Berbice moneychanger Mohamed Jamalodeen Nazmodin has initiated contempt proceedings for the Commissioner of Police to be jailed for not returning the more than $7 million in local currency and millions more in foreign currencies to him, following the police’s failure to have the sums forfeited as part of a money laundering probe.
Almost a year ago, the Commissioner of Police, as represented by head of the Special Organised Crime Unit (SOCU) Sydney James, failed in a bid to secure the forfeiture of various amounts of local and foreign currencies which the police had said they unearthed during a search of Nazmodin’s home.
The SOCU had alleged that the moneychanger had been engaged in the business of buying and selling foreign currency in breach of the Dealers in Foreign Currency (Licensing) Act.
A subsequent ruling handed down by Justice Navindra Singh on April 15th of last year, however, declared, among other things, that the state failed to establish the offence of money laundering against Nazmodin, while noting that the purported warrant was void.
The judge had also said he viewed the warrant as being “very suspicious.”
In the circumstances, Justice Singh ordered not only that all the currencies seized from Nazmodin be forthwith returned to him, but that interest at a rate of 6% per annum be paid in Guyana currency based on the value of all the currencies in Guyana dollars and calculated at the cambio exchange rates listed by Republic Bank (Guyana) Limited on April 15th, 2019 for the period from June 8th, 2017, until fully paid.
Additionally, the court awarded Nazmodin half a million dollars in costs, which was to be borne by the state.
However, with the sums not having been returned to him almost a year later, Nazmodin is seeking to have the Police Commissioner, who is listed as the applicant in the action, imprisoned for contempt of court.
In his application, which comes up for hearing before Justice Singh next Friday, Nazmodin said that two days after the court had delivered its ruling, his attorneys, Christopher Ram and Christopher Thompson, had written the police commissioner demanding that he comply with the court ruling, but to no avail.
Nazmodin, in court documents seen by this newspaper, said that the SOCU had appealed Justice Singh’s ruling and also applied for a stay of execution of the judgment, but noted that on August 28th last, Justice of Appeal Rishi Persaud denied the stay.
The moneychanger said that the police commissioner has since failed to comply with the orders of both courts. As a result, he said that his lawyers had again written the commissioner of police on November 14th, but again got no response.
Complaining that it is now almost a year since Justice Singh’s ruling, the moneychanger said that the police and the SOCU continue to detain his currencies in violation of his constitutional right to his property and in contempt of two extant court orders.
He said that the act of non-compliance by the Police Commissioner is illegal and unlawful, while expressing the view that the applicant has “deliberately and intentionally” failed, neglected and refused to comply with the orders of court.
The police had been hoping to be
granted the forfeiture order for the following sums seized from Nazmodin: GY$7,086,000; US$68,703; TT$1,741; SR$42,140; EC$26,205; €14,945; CDN$8,710; and £7,930.
SOCU had applied for the forfeiture order under Section 82 of the Anti-Money Laundering/ Countering the Financing of Terrorism Act (AML/CFTA), which Nazmodin’s attorneys argued was improperly brought.
The lawyers contended, and the court agreed, that property which is capable of being the subject of a civil forfeiture order pursuant to that section of the AML/CFTA must be property that is already the subject of an order under either sections 80 or 81 of the Act.
The court further pointed out that the general phrases used in Part VII of the AML/CFTA to refer to property that are the proceeds of crime are “specified property” or “proceeds of crime” in accordance with Section 79 of the AML/CFTA.
Justice Singh had pointed out that Section 82 of the AML/CFTA makes reference to “the property,” which he said is clearly a reference to property described under Part VII of the AML/CFTA beginning with Section 79 of the AML/CFTA.
The court then reasoned that, in other words, “the property” referred to in Section 82 of the AML/CFTA is property described in Section 80 and/or Section 81 of the AML/CFTA.
To this end, the court said it found that the state’s application was improperly brought under Section 82.
As regards whether Nazmodin had committed the offence of money laundering in contravention of Section 3 of the AML/CFTA, the court found that he did not.
Outlining the law surrounding the offence of money laundering, the judge in his ruling noted that it involves the process of concealing the origins of money obtained from criminal conduct by disguising the original ownership and control of the proceeds to make such proceeds appear to have been derived from a legitimate source.
Against this background, he highlighted what he said are the three basic phases of offence: placement, that is, taking money (dirty money) that is derived from criminal activity, which is the predicate offence and introducing it into a financial system or using it to purchase an asset which can later be sold with payment from legitimate sources; layering, which involves concealing the criminal origin of the proceeds (dirty money) such as selling the asset purchased during the placement phase; and integration, which involves introducing the “clean” money obtained during the layering phase into the economy such as depositing the money obtained in the layering phase.
Justice Singh had said that a predicate offence is the offence which generated the criminal property being laundered.
He said that while under Sections 3(2) and (4) of the AML/CFTA, it is not necessary to prove which predicate offence was committed, or that any person was convicted of the predicate offence, the applicant must establish that the respondent managed proceeds (money/ currency in the current application) knowing or having reason to believe that such proceeds were the proceeds of crime in such a manner as to enable it to be characterised as legitimate funds (clean money).
In Nazmodin’s case, however, the judge said it appears as though SOCU was essentially saying that the predicate offence and the offence of money laundering were committed by the same act, that is, by the respondent engaging in the business of buying and selling foreign currency in breach of Section 17 of the Dealers in Foreign Currency Act, he also committed the offence of money laundering.
Justice Singh then reasoned that on this basis it would mean that the individual who steals a wallet by pickpocket would be guilty of money laundering once the proceeds of the crime (larceny contrary to section 66 of the Summary Jurisdiction (Offences) Act) are in his possession.
The judge said that in this light a great number of offences under the Summary Jurisdiction Act and some under the Criminal Law (Offences) Act should no longer be prosecuted since they can all be prosecuted as money laundering offences.
In Nazmodin’s case, Justice Singh said that at best the state may only be able to establish that he committed an offence against the Dealers in Foreign Currency (Licensing) Act, “but nothing more.”
