The defendant 1 was charged with fraud, together with two other Chinese defendants. The evidence suggests that he was involved in human trafficking. He had given boarding passes to enable one of the other Chinese charged to get to Canada and another to London. In this case, the defendants were alleged to be involved in human trafficking and money laundering through running their company, Futsing Finance Limited. According to the Asset Recovery Agency, defendant 1, through the company, operated a series of money collectors nationwide to gather money from illegal Chinese immigrants in their company. These funds are believed to be the repayment of the facilitation of their irregular entry into the UK. The network of collectors paid cash deposits into the bank accounts controlled by defendant 1 or Futsing Finance Limited through various banks around the UK.
The defendants were directors of a number of companies. The defendant 1 was investigated by the National Crime Squad (NCS) in January 2000, having been suspected of involvement in human trafficking and laundering the proceeds. He was arrested in March 2001, but no charges were brought and the investigation concluded in July 2001. A further investigation was carried out by the Metropolitan Police in relation to similar suspicions, but no charges were brought. However, the police informed the Asset Recovery Agency (the appellant in this case) of their investigations and referred the fruits of them to her.
The police alleged that the defendant 1, through Futsing Financial Limited operated a series of money collectors nationwide to gather money from illegal Chinese immigrants in their locality. These funds are believed to be for the repayment of the facilitation of their human trafficking into United Kidgom. These gave her reasonable grounds to suspect that the defendants were holding recoverable property and so a number of Production Orders were obtained during the first half of 2004 to obtain documents from banks, mortgagors and other financial institutions. An interim receiving order was applied for on the basis that there was an arguable case that the property covered by it derived from crime.
CanadaUnited Kingdom of Great Britain and Northern Ireland
ChinaAn interim receiving order was granted on 21 July 2004 against the defendants, though the defendants challenged it. The defendants submitted that the order should be discharged. Proceedings under Part 5 of the Proceeds of Crime Act 2002 should be construed in such a way that they were regarded as criminal, or if not, that the criminal standard of proof should apply. It further argued that Article 6 (right to a fair trial), in relation to the criminal proceedings, and Article 7 (no punishment without law) of the European Convention on Human Rights applied, and that the application for and granting of the interim receiving order was contrary to Article 1 (peaceful enjoyment of possession) of the 1st Protocol of the Convention. He further claimed that it amounted to an abuse of the process, and on the facts no unlawful conduct had been established. Thus, the matter concerned how Part 5 of the Act 2002 should be construed.
The High Court emphasized that the power given to the Asset Recovery Agency was wide-ranging and the purpose behind Part 5 of the Act is to enable property which has been obtained by means of criminal conduct to be recovered from the person/persons who were involved in that criminal conduct, whether or not a prosecution has ensued or been successful.
The Nature of Proceedings under Part 5: there is no doubt that in domestic law they are classified as civil proceedings, as seen in the precedent judgements. The standard of proof appropriate in deciding whether any matters alleged to constitute unlawful conduct have occurred is the balance of probabilities which requires a court to be satisfied that it is more probable than not that criminal conduct has been involved by evidence before it.
Article 7 of the ECHR: it was submitted that this was retrospective, so it relied on Article 7. As property cannot be recoverable unless it was obtained through unlawful conduct, the prohibition against retrospectivity will apply only because Article says that property must be property which was obtained by criminal conduct. Thus, it is clear that Article 7 cannot be applied.
Article 1 of the 1st Protocol: this article prohibits interference with property, though it is subject to the ability of the state to take measures which are in accordance with the law and which are regarded as necessary. Given that Parliament enacted these provisions (Part 6) as necessary, they are indeed proportionate.
Article 8 of the ECHR: the question of the proportionality can be applied to this matter, as seen above.
The High Court found that from the interim report of the receiver there were and remained real and well-founded concerns that the defendant 1 had indeed been involved in money laundering and that the cash and the properties which had been obtained were recoverable property. In conclusion, it stated that there should be no variation or discharge of the interim receiving order at present.
See, the defendant 1’s “Legal Reasoning” above.
The High Court of Justice, Queen’s Bench Division
From the facts of the case it is not clear whether defendant 1 was involved in migrant smuggling or trafficking in persons. However, the courts elaboration on the order applied on the basis that there was an arguable case that the property covered by it derived from crime could apply to both predicate offenses.