Ex parte Government of Seychelles (XP 41 of 2023) [2023] SCSC 514 (11 July 2023)

BURHAN J

1. This is an ex-parte application under Section 3 of the Proceeds of Crime (Civil Confiscation) Act 2008 (POCA) as amended. The Applicant the Government of Seychelles seeks the following reliefs.

1. For the matter to be heard as a matter of extreme urgency.

2. For an Interim Order pursuant to Section 3 of the Proceeds of Crime (Civil Confiscation) Act 2008 as amended prohibiting the Respondent or any other person specified in the order from disposing of or otherwise dealing with whole or any part of the property set out in the Table appended to this Notice of Motion.

3. That on the making of an order under (2) above, Sergeant Dave Jeanne or such other person as this court shall direct be appointed as Receiver over all or part of the said property to manage, keep possession or dispose of, or otherwise deal with any other property in respect of which he is appointed in accordance with the court’s directions, pursuant to Section 8 of the Proceeds of Crime (Civil Confiscation) Act 2008 as amended; and

4. For an order providing for Notice of any such order to be given to the Respondents or any other person directed by the court;

5. Such further or other order as the court shall deem just and proper in all circumstances in this case.

2. I have considered the details contained in the affidavit dated 23 June 2023 of Sergeant Dave Jeanne currently attached to the Financial Crime Investigation Unit (FCIU) Seychelles. It is clear on perusal of the said affidavit and annexures attached therein that Sergeant Dave Jeanne has conducted investigations in respect of the specified property as set out in the Table to the Notice of Motion namely one brown Toyota CHR bearing registration number S 37456 owned by Rino Barry D’unienville (hereinafter Respondent) valued at SCR 450,000.00 (four hundred and fifty thousand).
3. It is clear from the investigations done by Sergeant Jeanne that the said Respondent has been previously arrested and charged for the offence of conspiracy and aiding and abetting the trafficking of controlled drug namely Cocaine with a net weight of 54.85 grams. The Respondent had pleaded guilty to the said offence and been sentenced to two years imprisonment which was suspended for a period of  three years and a fine of SCR 40,000/-  
4. In his affidavit Sergeant Jeanne further avers that the change of ownership vehicle form dated 2nd August 2022, indicates that one Sharon Labiche transferred her brown Toyota CHR; bearing registration No: S 361 and Chassis No: ZYX10-2007513 (initial registration) to the Respondent for a sum of SCR 300,000.00.  That the mode of payment was declared as “cash”. The said form attached as DJ 1 affirms this fact.
5. The Respondent had written “No Comment” on the declaration form as to the source of the cash which was used to effect the purchase of the vehicle and only provided an MCB bank transfer form confirming that on 29th July 2022, he transferred a sum of SCR 80,000.00 from his MCB account No: 461326 to one Neddy Labiche’s Seychelles Commercial Bank account No: 5154714004002. Investigations revealed that Neddy Labiche is the husband of the seller Sharon Labiche of the specified property.
6. It is further averred that one Pamela Dugasse of the Seychelles Licensing Authority (SLA) was on duty that day and wrote that “the purchaser signed” the document in her presence.    She further made an entry that “he has paid the outstanding amount in cash, but he refused to provide any document.” The SLA officer further recorded that the Respondent herein stated that “I en travayer dan sesel” (“He is a worker in Seychelles”),
7. Sergeant Dave Jeanne had proceed to investigate the Respondents MCB account number 461326 to understand where the initial sum of SCR 80,000.00 originated.  He observed during the period November 2016 and March 2017, the account would be credited either in cash or by way of swift transfer credit and thereafter funds would be gradually debited by ATM withdrawals until the  account would be depleted and the same pattern was observed throughout this period. Prior to the account being debited in the sum of SCR 80,000.00 on the 1st August 2022, it was observed that on 26th July 2022, a cash deposit in the sum of SCR 22,000.00 was made into the Respondent’s account and prior to the said cash deposit, the account had a credit balance of SCR 76,063.40.
8. Investigations revealed that the deposit was done by one Conray Athanase but there was no explanation of funds for this credit and it was “simply, out of the blue” and that Conray Athanase is the right-hand man and close associate of the Respondent.  It is therefore not surprising that he was the one who made the deposit.
9. Sergeant Jeanne further avers that as part of his analysis, he investigated the bank account of the seller of the vehicle, Mrs Sharon Labiche’s account No: 0181038003 with Seychelles Commercial Bank (“SCB”).  He found that on the 2nd of August, 2022, few days after the transaction at the SLA, Mrs Shannon made a cash deposit in the sum of SCR 250,000.00 into her bank account.  As proof of the said deposit, she submitted the vehicle transfer certificate as obtained from the SLA declaring that the cash was from the sale of her CHR.  That said cash as deposited was in denominations of SCR500 notes. He produced the cash deposit slip as exhibit DJ3.
10. Sergeant Jeanne avers that the Respondent declared that part of the purchase price was paid by him in cash.   His investigations reveal that the manner in which the transactions have taken place are very suspicious.  That the only plausible explanation for this is because the funds used are not legitimate, that the Respondent would not have been able to account as to where the money came from to the bank, therefore he had paid part of the purchase money SCR 250,000.00 in cash to the seller.
11. He further avers that if the total amount paid for the vehicle was legitimate money, it is his view that the whole sum could have been remitted through their respective bank accounts and the Respondent could have simply declared this at the time of transfer. Instead, he made two payments in cash SCR 250,000 and another in a sum of SCR 80,000. It is Sergeants Jeanne belief that he did so, as he would not have been able to account for the source of the total amount paid for the purchase, given that it was derived from illegal conduct. He further states that attempts are being made to sell the specified property in order to deprive the FCIU of it. He further states in his affidavit that the FCIU intends to bring a Section 4 Interlocutory application within 30 days of this application being granted by Court.
12. Sergeant Jeanne further states in his affidavit that his investigations reveal and it is his belief under Section 9 of the POCA that;

