The accused stands provisionally charged with the offence of ?failing to report a suspicious transaction in breach of section 19(1)(a) and section 14(1) of the Financial Intelligence and Anti Money Laundering Act 2002 (herein after referred to FIAMLA), under all 3 counts.

For the purpose of convenience the ?body? of the Information is reproduced here as follows :

?That on or about the 4th day of December 2002 at Port Louis, in the said District, one Mr. Philippe Alain FORGET, aged 52 years, residing at New Trunk Road, Mount Ory, Moka, did, whilst being employed at the Mauritius Commercial Bank as Assistant General Manager, File Manager of Handsome Investment Limited, knowingly and unlawfully failed to make a report of a transaction to the Financial Intelligence Unit, to wit : receive on the account of Handsome Investment Limited the sum of Rs 1.5 million, which transaction the said Mr. Philippe Alain Forget had reason to believe may have been a suspicious transaction.

Count II :

That on or about the 17th day of December 2002 at Port Louis, in the said District, one Mr. Philippe Alain FORGET, aged 52 years, residing at New Trunk Road, Mount Ory, Moka, did, whilst being employed at the Mauritius Commercial Bank as Assistant General Manager, File Manager of Handsome Investment Limited, knowingly and unlawfully failed to make a report of a transaction to the Financial Intelligence Unit, to wit : receive on the account of Handsome Investment Limited the sum of Rs 2 million, which transaction the said Mr. Philippe Alain Forget had reason to believe may have been a suspicious transaction.

Count III :

That on or about the 17th day of December 2002 at Port Louis, in the said District, one Mr. Philippe Alain FORGET, aged 52 years, residing at New Trunk Road, Mount Ory, Moka, did, whilst being employed at the Mauritius Commercial Bank as Assistant General Manager, File Manager of Sea Rock Paradise Limited, knowingly and unlawfully failed to make a report of a transaction to the Financial Intelligence Unit to wit : receive on the account of Sea Rock Paradise Limited the sum of Rs 3 million, which transaction the said Mr. Philippe Alain Forget had reason to believe may have been a suspicious transaction.

Learned Counsel appearing for the Defendant moved this court to strike out the provisional information on the ground that it does not disclose an offence known to law. He submitted that section 14(1) of FIAMLA does not apply to an ?employee? and that the said section on its own does not create an offence. He also submitted that section 19(1)(a) makes it an offence for an employee of a bank who ?fails to make a report? as required under section 17? and not under section 14(1) of FIAMLA.

Learned Counsel appearing for the prosecution submitted under three limbs namely : 1. The legislator does not legislate in vain. 2. If there is any ambiguity in the law, then the speech of Minister Khushiram in the National Assembly when the said Bill was debated made it clear that Parliament intended all the provisions relating to offences in the then Economic Crime and Anti Money-Laundering Act 2000 (hereinafter referred to ECAMLA) to be included in the FIAMLA. 3. Conceptually ?failing to report? is a criminal offence since there are similar provisions in English and Canadian Laws.

It is abundantly clear from a reading of the Information that the Defendant stands charged as an ?employee? of the Mauritius Commercial Bank under all three Counts. It is important here to quote sections 14(1) and 19(1) (a) of FIAMLA, which read:

14. Reporting obligations of banks, financial institutions, cash dealers and members of relevant professions or occupations

(1) Every bank, financial institution, cash dealer or member of a relevant profession or occupation shall forthwith make a report to the FIU of any transaction which the bank, financial institution, cash dealer or member of the relevant profession or occupation has reason to believe may be a suspicious transaction.

19. Offences relating to obligation to report and keep records and to disclosure of information prejudicial to a request

(a) Any bank, financial institution, cash dealer or any director or employee thereof or member of a relevant profession or occupation who, knowingly or without reasonable excuse, fails to make a report, verify, identify or keep records, registers or documents, as required under section 17, shall commit an offence and shall, on conviction, be liable to a fine not exceeding one million rupees and to imprisonment for a term not exceeding 5 years (emphasis added).

It is also crucial here to quote section 17 of FIAMLA which reads:

17. Other measures to combat money laundering

Without prejudice to section 3(2), every bank, financial institution, cash dealer or member of the relevant profession or occupation shall ?

(a) verify, in such manner as may be prescribed, the true identity of all customers and other persons with whom they conduct transactions;

(b) keep such records, registers and documents as may be required under this Act or by regulations; and

(c) upon a Court order, make available such records, registers and documents as may be required by the order (emphasis added).

