The defendant Cen Zahangyao colluded with a person overseas, Mr. Ayazi and co-defendant Mr. Wu Zheng in order to smuggle saker falcons (national key protection animals) out of China to other countries. After some negotiations, Wu Zheng took responsibility for booking cargo space and arranging customs documents. Cen Zhangyao promised to pay 3,000 yuan for the smuggling of every saker falcon.
Ayazi entrusted others to transport the falcons to Cen Zhangyao and after receiving the falcons, Cen transferred them to a place near the airport and handed them over to Wu Zheng. Then, Wu Zheng handed the falcons to Zhang Hao, who booked the cargo space and declared the falcons to customs officials as glass goblets. As agreed in advance, custom officers Zhu Qianwei and Qian Wenbin did not carry out an inspection. The falcons were to be transported to Qatar when they were discovered by other customs officers who opened and checked the cargo box.
Investigation showed that from 2007 to 2008, defendants Cen Zhangyao, Wu Zheng, Zhang Hao, Qian Wenbin engaged in the smuggling of 82 saker falcons.
On 24 March 2009, based on the criminal facts and circumstances of the defendants and the degree of harm to the society, the Intermediate People's Court of Ningbo City rendered the guilty verdict for all perpetrators. Cen Zahangyao received the most severe sentence - a death penalty of 2nd instance (death sentence with a two-year reprieve), deprival of political rights for life and confiscation of all personal property. Cen Zhangyao confessed his crime and sought redemption.
A few years after this sentence, the eight amendment to the criminal law of China adopted on 25 February 2011 abolished the death penalty for the crime of smuggling of rare animals, plants and products made thereof.
On 22 May 2016, the defendant endeavoured to cross from Morocco to Spain through the border point of Beni-Enzar (Morocco). He was driving a vehicle with a fraudulent license plate. The vehicle had two hidden compartments: one behind the rear seat and one in the front of the vehicle, just under the dashboard, between the glove compartment and the engine. Following a search operation, law-enforcement agents discovered two migrants in the hidden compartment at the front of the car and one migrant hiding in the rear cubicle. The three migrants were not in possession of the necessary documentation to legally enter and stay in Spain.
The sentence was based on the defendant's guilty plea, in which he agreed to have committed the crimes of migrant smuggling and falsification of documents. The defendant also admitted that his conduct included aggravating circumstances, notably the endangerment of the life and safety of migrants. In respect of the aggravating circumstance of endangering the life and safety of migrants, and following prior jurisprudence (e.g. STS 887/2005, STS 1025/2012), the following elements were used as indicators that paragraph 3 of Article 318 bis of the Criminal Code could be triggered: (i) reduced dimensions of the hidden compartments where the migrants were transported, (ii) lack of ventilation, (iii) inhalation of contaminated air due to closeness to the engine, (iv) impossibility of moving.
Additionally, the prosecutor emphasized that the defendant was a recidivist for the same type of crime. He had finished serving his previous sentence (four-year imprisonment) shortly before committing the offense he was tried for. With a prior criminal record for migrant smuggling, the defendant was remanded in custody on 23 April 2015 for crimes related to the case under analysis until he was convicted to 6-year imprisonment for migrant smuggling and additionally given a fine for falsification of documents.
A British national, Francis J. Butler, asked H. to carry cash from the United Kingdom to Spain for real estate transactions he intended to make in that country. The courier did not make it to Spain because he was stopped by British customs under the Drug Trafficking Act 1994. Driving a rented car, H. was stopped in Portsmouth by a British Customs and Excise officer. When asked how much cash he was carrying, H. answered "£500." A subsequent search of the car turned up £240,000. H. stated that the sum in question belonged to a friend who was meeting him in Spain. The money was seized in civil confiscation proceedings as it was determined that, based on circumstantial evidence, the money was directly or indirectly the proceeds of drugs trafficking and/or was intended for use in drug trafficking.
Francis Butler is a heavy gambler on horses and often held large sums of money in cash for this purpose. Apart from his winnings, he also inherited a large sum in cash from his father in 1990 and in 1992 realized a substantial profit on the sale of a house, which he bought and had refurbished. The applicant stated that he has never been convicted of any drugs related offences and maintained the confiscation of the assets carried by H. was illegal.
Francis Butler contacted the Customs and Excise authorities to reclaim the money and attended voluntarily for interview on 4 October 1996 together with his solicitor. On that occasion, the applicant was told that he was not under arrest. He answered the questions put to him and gave permission to examine his bank accounts as well as his account with his bookmaker.
