Court orders release of money forfeited in gambling raid [1]
Tuesday, June 9, 2020 - 19:37. Updated on Wednesday, June 10, 2020 - 09:17.
The Crown has been ordered by the Lord Chief Justice to return more than $30,000 pa’anga in cash to 13 Chinese people. The cash was forfeited when they were arrested during a police raid aimed at illegal gambling in 2019.
Bin Huang and 12 other applicants, sought an order for the return of their cash.
On August 18, 2019 the applicants, were charged with playing games of mere chance (or illegal gambling) contrary to s.83 of the Criminal Offences Act. During the course of the raid, police seized, and subsequently detained, all the cash found on the premises at Tofoa.
The Crown {respondent} opposed the application on the basis that because the applicants did not file a notice of appeal within 30-days of the seizure of the cash, it was automatically forfeited pursuant to the Money Laundering and Proceeds of Crime Act, which provides
'Where cash has been seized under sections 19C and 19D and no notice of appeal has been received by either the seizing authority or the Court within the period of 30 days from the time of seizure, then the cash will be automatically forfeited to the Crown.'
Cash
Lord Chief Justice Whitten in a judgment on June 2, said, there was no evidence, that any of the seized cash was derived directly or indirectly from, or used or intended to be used in, the commission of an offence punishable by imprisonment of not less than 12-months or more severe penalty.
He said, even if the table cash or any of it was derived from winnings on the gambling itself, then, as the applicant's counsel correctly submitted, s.83 of the Criminal Offences Ac is not a serious offence as defined in the Act.
Therefore, such winnings could not constitute 'recoverable cash'.
As for the other cash, the only evidence of provenance was from Huang's affidavit, to the effect that it was derived from legitimate business activities. That evidence was unchallenged, he said.
"There being no evidence that the cash was derived from a serious offence, I find that none of the cash was 'recoverable cash' for the purposes of the Act and that there were no reasonable grounds for the police to suspect that it was."
Release
The Chief Justice then found that the seizure of the cash was not in accordance with s.19C and was otherwise unlawful. Therefore, the cash was not subject to s.19G(5) and could not lawfully be forfeited to the Crown.
He granted the application and ordered that all the cash seized from the applicants, together with all interest accrued pursuant to s.19E, be released and returned to them.
Any application for costs is to be filed within 14-days, otherwise, there will be no order as to costs.
He then recommended that consideration be given to amending this Act so as to clarify or address the issues raised in this judgment, in particular, the proper interpretation and intended application of the provisions within the s.19 group.
Raid
The Court heard that on August 18, 2019 police raided a warehouse at Tofoa belonging to Lin Xiu Ming.
There, they found the applicants in this case, together with others, sitting at a number of tables playing card games for money or gambling.
There was money in the middle of each table and each of the players had other monies in front of them. Other money was also found on the persons of the players, in their pockets, wallets, bags and elsewhere on the premises.
The police seized all the cash found which amounted to TOP$89,837, RMB$1,200 and IDR$46,000.
The next day, all 25 players were each charged with playing games of mere chance contrary to s.83 of the Criminal Offences Act, which provides:
'Games of mere chance; Every person who plays for money or other stakes of any description whatever at any game of mere chance shall be liable to a fine not exceeding $1,000 and in default of payment thereof to imprisonment for any period not exceeding three-months.'
On August 23, 2019 all of the accused appeared before the Magistrate's Court. Four of them, pleaded not guilty. Their trial was never heard.
The others, including the applicants in this proceeding, pleaded guilty and were each fined $300. The applicants paid their fines that same day.