Supreme Court of Mauritius, 26 février 2020, 2020 INT 40 – P v Mattapullut

P v Mattapullut

2020 INT 40

CN253/11 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side)

In the matter of:- Police v/s 1. Mattapullut Khelash 2. Mattapullut Bhaminee born Gokhool JUDGMENT The Accused No. 1 (hereinafter referred to as A1) stands charged as follows as per the amended Information: 1) Under each of Counts 5, 7, 9, 11, 13, 41, 43, 45, 51, 53, 55, and 57: Forgery In A Private Writing, contrary to ss. 108(a), 111, and 121 of the Criminal Code; 2) Under each of Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, and 60: Making Use Of A Forged Private Writing, contrary to ss. 108(a), 111, 112, and 121 of the Criminal Code; and 3) Under Count 61: Money Laundering, contrary to ss. 3(1)(a), 6, and 8 of the Financial Intelligence And Anti-Money Laundering Act (hereinafter referred to as FIAMLA).

A1 pleaded Guilty to Counts 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 42, 43, 44, 45, 46, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, and 60.

A1 pleaded Not Guilty to Count 61.

A1 was assisted by Learned Defence Counsel throughout the Proceedings.

Counts 1, 3, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 47, 49, and 59 were dismissed against A1 upon the Motion of the Prosecution.

Accused No. 2 (hereinafter referred to as A2) stands charged, under Count 62, of Money Laundering, contrary to ss. 3(1)(b), 6, and 8 of FIAMLA as per the amended Information.

A2 pleaded Not Guilty to Count 62 and was assisted by Learned Defence Counsel throughout the Proceedings.

Learned State Counsel conducted the case for the Prosecution.

The Proceedings were held partly in English and partly in Creole.

The Prosecution Case The Court will only consider Counts 61 and 62 in detail, on which A1 and A2 pleaded Not Guilty respectively, given A1 pleaded Guilty to the Counts as mentioned above.

It was the case for the Prosecution that:

1) Under Count 61: between the years 2005 and 2007, at Port-Louis, A1 did wilfully and unlawfully engage in a transaction that involved property which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime, where A1 had reasonable grounds for suspecting that the property was derived in whole or in part directly or indirectly from a Crime, to wit: the said A1 credited sum of Rs10 122 000/- into the Bank Account of his Wife, Mrs Bhaminee Mattapullut (i.e. A2), at the Mauritius Commercial Bank Ltd (hereinafter referred to as MCB), being proceeds of Forgery; and 2) Under Count 62: on or about the month of March 2007, at the MCB, A2 was wilfully and unlawfully in possession of property which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime, where A2 had reasonable grounds for suspecting that the property was derived in whole or in part directly or indirectly from a Crime, to wit: sum of Rs10 122 000/- in her Bank Account Number 122394011 at the MCB, being the proceeds of Forgery.

The Defence Case A1, under Count 61, denied the charge in his unchallenged out-of-Court statements (Docs. A, A1, A2, and A3). In Court, A1 elected to state under solemn Affirmation inter alia that he was the sole one managing the said Bank Account, and that he apologised for what he had done, explaining same had happened as he became addicted to Casino games.

A2, under Count 62, denied the charge in her solemnly affirmed out-of-Court statements (Docs. B, B1, and B2). In Court, A2 elected inter alia to deny the charge under solemn Affirmation, adding that A1 was the one managing the said Bank Account, and that she did not receive her Bank Statements.

Analysis The Court has duly analysed all the evidence on Record and all the circumstances of the present matter, and the Court has watched the demeanour of the Prosecution Witnesses and that of the Accused Parties with the utmost care. The Court has also given due consideration to the Submissions of all Learned Counsel, and all the Authorities referred to by Learned Counsel.

In light of the fact that A1 pleaded Not Guilty only to Count 61, and that A2 pleaded Not Guilty to Count 62, which is the only Count in relation to A2, the Court will only assess the evidence in detail on Record in relation to Counts 61 and 62.

In relation to Counts 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 41, 42, 43, 44, 45, 46, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, and 60, A1 fully admitted the said charges as per A1’s unchallenged Confessions (Docs. A, A1, A2, and A3).

The Court finds the following extract from the Authority of Janvier v The State [2010 SCJ 129] of relevance:

The learned magistrates further aptly found support from the proposition in DPP v A[u]mont JP [1980 SCJ 338] to the effect that “a voluntary confession by an accused party that was direct and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution.”

