BURHAN J
- By Notice of Motion dated 4 September 2023, the Applicant seeks the following reliefs:
- Compensation pursuant to Section 17 of the Proceeds of Crime (Civil confiscation) Act.
- A declaration that Huobi Global Ltd did unlawfully and improperly convert the digital currency of the applicant into another digital currency/ies with no value.
- A declaration that such conduct by Huobi Ltd constitutes a crime under the Proceeds of Crime (Civil Confiscation ) Act 2016 and the Anti-Money Laundering Act and Countering the Financing of Terrorism Act 2020 ( AML and CFT Act).
- Ordering that Huobi Global Ltd pay compensation to the Applicant in the sum of of USD 2,717,521.91.
- Section 17(1) of the Proceeds of Crime (Civil Confiscation) Act ( POCA) reads as follows:
17(1) where –
- an interim order is discharged or lapses and an interlocutory order in relation to the matter is not made or, if made, is discharged (otherwise than pursuant to section 4(1) or section 19;
- An interlocutory order is discharged (otherwise than pursuant to section 4 (3) or section 19) or lapses and a disposal order in relation to the matter is not made or, if made, is discharged (otherwise than pursuant to section 5 (10) or section 19),
the court, on application to it in that behalf by a person who shows to the satisfaction of the Court that –
- He is owner of or has an interest in any property to which an order referred to in paragraph (a) or (b) relates; and
- The property does not constitute, directly or indirectly, proceeds of criminal conduct or was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of criminal conduct, (the burden of proof of which shall be discharged by the applicant for compensation) and;
- He has suffered loss or injury,
may award to the person such compensation payable by the Government of Seychelles as the Court considers just in the circumstances in respect of the loss or injury incurred by the person by reason of the order concerned but so that no compensation shall be paid to a person who is a member of a terrorist group or in circumstances where it appears to the Court to do so would be manifestly unjust.
- In this instant case an interim order under Section 3 of the POCA was issued by Court on 27 April 2021. Thereafter an interlocutory order was given by this Court on the 09 November 2021. On an application dated 25 September 2023 in MC 75/2023, this Court issued a disposal order dated 16 November 2023. It is clear that on perusal of Section 17 of POCA, that Section 17 (1) (a) is not applicable as after the interim order was issued, an interlocutory order in relation to the matter was issued in conformity with the law on the 09 November 2021. Therefore, Section 17 (1) (a) is not applicable to the facts of this case. When one considers the provisions contained in Section 17 (1) (b) of the POCA, it is clear to this Court that this provision does not apply to this case as the interlocutory order has not been discharged or has lapsed as envisaged by Section 17 (1) (b) nor appealed from but was followed by a final disposal order which has been issued in accordance with the prevailing law on the 16 November 2023. The interim order was in force until the disposal order was issued 16 November 2023. There was no lapse or discharge of the interim order dated 09 November 2021 as envisaged under Section 17 (1) (b) hence this application cannot be entertained under Section 17 (1) (a) or (b) of the POCA.
- An application should have been made by the Applicant to set aside the pending disposal order in MC 75 of 2023 which the Applicant has failed to do. The disposal order has been issued on the 16 November 2023 in MC 75/2023 and cannot be changed by this Court at this stage. Further no pending appeal exists from the said disposable order or any other orders. Having given all the aforementioned orders this Court is of the view, that it is precluded from determining at this stage, any procedural irregularities and whether the act of the 1st Respondent in converting the digital currency of the Applicant into another digital currency of no value is unlawful or improper as claimed by the Applicant.
- For the aforementioned reasons, I proceed to dismiss the application. Each party to bear their own costs.
Signed, dated and delivered at Ile du Port on 04 October 2024.
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M Burhan J