State v Kumar [2016] FJMC 71; Criminal Case 1274.2014 (28 June 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 1274/2014

STATE
V
NITESH KUMAR

Counsel : Ms.J.Prsaad for the State

Mr.Yunus for the Accused

Date of Judgment : 28^thof June 2016

JUDGMENT

1. The accused is charged with one count of Money Laundering contrary to section 69(3) (b) of the Proceeds of the Crimes Act. The particulars of the offence are “NITESH KUMAR with another between the 22nd day of April 2009 and 12th April 2010, in Suva, in the Central Division, received the sum of $9,888.67 being the proceeds of crime, through his ANZ account 8540368 knowing or ought reasonably to know, that the money was derived directly or indirectly from some form of unlawful activity.”
2. The accused pleaded not guilty wherefore this proceeded for hearing. For the Prosecution 03 witnesses were called and the accused elected to remain silent. At the conclusion of the hearing both parties filed closing submissions and I have considered them also for this judgment.
3. I would first summarise the evidence presented during the hearing. PW1 was Mr.Navin Mistry, who was working as a team leader in Centralized Security Unit in ANZ Bank. There was one Kapil Samy(“Kapil”) working under him in that section in 2010 and 2011. Kapil was responsible for attending to company searches, title searches, settlements and preparation of documents. The bank was charging $32.00 for a search and from that bank was retaining $30.00 in its revenue account and balance was to be paid to Registrar of Titles. He was shown some agreed documents and described that $32.98 was debited from Customer account (Island of Kia) and from that $30.00 transferred to account of the Accused (8540368). The balance $2.98 went to the suspense account and credited to the payment for the Titles Registry. The witness also identified the relevant deposit from the bank statement of the accused. PW1 came to aware of the Kapil action only when police came to investigate about that and said these payments should not have been credited to a personal account of a customer.
4. During cross-examination the witness said the accused should be aware about the credit to his account from the bank statements that was posted to his postal address. As soon as pages are full statements are automatically produced and send to the customer. The witness also said even though Kapil paid the full amount back he would not agree with the suggestion by the defence the reason for that.
5. PW2 was Ms.Kamini Padarath , the manager investigation of the bank and conducted the investigation in relation to Kapil. The investigation shows that the bank employee Kapil defrauding the bank by depositing the commission fees to his friend Nitesh Kumar’s account and the accused giving his ATM card and pin number to Kapil to withdraw from that account. The bank detected some unusual credits coming to the accused account and she inquired from the accused about that. The accused denied monies were for his sick parents as mentioned by Kapil earlier to her and said monies were credited to his account by Kapil who withdrew them later using the accused ATM. The accused also agreed he breached the terms and condition of the bank by giving the ATM and number to Kapil. She was shown the bank statements of the accused and identified the credit and withdrawals from that. She also said even though there were deposits of $30 regularly, full amount was never withdrawn leaving some balance in the account. Kapil being a bank officer could check the balance of the account any time.The accused was living in Nasouri whilst the Kapil lived in GajiRoad ,Samabulla during this period.
6. During cross-examination the witness said the accused admitted giving ATM card and PIN number to Kapil and was not aware about the transactions. But the bank statements were released to the address which would make the account holder aware of these transactions. In re-examination the witness said a customer would be made aware about the terms and the conditions of the ATM card.
7. PW3 was DC 3695 Isireli Waqairalia, the investigating officer and conducted the caution interview of the accused also. According to interview, the ATM card was given to Kapil and the accused got it only during his pay week. But on 09/07/2009 $60.00 was withdrawn during his pay week, during cross-examination the witness said the accused in his statement told Kapil gave an explanation about these funds (from his personal account and from the grandfather).
8. Now I would consider the applicable law in this case. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

9. The accused is charged with one count of Money Laundering contrary to section 69(3) (b) of the Proceeds of the Crime Act which provides :

“A person shall be taken to engage in money laundering if, and only if:

(b) the person receives, possesses, conceals, disposes of or brings into Fiji any money, or other property, that is proceeds of crime,

and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.”

10. The defence in their closing submission argued that the charge was not clear and specific, but before the hearing the State counsel submitted that basis of this case was the accused receiving the funds to his personal account. Therefore this objection is not valid and accordingly the Prosecution has to prove following elements beyond reasonable doubt :
    1. The accused ;
    2. Receives ;
    100. Proceeds of crime;
    4. Knowing or ought to reasonably known that the money is derived from some unlawful activity.
11. Before the hearing pursuant to section 135 of the Criminal Procedure Decree the parties filed following as agreed facts and documents:

Facts

1. Mr. Nitesh Kumar (Accused person), was employed at Registrar of Titles officer between 22nd of April 2009 to the 12th of April 2010.

2. Nitesh Kumar was acquainted with one Kapil KushantSamy.

3. Kapil KushantSamy was working at ANZ Bank in April 2009 to April 2010.

4. Nitesh Kumar and Kapil KushantSamy maintained regular contact with each other during the course of their employment since Mr. Samy would regularly come to the Registrar of Titles office for carrying out his tasks for ANZ Bank in terms of settlement and discharge of loans.

5. Nitesh Kumar had an ANZ Bank account no. 8540368.

6. Nitesh Kumar was caution interviewed by DC 3695 IsireliWaqairalia commencing on 30th June 2011 and concluding on 15th January 2012 and gave his answers voluntarily.

