Last week, the Trinidad and Tobago Police Service (TTPS) succeeded in its appeal over a judge’s decision to reject its attempts to seize the assets of two families of central Trinidad allegedly linked to drug trafficking.
According to a report in the Trinidad Guardian, Appellate Judges Allan Mendonca, Mark Mohammed and Maria Wilson ruled that the judge had erred when she revoked her decisions to grant preliminary unexplained wealth orders (PUWOs) against the families from Kelly Village, Caroni, and Enterprise, Chaguanas.
Assessing the evidence presented by the TTPS in relation to both families, the report said that the appeal panel ruled that the PUWOs should not have been revoked by the judge as the TTPS had met the required criteria.
The panel reinstated the PUWOs and remitted them to the High Court for further hearing.
The report said that the panel considered the interpretation and scope of the Civil Asset Recovery and Management and Unexplained Wealth Act.
The judges said that while the legislation, passed by the Trinidad Parliament in 2019, provided a means of pursuing wealth with no need for the subjects to have had criminal convictions, the Proceeds of Crime Act (POCA) provides a similar regime based on convictions for specified offences.
The Guardian report said that for the unexplained wealth legislation to apply, police officers must have reasonable suspicion that a citizen’s wealth was obtained through the commission of a specified offence and apply for a PUWO.
“We think it necessary to note that though the threshold test of reasonable suspicion in law is a low one it should not be misinterpreted to convey the impression that anything less than a scrupulously conducted investigation is required,” they said.
The report said that the judges accepted submissions from Senior Counsel Fyard Hosein, who led the TTPS’s legal team, and who argued that the judge, who granted the PUWOs, was wrong to revoke them as she felt that the legislation did not have a retrospective effect on investigations conducted prior to its proclamation.
Mr Hosein said that while members of both families were last charged with drug offences before the legislation was enacted, the investigations into both incidents continued after.
“Reasonable suspicion is not however static. By the very nature of the natural ebb and flow of the investigative process, once it is formed, it is capable of perpetuation,” the judges said.
In his submissions, attorney Jagdeo Singh, who led the legal team of the couple from St Helena, said that the judge’s decision in his client’s case was correct.
According to the Guardian report, he argued that the TTPS failed to adduce sufficient evidence linking his client’s property to alleged drug trafficking for which the husband was charged.
Mr Singh also contended that a valuation of the property in 2016 did not consider that the couple purchased the land in 2009 for TT$80,000 and that there would have been an appreciation of the value of the property over time.
He also contended that for a PUWO to be granted, either the Comptroller of the Customs and Excise Division, the Chairman of the Board of Inland Revenue or the Police Commissioner must reasonably suspect that wealth over TT$500,000 was obtained through specified criminal activity.
In his submissions, attorney Navindra Ramnanan, who represented the other family, whose TT$12 million property portfolio is the subject of the order, noted that one family member of the three listed passed away while the issue was being determined.
Mr Ramnanan said that while the legislation allowed the State to go after the estate of a dead person identified under the legislation, his surviving clients have a pending case over the constitutionality of the provision.
“You cannot call upon a dead person to explain their wealth,” Mr Ramnanan said.
In a press release, the Office of the Trinidad and Tobago Attorney General and Ministry of Legal Affairs welcomed the outcome of the case.
“The Attorney General wishes to assure the public that today’s decision is of great significance and assistance to the State in tackling the scourge of crime and taking profits out of crime,” it stated.
According to the Guardian report, the Office of the Attorney General said that the case cleared the way for similar applications to deprive persons of the benefits of criminal activities.
“The court further recognised that T&T, by the introduction of this unexplained wealth regime, is attempting to combat prolific criminality and its wide ranging repercussions affiliated with drug trafficking, serious crime and money laundering,” the press release said.
It will be of interest to see how this case develops in Trinidad and whether it leads to a flurry of such cases being brought. In Guyana, no real effort is being made under the anti-money laundering legislation to staunch the flow of the proceeds of crime into all sectors of the economy.
As part of a recent National Risk Assessment (NRA), a team from the Anti-Money Laundering and Countering the Financing of Terrorism National Coordination Committee assessed Guyana’s ability to combat money laundering and terrorist financing and found that the Special Organised Crime Unit (SOCU) received 100 Suspicious Transaction Reports (STRs) that had a connection to money laundering from 2016 to 2020 but investigated less than half
It was found that Guyana’s Anti-Money Laundering legislation adequately provides for criminal sanctions, but since its enactment in 2009, there have been no convictions in relation to money laundering and terrorist financing (ML/TF) crimes despite several investigations and the reports in the media of suspected criminal activities linked to money laundering.
Based on intelligence reports arising from STRs from the Financial Intelligence Unit (FIU), the assessment found that the FIU forwarded 100 intelligence reports for investigation, including follow-up reports. “Despite this large number of intelligence reports received, less than half were investigated, none resulted in prosecution or convictions and approximately 36 were not assigned for investigation as of the end of 2020,” the report stated.
Not unexpectedly, following the publishing of the damning NRA indictment, in January this year, SOCU brought money-laundering charges against a man over a car and property in what will be seen as a low-level case and intended to make it appear that it is doing something.
With the mind-boggling amounts of money being poured into the oil and gas economy on a daily basis and ostentatious displays of wealth, one can only imagine what percentage of these flows constitute the proceeds of illicit conduct whether now or historically. STRs should be flowing copiously and rapidly back and forth between the Financial Intelligence Unit and SOCU and resulting in charges but there is no sign of this.
Neither SOCU nor the FIU as presently constituted has sufficient resources and the intent to pursue their mandates. Moreover, political interference would cripple any attempt to proceed against anyone who had clearance from high levels.
The country also remains without properly functioning adjuncts to the anti-money laundering architecture such as the Integrity Commission which has not functioned properly for years and has allowed public officials to get away without being accountable under its governing act.
With the US$1b flowing this year from oil proceeds into the economy and an unknown quantum from the local private sector and international investors, the authorities will have their work cut out for them to determine the extent of the proceeds of crime and how this is being hidden. The huge buildings that now proliferate in all parts of the city and up and down the coast stand as sentinels to either brilliant entrepreneurialism by those concerned or something dubious.
While it is down and out over the puerile effort to rig it back into power, the opposition does have parliamentary mechanisms within its reach such as the Economic Services Committee and question time to begin seriously interrogating the government over dark money. Can it rise to the occasion? It is doubtful but it should be given a chance.
In the meanwhile, Guyana remains unhappily placed in the latest Transparency International Corruption Perceptions Index and this will add to the concerns that the authorities have a major problem on their hand and that if it is not addressed, oil or no oil, it will lead to an unfavourable perception of this country as a place to do business with.