Ex parte the Government of Seychelles (XP 82 of 2024) [2024] SCSC 187 (6 December 2024)

Introduction

1. This is an Application for an interim order pursuant to section 3 of the proceeds of crime (Civil Confiscation) Act prohibiting the Respondents or any other person specified in the Order from disposing of or otherwise dealing with the whole or any part of the property set out in the table appended to the notice of motion.

2. The Applicant is further seeking for an order that Vicky Poussou of the Asset Management Unit of the Ministry of Finance (AMU) or any other person that the Court shall direct be appointed as Receiver over all or part of the said property to manage, take 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. Furthermore they are seeking an order pursuant to section 11 (1) of the same Act providing for notice of such order to be served on the Chief Executive Officer of the Seychelles Licensing Authority (SLA) not to effect any transfer or change of ownership with respect to the said vehicles unless authorized by the appointed Receiver.

The Pleadings
 

3. The Application is supported by the Affidavit of Dave Jeanne, being a Sergeant in the Seychelles Police Force, currently attached to the Financial Crime Investigation Unit of the Seychelles Police (“FCIU”) who avers inter-alia in his Affidavit the following;

‘3) That I have made reasonable investigations in the matter for the application for an interim order as per Section 3 of the Proceeds of Crime (Civil Confiscation) Act, 2008 as amended (hereinafter “POCA”). As such, I am required under Section 9 of POCA to submit evidence of my belief having regard to Section 9(2) of the said Act.
 

4) That the properties in question are a White Ford Ranger Truck with registration No: S24569 and a deep blue KIA Rio with registration No: S24101 (hereinafter “Specified Properties”). Further particulars of the specified properties are listed in the table attached to the Notice of Motion. The Respondent in this case is;

Alex, Mervin PILLAY (“Alex”) with NIN: 986-0626-1-1-90 who resides in Anse-Louis, Anse Boileau, Mahe, Seychelles.
 

5) That my investigation began after the FCIU registered a pro-active case against the Respondent following receipt of information that the said Respondent was engaged in corrupt practices. That the Respondent has been a Police Officer for over 15 years now. That as part of my investigation, I found that the Respondent had indeed enriched himself and his relatives over the years. That the source of such enrichment could not have been derived, in my investigatory experience, from his salary.

6) That several necessary documentations were retrieved from the Seychelles Licencing Authority (SLA) to ascertain ownership of the specified properties. It was found that both are currently registered on and owned by the Respondent herein.

7) That according to documents retrieved from Seychelles Credit Union (“SCU”) and SLA, it was confirmed that on the 20^th April 2022, the Respondent (“Alex”) bought one white Ford Ranger with registration number S24569 from one Christophe Larue (“Christophe”); owner of SF Hybrid, for a sum of SCR 500,000.00. That according to an agreement of sale dated 08^th April 2022, which was signed by the said Christophe and Alex, it was confirmed that there were eight separate payments made towards the purchase of the said property. I beg you to refer to relevant copies of the transfer documents, Sale agreement as obtained from the SLA upon which clipped together and marked exhibit DJ1 I have signed my name prior to the swearing hereof.

8) That the details of the different payments as can be seen in DJ1, were hand written at the bottom of the said agreement and it was listed as follows:-

1. 1. 1. 1. 1. 12/03 – Bank Transfer - Alex Pillay – R 40,000.

            2. 11/03 – Bank Transfer – Pria Pillay – R 50,000.

            3. 11/03 – Bank Transfer – Priscila Pillay – R 50,000.

            4. 11/3 – Bank Transfer – Marie Anette Pillay – R 100,000.

            5. 11/04 – Bank Deposit – Monique Louise – R 49,000.

            6. 13/04 – Bank Deposit – Pat Larue – R 45,000

            7. 12/04 – Bank Transfer – Monique Louise – R 45,000.

