049-NLR-NLR-V-78-IN-RE-1-A.-Y.-VINCENT-2-S.-BENJAMIN-Suspects.pdf
ORDER OF THE COMMISSION—Vincent and Benjamin
433
[Criminal Justice Commission (Foreign Exchange Offences)]
1976 Present •' Samerawickrame, J. (Chairman), Udalagama, J.,
and Walpita, J.
IN RE(1) A. Y. VINCENT, (2) S. BENJAMIN, Suspects
Case No. 8/75
Criminal Justice Commission—Sale of foreign currency—Contraventionof S. 5 (I) (a) of the Exchange Control Act. S. 5(1) (a) of theExchange Control Act reads—
“ Except with the permission of the Bank no person, other thanan authorized dealer shall in Ceylon buy or borrow any gold orforeign currency from, or sell or lend any gold or foreign currencyto, or exchange any foreign currency with, any person other thanan authorized dealer
Where the suspects reached an agreement for the sale at aparticular rate of foreign currency and the exchange was deliveredto a third party in pursuance of that agreement in London.
Held : That having regard to the ordinary connotation of theword “ sell ”, a person who disposes of something in exchange formoney sells that thing. This involves the exchange of merchandiseor the subject of the sale for the payment of money. Where sterlingis handed over and payment for it is received in London the saleis of course made out of Ceylon. Though the payment of sterlingtook place in London, yet the payment in rupees took place inCeylon and this was the second suspect’s object in entering intothe transaction. What the provision in S. 5 (1) (a) strikes at is“ selling ” in Ceylon. It does not require the presence of the sellerin Ceylon. Therefore having regard to the facts and circumstancesof the case the selling took place on the payment of rupees to thesecond suspect’s representative in Ceylon. Hence the second suspecthas contravened S. 5 (1) (a).
Shiva Pasupati, Director of Public Prosecutions with E. D.Wikramanayake, Deputy Solicitor-General, Sunil de Silva,Senior State Counsel and Lai Wimalaratne, State Counsel for theState.
Later R. Abeysuriya, Deputy Director of Public Prosecutionswith Lai Wimalaratne, State Counsel for the State.
R. Shanmugalingam with V. Dharmalingam for 1st Suspect.
ORDER OF THE COMMISSION
June 26, 1976—
CHARGES in these proceedings relate to five sums aggregatingto £ 1637. 13.0 sent by the 2nd suspect who was in England tohis brother-in-law, the 1st suspect, who was in Colombo throughJackson and Thaha. The first charge alleges that the two suspects,
■—A 28304 (77/08)
434
ORDER OF THE 003IM2SSIOM—Vincent and Benjamin
Jackson and Thaha, entered into a transaction for the buyingand selling of foreign currency to the value of £ 1637 whichinvolved conversion of foreign currency into Ceylon currencyand the conversion of Ceylon currency into foreign currency atunauthorised rates. The second charge alleges that the 2ndsuspect not being an authorized dealer sold foreign currency tothe value of £ 1637 to Thaha and Jackson. The third chargealleges that the first suspect abetted the 2nd suspect to committhe offence set out in th< second charge, namely, that of sellingforeign currency to Jackson and Thaha.
In a statement made by him to a British police officer, the 2ndsuspect has set out five sums of sterling aggregating to£ 1637, 13.0 which he sent to the 1st suspect. The fact that suchsums were sent by the 2nd suspect through Jackson and Thahaand the rupee equivalent paid was paid to the first suspect isborne out by entries in Thaha’s diary marked P7, and in thestatement made by Thaha, the relevant part of which has beenproduced marked P 6. The 1st suspect in his statement to thepolice has admitted that he received monies from Thaha. Thehanding over of sterling by the 2nd suspect to Jackson andpayment by Thaha in respect of such sterling to the1st suspect are therefore not in dispute. There is alsoevidence that the conversion of the said sum of £1637
tv as done at unauthorised rates. In his statement, Thahasays that he paid Vincent, the first suspect, the Ceylonequivalent «£ the sterling at the prevailing blackmarket rates.The 2nd suspect states that he handed over in May, 1971, thesum of £ 10 to Jackson and the 1st suspect admitted that in May,1971, he received Rs. 300 from Thaha. Rs. 30 for a pound sterlingis in excess of the authorised rate. In letter dated 9th October,1971, marked P1F, the 2nd suspect writes to the 1st suspect thathe has to pay £ 600 as freight charges which would amount toRs. 20,000. This calculation of the rupee equivalent of £ 600 hasbeen made at the blackmarket rate. He had also arranged formoney to be sent from England from Police Sergeant Meerwald’smother in England to Police Sergeant Meerwald through .theintervention of the 2nd suspect. Again in his statement to theBritish police officer, the 2nd suspect referring to some moneysent at an earlier period states, “ I must have sent aboutRs. 20,000. This was about £ 700 in sterling”. This too is a con-version at black market rates.
