Day v Zijin Ltd & Ors (Miscellaneous Application No. 71 of 2011, Civil Side No. 342 of 2010) [2011] SCSC 43 (30 June 2011);





Miscellaneous Application No. 71 of 2011

[Arising from Civil Side No. 342 of 2010]

David Day=========== ============—====Applicant


Zijin Limited====================Respondent No.l

Financial Intellegience Unit=================== Respondent No.2

Liam Hogan====:===:==================Respondent No. 3



Basil Hoareau for the applicant


Kumar, State Counsel, for the respondents








Egonda-Ntende, CJ

1. David Day, the applicant in this matter, is seeking an order of this court, under section 4(3) of the Proceeds of Crime (Civil Confiscation) Act, herein after referred to as POCA, to vary its order of 21st February 2011 and order the release of the equivalent of British Pounds Sterling £100,000.00 from the sums of money now held by the respondent no. 3 as a receiver thereof. The ground of this application is that the applicant has an interest in this sum of money as he parted with this money as a victim of a fraudulent scheme.

2. The application is not opposed by the respondent no.2 and 3. In fact it is actively supported by the said respondents with an affidavit of Mr Declan Barber, the Director of the Financial Intelligence Unit, filed in support of this application. Mr Declan states on oath that Mr Day's money can be directly traced to the respondent's no. 1 's bank account and that it is in fact part of the sums that were the subject of the section 4 order of 21st February 2011.

3. Section 4(3) of POCA, states,



'Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent, or any other person claiming an interest in any of the property concerned, may,

(a)If it is shown to the satisfaction of the Court, that the property or any part of the property is property to which paragraph (a) of subsection (1) does not apply; or

(b)that the order causes any other injustice to any person (the onus of establishing which shall be on that person,

discharge or as may be appropriate, vary the order, and the Court shall not make the order in whole or in part to the extent the Court shall not decline to make the order in whole or in part to the extent that there appears to be knowledge or negligence of the person seeking to establish injustice, as to whether the property was as described in subsection (l)(a) when becoming involved with the property.'

4. Mr Basil Hoareau, learned counsel for the applicant, was of the view that both limbs of section 4(3) (a) and (b) of POCA applied to the
circumstances of this case. I do not agree. I find it difficult to fit this case
in the first limb under section 4(3)(a). In my view section 4(3)(b) is more
appropriate. I take the view that the money which is already subject of an
interlocutory order is in fact, on the basis of evidence available at the time
of making the order and now, the proceeds of crime held by respondent
no.l. This character does not change merely because a victim is available.

5. However where a victim is able to come forward and show that he was the victim of the criminal activity that led to his deprivation of property, the property being now the subject matter of an interlocutory order, it would be an injustice, not to restore the said property to him. I would therefore allow this application under section 4(3 )(b) of POCA, and vary the interlocutory order to the extent that allows the receiver to put back into the possession of the applicant, the Hinds that belong to him, and which have now been shown to be part of the property, subject to this Court's earlier order of 21st February 2011.

6. The Receiver is authorised to remit to the applicant the said sum of £100,000.00 as it is the just and equitable solution to the quandary in which the applicant found himself. I am satisfied that there is no evidence to indicate that he had knowledge of the criminal activity that led to his property becoming mixed up with the specified property, the subject of the interlocutory order. Neither is there any indication that suggests that he was negligent.

7. The Application is accordingly allowed.




Signed, dated and delivered at Victoria this day of July 2011


FMS Egonda-Ntende

Chief Justice