            8. 20/04- Cheque No: 000598– Axis Capital – R 121,000

9) I have found that Alex holds an account with SCU and a savings account with Mauritius Commercial Bank (“MCB”). Analysis was conducted on his SCU Regular Savings Account No: 43605 and it was found that in the years 2020 and 2021, a monthly salary of about SCR 12,911.65 was credited and identified pattern was that immediately after, the said account was debited completely through three or four cash withdrawals. Following the identified withdrawals, the account was found to have barely any funds on it. That as part of my analysis, no cash deposits were observed during the time that the funds were withdrawn save for the salary credit as stated.

10) That this trend as explained above changed in 2022. During that year, cash deposits were observed on the same SCU account No: 43605. That on the 12^th April 2022, a sum of SCR 40,000.00 in notes of 500 and 100 from unknown sources was found to be credited onto the account. That the said credit by way of deposits were carried out by Alex. On that same day, that is on the 12^th of April, 2022, the amount deposited was transferred to Christophe with reference “purchase of vehicle.” This is a classic money laundering method whereby money is put on the account and thereafter transferred out. The account is solely used to facilitate the transfer to make it look legit. As is the case here, the money was placed onto the account satisfying the “placement” stage of money laundering and the said sum was below the threshold of SCR50,000.00 as imposed by law. No declaration had to be made in terms of its source and therefore easily deposited by Alex. That it is clear to be that the source was other than that of his salary. I beg to refer to the copy of the cash deposit slip upon which marked DJ2 I have signed my name prior to the swearing hereof.

11) On the 4^th August 2022, Alex made another cash deposit of SCR 1,300.00 onto the same account. Thereafter, on the 18^th October 2022, he made another cash deposit of SCR 25,000.00. After such deposits, the sum of SCR 25,000.00 was transferred to one Shanilla Julie Diane Youngkon for purchase of vehicle S24101. I beg you to refer to relevant copies of the bank statement for A/c No: 43605 obtained from SCU upon which marked exhibit DJ3 I have signed my name prior to the swearing hereof.

12) Alex also holds a Shares Membership account with SCU bearing account No: 43613. There is a monthly standing order of SCR 1000 from his AC-43605 to this shares account. On the 2^nd August 2021, Alex made a cash deposit of SCR 25,000.00 on the said account and on the 28^th February 2022, he made another cash deposit of SCR 15,000.00. Being a civil servant who is only earning on average; SCR 13,000.00 it is a bit odd for him to be crediting his account every so often. I am of the belief that the funds are derived from illegitimate source other than his salary. I beg you to refer to relevant copies of the bank statement for A/c No: 43613 obtained from SCU upon which marked exhibit DJ4, I have signed my name prior to the swearing hereof.

13) That same analysis was also conducted on Alex’s account at MCB bearing AC No: 680249 and it was found that during the same year 2020, he made only one cash deposit of SCR 10,000.00 in March. In December 2021, he made only one cash deposit as well for SCR 35,000.00 and in the year 2022, there were two cash deposits on the account amounting to SCR 19,000.00 of which SCR 15,000 was cash deposited by his wife Pricilla Pillay. I beg you to refer to relevant copies of the bank statement for A/c No: 680249 obtained from MCB upon which marked exhibit DJ5 I have signed my name prior to the swearing hereof.

14) That in total, for the periods between January 2020 to December 2022 Alex made a total cash deposit of SCR 118,000 on his personal account at SCU and a total sum of SCR 64,000.00 on his MCB account, which amount to a grand total of SCR 182, 000.00. 

15) That documents were retrieved from the Registrar of Companies and it was confirmed that “Ashvin Apartment” was registered on Alex. That the name was registered on the 23^rd March 2022. I have found that the Respondent was not trading under this name in any way. I beg to refer to the document as received from ROC upon which marked DJ6 I have signed my name prior to the swearing hereof.

16) That according to information retrieved from Seychelles Credit Union (“SCU”), Alex opened a Regular Savings account in March 2022 for Ashvin Apartments bearing account No: 596299. The first cash deposit on the account was on 30^th March 2022 for a sum of SCR 28,900.00 followed by a sum of SCR 10,000.00 on the 28^th April 2022. No further cash deposits were conducted on the account and as of 30^th September 2024, the account had a credit of; SCR 804.08.