In this respect, we also read in R v Mallinson [1977] Crim. LR 161 that “it is only in exceptional cases that English law requires corroboration of particular type of evidence and confessions have never been held to require corroboration either by law or practice.”

The Court in the Authority of Grande Oreille v The State [2017 SCJ 151] stated the following:

As was stated in the case of Lily v The Queen [1900 MR 31], referred to by the trial Court and appellant, where the case rests “almost exclusively upon a solitary extra- judicial alleged confession, it may be, as a rule, safe to convict, if the confession is shown to have been voluntarily made, if free from ambiguity and is fully and strictly proved.” […] It goes without saying that each case must be decided on its own particular facts and circumstances. We are also in agreement with the basic principle that trial courts are expected to exercise caution and care when assessing the reliability of a confession. On that score, it would be appropriate to state the observations of Lord Kerr in the judgment of Pora v The Queen [2015] UKPC 9, an appeal to the Judicial Committee of the Privy Council from a judgment of the Court of Appeal of New Zealand, more particularly at paragraph 57 of the judgment, and which was cited with approval in the case of Boodhoo v The State of Mauritius [2016 SCJ 258], and which reads as follows – “Any court must therefore be astute to examine the reliability of seemingly straightforward confession of guilt where that comes under later challenge […] it is precisely because of the experience that people confess to crimes that they did not commit that one should be vigilant to examine possible reasons that confessions may be false. […] “judges and juries tend to disbelieve claims of innocence in the face of a confession, and are usually unwilling to accept that someone who has confessed did not actually commit the crime”. In light of that entirely natural and to-be-expected reaction, careful attention should be paid after the confession has been made to reasons given that it was in fact untrue. Indeed, such is the potential potency of confession evidence that particular care is required in examining whether it reflects the true state of affairs.”

In the course of the Trial, the voluntariness of the said out-of-Court statements for A1 was not challenged by A1.

The Court is therefore of the considered view it has been established the said Confessions given by A1 were voluntary.

The Court is further comforted in reaching the conclusion that the said Confessions were voluntary, given the sheer details contained in the said Confessions, which could only have been to A1’s personal knowledge, which is to be coupled with A1 statement under Oath.

In light of all the above, the Court is of the considered view that it is safe to act on the said uncorroborated Confessions given by A1, and that full weight can be attached to same.

Further, given the Handwriting Expert’s Report (Doc. Q) remained unchallenged, the Court is of the considered view that it can safely act on same, and that full weight can be attached to same, it establishing a direct link between A1 and the said offences as per the said Counts.

Also, the Court bears in mind a plea of Guilty is “[…] an express and conclusive admission of the offence in respect of which the plea is made, for the purposes of that trial, and dispenses with the necessity of proving the facts alleged in that count of the indictment” (Halsbury’s Laws of England, Criminal Procedure Volume 28, 05 th Edition, para. 659, Judicial admissions).

In light of all the above factors, coupled with A1’s unequivocal Guilty pleas to the said Counts, the Court is of the considered view that the Prosecution has established its case against A1 under each of the said Counts.

In relation to A1, under Count 61, the Prosecution bear the burden of proving beyond reasonable doubt, pursuant to s. 3 of FIAMLA:

1) A1 wilfully and unlawfully engaged in a transaction that involved Property; 2) Which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime; 3) Where A1 had reasonable grounds for suspecting the property was derived in whole or in part directly or indirectly from a Crime.

In relation to A2, under Count 62, the Prosecution bear the burden of proving beyond reasonable doubt, pursuant to s. 3 of the FIAMLA:

1) A2 was wilfully and unlawfully in possession of Property; 2) Which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime; 3) Where A2 had reasonable grounds for suspecting the property was derived in whole or in part directly or indirectly from a Crime.

In the present matter, in relation to Counts 61 and 62, although the Prosecution elected, as it was entitled to as expressly provided by Law, to aver a particular Crime, i.e. Forgery, the Court bears in mind that there is no need to prove a particular predicate crime as per the Authority of Audit v The State & Another [2016 SCJ 282] in which the principles set out in the Authority of DPP v Bholah [2011] UKPC were applied:

In DPP v Bholah (Supra) the Judicial Committee held that “Proof of a particular predicate crime is not an essential “element” of the offence of money laundering.” It is therefore sufficient for the purposes of section 3(1) of FIAMLA that it was shown that the appellant was in possession of property, which is, in whole or in part, directly or indirectly represent the proceeds of any crime that is any criminal activity.