1. The Respondent is in possession or control of the specified property that is to say, the property set out in the Table appended to the Notice of Motion and that the said property constitutes directly or indirectly the benefit from criminal conduct namely drug trafficking and money laundering.
2. The total value of the specified property is not less than SCR 50,000.

13. I observe that the belief evidence given by Sergeant Jeanne in his affidavit is substantiated by the documents attached. The Respondent has a history of being arrested and convicted of drug related offences. He has failed to explain how he has come by this large sum of money for the purchase of the specified property. He has made an entry of ‘no comment’ on the declaration form given to him by the MCB bank, as to the source of his funds to purchase the said vehicle. I am therefore inclined to accept the belief evidence of Sergeant Jeanne and am satisfied that the funds for the purchase of the specified property has been acquired in whole or in part from criminal conduct namely drug trafficking and money laundering which are serious offences.
14. I am also satisfied that the value of the specified property is not less than SCR 50,000/-
15. I therefore proceed to make the following orders:

i. I issue an Interim Order pursuant to Section 3 or the Proceeds of Crime (Civil Confiscation) Act 2008 as amended, prohibiting the Respondent Rino Barry D’unienville from disposing of or otherwise dealing with whole or any part of the property, or diminishing the value of the property as set out in the Table appended to this Notice of Motion and paragraph [2] herein.

ii. That on the making of an order under (i) above, Sergeant Dave Jeanne of the Financial Crime Investigation Unit (FCIU) shall be appointed as Receiver over all of the said property to manage keep possession or dispose of, or otherwise deal with any other property in respect of which he is appointed in accordance with the courts directions, pursuant to Section 8 of the Proceeds of Crime (Civil Confiscation) Act 2008 as amended;

iii. A copy of this Order to be served on the Respondent Mr Rino Barry D’Unienville.

Signed, dated and delivered at Ile du Port on 11 July 2023.

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M Burhan J