17) During that same period of time Alex also opened a Seychelles Rupees Business Current Account for Ashvin apartments bearing account No: 596318 and conducted the sole cash deposit on this account on 30^th March 2022 for a sum of SCR 1000.00.

18) That a share Membership Account bearing Account No: 596302 was also opened during the same time period and on 30^th March 2022, Alex conducted a cash deposit of SCR 100.00 only. That in total a sum of SCR 40,000.00 was cash deposited in Ashvin Apartments account in less than three weeks and no other activities on the account were observed to date which suggest that the business was actually up and running. That the funds as seen being deposited may very well be derived from the rentals of the apartment.

19) That Pria Pillay (“Pria”) is 8 years old and is the daughter of Alex and Pricilla Pillay (“Pricilla”). Pricilla opened an SCU account No: 436542 for Pria in December 2018. That analysis conducted on the account revealed that several cash deposits and cash withdrawals were conducted on the said account by her parents. That it is unusual for such type of activity on a minor’s account. That it is my belief that the parents were knowingly and intentionally carrying out the various transactions in order not to raise any suspicions.

20) That further analysis conducted on the account, revealed that in the year 2020, there were three cash deposits made on the account amounting to a sum of SCR 27,000.00.

21) That in 2021 there were two cash deposits amounting to a sum of SCR 30,000.00 and in 2022 there were five cash deposits in the sum of SCR 74,000.00. That in total, between 2020 to 2022 a total sum of SCR 131,000.00 in cash was deposited onto the said account.

22) That Pria’s account was looked at alongside the accounts of her parents and it was found that none of the transactions made originated from either of her parents’ accounts. That usually in normal circumstances, parents would debit their accounts in support of their minors but in this case, funds used to credit did not originate from neither of the parents’ accounts. That it is my belief that the funds used were credited in a manner to conceal the true origin and this was done by crediting onto the minor’s account in an attempt not to raise any eyebrows.

23) That between 28^th February 2022 to 11^th April 2022, three cash deposits were observed on the said account amounting to a total sum of SCR 51,000.00. That subsequent to the deposits being made on the 11^th April 2022, a sum of SCR 50,000.00 was then transferred to the account of Christophe as part payment for the purchase of the truck bearing registration; S24569.

24) That as illustrated above, this is again another clear example of a money laundering scheme whereby money is credited just to facilitate a payment. It is credited in multiple deposits which is termed as placement and thereafter transferred in a whole amount which is better known as layering. The scheme is concluded when the funds are integrated into the financial system, in this case the purchase of the specified property. That in this typical case, a minor’s account was used. That the parents remain the principal owners of the account pending the minor turning 18 years of age. That it can be argued that they are free to do as they please onto the account given that credits originate from them. However, the fact that both parents are using this account to later effect a transfer for the purchase of a vehicle when they do have their own accounts is very suspicious and leads me to no other belief that this is a mode of operation by the Respondent to mislead the authorities. That being in law enforcement, the Respondent has tried to apply his mind to the whole situation and has attempted to mislead by doing what he did. I beg you to refer to relevant copies of the bank statement for A/c No: 436542 obtained from SCU upon which marked exhibit DJ6, I have signed my name prior to the swearing hereof.

25) That Pricilla is also a member of the SCU and similar activities were observed on her bank account as well. Pricilla is a Health Information Assistant with the Ministry of Health and earning a monthly salary of about SCR 10,000.00. Checks carried out revealed that she does not own any businesses. Analysis was conducted on her SCU account No: 573795 and it was found that during the year 2021 only a sum of SCR 9,900.00 was cash deposited onto her account.

26) That in 2022, there were four cash deposits on the account for a total sum of SCR 65,000.00 between March and October 2022.

27) That further analysis was conducted on the said account and it was found that on the 11^th April 2022, after the deposits were made and after the cash was accumulated, Pricilla transferred a sum of SCR 50,000.00 to Christophe on an NVB account number 1201019683005 as part payment for vehicle S24569.

