Bhojwani v AG

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Re
• Judgment Date: 10 February 2011
• Neutral Citation: [2011] JCA 34
• Date: 10 February 2011

Raj Arjandas Bhojwani

and

The Attorney General

[2011] JCA 34

Before:

The Hon. Michael Beloff Q.C., President; Dame Heather Steel, and; Nigel Pleming, Q.C.

COURT OF APPEAL

Application for leave to appeal against the conviction by the Royal Court on 5 March, 2010 and the sentence imposed by the Superior Number of the Royal Court on 25 June, 2010 on charges of:

2 counts of: Converting the proceeds of criminal conduct, contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.

1 count of: Removing the proceeds of criminal conduct from the jurisdiction of Jersey, contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.

Authorities

Proceeds of Crime (Jersey) Law 1999.

AG v. Bhojwani [2008] JCA 188 .

Bhojwani v. AG [2009] JCA 115A .

Cox v Army Council Respondents [1963] AC 48 .

Court of Appeal (Jersey) Law 1961.

R v Ghosh [1982] QB 1053 .

Criminal Justice (International Co-operation)(Jersey) Law 2001.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Criminal Justice (International Co-operation) (Jersey) Law 1999.

AG v Bhojwani [2010] JRC 027 .

R v Bennett [1994] 1 AC 42 .

R v Chalkley [1998] 2 Cr. App. R. 79 .

Warren v. AG [2008] JCA 135 .

Mbsango and Anor v. Logo Limited [2007] QB 846 .

Oppenheim's International Law (9th Ed) Vol 1.

R v. CII, AP and TI [2008] EWCA Crim 3062 .

Buttes Gas and Oil Co [1982] AC 888 .

Buttes Gas and Oil Co [1981] 1 QB 223 .

R v. Khan [1997] AC 558 .

AG v Bhojwani [2009] JRC 216 .

AG v Bhojwani [2010] JRC 042 .

R v. Galbraith [1981] 1 WLR 1039 .

Archbold, Criminal Pleading, Evidence & Practice (2010).

R v P [2008] 2 Cr. App. R. 6 CA .

Sangan v AG [1987–88] JLR 196 .

AG v Capuano [2003] JRC 211 .

R v Greig [2010] EWCA Crim 1183 .

R v Thomas and others [2009] EWCA Crim 1682 .

Snooks v. AG [1997] JLR 253 .

R v Stoddart 2 Cr. App. R. 217 .

AG v Bhojwani [2008] JRC 172A .

R v. Turner [1975] 1 QB 834 .

AG v. Edmond-O'Brien [2006] JLR 133 .

Hall v AG [1995] JLR 102 .

Baylis v A-G [2004] JLR 409 .

Barette v AG [2006] JLR 407 .

Styles v AG [2006] JLR 210 .

Hamilton v AG [2010] JCA 136A .

R v Hopkins-Husson [1949] 34 Cr. App. R. 47 .

Waite v. AG [2007] JCA 170 .

Barton v. AG [2007] JCA 172 .

Taylor v. Law Officers of the Crown [2007–8] GLR 207 .

R v. Exall (1866) 176 ER 850 .

AG v Bhojwani [2010] JRC 116 .

AG v Michel [2007] JRC 120 .

Harrison v AG [2004] JLR 111 .

Att. Gen. v Sampson (9) (1965) JJ at 499 .

Archbold, Criminal Pleading, Evidence & Practice (2003 ed.).

Royal Court (Jersey) Law 1948.

Att.Gen. v Paget (7) ((1984) JJ 64 .

R v O'Prey [1999] 2 Cr. App. R. (S) 83 .

European Convention on Human Rights Article 7.

Human Rights (Jersey) Law 2000.

R v Rimmington [2006] 1 AC 459 .

R v Monfries (2004) 2 Cr. App. R. (S) 3 .

R v Basra (2002) 1 Cr. App. R. (S) 100 .

R v Adams [2009] 1 WLR 301 .

R v Sarmiento [2003] 2 Cr. App. R. (S) 9 .

R v Webbe and Ors (2002) 1 Cr. App. R. (S) 22 .

R v Rayworth (2004) 1 Cr. App. R. (S) 75 .

R v Innospec 26 March 2010 .

MacKenzie v AG [1995] JLR 9 .

R v Mangena [2009] EWCA Crim 2535

AG v Bhojwani [2010] JRC 002

R v Mehta and others [2008] EWCA Crim 1491 .

R v Lyon (2005) The Times 19 May 2005 .

AG v Bhojwani [2009] JRC 207A .

M. T. Jowitt, Esq., Crown Advocate.

Advocate J. D. Kelleher for the Applicant.

The President:

Introduction

1 This is the judgment of the Court. It addresses the appeal both against conviction and against sentence.

2 On 5 March 2010 Raj Arjandas Bhojwani (“Mr Bhojwani”) was convicted before the Royal Court (Commissioner Clyde-Smith (“the Commissioner”) with two Jurats) on three counts of money laundering contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999 (“PoCL 99”). On 25 June 2010 Mr Bhojwani was sentenced by the Superior Number of the Royal Court to six years’ imprisonment on each count, to run concurrently. By Notice of Application for Leave to Appeal dated 24 May 2010 Mr Bhojwani appealed (or, where necessary, applied for permission to appeal) against his conviction and his sentence.

