by Jorge A F Godinho
White collar criminals beware
As a piece of the legal history of Macau, the decision by the Court of Final Appeal (CFA) in the Ao Man Long case certainly shall be the object of extensive study and academic discussion. Here it is only possible to highlight some ramifications that may be of direct interest for the business community which makes up the readership of the Macau Business magazine; other aspects ought to be discussed in academic fora.
From the business angle, the decision is quite significant for the reason that it affirms various interpretations on what at first sight could seem relatively obscure points of anti-money laundering law. Such seemingly theoretical points can have very real and severe practical implications for businesses which have daily exposure and are subject to anti-money laundering rules and regulations, especially banks, insurance companies, lawyers and gaming sub/concessionaires. In short, the CFA has consistently dismissed nearly all of the restrictive or narrow interpretations that the defence had advanced on a number of points of law, especially regarding the crime of money laundering. As a result, it is imperative to pay attention to the vast implications that follow, so that businesses do not run afoul of anti-money laundering laws.
I will mention very briefly a few points to note.
Regarding money laundering, first, as to the issue of jurisdiction, the Court considered that all financial transactions involved in the case took place at least partially in Macau, and therefore all could be prosecuted here. Second, regarding the scope of the crime of money laundering under the law that applied from 1997 until April 2007, the Court found that it did not require a connection to organized crime. Third, as to the issue of whether a person can be prosecuted for the crime that generated the proceeds and for the laundering of the same proceeds, the Court stated that this is possible. Fourth, the court saw 14 different crimes of money laundering. As to the crime of ‘illicit enrichment’, the Court said that this crime does not operate a reversal of the burden of proof and therefore is not unconstitutional. Some of these points had already been advanced by earlier court decisions and have now been confirmed.
The overall picture is a relatively stringent one; businesses or entities that are subject to anti-money laundering regulations must pay attention, especially because this decision regarding corruption in the public sector should be seen together with the move towards criminalizing corruption in the private sector, covering all economic activities, including financial institutions and casinos. This is now being proposed by the Commission against Corruption and was discussed in March at a conference which provided the political impetus and a certain theoretical basis. This crime aims at the punishment of the payment of bribes in order to obtain contracts or any other economic arrangements or benefits, thereby harming genuine competition. Drafting legislation on this matter is relatively simple, and can be easily done by borrowing from Portuguese law, although a very sensitive point would be setting the penalty applicable. This issue can have far-reaching implications, for if the penalty is more than 3 years of imprisonment, the receiver of a bribe in the private sector who then handles the funds could be exposed to prosecution for corruption and also for money laundering, be punished for both crimes, and therefore receive a very lenghty prison term. This matter is of course a competence of the Legislative Assembly.
Date Posted: 16-Aug-2009
Assistant Professor, Faculty of Law, University of Macau