The Court bears in mind that in the present matter, A1 is A2’s Husband, and the Court also bears in mind that it is trite Law that the evidence of one Accused Party cannot be used in relation to another Accused Party in the same Proceedings.

The Court has duly considered all the articles of evidence adduced in the present matter:

1) 02 bundles of copies of Other Charges Form and 01 copy of cheque of the Mauritius Museums Council (hereinafter referred to as MMC) (Docs. C and D respectively); 2) 01 bundle of copies of 29 cheques of MMC (Docs. E, E1 to E28 respectively); 3) 01 bundle of statement of Account of MMC (Doc. F); 4) 07 bundles of documents including copy of cheque of MMC and Other Charges Form (Docs. G, H, J, K, L, and M respectively);

5) 21 original cheques of MMC (Docs. N, N1 to N6, N8, N9, and N13 to N24 respectively); 6) 04 copies of cheques of MMC (Docs. N7, N10, N11, and N12 respectively); 7) 02 original Other Charges Forms (Docs. P and P1 respectively); 8) 06 bundles of documents including original Other Charges Forms (Docs. P2 to P7 respectively); 9) 01 Report of Hand Writing Section (Doc. Q) signed by PS 4120 Burumdoyal (hereinafter referred to as W1); 10) 01 bundle of statement of Account for A1 (Doc. R); 11) 07 bundles of copies of Savings Deposit Vouchers and Mr Best Deposit Envelopes (Docs. S, V, W, AB, AC, AJ, and AK respectively); 12) 01 bundle of copies of Savings Deposit Vouchers (Doc. T); 13) 05 bundles of copies of Mr Best Deposit Envelopes (Docs. U, AD, AE, AF and AG respectively); 14) 01 bundle of copies of Savings Withdrawal Forms (Doc. Z); 15) 03 bundles of statement of Account (Doc. AA collectively) of A2; 16) 01 bundle of copies of Mr Best Deposit Envelopes, Savings Deposit Vouchers, and 01 Saving Withdrawal Form (Doc. AH); 17) 01 Medical Certificate (Doc. AL) dated 21-05-12 for A1.

Count 61 A1’s own explanation he was the one preparing the cheques in his own handwriting (Folio 283678 of Doc. A), that all Bank cheque counterfoils remained in his possession, and that he was in charge of preparing any cheque for payment (Folio 283679 of Doc. A), clearly establishes that A1 had access to the relevant documents and had the means of forging the said documents, and eliminates the possibility that a third party forged the said documents.

Further, from A1’s unchallenged out-of-Court statements (Docs. A, A1, A2, and A3), A1 admitted having forged the said cheques, having encashed the said cheques, and having pocketed the said money, A1 explaining therein in detail his modus operandi.

It has therefore not been disputed that A1 forged the said cheques, encashed same, kept the money obtained therefrom, and was in possession of the said property obtained following the Forgery of the said cheques.

From all the above, the Court is of the considered view that the only reasonable and irresistible inference to be drawn is that the said money was, or in whole or in part directly or indirectly represented, the proceeds of Crime.

A1 was not legally entitled to be in possession of the said money, and only obtained same as a result of his Forgery of the said cheques as highlighted above. A1 being the one having forged the said cheques as highlighted above, necessarily had reasonable grounds for suspecting, and in fact knew, the said property, was derived in whole or in part directly or indirectly from a Crime.

The Court has borne in mind A1’s version he used the said money obtained from the Forgery of the said cheques to the prejudice of MMC, to play at the Casino, and then knowingly credited, or caused to be credited, some of the gains obtained therefrom, i.e. sum of Rs10 122 000/-, into the Bank Account of his Wife, i.e. A2, at the MCB.

The Court is however of the considered view that the said explanation given by the Accused was a maladroit attempt by the Accused to give a veneer of legitimacy to the said ill-gotten gains, which were one step removed from the money obtained from the said Forgery. Be that as it may, the Court finds the said explanation of A1 doubtful, as the odds of A1 winning over Rs10 000 000/- at the Casino, even over a period of 02 years, appear very low.

Further, A1’s explanation he won at the Casino is further put in doubt by the very rate at which money was being credited to A2’s Bank Account in 2005 (Doc. AK).

The following observations in relation to the transactions on the said Bank Account apply to Count 62 equally.

The fact A1 may have had a lucky period in 2005 is purely destroyed by the sheer quantity of money credited to A2’s Bank Account thereafter, in 2006 and 2007, as evidenced by the Savings Deposit Vouchers and the Mr Best Deposit Envelopes (Docs. AB, AC, AD, AE, AF, AG, AH, and AJ).