An order for the detention of the applicant's money was granted by Portsmouth Magistrates' Court on 19 September 1996 on application of the Customs and Excise authorities pursuant to section 42(2) of the Drug Trafficking Act 1994. The Portsmouth Magistrates' Court made an order for the confiscation of the sum in question and ordered the applicant to pay the costs of the hearing.
The applicant's appeal was heard before Portsmouth Crown Court on 2 and 3 October 1997. The court upheld the forfeiture order and made an order that the applicant pay a further amount towards costs. The Court had already noted that the proceedings before Portsmouth Magistrates' Court and the Crown Court afforded the applicant ample opportunity to contest the evidence against him and to dispute the making of a forfeiture order. Finding the case inadmissible, the Court disagreed with the applicant's contention that confiscating his money was equivalent to a criminal sanction, and found it to be a preventive order designed to take out of circulation money that was presumed to be connected to the international trade in illicit drugs.
In Butler v The United Kingdom, the applicant filed a complaint to the European Court of Human Rights in which he argued that by having to prove that his money was not intended for drug trafficking beyond a reasonable doubt his right to be presumed innocent had been violated, considering that the public authorities only had to satisfy the standard of proof of a balance of probabilities for the same aspect. The Court noted that the proceedings before Portsmouth Magistrates' Court and the Crown Court afforded the applicant ample opportunity to contest the evidence against him and to dispute the making of a forfeiture order, and considered the applicant's complaint manifestly ill-founded and inadmissible.
On 30 September 1999, the Federal Republic of Nigeria opened investigation of the parents and relatives of the late Sani Abacha who were accused of misappropriating, under false pretences, funds belonging to the Central Bank of Nigeria, issuing bank checks, bank transfer orders and cash withdrawals. Some of misappropriated funds were transferred to accounts opened with Swiss banks, either directly or through companies. Under investigation were Maryam Abacha, widow of Sani Abacha, Mohammed Abacha, son of Sani Abacha, Abdulkadir Abacha, brother of Sani Abacha, Ahmadu Daura, Bagudu and Gwarzo. The persons named above were charged with theft, breach of trust, involvement in a criminal conspiracy and money-laundering acts.
In its decision of 7 February 2005, the Swiss Federal Tribunal also concluded that the greater part of these assets, worth some USD 458 million, was clearly the proceeds of crime and could therefore be returned to Nigeria without the latter having to issue a confiscation order. This course of action permits the assets in question to be returned quickly to the country to which they are owed, and is also progressive in an international context. Switzerland is the first country in which Abacha funds were deposited to return these assets to Nigeria on the basis of an official decision.
Part of worldwide settlement with recovered funds were to be used to fund projects in the health, education, water, electricity and road sectors and were monitored by the World Bank
In the UK, it is often a condition of release from prison for certain medium or high-risk prisoners that they must live at "Approved Premises" (APs). There are 94 APs for men, distributed around England and Wales, including several in London. There are only 6 APs for women, who constitute 5% of the prison population, and none of them is in London or in Wales. This means that women are much more likely than men to be placed in an AP which is far from their homes and communities.
In 2004, the appellant, Ms. Coll, was sentenced to life imprisonment for murder with a tariff of 11 years and 3 months, which was due to expire in November 2015. She has since been released on licence. As a condition of that release, she was required permanently to live in Approved Premises in Bedford, not to leave to live elsewhere even for one night, without the prior approval of her supervising officer, and thereafter to reside as directed by that officer.
In 2013, Ms. Coll brought proceedings in connection to the limited provision of approved premises for women in England and Wales. She sought a declaration that the current provision of APs amounted to unlawful sex discrimination, contrary to the Equality Act 2010 (EA) and her rights protected by articles 8 and 14 of the European Convention on Human Rights, and that the Secretary of State had acted in breach of the public sector equality duty (PSED) under section 49 EA by failing to have due regard for the need to eliminate discrimination against women in the provision of APs. In part she argued that the prison system is "largely designed by men for men" and that women have been marginalised within it."
In a landmark ruling, the Supreme Court held that the current distribution of APs constituted unlawful sex discrimination against women. The Supreme Court noted that although in principle the different provision made for men and women might be justified, "the Ministry of Justice has never properly addressed its collective mind to the problem of providing sufficient and suitable places in APs for women which achieve, so far as practicable, the policy of placing them as close to home as possible."
Regional perspective: Pacific Islands Region
Case Study 6 (Non-Conviction-Based Forfeiture - The Turtle Island Resort Case, Fiji)
This case involved a syndicate of money launderers who colluded to hide illegal funds acquired in a fraudulent scheme involving the alteration of company cheques belonging to the Turtle Island Resort.
