Money laundering as a criminal offence: It is a crime to engage in such activity (Part 1)
The Black’s Law Dictionary defines money laundering as the act of transferring illegally obtained money through legitimate people and/or accounts so that its original source cannot be traced.
The laws Ghana frowns on the activities of money laundering, and anyone held culpable is made to face the law. The offence of money laundering is largely regulated by the anti-Money Laundering Act.
A person who aids and abets the commission of money laundering also commits an offence if the person knows or ought to have known that another person has obtained proceeds from an unlawful activity and enters into an agreement with that other person or engages in a transaction where; the retention or the control by or on behalf of that other person of the proceeds from unlawful activity is facilitated; or the proceeds from that unlawful activity are used to make funds available to acquire property on behalf of that other person.
The Act defines an unlawful activity as a conduct which constitutes a serious offence, financing of terrorism, financing of the proliferation of weapons of mass destruction or other transnational organized crime or contravention of a law regarding any of these matters which occurs in this country or elsewhere.
The said Act and amendment established the Financial Intelligence Centre (FIC) with the the under listed objects to; assist in the identification of proceeds of unlawful activity, assist in the combat of, money laundering activities, financing of terrorism, financing of the proliferation of weapons of mass destruction and any other transnational organized crime. The FIC is also mandated to make information available to investigating authorities, intelligence agencies and revenue agencies to facilitate the administration and enforcement of the laws of the Republic of Ghana.
The anti-money laundering Act requires that a person or an accountable institution that knows or reasonably suspects that a property is a terrorist property, the proceeds of money laundering, for financing of proliferation of weapons of mass destruction, intended for any other serious offence shall submit a suspicious transaction report to FIC within TWENTY-FOUR (24) HOURS after the knowledge or suspicions was formed. An accountable institution is an entity and/or persons which have been listed in Schedule 1 of the Act, to include but not limited to the following; banks, non-bank financial institutions, currency exchange companies, auctioneers, lawyers, trustees, executors, those involved in remittance of currency, dealers in motor vehicles, buying and selling real estates and agents, religious bodies, non-governmental organizations, operators of game and betting, dealers in metals and precious metals, insurance business and business promoters, just to mention a few.
FIC requires Accountable Institutions to establish a single business relationship and/or conclude a single transaction with a client once such institution has conducted a risks management and compliance checks known as due diligence to establish the identity of the client.
The Act provides protection for accountable institution or its directors, officials or employees who in good faith submit a report to the FIC on money laundering, terrorism financing or financing any other serious weapons or provide information in accordance with the law shall not be held liable in criminal, civil, disciplinary or administrative proceedings for breach of banking or any professional secrecy or contract.
The Court’s Jurisdiction Over Money Laundering Offences
Section 464 clothes the Circuit Court and High Court with the jurisdiction to try an offence under money laundering offences. In a trial for an offence under this Act, the accused person may be presumed to have unlawfully obtained pecuniary resources or property in the absence of evidence to the contrary if the accused person, is in possession of pecuniary resources or a property for which the accused cannot account and which is disproportionate to the accused person’s known sources of income, or had at the time of the alleged offence obtained access to personal pecuniary resources or property for which the accused cannot satisfactorily account for.
According to the Court of Appeal speaking through His Lordship Dzamefe J.A. in The Republic vs. John Cobbina & Another said that money laundering being a criminal offence, the onus is on the prosecution to establish the guilt of an accused person beyond reasonable doubt. The accused is not under any obligation to prove his or her innocence. The proof beyond reasonable doubt is the highest burden of proof in criminal case which is placed on the prosecution because an accused is generally presumed to be innocent until proven guilty. The term beyond reasonable doubt connotes that the prosecution must lead evidence to establish a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible.
