Regina v Idris [2009] SBHC 61; HCSI-CC 334 of 2008 (25 November 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

In the matter of the Money Laundering and Proceeds of Crime Act 2002

And

In the matter of Fatah Idris and Nokulunga Rose Idris

And

In the matter of an application for a Confiscation Order

BETWEEN:

REGINA
Claimant

AND:

FATAH IDRIS
First Defendant

AND:

NOKULUNGA SILVER ROSE IDRIS
Second Defendant

Date of Hearing: 1 July 2009
Date of Decision: 25 November 2009

Mr. R. Iromea for Crown
Fatah Idris in person

DECISION ON APPLICATION FOR CONFISCATION OF FUNDS

Cameron PJ:

1. The Crown applies to have various items which were seized by Police from the defendants confiscated in favour of the Government. The Crown relies on the Money Laundering and Proceeds of Crime Act 2002.

2. On 11 April 2008 the first defendant was sentenced in the Magistrate’s Court to 4 years’ imprisonment on a variety of offences. He appealed to this Court against the sentence which appeal was partially successful. He was re-sentenced by this Court on 3 July 2008, but his overall term of imprisonment remained at 4 years. The second defendant, the wife of the first defendant, received a lesser term of imprisonment, and has returned to South Africa. The facts were that the defendants entered Solomon Islands on 10 August 2007, armed with false passports, stolen travellers cheques, and a considerable amount of cash in various foreign currencies. They made a false declaration to Customs on entry, failing to disclose possession of the travellers cheques and the foreign currencies. They then set about cashing these travellers cheques into Solomon Islands dollars at various financial institutions, using false passports in names which corresponded with the names on the travellers cheques. With part of the Solomon dollars so acquired they bought American dollars, British pounds and New Zealand dollars.

3. They were arrested on 17 August 2007, following the execution of a search warrant at their then address at the Quality Inn Motel, Honiara. Police seized a quantity of cash in various currencies, a number of false passports and some counterfeit dollars. It is these items that are the subject of this application for confiscation.

4. In relation to the travellers cheques, the first defendant admitted to Police that he had ‘an idea’ they were stolen. As it is accepted that the original signatures on the travellers cheques are not those of the defendants, I have no hesitation in finding that those travellers cheques were stolen. They remain of course the property of the financial institutions which issued them. Accordingly, I direct that they be returned to those financial institutions.

5. As to the passports, the first defendant admitted that they were false. I direct that they be returned to the respective Governments which issued them.

6. As to the counterfeit dollars which were seized, I direct that they be destroyed by the Police.

7. As to cash, the facts establish that US$7,250, GBP$1,800 and NZD$3,390 were acquired by the defendants using Solomon Islands dollars derived from cashing stolen travellers cheques. As such, those moneys were "derived as a result of the commission of the offence" within the meaning of section 33 (2)(b) of the Money Laundering and Proceeds of Crime Act 2002, and I direct their confiscation in favour of the Solomon Islands Government under section 33(1) of that Act.

8. Of the Solomon Islands dollars obtained by cashing stolen travellers cheques, I infer that an amount of SBD$44,576.07, which was not located by Police, was used to pay part of the defendants’ accommodation costs at the Quality Inn Motel and for their other expenses. I order under section 38 of that Act that the equivalent of such sum be paid by the defendants to the Solomon Islands Government from the cash seized.

9. I now consider the balance of the foreign currencies held by the Police. I note that the defendants’ failure to declare possession of the cash when entering Solomon Islands is an offence under section 24 of the Exchange Control Act, for which the penalty includes a power to forfeit such foreign currency (section 26(2)). I also note that having it in their possession may have constituted an offence under section 17(1)(a)(ii) of the Money Laundering and Proceeds of Crime Act 2002. When asked about his possession of the cash in his second interview with the Police the first defendant stated that he had no comment, from which it can be inferred the defendants made no claim to legitimate ownership and possession of the funds. It would also appear from that interview that at least some of those funds may have been stolen from a house burglary in Port Elizabeth, South Africa.

10. Finally, I infer from the statement of facts that possession of the foreign currency was at least in part for the purposes of meeting the defendants everyday expenses while conducting their criminal spree in Solomon Islands, as the defendants had no bank accounts in this country or any other source of funds. In this way those funds were connected with the criminal offending.

11. I am satisfied that for the reasons expressed that the balance of the cash in foreign currencies was sufficiently connected to the offending to be regarded as tainted property, and I order its confiscation to the Solomon Islands Government under section 33(1) of the Act accordingly.

12. I further direct that to the extent that those financial institutions in Solomon Islands which were involved suffered a direct loss as a result of the offending, that they be reimbursed from the funds so confiscated on a pro rata basis.

13. The sealed order which accompanies this decision forms part of it.

BY THE COURT

__________________________

Justice IDR Cameron
Puisne Judge