In their submissions both counsels sought to draw a parallel between the FIAMLA and the ECAMLA on the present issue.

However, after a thorough reading of the FIAMLA and the ECAMLA this Court has noted the following:

1. Under section 14(1) of FIAMLA there is no obligation on ?an employee of a bank? to make a report to the Financial Intelligence Unit of any transaction which the said employee has reason to believe may be a suspicious transaction. But a bank, financial institution, cash dealer or member of a relevant profession or occupation, (as defined at section 2 of the FIAMLA) have such an obligation. I must point out that in the FIAMLA the legislator chose to particularise those falling under the ambit of the law.

2. Learned counsel for the prosecution contended that, since the word ?or? and the commas in section 19(1) shall be construed disjunctively, (according to the Interpretation and General Clauses Act) the legislator intended that the ?failure to make a report? under section (19)(a) of FIAMLA must be read by reference to the ?obligation to make a report? under section 14(1) of FIAMLA. Had the legislator so intended, he would have made it clear in section 19(1)(a), by inserting the words ?as required under section 14 and 17? instead of providing the words ?as required under section 17? only.

Moreover, as pointed out above, section 14(1) gives precision as to those who shall make a report, that is ?every bank, financial institution, cash dealer or member of a relevant profession or occupation?. Under section 19(1)(a) however, ?any director or employee? of the bank, cash dealer and financial institution, also would commit an offence if they fail to make a report. Had the legislator intended that the ?failure to make a report? under Section 19 (1) (a) of FIAMLA must be read by reference to the ?obligation to make a report? under section 14(1) of FIAMLA, he would have imposed an obligation to make a report on ?any director or employee? of the bank, cash dealer and financial institution under section 14(1). Consequently, even if the contention of the prosecution were to be correct, the Defendant would still not be liable since under section 14(1) there is no obligation upon him as an employee of the Mauritius Commercial Bank to make a report to the Financial Intelligence Unit.

In fact, the ?Minister? has made regulations under the FIAMLA pursuant to section 35 (vide GN 79 of 2003 dated 19.06.03). Under these regulations, more particularly at paragraph 6, it is stated that a relevant person, that is a bank, financial institution or cash dealer shall appoint a ?Money Laundering Officer? (MLO) and, by virtue of paragraph 7, the said MLO ?shall report forthwith to the Financial Intelligence Unit, in such form as may be prescribed, any transaction that he has reason to believe is a suspicious transaction?. It is the considered view of this court therefore (especially when paragraph 11 of the said regulations provides that non compliance of GN 79/03 is an offence and that a penalty is also provided) that failure to comply with section 14(1) is, since the 19.6.03, an offence by virtue of GN 79/03.

Accordingly, it is clear that the legislator never intended that section 19(1)(a) should be read by reference to section 14(1) of FIAMLA.

3. I must point out that under sections 21(2) and 45 (a) of the then ECAMLA, the legislator made it clear that a failure to report a suspicious transaction is an offence. Section 21 and 45 of the then ECAMLA read as follows:

(2) Without limiting the generality of subsection (1), every bank, financial institution or cash dealer shall:

verify, in such manner as may be prescribed, the true identity of all customers and persons with whom they conduct transactions;

keep such records, registers and documents as may be required under this Act or any regulations made under this act;

upon a Court Order, make available such records, registers and documents as may be required and

forthwith report every suspicious transaction.

45. Offences under Part IV

Any bank, financial institution, cash dealer or any director or employee thereof or member of a relevant profession who knowingly -

fails to verify, identify, keep records, registers or documents or lodge a report as required under section 21,

shall commit an offence and shall, on conviction, be liable to a fine not exceeding one million rupees and imprisonment for a term not exceeding 5 years (emphasis added).

As regards the ?Travaux Préparatoires? of the FIAMLA referred to by the prosecution, it is clear that by virtue of the regulations embodied in GN 79/03 the intention of the legislator to include the provisions of the ECAMLA in the FIAMLA has been met with.

In the light of the above observations, it is clear that the charges with which the Defendant stand on the provisional Information do not disclose any offence known to the laws in Mauritius. By virtue of the decision of the Supreme Court in the case of Gordon-Gentil and ors v. State of Mauritius and ors 1995 MR I hold that the information against the Defendant is void.