Also, on some dates, over the relevant period of 2005 to 2007, money was credited to A2’s Bank Account more than once, to highlight just a few:

1) Twice on 12-07-05 (Doc. AK); 2) Twice on 23-08-05 (Doc. AK); 3) Twice on 27-03-06 (Doc. AB); 4) Twice on 18-10-06 (Doc. AC); 5) Thrice on 27-11-06 (Doc. AE); 6) Thrice on 04-12-06 (Doc. AD); 7) 04 times on 21-12-06 (Doc. AD); and 8) 04 times on 08-01-07 (Doc. AF).

At any rate, the mere fact of using money obtained from the said Forgery to play at the Casino, and then crediting, or causing to be credited, the gains obtained from playing at the Casino, into A2’s Bank Account, cannot, and do not, alter the fact that the money used to play at the Casino was originally illegally obtained.

A1 admitted having credited all the money he had obtained from the said Forgery to A2’s Bank Account. This clearly establishes that A1 wilfully and unlawfully engaged in a transaction that involved the said money.

The Court has also given due consideration to A1’s statement under solemn Affirmation, in which A1 inter alia accepted his responsibility in the present matter, and apologised.

The Court has noted the Medical Prescription and the receipt attached thereto (Doc. AL) produced by A1, which emanate from Dr Gaya, Psychiatrist. The Court however fails to see the relevance of the said document, given it is dated 21-05-12, i.e. more than 05 years after the relevant period in relation to the present matter, and hence has no bearing on the determination of the present matter.

In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that it has been established that A1 wilfully and knowingly engaged in a transaction that involved the said money which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime, where A1 had reasonable grounds for suspecting the property was derived in whole or in part directly or indirectly from a Crime, i.e. the said Forgery.

Count 62 The Court is of the considered view that A2’s explanation it was A1 who was managing her said Bank Account, that she could not explain how the said money got into her said Bank Account, and that she had no knowledge of same, does not hold water, for the following reasons.

A2 confirmed having studied up to Form V and having sat for the School Certificate (Folio 08 / 347016 of Doc. B). This means that A2 was educated up to that level, and was smart enough to have a Bank Account, and operate same, the more so as A2 confirmed having withdrawn money therefrom herself in her solemnly affirmed out-of-Court statement (Folio 08 / 347017 of Doc. B) and in Court.

A2 contradicted herself, by stating in Court having withdrawn money from her said Bank Account only once, and having conceded, in her solemnly affirmed out-of-Court statement, having withdrawn money from her said Bank Account twice (Folio 08 / 347017 of Doc. B). Although A2’s version was to the effect that it was A1 who managed the said Bank Account, the very fact A2 conceded having withdrawn money from the said Bank Account necessarily implies A2 did have access to the said Bank Account.

Further, in Court, under solemn Affirmation, A2 confirmed having had access to the said Bank Account.

At any rate, the fact that it may have been A1 who managed he said Bank Account does not automatically mean that A2 had no access to her said Bank Account.

Further, A2 knew that A1 was “Assistant Comptable” at the MMC (Folio 08 / 347016 of Doc. B), and hence must have known, or at the very least, have had an idea, that A1 could not have legally obtained the money as was credited on her said Bank Account between 2005 and 2007.

No explanation was forthcoming from A2 as to why she only mentioned for the first time in Court that she was not receiving her Bank statements. Bearing in mind in particular A2’s admission she had withdrawn money from her said Bank Account, the Court finds doubtful the said explanation she did not receive her Bank statements, given A2 only mentioned same for the first time in Court, and the said explanation appears to have been an ultimate attempt on the part of

A2 to try and establish in Court that she could not have known how much money was being credited on her said Bank Account.

The Court has noted that A2 stated in re-examination that she performed a transaction on her said Bank Account prior to 2005, i.e. implying thereby that she had no dealings whatsoever with the said Bank Account during the relevant period of 2005 to 2007. Had this in fact been the case, A2 would have specified same in her out-of-Court statements. This explanation differed from A2’s own version as contained in her solemnly affirmed statement to the effect she had withdrawn money twice from the said Bank Account.