28) That similar exercise was conducted on the Nouvobanq account of Pricilla with AC No; 01201040316004, and it was found that this account was receiving her monthly salary. Based on analysis conducted, it was found that other than her salary, several cash deposits were observed onto the said account. That the deposits were either by herself or carried out by other individuals.

29) That during the year 2020 there was a total cash deposit of SCR 37,000.00 on her account. In the year 2021 there were four cash deposits to a total sum of SCR 30,200.00.

30) That in the year 2022 there were only one cash deposit of SCR 1000.00 which brings to a total sum of cash deposited to SCR 68,200.00 during the two-year period.

31) That in total, in both of her accounts at SCU and NVB, for the year 2020 to 2022 a total cash deposit of SCR 143,100.00 was observed

32) That cash deposited onto her account, that of her partner; the Respondent and their child amounted to a grand total of SCR 461,600. I beg you to refer to relevant copies of the bank statements for Pricilla’s NVB account upon which marked exhibit DJ7 I have signed my name prior to the swearing hereof.

33) That Marie-Annette Pillay (“Marie-Annette”), previously a home-carer but currently a pensioner, is Alex’s mother. She also holds an account with SCU since 1996.

34) Analysis was conducted on her SCU account No; 179752 and it was found that during the period of January 2020 to December 2022, a total sum of SCR 144,000 was cash deposited with a breakdown of SCR 33,000.00 in 2020, SCR 33,000.00 in 2021 and SCR 78,000.00 in 2022. Out of the deposits made, the sum of SCR 80,000.00 was deposited by herself, SCR 19,000 was deposited by Alex and SCR 35,000 was deposited on her account by Pricilla.

35) With the accumulation of the said funds onto her account, on the 11^th April 2022, Marie-Annette also made a transfer of SCR 100,000 to Christophe as part payment for the said vehicle with registration No: 24569. That owing to the fact that she is the Respondent’s mother, it is my belief that she was approached to accept and receive the deposits which was then be used to facilitate payment for the vehicle.

36) That it is once again bizarre that such payment would be effected by her especially when Alex does have bank accounts. It is even more suspicious for me because the cash could have easily been deposited onto his account and thereafter transferred. That the only reason as to why this was not done is simply because the source of the cash is illegitimate and not clean. That Alex could not have kept crediting onto his account. Being a law enforcement officer he ought to know that this would have raised an alarm and this is why his mother’s account was therefore used. I beg to refer to copies of the statements used to compile my analysis upon which marked exhibit DJ8 I have signed my name prior to the swearing hereof.

37) That having done what she did, Marie-Annette has aided and abetted his son to facilitate the money laundering scheme and has allowed him to use her account to launder funds by firstly accepting the deposits or making the deposits thereafter layering it into the financial system.

38) That Monique Jovana Louise (“Monique”), is believed to be a relative or a close friend of the Respondent. That I will ascertain this in an interview that I am planning to carry out as part of my investigation. She is a Child Support Officer with the National Council for Children and holds an account with Nouvobanq (“NVB”) AC No: 01201007269009 where her salary of around SCR 16,000.00 is credited. She also holds another account with SCU with account No: 239798, where a standing order from her salary of SCR 3300 credits the SCU account monthly. That Nothing suspicious was noted onto this account. I beg to refer to copies of her account upon which marked exhibit DJ9 have signed my name prior to the swearing hereof.

39) As for the SCU account No: 239798, which was being used as a saving account, it was found that on the 12^th April 2022, Monique, made a suspicious and rather unusual cash deposit of SCR 45,000.00. That on the same day the same amount was transferred to Christophe as part payment for the truck S24569 which is believed was all orchestrated by Alex not to alert the authority on the illicit cash he had on hand.

40) That further analysis was conducted on the funding of the truck and it was found that on the previous day, being 11^th April 2022, Monique made a cash deposit of SCR 49,000.00 in the NVB account of Christophe with AC No: 01201019683005 as another part payment for the truck. This indicates that Monique cash deposited SCR 94,000.00 in two accounts in two days which is believed to derive from illicit conduct. That Monique would need to be interviewed so that I can ascertain the source of the cash. I beg you to refer to relevant copies of the bank statement for A/c No: 239798 obtained from Seychelles Credit Union upon which marked exhibit DJ10 I have signed my name prior to the swearing hereof.

