PART II | CONFISCATION OF BENEFITS OF DRUG TRAFFICKING |
4.—(1) Subject to section 23, where a defendant is convicted of one or more drug trafficking offences, the court shall, on the application of the Public Prosecutor, make a confiscation order against the defendant in respect of benefits derived by him from drug trafficking if the court is satisfied that such benefits have been so derived.| (2) If the court is satisfied that benefits have been derived by the defendant from drug trafficking, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 7 the amount to be recovered in his case by virtue of this section. |
(3) The court shall then, in respect of the offence or offences concerned —| (a) | take into account the confiscation order before imposing any fine on him; and | | (b) | subject to paragraph (a), leave the confiscation order out of account in determining the appropriate sentence or other manner of dealing with the defendant. |
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(4) Subject to section 24, for the purposes of this Act, a person who holds or has at any time (whether before or after the commencement of this Act) held any property or any interest therein disproportionate to his known sources of income, the holding of which cannot be explained to the satisfaction of the court, shall, until the contrary is proved, be presumed to have derived benefits from drug trafficking:| Provided that any expenditure by such person (whether before or after the commencement of this Act) shall, until the contrary is proved, be presumed to have been met out of his benefits derived from drug trafficking. |
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| Assessing benefits of drug trafficking |
5.—(1) Subject to section 24, for the purposes of this Act —| (a) | the benefits derived by any person from drug trafficking shall be any property or interest therein held by the person at any time, whether before or after the commencement of this Act, being property or interest disproportionate to his known sources of income and the holding of which cannot be explained to the satisfaction of the court; and | | (b) | the value of the benefits derived by him from drug trafficking shall be the aggregate of the values of the properties and interests therein referred to in paragraph (a). |
| (2) For the purpose of assessing the value of the benefits derived by the defendant from drug trafficking in a case where a confiscation order has previously been made against him, the court shall leave out of account any such benefits of drug trafficking that are shown to the court to have been taken into account in determining the amount to be recovered under that order. |
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| Statements relating to drug trafficking |
6.—(1) Where —| (a) | there is tendered to the court by the prosecution a statement as to any matters relevant to the determination whether benefits have been derived by the defendant from drug trafficking or to the assessment of the value of those benefits; and | | (b) | the defendant accepts to any extent any allegation in the statement, |
| the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates. |
(2) Where —| (a) | a statement is tendered under subsection (1)(a); and | | (b) | the court is satisfied that a copy of that statement has been served on the defendant, |
| the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on. |
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| (3) If the defendant fails in any respect to comply with a requirement under subsection (2), he may be treated for the purposes of this section as accepting every allegation in the statement apart from any allegation in respect of which he has complied with the requirement. |
(4) Where —| (a) | there is tendered to the court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and | | (b) | the prosecution accepts to any extent any allegation in the statement, |
| the court may, for the purposes of that determination, treat the acceptance by the prosecution as conclusive of the matters to which it relates. |
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(5) An allegation may be accepted or a matter indicated for the purposes of this section either —| (a) | orally before the court; or | | (b) | in writing. |
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| (6) No acceptance by the defendant under this section that benefits have been derived by him from drug trafficking shall be admissible in evidence in any proceedings for an offence. |
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| Amount to be recovered under confiscation order |
7.—(1) Subject to subsection (3), the amount to be recovered from the defendant under the confiscation order shall be the amount the court assesses to be the value of the benefits derived by the defendant from drug trafficking .| (2) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under section 6 or otherwise), the court may issue a certificate giving its opinion as to the matters concerned and shall do so if satisfied as mentioned in subsection (3). |
| (3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the benefits derived by the defendant from drug trafficking, the amount to be recovered from the defendant under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised. |
| (4) If, on an application made in accordance with subsection (5), the court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased), the court shall issue a certificate to that effect, giving its reasons. |
| (5) An application under subsection (4) may be made either by the Public Prosecutor or by a receiver appointed under section 12 or 15 in relation to the realisable property of the person in question. |
(6) Where a certificate has been issued under subsection (4), the Public Prosecutor may apply to the court for an increase in the amount to be recovered under the confiscation order; and on that application the court may —| (a) | substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1)) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and | | (b) | increase the term of imprisonment fixed in respect of the confiscation order under section 10(1) if the effect of the substitution is to increase the maximum period applicable in relation to the order under section 10(1). |
