King Crown Online Services Ltd v FIU (MC 81/2014) [2015] SCSC 60 (06 March 2015);

IN THE SUPREME COURT OF SEYCHELLES
Civil Side:  81/2014

       [2015] SCSC 60


KING CROWN ONLINE SERVICES LTD
Applicant


versus

FINANCE INTELLIGENCE UNIT

 

Heard:            06 March 2015
Counsel:        Mr. Andre for Applicant
           
                     Mr. Esparon for Respondent
     
Delivered:        6 March 2015

 


D. Karunakaran, Ag Chief Justice

[1] For the purpose of this ruling I hereby consolidate the following two motions namely;-

 

  • 1. Motion dated the 17th of September 2014, filed by King Crown Online Services Limited, seeking an order pursuant to Section 10 (9) of the Anti-Money Laundering Act to release the funds belonging to the said King Crown Online Services Limited being held by the Respondent the FIU, under a Freezing Directive; and
  •  
  • 2. The motion filed by the FIU dated the 23rd of October 2014, seeking an order from this Court to compel the attendance of the President of the said company namely, King Crown Online Services Limited, for cross-examination before this Court.

[2] Whatever be the pros and cons of these two motions, the following facts are not in dispute;-
(i) One Mr. Cash Taylor is the President of a non-resident company namely, King Crown Online Services Limited, who is also the Director of the said company;
(ii) The said company maintains offshore bank accounts No. 300000017306 and account No. 300000017292 (hereinafter called the assets) with BMI Offshore Bank in Seychelles.  
(iii) The FIU having suspected that the said assets involved in offences under the Anti-Money Laundering Act, it gave a freezing direction to the bank attaching the said assets.  Subsequently, on the 17th of November 2014, the FIU applied to the Court for an order to extend the said freezing direction for a further period of 180 days, which order is still in force.  In the meantime, the owners of the assets namely, King Crown Online Services Limited by a notice of motion dated the 17th September 2014 applied to the Court for an order seeking the release of the said funds from being frozen by the FIU in the said bank.  When the matter was pending before the Court, the FIU applied to this Court for an order to compel the attendance of the President of the said company for cross-examination.  These facts are not in dispute by both parties.

[3] I gave careful consideration to the submissions made by both counsel for and against these two motions.  First of all, I find if anyone who claims that he is the lawful owner of the frozen funds held with the bank, the burden is on him to prove that the funds were earned or acquired through lawful means.  In such circumstances, the burden is on the part of the owner namely, King Crown Online Services Limited represented by its President Mr. Cash Taylor, to affirm the fact that these funds or the assets were not illegally acquired or involved in criminal activities.  The Court cannot simply rely and act upon affidavits of the parties in this matter.  Material issue which needs to be determined by this Court is the lawful ownership in respect of the assets held in the bank.  In the circumstances, I find the motion by the FIU seeking the attendance of the President of the company before this Court to face cross-examination is reasonable and necessary.  

[4] Having given careful thought to the entire circumstances of this case, I direct the Applicant namely, King Crown Online Services Limited to authorise its President Mr. Cash Taylor to appear before this Court at an early date to face cross-examination on material facts deponed in the affidavit filed by the company claiming ownership of the assets.  Unless and until the President of the company appears before this Court for being cross-examined the matter cannot proceed further.  I grant a stay of proceedings until that event occurs.


[5] The matter is adjourned sine die.

 

Signed, dated and delivered at Ile du Port on 6 March 2015

 

D Karunakaran

Acting Chief Justice