Money laundering case: Appeal Court affirms SOCU’s legal power to seize gold, cash

The Court of Appeal has dismissed an application by a Brazilian gold dealer seeking leave to challenge a ruling that the Special Organised Crime Unit (SOCU) has the legal authority to institute proceedings under Guyana’s Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) Act. The action was initially filed after SOCU had seized over $162 million in gold and cash as they probe a money laundering case. In a written judgment delivered by Justices of Appeal Jo-Ann Barlow, Dawn Gregory, and Rafiq T. Khan SC, the court found that the applicants, Sebastiao De Oliveira Moura and Moura Gago Gold Inc, failed to show that their proposed appeal had a realistic prospect of success. The matter stemmed from an earlier Full Court ruling which overturned a High Court decision that had found SOCU lacked legal personality to bring proceedings for the detention of property under the AML/CFT Act.
The Full Court had instead ruled that amendments to the legislation in 2022 and 2023 expressly empowered SOCU, as a “relevant Competent Authority,” to initiate such actions. In seeking leave to appeal, the applicants argued that SOCU could not sue or be sued unless it was established as a body corporate or otherwise granted legal personality by statute. However, the respondent opposed the application, contending that amendments to the Act, including Sections 39 and 109A, clearly provided the statutory basis for SOCU to engage the courts in matters related to restraint, detention and forfeiture of property. The respondent also argued that the issue was largely academic since the original detention proceedings were no longer before the court. In its ruling, the Court of Appeal said the Full Court had carefully examined the relevant provisions of the AML/CFT Act and correctly concluded that Parliament intended for SOCU to possess the legal authority necessary to perform its functions under the law. The court noted that the legislation expressly identifies SOCU as a relevant Competent Authority and grants it powers related to forfeiture and other proceedings prescribed by the Act. Quoting from the Full Court’s earlier ruling, the judges noted that the AML/CFT Act assigns SOCU functions involving the restraining, seizing, detaining and forfeiting of tainted property, duties which “cannot be discharged without recourse to the courts.” “It would be illogical to conclude that Parliament intended SOCU to restrain or detain property yet denied it the procedural means to do so,” the Full Court had stated. The Appeal Court also referenced the Jamaican case of Andrew Hamilton v Assets Recovery Agency, where the Jamaican Court of Appeal held that a statutory agency did not need a corporate structure in order to initiate proceedings once Parliament had granted it the authority to do so. Finding the reasoning persuasive, the Guyana Court of Appeal upheld the Full Court’s interpretation of the AML/CFT Act.
“The applicants have failed in their effort to demonstrate that their proposed appeal had a realistic prospect of success,” the court ruled.
The application for leave to appeal was dismissed, with no order made as to costs.