PART 12 | Division 1 — Prohibited Conduct — Capital Markets Products |
[4/2017] | Application of this Division |
196. This Division applies to —| (a) | acts occurring within Singapore in relation to —| (i) | securities or securities‑based derivatives contracts of any corporation, whether formed or carrying on business in Singapore or elsewhere; | | (ii) | securities or securities‑based derivatives contracts of any business trust; | | (iii) | securities or securities‑based derivatives contracts listed for quotation or quoted on an organised market in Singapore or elsewhere; | | (iv) | units in a collective investment scheme listed for quotation or quoted on an organised market in Singapore or elsewhere; | | (v) | derivatives contracts, whether traded in Singapore or elsewhere; | | (vi) | spot foreign exchange contracts for purposes of leveraged foreign exchange trading, whether traded in Singapore or elsewhere; or | | (vii) | any other capital markets products, whether traded in Singapore or elsewhere; and |
| | (b) | acts occurring outside Singapore in relation to —| (i) | securities or securities‑based derivatives contracts of a corporation that is formed or carrying on business in Singapore; | | (ii) | securities or securities‑based derivatives contracts of a business trust, the trustee of which is formed in Singapore or carries on business on behalf of the business trust in Singapore; | | (iii) | securities or securities‑based derivatives contracts listed for quotation or quoted on an organised market in Singapore; | | (iv) | units in a collective investment scheme listed for quotation or quoted on an organised market in Singapore; | | (v) | derivatives contracts traded in Singapore; | | (vi) | spot foreign exchange contracts for purposes of leveraged foreign exchange trading that are traded in or accessible from Singapore; or | | (vii) | any other capital markets products that are traded in Singapore. [4/2017] |
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| Interpretation of this Division |
196A. In this Division —| (a) | “debenture” has the meaning given by section 2(1) and, in relation to a business trust, means any debenture issued by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust; | | (b) | a reference to a securities‑based derivatives contract of a corporation in sections 196(a)(i) and (b)(i), 198, 202 and 203 is to be read as a reference to a securities‑based derivatives contract of which the underlying thing or any of the underlying things are securities of the corporation; and | | (c) | a reference to a securities‑based derivatives contract of a business trust in sections 196(a)(ii) and (b)(ii), 198, 202 and 203 is to be read as a reference to a securities‑based derivatives contract of which the underlying thing or any of the underlying things, are securities of the business trust. [4/2017] |
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| False trading and market rigging transactions |
197.—(1) A person must not do any thing, cause any thing to be done or engage in any course of conduct, if the person’s purpose, or any of the person’s purposes, for doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) is to create a false or misleading appearance —| (a) | of active trading in any capital markets products on an organised market; or | | (b) | with respect to the market for, or the price of, any capital markets products traded on an organised market. [34/2012; 4/2017] |
(1A) A person must not do any thing, cause any thing to be done or engage in any course of conduct that creates, or is likely to create, a false or misleading appearance of active trading in any capital markets products on an organised market, or with respect to the market for, or the price of, any capital markets products traded on an organised market, if —| (a) | the person knows that doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) will create, or will be likely to create, that false or misleading appearance; or | | (b) | the person is reckless as to whether doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) will create, or will be likely to create, that false or misleading appearance. [34/2012; 4/2017] |
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(2) A person must not maintain, inflate, depress, or cause fluctuations in, the market price of any capital markets products —| (a) | by means of any purchase or sale of any capital markets products that does not involve a change in the beneficial ownership of the capital markets products; or | | (b) | by any fictitious transaction or device. [4/2017] |
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(3) Without limiting subsection (1), it is presumed that a person’s purpose, or one of a person’s purposes, is to create a false or misleading appearance of active trading in capital markets products on an organised market if the person —| (a) | effects, takes part in, is concerned in or carries out, directly or indirectly, any transaction of purchase or sale of the capital markets products, being a transaction that does not involve any change in the beneficial ownership of the capital markets products; | | (b) | makes or causes to be made an offer to sell the capital markets products at a specified price, where the person has made or caused to be made or proposes to make or to cause to be made, or knows that a person associated with the person has made or caused to be made or proposes to make or to cause to be made, an offer to purchase the same number, or substantially the same number, of the capital markets products at a price that is substantially the same as the firstmentioned price; or | | (c) | makes or causes to be made an offer to purchase the capital markets products at a specified price, where the person has made or caused to be made or proposes to make or to cause to be made, or knows that a person associated with the person has made or caused to be made or proposes to make or to cause to be made, an offer to sell the same number, or substantially the same number, of the capital markets products at a price that is substantially the same as the firstmentioned price. [4/2017] |