41) That Pat Nasie Larue (“Pat”), whom I believe is a relative of the Respondent is unemployed and holder of only one bank account with Seychelles Commercial Bank (“SCB”) No: 5171500004, which he opened 07^th April 2014. I found that the account was inactive after opening but on the 13^th April 2022, Pat made a cash deposit on the account of Christophe for a sum of SCR 45,000.00 being part payment for the truck S24569 registered on Alex.

42) That clearly Pat was used to make the deposit and was clearly used by no other than the Respondent herein. I am of the belief that Pat acquired the cash from Alex because the cash could not have come from an inactive bank account.

43) This again is another evidence that Alex was holding substantial amount of cash during that said period which I believe represented or represents the benefit of criminal conduct namely; official corruption, tax related offences and money laundering and therefore used his family members to facilitate the payment to conceal the true source of the funds. I beg you to refer to relevant copies of the bank statement for A/c No: 5171500004 belonging to Pat which was obtained from Seychelles Commercial Bank upon which marked exhibit DJ11 I have signed my name prior to the swearing hereof.

44) That amongst the documents received from SLA, was also a letter from an Investment Advisory and Asset Management Services company namely; Axis Capital Management, situated in office 408 of the Premier Building in Victoria. The letter was signed by one Mr. Brijesh Jivan as the Director of the said company dated 20^th April 2022. The letter stated that Axis Capital Management has granted a short term loan to Alex for a sum of SCR 121,000.00.

45) That the letter did not state other conditions such as period of repayment or other conditions of the said loan but on that same day, a cheque was issued from Axis Capital Management to Christophe for a sum of SCR 121,000.00 as part payment for the Ford Ranger truck; the specified property herein.

46) That on the 21^st June 2023, a search warrant was executed at the office of Axis Capital management at Premier Building and the manager Mr. Brijesh Jivan confirmed that he issued Cheque No: 000598 from his company Axis Capital Management to Christophe Larue upon the request of one Terry Chang-Tak-Hue, the brother in law of Alex and currently his employee.

47) That Terry was questioned in regards to the transaction and he stated that he is married with Alex’s sister and they live on the same property at Anse Louis in Anse-Boileau. Alex wanted to buy a Ford Ranger truck and he was short in cash, Terry spoke with Mr. Jivan and they have an agreement that a sum of SCR 5000 would be deducted monthly from Terry’s salary of which in turn he would settle on his side with Alex.

48) That on the 22^nd June 2023, Terry provided copies of the monthly deduction from his salary and stated that there is only an outstanding of SCR 10,000.00 to repay the full sum. I beg to refer to relevant copies of response from Axis Management upon which marked exhibit DJ12 I have signed my name prior to the swearing hereof.

49) That whilst he has obtained a loan through his brother in law to obtain the truck, the said loan was not in itself enough to effect the purchase. I have shown above that he has initiated a number of cash deposits onto his accounts and that of his associates which in turn facilitated the purchase.

50) That on the 8^th July 2022, Alex sold his Red Kia Picanto with registration number S13493 with one Selwyn Marguerite of Barbarons, Mahe, for a sum of SCR 50,000.00. That instead of crediting his own account he instructed Selwyn to credit the payment in his father’s account, Jemmy Pillay (“Jemmy”) No: 5149255003 with SCB. That around a month later, on 5^th August 2022, Jemmy transferred the said sum to the ABSA account on one Diane Youngkon (“Diane”) of Anse Louis as part payment for a Kia Rio which on the 18^th October 2022 was registered on Alex.

51) That according to SLA documents, Diane sold the vehicle to Alex for SCR 175,000.00. As Jemmy has already transferred SCR 50,000.00, on the 5^th August 2022, Alex was granted a loan of SCR 100,000.00 with SCU of which he transferred the whole sum to Diane the same day.