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| Definition of principal terms used |
8.—(1) In this Act, “realisable property” means —| (a) | any property held by the defendant; and | | (b) | any property held by a person to whom the defendant has, directly or indirectly, made a gift caught by this Act. |
(2) For the purposes of sections 6 and 7, the amount that might be realised at the time a confiscation order is made against the defendant shall be —| (a) | the total of the values at that time of all the realisable property held by the defendant; less | | (b) | where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations, |
| together with the total of the values at that time of all gifts caught by this Act. |
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(3) Subject to subsections (4) to (9), for the purposes of this Act, the value of property (other than cash) in relation to any person holding the property —| (a) | where any other person holds an interest in the property, shall be —| (i) | the market value of the first-mentioned person’s beneficial interest in the property; less | | (ii) | the amount required to discharge any incumbrance (other than a charging order) on that interest; and |
| | (b) | in any other case, shall be its market value. |
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(4) Subject to subsection (9), references in this Act to the value at any time (referred to in subsection (5) as the material time) of a gift caught by this Act are references to —| (a) | the value of the gift to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or | | (b) | where subsection (5) applies, the value mentioned therein, |
| whichever is the greater. |
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(5) Subject to subsection (9), if at the material time the recipient holds —| (a) | the property which he received (not being cash); or | | (b) | property which, in whole or in part, directly or indirectly represents in his hands the property which he received, |
| the value referred to in subsection (4)(b) shall be the value to him at the material time of the property mentioned in paragraph (a) or as the case may be, of the property mentioned in paragraph (b) so far as it so represents the property which he received, but disregarding in either case any charging order. |
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(6) For the purposes of subsection (2), an obligation has priority at any time if it is an obligation of the defendant to —| (a) | pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or | | (b) | pay any sum which would be included among the preferential debts in the defendant’s bankruptcy commencing on the date of the confiscation order or winding up under an order of the court made on that date. |
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(7) For the purposes of subsection (6)(b), “preferential debts” —| (a) | in relation to bankruptcy, means the debts to be paid in priority under section 43 of the Bankruptcy Act (assuming the date of the confiscation order to be the date of the receiving order); and | | (b) | in relation to winding up, means the debts to be paid in priority in accordance with section 328 of the Companies Act [Cap. 50] (assuming the date of the confiscation order to be the commencement date of the winding up). |
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(8) A gift (including a gift made before the commencement of this Act) is caught by this Act if —| (a) | it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a drug trafficking offence were instituted against him or, where no such proceedings have been instituted, when an application under section 4 for a confiscation order is made against him; or | | (b) | it was made by the defendant at any time and was a gift of property which is or is part of the benefits derived by the defendant from drug trafficking. |
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(9) For the purposes of this Act —| (a) | the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person, directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and | | (b) | in those circumstances, this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the defendant. |
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| Protection of rights of third party |
9.—(1) Where an application is made for a confiscation order under section 4 , a person who asserts an interest in the property may apply to the court, before the confiscation order is made, for an order under subsection (2).(2) If a person applies to the court for an order under this subsection in respect of his interest in property and the court is satisfied —| (a) | that he was not in any way involved in the defendant’s drug trafficking; and | | (b) | that he acquired the interest —| (i) | for sufficient consideration; and | | (ii) | without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he acquired it, property that was involved in drug trafficking, |
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| the court shall make an order declaring the nature, extent and value (as at the time the order is made) of his interest. |
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| (3) Subject to subsection (4), where a confiscation order has already been made, a person who asserts an interest in the property may apply under this subsection to the court for an order under subsection (2). |
(4) A person who —| (a) | had knowledge of the application under section 4 for the confiscation order before the order was made; or | | (b) | appeared at the hearing of that application, |
| shall not be permitted to make an application under subsection (3) except with the leave of the court. |
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| (5) A person who makes an application under subsection (1) or (3) shall give not less than 7 days’ written notice of the making of the application to the Attorney-General who shall be a party to any proceedings on the application. |
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