In the Republic vs. John Cobbina & Another matter mentioned above, the two (2) Appellants appealed against the judgment of a High Court that convicted and sentenced them to various terms of imprisonment for, inter alia, stealing, money laundering and falsification of accounts. According to the brief facts, J. Adom Co. Ltd, the complainant, which was engaged in haulage, construction and distribution of drinks, for sometime, realized that the revenue of the company had taken a persistent nosedive despite efforts to recapitalize same. Consequently, the company caused an audit to be conducted, which, disclosed several stealing scams involving John Cobbinah, the 1st Accused, who was the company’s Accountant. The investigations revealed that monies received by the 1st Accused from various banks on behalf of J. Adom Co. Ltd were deposited in his eight (8) personal bank accounts instead of the company’s account. In total an amount of about GHS 4,450,000.00 had been stolen by the 1st Accused which he used in acquiring several properties. The 2nd accused, the company’s Relationship Manager, who was supposed to collect monies and deposit into the company’s account at the bank rather deposited same in the 1st Accused’s personal account, was charged for aiding and abetting money laundering. At the conclusion of the trial, the two (2) Accused persons were convicted and sentenced to various terms of imprisonment. Having been dissatisfied with the judgment, the two (2) Accused persons filed an appeal at the Court of Appeal against their respective convictions and sentences. I would focus on the rehearing or appeal with regard to only money laundering because it is the fulcrum of this exposition.
Firstly, the Court of Appeal found that both the 1st Accused and 2nd Accused persons were jointly charged with the offences of conspiracy to commit the offence of money laundering. This means the two (2) accused persons conspired to launder money belonging to J. Adom Co. Ltd. His Lordship Dzamefe J.A stated that Section 1 (1) of Act 749 seeks to criminalize dealings with any property which the person charged knew or ought to have known forms part of the proceeds of an unlawful activity as spelt out in Section 1 (1) (a) (b) & (c) of Act 749 and not that the accused person obtained the property through criminal means or through an unlawful activity. The important issue is how the property in issue was acquired by the original owner. The prosecution could not show that J. Adom Co. Ltd had obtained the monies stolen by the 1st Accused through unlawful means. Therefore, this charge was not proven by the requisite standard which is beyond reasonable doubt and hence the 1st Accused was thereby acquitted and discharged. The 2nd Accused was also exonerated and acquitted on this count because the position of the law is that where conspiracy against another person fails and it is left with one person that person ought to be acquitted.
Secondly, the Court of Appeal found that the 2nd Accused was charged for aiding and abetting money laundering activities contrary to Section 2 of Act 749. The Trial Court held that the 2nd Accused should not have deposited the money in the personal accounts of the 1st Accused person since from the circumstances he ought to have known that the money was obtained from unlawful means. It is trite that a person who abets the commission of a serious offence shall be tried for the abetment of that offence. The Court of Appeal was of the opinion that the fact that the 2nd Accused person deposited monies belonging to Complainant into 1st Accused’s personal account was not conclusive that he knew nor aided the 1st Accused to steal money belonging to the Complainant. The 2nd Accused could not even be professionally negligent because he drew the attention of the Chief Executive Officer of the Complainant to the payment of the monies into the personal accounts of the 1st Accused. The Court of Appeal further stated that there was no evidence on record that the 2nd Accused knew that 1st Accused stole Complainant’s money and for that matter helped 1st Accused to retain and control the proceeds on his behalf nor did he facilitate the proceeds on behalf of the 1st Accused to acquire any property on behalf of the 1st Accused. The 2nd Accused never engaged in any activity which made the funds obtained from the unlawful activity available to acquire property on behalf of the 1st Accused, he was therefore not guilty of the charge of aiding and abetting and accordingly acquitted and discharged.
The charge of money laundering is an offence that requires the person charged with the offence to have knowledge of the fact that the property is or forms part of the proceeds from an unlawful activity, and that the person converts, conceals, disguises or transfers that property or conceals or disguises the unlawful origin of that property or, acquires, uses or takes possession of that property. The Court summarized the main elements of money laundering to include but not limited to: that the person knows the property is or forms part of the proceeds from an unlawful activity or ought to have known from the circumstances of the case that the property is or forms part of the proceeds of an unlawful activity; and that the person converts, conceals, disguises or transfers the property or conceals or disguises the unlawful origin of the property or acquires or uses or takes possession of the property. It stands to reason that for a person to be guilty of money laundering, the prosecution must prove that the person knows or ought to have known that the property which is the subject matter of the crime is or forms part of the proceeds from an unlawful activity and that person converts, conceals, or disguises or transfers or conceals the unlawful origin of the property or acquisition and takes possession of same.
Abetment of money laundering relates to the act made by a person who knows or ought to have known that money has been obtained from unlawful activity and helps in the retention and control of the proceeds on behalf of that person or facilitates the proceeds to acquire property on behalf of that other person.