The Court has noted the line of cross-examination adopted by Learned Defence Counsel in relation to the fact that the two Officers who deponed on behalf of the MCB, i.e. Mrs Devika Doorga and Mr Jean Francois Lindsay Chan Kin Seng Ah Cham (hereinafter referred to as W11 and W19 respectively) could not identify the person who had made the said deposits. However, this does not detract from the fact that the said transactions on the said Account, in particular the Withdrawals effected, must have been done with A2’s knowledge. W11’s testimony as to the fact that during the relevant period, there was a procedure called Third Party Payment, whereby a third party could call over the counter, provided the said third party produced his/her own Identity Card, that of the Account Holder, and the withdrawal Form duly filled in by the Account Holder, remained unchallenged. Further, the sheer number of transactions on the said Bank Account (Doc. AA) speaks volumes not only about the frequency of the said transactions, but also about the quantum there was on the said Bank Account in order to have so many withdrawals (Doc. AA). The Court also bears in mind that on some days, there were multiple transactions, and that the transactions were close in time, as evidenced by the unchallenged statement of Account (Doc. AA).

It stands to reason that even if A1 was the one managing the said Bank Account, in order to effect any withdrawal on the said Bank Account, A1 would have needed A2’s Identity Card and would have needed for A2 to fill in the Withdrawal Form. It stands to reason that same could not have been done without A2’s knowledge. And from the value of the said transactions as evidenced by the said unchallenged statement of Account (Doc. AA), A2 must have had at the very least an inkling as to the quantity of money there was on her said Bank Account. Further, bearing in mind A2 knew about A1’s employment, there were reasonable grounds for A2 to suspect that the said money on her Bank Account was not obtained by legitimate means.

Under solemn Affirmation, A2 stated inter alia that the card to the said Bank Account remained with A1, who was managing the said Bank Account, implying thereby that A1 was making withdrawals from the said Bank Account with the said card. This was however not mentioned by A2 at the time of the Enquiry or in her solemnly affirmed out-of-Court statements (Docs. B, B1, and B2).

Also, the very fact A2 did not ask A1 as to why he was crediting the said money, which he had allegedly won at the Casino, onto her Bank Account, is very telling. No explanation was forthcoming as to why the said money had to be credited to A2’s Bank Account, the more so when bearing in mind that A2 knew that A1 had not one, but two Bank Accounts, of his own. All these factors ought to have led A2 to reasonably suspect that A1 had obtained the said money from a Crime.

In light of all the above, the Court is of the considered view that it has been established that A2 was in possession of the said money, which was the proceeds of a Crime, and the Court has duly assessed the demeanour of A2 in Court, A2 appeared to be a streetwise person, who could not have been totally ignorant of the large sums that were being credited to her said Bank Account, and must at the very least have suspected that the said money represented the proceeds of a Crime, in particular in light of the observations made in relation to the transactions made on the said Bank Account as highlighted in relation to Count 61 above.

In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, coupled with A2’s admitted knowledge of A1’s employment, the Court is of the considered view that it can safely infer that A2 was wilfully and unlawfully in possession of the said money, which was, or in whole or in part directly or indirectly represented, the proceeds of a Crime.

Conclusion In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above:

1) In relation to A1: a) Under each of Counts 5, 7, 9, 11, 13, 41, 43, 45, 51, 53, 55, and 57: In light of all the evidence on Record, all the circumstances of the present matter, all the factors highlighted above, and applying the principles set out in the Authority of DPP v Ramdeen [2005 SCJ 198] that “[…] the best proof of guilt is the fact that the respondent pleaded guilty to the offence – vide DPP v Aumont [1998 SCJ 338]; Gungadin v The Magistrate, Intermediate Court [1995 SCJ 31]. It is trite law that on a plea of guilty the trial Court has to convict, pursuant to section 72 (2) of the District and Intermediate Courts (Criminal Jurisdiction) Act.” and in light of A1’s unequivocal Guilty Plea under each of the said Counts, A1 is found Guilty as charged under each of the said Counts; b) Under each of Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, and 60 In light of all the evidence on Record, all the circumstances of the present matter, all the factors highlighted above, and applying the principles set out in the Authority of Ramdeen (supra) and in light of A1’s unequivocal Guilty Plea under each of the said Counts, A1 is found Guilty as charged under each of the said Counts; and c) Under Count 61: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that the Prosecution has proven its case against A1 beyond reasonable doubt, and A1 is therefore found Guilty as charged on the said Count; and 2) In relation to A2: Under Count 62: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that the Prosecution has proven its case against A2 beyond reasonable doubt, and A2 is therefore found Guilty as charged on the said Count.

[Delivered by: D. Gayan, Magistrate] [Intermediate Court (Criminal Side)] [Date: 26 February 2020]