52) That as for the outstanding of SCR 25,000.00 for the KIA RIO, on the 18^th October 2022, Alex made a cash deposit of SCR 25,000.00 which is believed to derive from his corrupt and illicit activities, in his Savings account with SCU bearing No:43605 which was transferred that same day to Diane as part and final payment for the car. I beg you to refer to relevant copies of the transfer documents, Sale agreement as obtained from the SLA upon which clipped together and marked exhibit DJ13 I have signed my name prior to the swearing hereof.

53) That when one takes a look at the total amount paid for the pick-up, it was in the sum of SCR500,000.00. That Alex could have simply declared the source of the funds and make the full payment himself instead he concealed the source through different accounts or his relatives including the account of his 8-year-old daughter which he was in control of. It is my belief that he chose this method as knew 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.

54) That it has come to our attention that maneuvers are being made to sell the specified properties in order to deprive the FCIU of it. It is prayed that this application be granted by this Honorable court as a matter of urgency to prevent such deprivation.

56) That it is my belief under Section 9 of the POCA;

a. That the Respondent is in possession or control of the specified properties that is to say, the properties set out in the table appended to the Notice of Motion and that the said properties constitute directly or indirectly the benefit from criminal conduct;

b. That the Respondent is in possession or control of specified properties and that is to say the said properties mentioned in the table attached and that the property is the proceed of criminal conduct namely official corruption and money laundering.

c. The total value of the property mentioned in (i) and (ii) above is not less than SCR50,000.00.

57) That the grounds of my said beliefs are averments mentioned in this affidavit including;

d. That the manner in which the specified property, based on paper trail was bought is very suspicious.

e. That eight payments were initiated for the purchase and the manner in which it was carried out furthers my belief as explained that it was proceeds of crime.

f. That the Respondent could not have purchased the property from legitimate source and that this has been established as part of the affidavit;

g. That with the information obtained I am of the belief that the criminal conduct of which the specified property has been acquired in whole or in part is from corruption and money laundering.

The Law

4. This Court hereby reproduces section 3 of the Proceeds of Crime ( Civil Confiscation) Act;

‘Where an ex parte application to Court in that behalf by the applicant, it appears to the Court, on evidence, including evidence admissible by virtue of section 9, tendered by the applicant, that-

(a) a person is in possession of

(i)  specified property and that the property constitute directly or indirectly, benefit from criminal conduct; or

(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; and

(iii) the value of the property or total value of the property referred to in subparagraphs (i) and (ii) of paragraph (a) is not less than R50,000, the Court may make an interim order prohibiting the person specified in the order or any person having notice of the making of the order from disposing of, or otherwise dealing with the whole or any part of the property or diminishing its value during the period of 30 days from the date of the making of the order.’

5. This Court also hereby reproduces the relevant provisions of section 9 or the proceeds of Crime (Civil Confiscation) Act which states as follows;

‘9. (1) Where the Director or Deputy Director states in proceedings under section 3 or 4 on affidavit or, if the Court so permits or directs, in oral evidence, that he believes, that —

(a) the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, benefit from criminal conduct; or

(b) the respondent is in possession or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; and

(c) the value of the property or as the case may be the total value of the property referred to in both paragraphs (a) and (b) is not less than R50, 000,

then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matters referred to in paragraph (a) or in paragraph (b) or in both paragraphs (a) and (b), as may be appropriate, and of the value of the property.

(2) The applicant shall not make an application under section 3 or 4 or submit evidence of is belief described in this section, except after reasonable enquiries and investigations and on the basis of credible and reliable information that he has reasonable grounds for suspecting —

(a) the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, benefit from criminal conduct; or

(b) the respondent is in possession or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct, and that the value of the property or as the case may be the total value of the property referred to in subsection (1)(a) and (b) is not less than R50,000.

(3) The standard of proof required to determine any question arising under this Act, other than proceedings for an offence contrary to section 23 shall be that applicable to civil proceedings’.

