Gov of Sey v Rajan (MC 59 of 2022) [2021] SCSC 835 (26 September 2021)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search Flynote null BURHANJ [1] This is an application by the aforementioned Applicant seeking an Interlocutory Order pursuant to Section 4 of the Proceeds of Crime (Civil Confiscation) Act 2008 as amended (POCA), prohibiting the Respondent from disposing of or otherwise dealing with or diminishing the value of whole or any part of the property set out in the Table to the Notice of Motion dated 12 September 2022. [2] The details of the property set out in the Table to the Motion are 4,954,491 (four million nine hundred and fifty four thousand and four hundred and ninety one) ordinary shares in AP Towers Holdings PTE Limited (Company Registration No 201937707D, Singapore) valued as at February 2021 at US$ 3.84 million SCR 53,376,000.00 (specified property). [3] The Applicant further seeks an Order pursuant to Section 8 of POCA appointing Superintendent Neville Thaver to be the receiver of the said property. [4] On the 16th of September 2022 when the case was called in open court Attorney at Law Mr Cesar who appeared for the Respondent stated that they had no objections to the motion and confirmed the fact that his client the Respondent had earlier consented to the application. On perusal of the consent document exhibit NT3, it is clear that at paragraph 3 of the said document that the Respondent Fahreen Rajan has accepted inter-alia the fact that she had purchased the specified property described herein unlawfully and further admitted that the said property constitutes benefit from criminal conduct. [5] The law as contained in the Section 4 of the POCA requires proof that: a) Aperson is in possession or control of (i)Specified property and that the property constitutes, directly or indirectly benefitfrom criminal conduct; or (ii) Specified property that was acquired, in whole or in part, with or in connection with the property that directly or indirectly constitutes benefit from criminal conduct and (b) The value of the property or the total value of the property referred to in sub paragraphs (i) and (ii) of paragraph (a) is not less than R 50,000. [6] I have considered the details contained in the affidavit of Superintendent of Police and Commanding Officer of the Financial Crime Unit Mr Neville Thaver dated 12 September 2022 and the affidavit (exhibit NTI) of Mr Craig Gibson who is attached to the Anti­ Corruption Commission Seychelles (ACCS) and who has conducted detailed investigations in respect of the specified property set out in the Table to the Motion anddescribed at paragraph [2] herein. [7] At paragraph 4 onwards of his affidavit, SP Thaver states that his belief is based on and is a result of discussions of investigations done by Mr Craig Gibson attached to the Anti­ Corruption Commission Seychelles (ACCS). The investigations he states reveafs that the Court has already granted an Interim Order under Section 3 of POCA in respect of the specified property herein. A copy of the said order is produced as exhibit NT2. The owner of the specified property is Fahreen Rajan nee Ladha. [8] SP Thaver in his affidavit and relying on the affidavit filed by Mr. Gibson in respect of his investigations proceeds to explain in his affidavit, the history of the transactions where initially Mr Mukesh Valabhji was to purchase four million shares in an investment opportunity with Apollo Tower Myanmar. The shares were to be purchased in the name of the company named Silver Cap Ltd whose ultimate beneficial owner was the said Mukesh Valabhji. The investment opportunity was overseen by a company called Overseas Private Investment Corporation (OPIC). The said company has since changed its name to International Development Financial Corporation (IDFC). [9] However at the time of the original purchase OPIC observed that Mr. Mukesh Valabhji had not satisfied the KYC (know your customer requirement) necessary for the share purchase agreement to take place. It is further stated in the affidavit that in order to purchase the said shares the Respondent Fahreen Rajan (nee Lahda) became a front for the said Mukesh Valabhji in the purchase of the said shares. [10] Subsequent to the Respondent Fahreen Rajan purchasing the shares, as there was nothing on file explaining from where the funds for purchase of the shares was received by her, she was asked to explain her source of funds for the said purchase. It was at that time a loan agreement surfaced. The said loan agreement was drafted between Mr Mukesh Valabjhi and the Respondent Fahreen Rajan and the assistance was obtained from Mukesh Valabhji's wife a lawyer and notary by profession. The loan agreement was purported to show that Fahreen Rajan had been loaned US$ 4 million by Capital Management and Consultancy Ltd