of $285 purchased from Vinod Patel in 2017 by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  15. 1x bicycle Brand Hero 14’ estimated value is $160 is tainted property and is forfeited to the State.
  16. 1x Silver Hisense 545 L refrigerator valued at $2, 113 purchased from Courts (Fiji) limited on 30 September 2019 by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  17. 1x Bina dholak worth $670 purchased from Courts (Fiji) limited on 30 September 2019 by Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  18. Fijian Dollars in the sum of $9, 680 (serial numbers recorded) seized from Rahul Ravikash Kumar’s residence is tainted property and is forfeited to the State.
  19. United States Dollar currency in the sum of $200 (serial numbers recorded) seized from the residence of Rahul Ravikash Kumar is tainted property and is forfeited to the State.
  20. Fijian Dollar currency in the sum of $3, 138.45 (serial numbers recorded) seized from the residence of Shayal Rachna Prasad is tainted property and is forfeited to the State.
  21. Australian Dollar currency in the sum of $50 (serial numbers recorded) seized from the house of Shayal Rachna Prasad is tainted property and is forfeited to the State.
  22. Canadian Dollar currency in the sum of $50 (serial numbers recorded) seized from the home of Shayal Rachna Prasad is tainted property and is forfeited to the State.
  23. Parties will bear their own costs.

There is a right of appeal


------------------------------------

Mr. Justice Usaia Ratuvili

Puisne Judge


cc: -Fiji Independent Commission Against Corruption
-Sunil Gosai Laywers
-Volavola Lawyers

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