3 There were 3 counts on the Indictment. The first count is as follows:

Count 1

“Converting the proceeds of criminal conduct, contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999.

The particulars of the offence

Raj Arjandas BHOJWANI between 1 October, 2000 and 30 October 2000 in respect of criminal conduct, namely:

• (a) the dishonest inflation of true prices for motor vehicles sold by him to Nigeria;

• (b) the making of false representations that;

• (i) The inflated prices were genuine prices;

• (ii) It was necessary to pay US$ 148,940,000 plus freight and other charges or about that sum in order to obtain the vehicles sold under one contract; and

• (iii) It was necessary to pay US$ 28,961,192 or about that sum in order to obtain the vehicles sold under the other contract.

• (c) the obtaining of dishonestly inflated payments for the vehicles out of Nigerian public funds;

• (d) the dishonest receipt for the benefit of himself and others of the inflated payments thereby obtained;

• (e) The dishonest payment of monies by or on the instructions of the said Raj Arjandas Bhojwani to bank accounts connected to Nigerian public officials involved in the award of vehicle–supply contracts to TaTa Overseas Sales and Services Ltd.

(conduct which, if it occurred in Jersey, would have constituted offences of misconduct in public office, fraud, conspiracy to commit fraud, fraudulent conversion, conspiracy to commit fraudulent conversion),

converted his proceeds of such criminal conduct, namely credit balances held in the name of TaTa Overseas Sales and Services Ltd and Britannic Trade Corporation at the Bank of India in Jersey, into six bankers’ drafts totalling approximately US$43.9 million, for the purpose of avoiding prosecution for an offence listed in Schedule 1 to the said Law or the making or enforcement of a confiscation order against him.”

4 Counts 2 and 3 refer to removing and converting the proceeds of criminal conduct, also contrary to Article 34(1)(b), and are not here separately set out.

5 The statutory provisions material to these charges are as follows:-

(i) Article 34(1)(b):-

“Concealing or transferring proceeds of criminal conduct

• (1) A person is guilty of an offence if the person –

• (a) conceals or disguises any property that is or in whole or in part represents the person's proceeds of criminal conduct; or

• (b) converts or transfers that property or removes it from the jurisdiction ,

for the purpose of avoiding prosecution for an offence specified in Schedule 1 or the making or enforcement in the person's case of a confiscation order.” (Emphasis added)

(ii) Schedule 1 provides:-

“Offences for Which Confiscation Orders May Be Made

Any offence in Jersey for which a person is liable on conviction to imprisonment for a term of one or more years (whether or not the person is also liable to any other penalty) but not being a drug trafficking offence.”

(iii) Article 1(1) of the Proceeds of Crime (Jersey) Law 1999, (interpretation), provides:-

“criminal conduct” means conduct, whether occurring before or after Article 3 comes into force, that –

• (a) constitutes an offence specified in Schedule 1; or

• (b) if it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey;”

6 The statutory provisions are not altogether easy to construe. The nature of the defendant's purpose is key. It is necessary that a defendant should have the purpose of avoiding prosecution for a Schedule 1 offence. It is not necessary that he should in fact be guilty of such offence; that would require attribution to a defendant of knowledge of Jersey law before he could be found guilty of money laundering which the legislation could not sensibly contemplate. The natural candidate for a Schedule 1 offence in this case would be fraud even if on the facts Mr Bhojwani could not be prosecuted in Jersey for such an offence. We have in this context the benefit of previous decisions of this Court to, which we loyally adhere.

7 In AG v. Bhojwani [2008] JCA 188, this Court considered and ruled on what purpose had to be proven. We refer to the following extracts:-

“We accept the Commissioner's reasoning, following Saik, that the purpose element is purely subjective and the submission of Advocate Jowitt set out in paragraph 87 that the statutory requirements for the criminal character of the property cannot be imported into the purpose element in this case. We note that both the cases of Montila and Saik were primarily concerned with the application of subsection (2) of the relevant statutes where the property converted/transferred was the property of another, and the attention of the House had been directed to the words ‘knowing or having reasonable grounds to suspect’ in those offences. The House considered the contrasts between that subsection and subsection (1) as we have set out in paragraph 84 above, and we consider the difference to be significant. The Crown therefore need only prove that the defendant, when he converted/ transferred his proceeds of criminal conduct, had the requisite subjective purpose to avoid prosecution for an offence specified in schedule 1, that is, a serious offence in Jersey, or the making or enforcement of a confiscation order. The Crown need not prove that he had actually committed an offence in Jersey for which he could have been prosecuted or in respect of which a confiscation order could be made.” – paragraph 90

“Having regard to the wording of Article 34 (1) – ‘for the purpose of avoiding prosecution for...