her then employer which company too was owned and operated by Mukesh Valabhji. However no such loan transaction had in actual fact taken place, a fact admitted by Fahreen Rajan in her under caution statement. [11] The aforementioned loan agreement prepared by Mrs Laura Valabhji in May 2017 is on the following terms; (a) A loan ofUSD 4 million for the purchase of2 million preference shares from TillmanGlobal Holdings, for the purchase of Apollo Towers Pte Ltd: (b) Repayment to be made in full by the latest 51 months from the date of disbursement orupon the eventual proceeds of the sale of shares in Apollo Towers Pte Ltd whichever is earlier. (c) Interest payable at the rate of 10%per annum (d) The loan is secured by the personal guarantee of the borrower and pledge on the borrower's vehicle. [12] On the 20th of January 2022, as per the affidavit filed by SP Thaver and Mr Gibson, investigators from the ACCS executed a search warrant at the offices of Intelvision and pursuant to the warrant recovered emails showing a significant number of communications between Mr and Mrs Valabhji and the Respondent Fahreen Rajan. Emails in respect of the transactions referred to above dating back to May 20] 6 were recovered. Investigations done in respect of the emails between Fahreen Rajan and Mukesh and Laura . Valabhji, OPIC, Apollo Towers and their representatives revealed that the emails showed a conspiracy between Fahreen Rajan, Mukesh Valabhji and Laura Valabhji to purchase the shares using the Respondent Fahreen Rajan to conceal the fact that the beneficial owner is actually Mr. Mukesh Valabhji. [13] Although the investigations revealed that as at 11 July 2016 Mr Mukesh Valabhji had decided to purchase the shares in the name of the company Silver Cap Limited, due to KYC information being called for, a change occurred and arrangements were made for the sale of the shares to the Respondent Fahreen Raj an as opposed to Silver Cap Ltd. Fahreen Rajan had filled up the "Online Sponsor Disclosure Report" (hereinafter OSDR) with the endorsement "Please note that this share purchase is mypersonal investment". It is further set out in the affidavit of Mr Thaver that providing false information on the OSDR form is an offence and could result in criminal prosecution in the United States of America. [14] Further investigations of the emails between Fahreen Rajan, Mukesh and Laura Valabhji revealed that Fahreen Rajan recognises Mukesh Valabhji as being the beneficial owner of Apollo Towers shares as per email dated 26th May 2021, Fahreen Rajan emails Laura Valabhji on the said date as follows, "please advice what documentation needs to be put in place internally that indicates that I am not the beneficial owner of the shares so that there is some sort of security for MV around this investment. " [15] Following the arrest of the Respondent Fahreen Rajan on the 21 st of January 2022, she was interviewed in respect of the purchase of shares from Apollo Tower. Her account indicated that Mukesh Valabhji had funded the loan on the basis that it was for her personal investment. However the loan was never paid back. On the 6th of June 2022, the Respondent Fahreen Rajan volunteered to provide a witness statement, and admitted that the loan agreement was made specifically to satisfy the ongoing KYC issues regarding the purchase of the shares. She further admits that she had not taken a loan from Mr Mukesh Valabhji or Capital Management and Consulting Ltd and she was not under an obligation to return any funds either. She further admits that the loan agreement is false and that although she is the legal owner of the shares Mr Mukesh Valabhji is the beneficial owner. She further states that both Mukesh Valabhji and Laura Valabhji were aware of this fact. [16] It is the contention of the Applicant the shares have been obtained by way of a criminal conspiracy and false representations and the shares dishonestly obtained thereby amounting to benefit from criminal conduct as set out in Section 2 and Section 3 (9) of the Anti-Money laundering and Countering the Financing of Terrorism Act 2020. [17] It is further set out in paragraph 44 of the affidavit that the Respondent Fahreen Rajan by signed document exhibit NT3 dated 27th July 2022 stated that she will not oppose or contest and will consent to any order under Section 4, 5 or 19 of the POCA. It is clear therefore that the said Fahreen Rajan is in possession of property which value is not less than SCR 50,000.00 and constitutes directly or indirectly benefit from criminal conduct. [18] I observe that the contents of the affidavit of SP Thaver is supported by the factsset out in the affidavit ofMr Craig Gibson in respect of the detailed investigations conducted by him and further supported by the annexures tendered to Court in a separate bundle as