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| (4) The presumption under subsection (3) may be rebutted if the defendant establishes that the purpose or purposes for which the defendant did the act was not, or did not include, the purpose of creating a false or misleading appearance of active trading in the capital markets products on the organised market. [34/2012; 4/2017] |
(5) For the purposes of this section, a purchase or sale of capital markets products does not involve a change in the beneficial ownership if any of the following persons has an interest in the capital markets products after the purchase or sale:| (a) | a person who had an interest in the capital markets products before the purchase or sale; | | (b) | a person associated with the person mentioned in paragraph (a). [4/2017] |
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| (6) In any proceedings against a person for a contravention of subsection (2) in relation to a purchase or sale of capital markets products that did not involve a change in the beneficial ownership of the capital markets products, it is a defence if the defendant establishes that the purpose or purposes for which the defendant purchased or sold the capital markets products was not, or did not include, the purpose of creating a false or misleading appearance with respect to the market for, or the price of, the capital markets products. [4/2017] |
(7) The reference in subsection (3)(a) to a transaction of purchase or sale of the capital markets products includes —| (a) | a reference to the making of an offer to purchase or sell the capital markets products; and | | (b) | a reference to the making of an invitation, however expressed, that expressly or impliedly invites a person to offer to purchase or sell the capital markets products. [4/2017] |
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| Market manipulation in relation to securities and securities‑based derivatives contracts |
| 198.—(1) A person must not effect, take part in, be concerned in or carry out, directly or indirectly, 2 or more transactions in securities, or securities‑based derivatives contracts, of a corporation, being transactions that have, or are likely to have, the effect of raising, lowering, maintaining or stabilising the price of securities, or securities‑based derivatives contracts (as the case may be) of the corporation on an organised market, with the intent to induce other persons to subscribe for, purchase or sell securities, or securities‑based derivatives contracts (as the case may be) of the corporation or of a related corporation. [4/2017] | (2) A person must not effect, take part in, be concerned in or carry out, directly or indirectly, 2 or more transactions in securities, or securities‑based derivatives contracts, of a business trust, being transactions that have, or are likely to have, the effect of raising, lowering, maintaining or stabilising the price of securities, or securities‑based derivatives contracts (as the case may be) of the business trust on an organised market, with the intent to induce other persons to subscribe for, purchase or sell securities, or securities‑based derivatives contracts (as the case may be) of the business trust. [4/2017] |
(3) In this section —| (a) | a reference to transactions in securities or securities‑based derivatives contracts of a corporation includes —| (i) | a reference to the making of an offer to purchase or sell such securities or securities‑based derivatives contracts, as the case may be; and | | (ii) | a reference to the making of an invitation, however expressed, that directly or indirectly invites a person to offer to purchase or sell such securities or securities‑based derivatives contracts, as the case may be; and |
| | (b) | a reference to transactions in securities or securities‑based derivatives contracts of a business trust includes —| (i) | a reference to the making of an offer to purchase or sell such securities or securities‑based derivatives contracts, as the case may be; and | | (ii) | a reference to the making of an invitation, however expressed, that directly or indirectly invites a person to offer to purchase or sell such securities or securities‑based derivatives contracts, as the case may be. [4/2017] |
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| False or misleading statements, etc. |
199. A person must not make a statement, or disseminate information, that is false or misleading in a material particular and is likely —| (a) | to induce other persons to subscribe for securities, securities‑based derivatives contracts or units in a collective investment scheme; | | (b) | to induce the sale or purchase of securities, securities‑based derivatives contracts or units in a collective investment scheme, by other persons; or | | (c) | to have the effect (whether significant or otherwise) of raising, lowering, maintaining or stabilising the market price of securities, securities‑based derivatives contracts or units in a collective investment scheme, |