Learned counsel submitted, however, on behalf of the 1stsuspect that he could not be considered to have been a party toa transaction within the meaning of Section 5 (2) of the ExchangeControl Act, as he was unaware of the amount of sterling thathad been paid by 2nd suspect to Jackson in England in respect
ORDER OF THE COMMISSION—Vincent and Benjamin436
of which he received rupees and was therefore not aware thatconversion was being made at unauthorised rates. He alsosubmitted that the 1st suspect had no part in fixing of the un-authorised rate and arranging the conversion of the money atthat rate and that the only part played by him was the receiptof the money from Thaha and the handing over of the money tothe 2nd suspect’s mother and other persons to whom he wasdirected by the 2nd suspect to pay the money. We consider firstthe submission that the 1st suspect was not aware that conversionwas made at an unauthorised rate. As we have earlier said, theevidence shows that the conversion was in fact made at an un-authorised rate. The 1st suspect was aware that the 2nd suspectwas paying pounds in England and that he was receiving inreturn for them rupees in Ceylon. It is common knowledge thatwhen money is sent, not through the Bank but through otherunauthorised sources, a rate higher than the legal or authorisedrate is paid. In his statement the 1st suspect says that up to about1966 the 2nd suspect had sent money through various personsresident in England whose relatives reside in Jaffna. From 1966he sent money through Thaha. Between 1966 and 1970 he ownsto having received about Rs. 10,000. The 2nd suspect estimatesthe sum at Rs. 20,000. The sums of money in respect of whichthe charges are made were sent between January, 1970 and 31stMay, 1971. The 1st suspect is not an ignorant yokel but an expe-rienced police officer to whom must be imputed a reasonableknowledge of how affairs in the world are conducted. Thesecircumstances point strongly and almost decisively to the con-clusion that the 1st suspect was aware that the conversion wasmade at unauthorised rates. No evidence to the contrary has beenplaced before us.
In the words of Abbott, J, in Rex v■ Burdett (1820) 4 B & Aid95 at 120: —
“No person is to be required to explain or contradict untilenough has been proved to warrant a reasonable and justconclusion against him, in the absence of explanation orcontradiction ; but when such proof has been given, and thenature of the case is such as to admit of explanation or con-tradiction, can human reason do otherwise than adopt theconclusion to which proof tends. ”
We, therefore, hold that the 1st suspect was aware that con-version of money was being effected at an unauthorised rate. Itis true that the negotiation of the conversion and of the rate atwhich the money was to be converted was probably madebetween the 2nd suspect and Jackson but the conversion itselS
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ORDER OF THE COMMISSION—Vincent and Benjamin
was actually effected only when the 1st suspect received therupees from Thaha. The 1st suspect was the person authorised bythe seller to receive the money on his behalf. The role played byhim was therefore not insignificant but substantial. A transactionmay take place over a period of time and comprise the taking ofseveral steps or acts. All those who participate at the differentstages of the transaction knowing that it is one that involved theconversion of currency at an unauthorised rate contravene, inour opinion, the provision in Section 5(2). We find accordinglythat both suspects have contravened Section 5 (2).