referred to in paragraph 6 of his affidavit of 12thSeptember 2022 which include the statements of Fahreen Rajan and numerous emails and documents taken into custody regarding the share transfers. [19] Learned Counsel Mr. Vickers QC relies on his submission made in the Section 3 application that in terms of the Section 12(1) (a) (b) of the Mutual Assistance in Criminal Matters Act 2022 (MACMA), the Attorney General may request a foreign State to make arrangements for the enforcement and satisfaction of a Seychelles confiscation order or make arrangements with the foreign State to restrain dealing in any such property against which the confiscation order may be enforced. Learned Counsel also relies on the definition contained in Section 2 of MACMA where the definition of confiscation order includes a confiscation order within the meaning of Proceeds of Crime (Civil Confiscation) Act CAP 298. He submitted that the disposal order in the POCA could therefore be interpreted to be the confiscation order referred to in the MACMA. [20] It is clear the Applicant relies on the contents of the affidavits filed by Superintendent Neville T~aver and Mr Craig Gibson and the submissions of learned Counsel Mr. Vickers in order to establish that there are clearly reasonable grounds for suspecting that the said specified property referred to above in the Table to the Notice of Motion, constitutes benefit accrued from criminal conduct, namely Money Laundering and to establish that the property in question set out in the Table of the Notice of Motion has a total value of more than SCR 50,000. [21] It is apparent from the application that the value of the specified property for which the Interlocutory Order is being sought is set out in the Table to the Motion in SCR exceeds well over SCR 50,000. Therefore the requirement as set out in Section 4 (b) of the POCA has been established. [22] I am satisfied on the information contained in the affidavits of Superintendent Mr Thaver and Mr Craig Gibson that there are reasonable grounds to believe that the property set out in the Table to the Notice of Motion as set out in paragraph 2 herein constitutes, directly or indirectly, benefit from criminal conduct. I am also satisfied that the value of the impugned property is not less than SCR 50, 000.00. [23] In the case of of Financial Intelligence Unit v Contact Lenses Ltd & Ors [2018] SCSC 564 at [15] it was held that " once the applicant establishes his belief that the property is the proceeds of crime, the burden of proof shifts to the Respondent to show that it is not" [24] The Respondent through her Attorney at Law has consented to the said application. All material facts in respect of the investigation conducted by Mr Craig Gibson have been admitted. [25] For the aforementioned reasons as there is no contest or challenge to the facts and documents tendered by the Applicant by way of affidavits and annexed exhibits, 1 am satisfied that the belief evidence by way of affidavit of Superintendent Neville Thaver can be accepted as it is supported by the affidavit of Mr Gibson and other attached documentation on which grounds his belief evidence is based. I am therefore satisfied that the specified property set out in the Table to the Notice of Motion as set out in paragraph 2 herein constitutes, directly or indirectly, benefit from criminal conduct. I am also satisfied that the Applicant has established that the property constitutes benefit from criminal conduct and its value is over SCR 50,000.00. [26] The Respondent has failed to establish that the specified property is not from proceeds of crime and gone further by consenting to the said order being given. [27] I therefore proceed to accept the belief evidence and grant the reliefs as prayed for by the Applicant and issue: 1) an Interlocutory Order pursuant to Section 4 of the Proceeds of Crime (Civil Confiscation) Act 2008 (POCA) as amended, prohibiting the Respondent or such other person having notice of the making of this Order, from disposing of or otherwise dealing with or diminishing the value of whole or any part ofthe property set out in the Table to the Notice of Motion and described in paragraph [2] herein. 2) an Order pursuant to Section 8 of the POCA, appointing Superintendent Mr. Neville Thav~r to, be the Receiver of all or part of the property to manage, to keep pos~ession or dispose of or otherwise deal with any other property in respect of which he is appointed in accordance with the Court's directions and further order. 3) that a copy of this Order to be served on the Respondent or on the Attorney at Law representing her. 4). A copy of the order to be served on the Attorney General to take steps under Section 12 of the Mutual Assistance in Criminal matters Act 2022. Sign d, dated and del" red at lie du Port on 26th September 2022.