Mr. Anand Kumar Prasad, the main player in the conspiracy, was the accountant of SPOR Fiji Ltd trading as Turtle Island Resort, a luxury island resort catering to wealthy tourists owned by Mr. Richard Evanson. During his term of employment, between May 2006 and January 2008, he fraudulently altered cheques that were being issued by the resort for the payment of its expenses. A total of 84 cheques amounting to FJ$840,000 (equivalent of US$478,000) was fraudulently converted and deposited at local commercial banks.
Mr. Prasad secured employment with the company through the recommendation that his sister, Ms. Shirley Sangeeta Chand, provided to Mr. Evanson. Ms. Chand was at the time a well-regarded banker at ANZ Bank. She usually provided banking services to Mr. Evanson because his business bank account was held at ANZ Bank. Mr. Prasad was also a former employee of the bank.
As the company's accountant, Mr. Prasad had direct access to the cheque books of Turtle Island Resort and knew that cheques for less than $10,000 would not be scrutinized by management. He arranged with his accomplices to open bank accounts or to use existing accounts as a conduit for the fraudulently altered cheques after he changed the payee's names and increased the sums payable. In addition to making many cheques payable to the company "Shahill and Shohill Grocery and Machinary Repairs Ltd.", a legitimate business belonging to the Singhs - a married couple who also faced charges - Mr. Prasad transferred money to this company's account via a fax authorization in which his sister Ms. Chand played an instrumental role as a bank's employee.
The four of them, together with other two individuals, were convicted in 2011 of conspiracy to defraud along with other counts of forgery, uttering, obtaining on forged documents and money laundering. They received sentences ranging from 6 years to 2 years, pursuant to the Penal Code of Fiji, reflecting their different roles in the conspiracy to commit a felony.
Several tainted assets were identified by the intervening law enforcement agencies, and the property forfeited to the State though a civil forfeiture petition successfully filed by the Director of Public Prosecutions Office.
Case Study 7 (Re Sentencing, Fiji)
Fiji's former Acting Deputy Official Receiver Viliame Katia was convicted on eleven counts of corruption-related offences committed between July 2008 and January 2016 while he was employed in the Public Service. He engineered over 1.400 fraudulent transactions within the Official Receiver's Office to steal more than $4 million dollar of trusted money. On June 1, 2017, the Nausori Magistrates Court sentenced him to fourteen years of imprisonment with a non-parole period of twelve years.
The Fiji Independent Commission against Corruption (FICAC) appealed the sentence on the grounds that it was too lenient. The appeal was successful, the sentence nullified and set aside, and the case was transferred to the High Court. Mr. Katia was re sentenced and received 23 years of imprisonment with a non-parole period of 22 years. The fact that the stolen public money was never recovered weighted heavily in the term of imprisonment's increase.
Exercise 1 (Theory application)
Identify the punishing principles applied by the High Court in Fiji Independent Commission Against Corruption [FICAC] v Katia.
Exercise 2 (Sentencing tariffs/guideline)
In the landmark case Abourizk v State , the Court of Appeal of Fiji increased the prison terms of two men convicted on drug-related charges from 14 to 25 years, setting the first sentencing tariff for hard drugs in Fiji.
Read the following excerpt of the sentence and:
" Having considered all the material available and judicial pronouncements in Fiji and in other jurisdictions, I set the following guidelines for tariff in sentences for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.). These guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 subject to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases.
 In my view, the sentencing court should consider an appropriate fine in addition to the imprisonment as permitted under section 05 of the Illicit Drugs Control Act 2004 depending on the quantity involved, nature of the act and the degree of involvement of the accused."
Regional perspective: Eastern and Southern Africa
Case study 8 (Hans Hackl v/s The Financial Intelligence Unit - Seychelles)
The case of Hans Hackl v/s The Financial Intelligence Unit challenged the constitutionality of the Seychelles Anti-Money Laundering Act 2006 (“AMLA”) as well as the Proceeds of Crime (Civil Confiscation) Act, 2008 (“POCA”). In the case, the petitioner challenged, inter alia, the constitutionality of the anti-money laundering laws with regards to whether the definition of criminal conduct in AMLA, which includes criminal conduct outside of the Seychelles jurisdiction, is constitutional. The Petitioner also challenged the constitutionality of the POCA with regards to his right to a fair hearing and right to property.