Documents

i) ANZ Journals labeled (D1) to (D78) in disclosures;

ii) ANZ Internal Debit Forms labeled (D79) to (D160) in disclosures;

iii) ANZ Bank Statement of account no. 8540368.

12. The defence counsel concedes in his closing submission (paragraph 11) that there was no dispute that the accused received proceeds of crime to his account. Therefore I find that the first 3 elements of this offence are proved.
13. Only disputed issue in this case is whether the accused knew or ought to have reasonably known that these funds were derived from some unlawful activity.
14. Both counsel have relied on recent Fiji Court of Appeal decision of Johnny Albert Stephen v State [2016] FJCA Crim App No .53 of 2012 where his Lordship Justice Gamalath discussed about the mental element of this offence in the following manner :

“Suffice it to state at this stage, in dealing with the mental element involved in a crime, it is trite law that the word “knowledge” with its grammatical variations connotes the requisite mental element of the crime. In that sense, in order to substantiate the offence of Money Laundering the prosecution is required to prove that the perpetrator “knew” or ought reasonably “to have known” that the money or other property involved in the crime have been derived or realized directly or indirectly by some unlawful activity.”

15. The Fiji Court of Appeal in the above decision further held that meaning of the phrase ‘ought reasonably to know’, as against having actual knowledge, should be understood to mean, either constructive knowledge or with having reference to all the attendant circumstances a person ought to have known the existence of the unlawfulness involved.
16. When a person shutting his eyes to the truth can it be considered to be included in “knowledge “? This issue was also considered in Johnny Albert Stephen v State(supra) and his Lordship cited the dictum of Lord Bridge in Westminster City Council v Carayal Grange Ltd 83 Cr.App.R where it was held that :

““...it is always open to the tribunal of fact ... to base a finding of knowledge on evidence that the defendant had deliberately shut his eyes to the obvious or refrained from inquiry because he suspected the truth but did not wish to have his suspicious confirmed”.

17. In State v Mukeshwar Narayan Singh (HAC 250 of 2014) his Lordship Justice Wengappuli also addressed this ground in the following manner :

“It is duty to consider the truthful and reliable prosecution evidence, whether the accused had actual knowledge that the money is derived from some form of unlawful activity. It is also actual knowledge if the accused had willfully shut his eyes to the obvious, willfully and recklessly failing to make such inquires as an honest and reasonable man.”

18. Having considered the above judicial precedents, now I turn my attention to the disputed issue. The contention of the defence is that the accused was not aware about these transactions coming to his accounts. But the witnesses called by the Prosecution clearly submitted that for nearly 01 year the bank statements were mailed to the postal address shown in the statements. It was never put to the witnesses that this postal address did not belong to the accused. Only issue raised was that the accused was not receiving the statements for 01 year. Further the evidence shows that the balance inquiries were made about the account. But Kapil had access to the account being a bank officer and I do not think he has reason to check the balance .Therefore I find that the accused was aware about these transactions coming to his account through the bank statements and from the balance inquires.
19. Also even though the counsel for the accused submitted in his closing submission that the Prosecution failed to prove the bank account belonged to his client, this is an admitted fact in PTC minutes and no need to prove by the State.
20. The accused has remained silent and this is right under article 14(2) (j) of the Fiji Constitution. He does not need to prove anything.
21. But in his caution statement the accused said the reason why he gave the ATM card to Kapil. According to him Kapil lost his ATM card and the accused gave him his card to withdraw the funds. But Kapil being a bank officer, could not replace his lost ATM card for 01 year is improbable. Also the accused was aware about the conditions of the ATM card and consequences of breaching that. Why he took the risk and allowed Kapil to use the card for 01 year? I do not think it is just because of friendship as submitted by the accused in his cation statement.
22. Even though there were regular deposits by Kapil, not all these were withdrawn and some were left as balance in the account. If Kapil was acting alone without the knowledge of the accused, I do not think he would leave some balance in the account.
23. The accused said Kapil withdrew these deposits from his account and he has nothing to do that. But some of these withdrawals were made from Nasouri ATM (07/09/2009, 21/09/2009, 16/10/2009, 29/10/2009, and 16/04/2010). Kapil was living at that time in Gaji Road, Samabulla and I do not think he would go all the way to Nasouri to withdraw these deposits from ATM machine there. The accused was living in Nasouri at that time. Further some of these withdrawals were made during the pay week of the accused and according to his caution interview, the accused had ATM card with him during that time. Therefore only reasonable inference that can be drawn is that the accused was withdrawing these funds on these days.
24. Therefore I find that the accused as a reasonable person should have known that these regular deposits of funds from Kapil were coming from some unlawful activity and not from grandfather or from personal funds.
25. In fact by allowing Kapil to use the ATM card for 01 year, withdrawing some deposits and Kapil leaving some balance in the account of the accused clearly shows that the accused was turning a blind eye to these activates and even colluding with Kapil which clearly shows the accused had the actual knowledge also that these funds were from some unlawful activity.
26. Based on the above mentioned reasons, I find the prosecution has proved beyond reasonable doubtthe accused committed this offence.
27. I find the accused guilty for this charge and convict him accordingly.
28. 28 days to appeal

Shageeth Somaratne

Resident Magistrate, Suva