Richard Roe: “Prosecution instituted not for money laundering but for limitation of payment in cash…
Apropos DPP decision to institute criminal proceedings against Navin Ramgoolam
… We do not even know at this stage whether this money constitutes illicit wealth”
Following a search carried out at the residence of former Prime Minister Dr Navin Ramgoolam in River Walk, Vacoas on that fateful 6 February 2015, bundles of money in Mauritian and foreign currencies found in various safes, and suitcases were seized by the police for the purpose of enquiry. In the weeks that followed, speculations fed by what appeared to be orchestrated leaks ran rife about the amount seized and their origin as well as about a number of credit cards which would have been used by the former PM.
It has taken almost two years for the police to complete their initial enquiry and submit their file to the Office of the Director of Public Prosecutions for advice on 03 February 2017. The ODPP states in a communiqué, dated 20 Oct 17, that “this Office requested further investigations to be carried out on several occasions. After their further investigations, the police submitted back their file for final advice on 12 October 2017.” We also learn from the ODPP communiqué that “a team of senior officers of this Office was set up to review the evidence gathered by the police during their enquiry, with a view to submitting its opinion as to whether Dr Navinchandra Ramgoolam may be amenable to prosecution for possible offences under the law”.
Further to the recommendations of the team of senior officers, and “after due consideration of the evidence”, the DPP has instituted criminal proceedings against Dr Navin Ramgoolam “for accepting payments in cash in excess of an amount equivalent to 500, 000 rupees, in breach of section 5 of the Financial Intelligence and Anti-Money Laundering Act”… and has “furthermore advised the Commissioner of Police – (a) to make a written report to the Integrity Reporting Services Agency under section 9(2) of the Good Governance and Integrity Reporting Act; and (b) to refer their enquiry to the Mauritius Revenue Authority for possible revenue offences”.
It would appear the DPP has gone strictly by the ODPP Guidelines for Prosecutors, which set out the need for “the evidential test of reasonable prospects of securing a conviction” to be fulfilled before the institution of criminal proceedings. It appears that he has chosen to narrow down the proceedings against the former PM to the limitation in cash payments as imposed by the Financial Intelligence and Anti-Money Laundering Act. Regardless of how his advice to the Commissioner of Police and to the MRA “for possible revenue offences” may be construed, some clarifications are required on several aspects of this case. Given the high-profile nature of the case and its potential impact on Mauritian politics, we have asked Richard Roe, an old hand in the field of law and criminal proceedings, to throw some light on them. Read on:
* The Director of Public Prosecutions has instituted criminal proceedings against Dr Navin Ramgoolam “for accepting payments in cash in excess of an amount equivalent to Rs 500, 000”, in breach of section 5 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA). What are the chances of the DPP winning his case?
Under the FIAMLA, the offence of limitation of cash occurs when a person makes or accepts any payment in cash in excess of 500,000 rupees or an equivalent amount in foreign currency, or such amount as may be prescribed. Unlike a money laundering offence the DPP does not have to prove that a crime was committed. All that the DPP has to do is to establish that the former Prime Minister had received payment in cash in excess of Rs 500,000. The only defence that may be put forward is that the money was not a payment or that the person handling the money was dealing with an exempt transaction.
An exempt transaction is a transaction between the Bank of Mauritius and any other person; between a bank and another bank; between a bank and a financial institution; between a bank or a financial institution and a customer where the transaction does not exceed an amount that is commensurate with the lawful activities of the customer, and the customer is, at the time the transaction takes place, an established customer of the bank or financial institution and the transaction consists of a deposit into, or withdrawal from, an account of a customer with the bank or financial institution.
* So the DPP has only to establish that the former PM had received payment in cash in excess of Rs 500,000 for him to secure a conviction. Is it as simple as that?
* The FIAMLA however refers to “payments” in excess of Rs 500,000 as constituting an offence. The word “donations” appear only twice in the FIAMLA, and that is in connection with the funding of the Financial Intelligence Unit for meeting its expenses. Are donations – political or otherwise – also considered as payments, and would the acceptance of such donations in excess of Rs 500,000 constitute an offence?
The offence of limitation in cash revolves around the meaning of payment. One cannot expect the legislator to interpret everything in a statute. The interpretation of some provisions is left to the common sense of the courts of law. It is difficult to establish a list of what would amount to payment or not. The courts will on the facts and circumstances of each case decide what is a payment.
* What are the legal implications for the accused party of refusing to disclose the source of the monies – political donations or otherwise — found in his safes and seized by the police?
The only burden on the DPP is to show that the former Prime Minister was in possession of amounts of money above 500,000 rupees. It will be for the former PM to explain whether they were donations or fell in the ‘exempt transaction’ category when he was dealing with those amounts of cash.
* The DPP has furthermore advised the Commissioner of Police “to make a written report to the Integrity Reporting Services Agency under section 9(2) of the Good Governance and Integrity Reporting Act, and to refer their enquiry to the Mauritius Revenue Authority for possible revenue offences”. What are the implications of this advice?
This is a very interesting question. Under the Good Governance and Integrity Reporting Act, it is the duty of certain persons to make reports to the Agency if they have reasonable ground to suspect that a person has acquired unexplained wealth. This duty is also imposed on any other person. The DPP does not appear on that list. The Good Governance and Integrity Reporting Act talks of “judicial officer” amongst those who have an obligation to report. The DPP is not a judicial officer but an executive officer. The DPP has not made such a report. He has asked the Commissioner of Police to make such a report after an investigation.
The Good Governance and Integrity Reporting Act, under whose purview falls the Integrity Reporting Services Agency, is clear. It is only on reasonable ground of unexplained wealth that a report must be made to the Agency. Now the prosecution instituted against the former PM is not for money laundering but for limitation of payment in cash. We do not even know at this stage whether this money constitutes illicit wealth. One may well consider a situation where an individual deals with money amounting to over Rs 500,000 but the money is clean. Maybe the DPP rushed into action a bit prematurely on this issue.
* What should politicians receiving donations/contributions to party funds or for electoral financing be doing henceforth so as not to find themselves on the wrong side of the law?
Accept money by cheques… but who would dare bell the cat?
* Published in print edition on 27 October 2017
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