Analysis and determination

6. In the case of Financial Intelligence Unit V/S Contact Lenses Ltd & Ors (Mc 95/2016) ( 2018) SCSC 564 ( 19 June 2018) the Court stated the following;

‘ In respect of the applicable legal provisions and jurisprudence to the present matter the Courts in Seychelles have established in previous cases, namely FIU V Mares Corps ( 2011) SLR 405, Financial Intelligence Unit V Sentry Global Securities Ltd & Ors ( 2012) SLR 331, and Financial Intelligence Unit V Cyber Space Ltd ( 2013) SLR 97 that the provisions of POCCA should be interpreted to mean :

‘ … that once the applicant provides the Court with Prima facie evidence that is, reasonable grounds for his belief in compliance with section 9(1) in terms of his application under section 4(1) of POCCA, the evidential burden shifts to the respondent to show on a balance of probabilities that it is not the proceeds of crime…’ (Mares supra)

‘ … All that is necessary is a ‘reasonable belief’ that the property has been obtained or derived from criminal conduct by the designated officer of the FIU. That belief pertains to the designated officer and hence involves a subjective element. It is therefore only a prima facie or belief evidence. No criminal offence need to be proved, or mens rea shown… If the FIU relies on belief evidence under section 9 the Court has to examine the grounds for the belief and if satisfied that there are reasonable grounds for the belief it should grant the order. There are appropriate and serious protections for the respondents as at different stages they are permitted to adduce evidence to show the Court that the property does not constitute the benefit from criminal conduct. Their burden in this endeavour is that ‘on a balance of probabilities. ‘In other words, once the applicant establishes his belief that the property is the proceeds of crime, the burden of proof shits to the respondent to show that it is not. Hence, unless the court doubts the belief of the officer of the FIU, which is reasonably made, it cannot refuse the order (Sentry supra).

 

7. Although the above case law is based on a section 4 Application under the same Act, the principle remains the same as to standard of proof each party has to prove and as to belief evidence when in comes to section 3 Application as in the present matter.

8. As a result of the above case law, as regards the present matter, this Court has to first determine as to whether based on the grounds of which the application relies upon to establish the belief under section 9 of the POCCA, the court is satisfied that the Applicant has established a prima case that the Respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, benefit from criminal conduct; or specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct.

9. Ex- facie the Affidavit and the documents attached in support of the Application, this Court finds that the Applicant has established a prima facie case that the Respondent is in possession or control of specified properties namely a white Ford Ranger truck with registration No: S24569 and a deep blue KIA Rio with registration No: S24101 and that the said properties constitutes, directly or indirectly, benefit from criminal conduct ; or the specified properties that were acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct namely that of official corruption.

10. I am also satisfied based on the averments in the Affidavit and documents attached and exhibited that the total value of the property namely a white Ford Ranger truck with registration No: S24569 and a deep blue KIA Rio with registration No: S24101 is not less than SCR 50,000.

11. That as a result of the above, I accordingly grant the Application and make the following orders;

a) I accordingly allow the application and as such the Interim Order is granted in accordance with Section 3 of the Proceeds of Crime (Civil Confiscation) Act, 2008 as amended prohibiting the Respondent Alex Mervin Pillay or any other person from disposing of or otherwise dealing with the whole or any part of the property, or diminish the value of the property namely a white Ford Ranger truck with registration No: S24569 and a deep blue KIA Rio with registration No: S24101

b) I appoint Vicky Poussou of the Asset Management Unit of the Ministry of Finance (AMU) as Receiver over all or part of the said property to manage, take 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.

c) I Order the Chief Executive Officer of the Seychelles Licensing Authority (SLA) not to effect any transfer or change of ownership with respect to the said vehicles namely a white Ford Ranger truck with registration No: S24569 and a deep blue KIA Rio with registration No: S24101 unless authorized by the appointed Receiver.

d) I order the Registrar of the Supreme Court to serve a copy of this order on the Respondent Alex Mervin Pillay of Anse Louis, Anse Boileau, Mahe, Seychelles and on the Chief Executive Officer of the Seychelles Licensing Authority (SLA).

Signed, dated and delivered at Ile du Port on the 6^th December 2024.

 

Esparon J