The second charge alleges a contravention by the 2nd suspectof Section 5 (1) (a) of the Exchange Control Act. That provisionreads : —
“ 5. (1). Except with the permission of the bank—■
(a) no person, other than an authorized dealer, shall inCeylon buy or borrow any gold or foreign currencyfrom, or sell or lend any gold or foreign currency to,or exchange any foreign currency with, any personother than an authorised dealer, and ”
In his statement the 2nd suspect has set out how he came tosend the money through Thaha. He said, “ Around about 1965 Imet a man called Kingsley Jackson at the Ceylon StudentsCentre at Marble Arch. During the course of conversation, hetold me that he was in a position to forward money to Ceylon.He said that it was legal and that he was an agent for Mr. A. M.Thaha of Colombo who was in the racing business. Jackson saidhe was also a bookmaker in London and that he had a telex linkwith Thaha in Ceylon. He used to forward the racing results fromEngland by this method. He told me that if I ever wanted to sendmoney to Ceylon he would do it for me and that Thaha wouldpay the equivalent amount in rupees to the intended recipients. ”
He also said later, “ On each occasion that I sent the money Iwent to my bank, Barclays, South Ealing Road and drew outmoney. I then went personally to Jackson’s house and handedover the money to him with instructions as to whom the moneywas to be sent. Jackson never gave me a receipt. I always knewthat the money had reached Vincent because he wrote fromCeylon to tell me. He also told me in one of the letters that I hadbetter be careful as the way I was sending the money wasillegal.”
Mr. Shanmugalingam, who appeared for the suspects, sub-mitted that, once agreement was reached for the sale at aparticular rate and the exchange was delivered to Jackson in
ORDER OF THE COMMISSION— Vincent and Benjamin
43.7
pursuance of the agreement, the sale was complete. This tookplace in London. There was no contravention of Section 5 (1) (a)unless the sale was made in Ceylon and therefore the charge wasnot made out. Learned State Counsel Mr. Wimalaratne referredus to section 59 of the Sale of Goods Ordinance which states.inter alia, that “ goods ” include all movables except moneys,and submitted that that statute had no application ; and that aspayment was made in Colombo, there was a sale in Colombo. Wedo not think that the word ‘sell’ in Section 5(1) (a) imports asale under the Sale of Goods Ordinance or a sale in terms of anyother law. The word must be given its ordinary meaningHaving regard to the ordinary connotation of the word ‘ sell ’ aperson who disposes of something in exchange for money sellsthat thing. This involves the exchange of merchandise or thesubject of the sale for the payment of money. Where sterling isboth handed over and payment for it is received in Londonthe sale is of course made out of Ceylon. In this case not merelywas the payment made in Ceylon, but payment in rupees inCeylon was the 2nd suspect’s object in entering into the trans-action. In his statement he states that it was when he wanted tosend money to Ceylon that he contacted Jackson who had toldhim that he was in a position to forward money to Ceylon.Whether he received the money in Ceylon personally or throughan agent he equally received the money. What the provisionstrikes at is “ selling ” in Ceylon. It does not require the presenceof the seller in Ceylon.
Having regard to the facts and circumstances we hold that theselling took place on the payment of rupees to the 2nd suspect 5srepresentative in Ceylon and that the 2nd suspect has contra-vened Section 5(1) (a).
We reserve for consideration in an appropriate case in whichit arises the question whether there can be a sale made partlyin Ceylon and partly in London and whether such a transactionfalls under both sub-sections (a) and (b) of Section 5(1), if theother ingredients of those provisions are present.
The 3rd charge alleged abetting by the 1st suspect of the com-mission of the offence of selling sterling in Ceylon by the 2ndsuspect. The only point made was that if the 2nd suspect wasnot guilty of the charge of selling sterling the 1st suspect wouldnot be guilty of abetting it.
The only matter that remains for consideration is whether the2nd respondent was resident in Ceylon at the relevant timewithin the meaning of Section 51(1) of the Exchange ControlAct. During the period in which the contraventions of Act
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138TENNEKOON, C.J—-Samarakoon a. Attorney General
Were committed, that is, January 1970 to May 1971, the 2ndsuspect’s wife was resident in Ceylon. He had been sending moneyto her. He was buying a house in Ceylon. On a visit to Ceylonin December 1970 he had seen the house which suited him. Mostof the monies which form the subject of the charges were sentto buy the house. He was also on the lookout for a garage whichhe could purchase. We hold, therefore, that for the purposes ofthe Exchange Control Act he was resident in Ceylon.
Accordingly, we find the 1st suspect guilty of the offences setout in charges 1 and 3 and the 2nd suspect guilty ox offences setout in charges 1 and 2.