Under section 3 of POCA, the Financial Intelligence Unit (FIU) sought orders to inhibit the disposal - or otherwise dealing - of land, to prohibit the sale of - or any other dealings with - motor vessels registered in the name of Hackl, and to prohibit Barclays Bank and or any other person from disposing - or otherwise dealing - with the whole or any part of the money specified in the proceedings.
The director of the FIU supported the application with an affidavit, which explained in great detail the investigations carried out by the unit. It stated that Hakl, a dual citizen of Germany and Seychelles, had pleaded guilty and been convicted in Germany, sentenced to six years imprisonment and ordered to pay a sum of €705,00. The criminal conduct for which he was convicted included the illegal trading into Iran of prohibited material, namely high-quality graphite, suitable for the production of medium and long-range ballistic missiles, which could also be used within the scope of a nuclear weapons program. The affidavit stated that Hackl confessed to the Court that the proceeds of the criminal conduct had been channeled into Seychelles.
The Supreme Court issued interim orders granting the petition. Then, instead of following the procedures set out by the POCA to challenge the interim order and subsequent petition of an interlocutory order, Hackl impugned them before the Constitutional Court. He argued that the orders unconstitutionally deprived him of the property in question, which he contended he acquired before the POCA and AMLA legislation entered into force.
Moreover, he challenged the constitutionality of sections 3(1), 4(1), and 9 of the POCA, deemed them not necessary in a democratic society and standing in violation of the right to a fair hearing. He also argued that section 3(9)(c) of the AMLA Amendment Act 18, 2008 contravened the right to equal protection in law. Further, he argued that section 3(9)(c) of the AMLA Amendment Act 18, 2008 violated the separation of powers, as the legislative power of Seychelles, vested in the National Assembly, had been abdicated in favor of the Attorney-General.
The Constitutional Court dismissed the claims, providing a sound analysis of the points presented. On the alleged violation of the right to property, the Court held:
The legislature in Seychelles has decided in the POCA that Seychelles should not become a haven for property that is acquired from the proceeds of criminal conduct, whether committed in Seychelles or outside of Seychelles. This is permissible under article 26(2)(a) of the Constitution, that is in the public interest. It is equally permissible under article 26(2)(d) of the Constitution. Depriving people in receipt, ownership, possession and control of such property is not unconstitutional in my view. It is a legitimate restriction to the right to the property. Civil forfeiture of illicitly gained property is one of the latest ways in which governments are fighting crime. I have no hesitation to find that fighting crime is a pressing social need. It is ultimately about the safety of the population.
The Court considered the approach of other jurisdictions, and the legislative objectives of POCA, clarifying the proceedings under POCA are civil in nature:
[...] the POCA is not a penal statute. It does not possess the commonly known aspects of criminal legislation. No offence is created. No one is charged with an offence. No one is tried for any offence. Its thrust is to deprive ownership, possession, and control of property derived from criminal conduct from those that hold that property in the manner described at the time of initiating proceedings under the POCA. To that extent it is not retrospective at all. It speaks to the present not to the past. Property acquired from criminal conduct is not constitutionally protected.
The Court found the POCA provisions do not violate the right to a fair hearing, as the restrictions are temporary and upon the compliance of certain conditions, and therefore not fundamental.
Case study 9 (Tension between POCA asset forfeiture measures and arbitrary deprivation of property - South Africa)
The Prevention of Organized Crime Act 121, referred to as POCA, was enacted in South Africa in 1998. Its preamble states:
[B]earing in mind that it is usually very difficult to prove the direct involvement of organised crime leaders in particular cases, because they do not perform the actual criminal activities themselves, it is necessary to criminalise the management of, and related conduct in connection with enterprises which are involved in a pattern of racketeering activity.
POCA contains strong asset forfeiture measures that allow for a preventive application in order to secure the property before criminal conviction, modeled after similar provisions in the United States. POCA asset forfeiture measures’ application has resulted in a robust corpus of jurisprudence in South Africa.
The Prophet case involved the use of a residential house as a mini-laboratory for drug manufacturing. In Mohunram, the Court dealt with the use of business premises for the running of an unlicensed casino. Both cases concerned applications to forfeit the property to the State, based on being instrumentalities of criminal offences. POCA differentiates between instrumentalities of an offence and proceeds of unlawful activity as follows:
An instrumentality is “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere”.
Proceeds of unlawful activity are “. . . any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in the Republic or elsewhere, at any time before or after the commencement of this Act, in connection with or as a result of any unlawful activity carried on by any person, and includes any property representing property so derived”.
In Prophet and Mohunram, the Constitutional Court confirmed the importance of proportionality in the assessment of the constitutional validity of asset forfeiture, weighing the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence.