R v Gangadoo & Anor (MC 19 of 2021) [2022] SCSC 929 (28 October 2022)

SUPREME COURT OF SEYCHELLES

Reportable

[2022] SCSC

MC 19/2021

In the matter between:

THE REPUBLIC Republic

(rep. by Nissa Thompson)

and

ANDRIA GANGADOO 1^st Accused

LINDA DENIS 2^nd Accused

(rep. by France Bonte)

Before: Burhan J

Heard: 21^st September 2022

Delivered: 28^th October 2022

ORDER

The said sum of USD 32,900 (thirty two thousand nine hundred) as set out in the Table to the Notice of Motion stands forfeited. Items 2, 3, 4, and 5 referred to in paragraph 8 herein and the Table are to be released to the 1^st Respondent Andria Gangadoo, in whose name the official receipts have been issued by Cash Plus.

ORDER

BURHAN J

1. This is an application pursuant to Section 76(1) of the Anti-Money Laundering and Countering the Financing of Terrorism (AMLCFT) Act. The application dated 19^th November 2021, seeks inter-alia, the forfeiture of seized cash described in the Table to the Notice of Motion as USD 32,900, Euros 700, USD 750, Dirhams 340 & Seychelles Rupees 350 totalling a sum of 518,377.00 (five hundred and eighteen thousand, three hundred and seventy seven hereinafter also referred to as the specified property).

1. A copy of the application was served on both Respondents who appeared in Court and moved for legal aid which was granted. Meanwhile an Order was issued on the 23^rd September 2021 pursuant to Section 74(3) of the AML/CFT Act that the said sum of cash, the specified property, be detained with the FCIU (Financial Crime Investigation Unit) and thereafter, a further Order was given on the 23^rd November 2021, extending the detention of the specified property until final determination of the application for forfeiture.

2. On the 21^st February 2022, learned Counsel Mr Bonte appeared for the 1^st Respondent Andria Gangadoo. The 2^nd Respondent Linda Denise her mother was not present. The matter was fixed for hearing on the 25^th of April 2022 and on that day the record indicates that Mr Bonte appeared for both Respondents.

3. On the said date Mr Bonte informed Court he would not be contesting item 1 a sum of USD 32,900 which was found in the luggage. Accordingly as there was no challenge the cash USD 32,900 was forfeited.

4. Thereafter, inquiry commenced and Sergeant Dave Jeanne gave evidence stating that he was presently attached to the FCIU and produced his affidavit attached to the application as P1. According to his affidavit and evidence in Court, on the 11^th of September 2021 Officers of the FCIU who were on duty, intercepted the 1^st Respondent Andria Gangadoo at the airport when she was leaving Seychelles. She had told them on being questioned that it was her mother who was financing her trip. She had said her mother owns a business by the name of Em-Lin Imports and is also renting a shop at the Barrel Trading Building. She had with her the company’s import license and a red book with a list of several items including mobile phones, adult and kid’s clothing which she stated was her shopping list. When asked how much cash she was carrying she had stated she had 700 Euro, USD 750, Dirham 340 and SCR 350. She had shown Bureau de Change receipts dated 11 September 2021 exhibit DJ 1 which tallied with most of her cash. She had a receipt for Euro 200 but did not have the Euros in her possession and stated she did not know what happened to it.

5. The 1^st Respondent had initially stated that she had packed her luggage and everything inside was hers but when they searched the bag, inside the bag they found three pairs of socks stuffed with USD cash wrapped in a pair of jeans, photographs exhibited as DJ 2. She had kept insisting that she knew nothing about the concealed money in her bag and that it was her mother who had packed her bag and she feels that her step father Emmanuel Ogbunambala was also involved. They had taken her to the Office and questioned her.

6. The Officers had thereafter conducted a search on her house. They had also found a locked cash box and on opening it found a scale. That too was photographed and produced in Court exhibit DJ3. Thereafter the 2^nd Respondent and her husband had come to the Office of the FCIU with their lawyer Mr Daniel Cesar. Linda Denise the mother of the 1^st Respondent Andria had stated that she had found the money in the bag (USD 32,900) in an abandoned house frequented by drug addicts. They had decided to keep the cash to purchase items for the shop. A Samsung Galaxy tablet was also taken into custody. Certain information was extracted. Analysis of conversations between the Respondents indicated they were exchanging message as to how to receive payments for controlled drugs. Further investigations revealed that the money was being taken to Dubai to make payment for controlled drugs. Photographs of controlled drugs were also produced as exhibit DJ 5. He had also visited the abandoned house and observed one section was being used for the storage of construction material. When Court visited the scene it was apparent that one section was locked and in good repair. The travel history revealed that Andria had travelled 10 times in 2017 and 7 times in 2018. His investigation revealed she was not employed and started working “sometime in 2019” and her income therefore for travel was not from a legitimate source. Mr Dave Jean concluded his evidence by moving for the forfeiture for the specified property.

7. Thereafter Andria Gangadoo the 1^st Respondent gave evidence stating that she had purchased the foreign currency item 2 (700 Euros), item 3 (750 USD) and item 4 (340 Dirham) from her own funds including item 5 (SCR 350) as she received SCR 11,171.00 as salary and her mother received a salary of SCR 11,000. She further stated that they also have a small business and it was from the income of the business and their salaries that they purchased the said foreign currency. The fact that she was employed in the Ministry of Habitat since 2019, is accepted by Sergeant Dave Jean at paragraph 37 and 43 of his affidavit. From the Cash Plus receipts produced by the Respondents, it appears from the documentation exhibit DJ1 that the 1^st Respondent had paid a total of SCR 26,070.00 (twenty six thousand and seventy) for purchasing the foreign currency (item 2 to 4) referred to in the Table to the Notice of Motion according to the Cash Plus receipts produced as DJ1. The Respondent Andria has handed over these purchase receipts at the time of detection a fact accepted by the Applicant. Giving due consideration to the fact that she is gainfully employed in the Ministry of Habitat since 2019 and in receipt of a monthly salary of SCR 11,171.00 (a fact not challenged by the Applicant), I am inclined to believe that the 1^st Respondent did have a legal source of income to purchase foreign currency totalling the said sum of SCR 26,070.00 which she was found in possession of at the time of detection. Although Mr Jean states his investigations revealed that Andria and her mother was dealing in controlled drugs, the 1^st Respondent Andria had not been convicted or charged up to date. Further the moment she was questioned by Officer Jean she had immediately declared that she did have such currency with her and had given the Cash Plus receipts, refer paragraph 8 of Dave Jeans affidavit.

8. It is the contention of the Applicant that the further investigations conducted during this period revealed that both Respondents had no legitimate source of income to fund their travel. This may be so but this does not warrant the forfeiture of foreign currency totalling a sum of only SCR 26,070.00 when the 1^st Respondent who had the currency in her possession has a legal source of income amounting to SCR 11, 171.00 a month.

2. I observe the 1^st Respondent has satisfied Court that she was gainfully employed and purchased the dollars from a reputable place Cash Plus prior to her leaving to Dubai. I am satisfied that with a steady income of SCR 11,171.00 a month and being gainfully employed in the Ministry of Habitat, she was in a position to purchase foreign currency up to a sum of SCR 26,070.00 as borne out by the receipts annexed as DJ1 which she had immediately given to the detection Officer when questioned. I therefore make Order that the said items 2, 3, 4 and the local currency SCR 350 (item 5) as described in paragraph 8 herein and in the Table, be released to the 1^st Respondent Andria Gangadoo.

9. At the hearing to this application both Respondents intimated to Court that they were not challenging the application for the Order of forfeiture in respect of the USD 32,900 found in the luggage. I am satisfied on the information contained in the affidavit that there are reasonable grounds to believe that the property set out in the Table to the Notice of Motion namely cash USD 32,900 as described in the Table to the Notice of Motion, is directly or indirectly benefit from criminal conduct in respect of offences concerning controlled drugs. I am also satisfied that the value of the specified property referred to in the Table is not less than SCR 50,000.00. I proceed to forfeit the USD 32,900 (thirty two thousand nine hundred) as no credible explanation has been given in respect of the origin of this money or how such a large amount came to be legally in the possession of the 1^st Respondent. The explanation by her mother that it was found in an abandoned house is unacceptable. The said sum of USD 32,900 (thirty two thousand nine hundred) as set out in the Table to the Notice of Motion stands forfeited. Items 2, 3, 4, and 5 referred to in paragraph 8 herein and the Table are to be released to the 1^st Respondent, in whose name the official receipts have been issued by Cash Plus.

Signed, dated and delivered at Ile du Port on 28^th October 2022.

____________

M Burhan J