| if, when the person makes the statement or disseminates the information — |
| (d) | the person does not care whether the statement or information is true or false; or | | (e) | the person knows or ought reasonably to have known that the statement or information is false or misleading in a material particular. [4/2017] |
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| Fraudulently inducing persons to deal in capital markets products |
200.—(1) A person must not —| (a) | by making or publishing any statement, promise or forecast that the person knows or ought reasonably to have known to be misleading, false or deceptive; | | (b) | by any dishonest concealment of material facts; | | (c) | by the reckless making or publishing of any statement, promise or forecast that is misleading, false or deceptive; or | | (d) | by recording or storing in, or by means of, any mechanical, electronic or other device information that the person knows to be false or misleading in a material particular, |
| induce or attempt to induce another person to deal in capital markets products. |
[4/2017] | (2) In any proceedings against a person for a contravention of subsection (1) constituted by recording or storing information as mentioned in subsection (1)(d), it is a defence if it is established that, at the time when the defendant so recorded or stored the information, the defendant had no reasonable grounds for expecting that the information would be available to any other person. |
| (3) In any proceedings against a person for a contravention of subsection (1) in relation to the dealing in capital markets products that are securities, securities‑based derivatives contracts or units in a collective investment scheme, the opinion of any public accountant as to the financial position of any company at any time or during any period in respect of which he or she has made an audit or examination of the affairs of the company according to recognised audit practice is admissible, for any party to the proceedings, as evidence of the financial position of the company at that time or during that period, even though the opinion is based in whole or in part on book‑entries, documents or vouchers or on written or verbal statements by other persons. [4/2017] |
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| Employment of manipulative and deceptive devices |
201. A person must not, directly or indirectly, in connection with the subscription, purchase or sale of any capital markets products —| (a) | employ any device, scheme or artifice to defraud; | | (b) | engage in any act, practice or course of business which operates as a fraud or deception, or is likely to operate as a fraud or deception, upon any person; | | (c) | make any statement the person knows to be false in a material particular; or | | (d) | omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. [4/2017] |
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| 201A.—(1) A person must not knowingly execute, or hold himself, herself or itself out as having executed, an order for the purchase or sale of a derivatives contract, without having effected in good faith a purchase or sale of that derivatives contract in accordance with the order or with the business rules and practices of an organised market on which the derivatives contract is to be purchased or sold. [4/2017] | (2) A person must not knowingly execute, or hold himself, herself or itself out as having executed, an order to make a purchase or sale of a spot foreign exchange contract for purposes of leveraged foreign exchange trading, without having effected in good faith a purchase or sale in accordance with the order. [4/2017] |
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| Manipulation of price of derivatives contracts and cornering |
201B. A person must not, directly or indirectly —| (a) | manipulate or attempt to manipulate the price of a derivatives contract traded on an organised market, or of any underlying thing which is the subject of such derivatives contract; or | | (b) | corner, or attempt to corner, any underlying thing which is the subject of a derivatives contract. [4/2017] |
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| Dissemination of information about illegal transactions |
202.—(1) A person must not circulate or disseminate, or authorise or be concerned in the circulation or dissemination of, any statement or information to any of the following effect if any condition in subsection (2) is satisfied:| (a) | the price of any securities or securities‑based derivatives contract, of a corporation will, or is likely, to rise or fall or be maintained by reason of any transaction entered into or to be entered into or other act or thing done or to be done in relation to the securities or securities‑based derivatives contracts, of that corporation (or of a related corporation) which to the person’s knowledge was entered into or done in contravention of section 197, 198, 199, 200 or 201, or if entered into or done would be in contravention of section 197, 198, 199, 200 or 201; | | (b) | the price of any securities or securities‑based derivatives contract, of a business trust will, or is likely, to rise or fall or be maintained by reason of any transaction entered into or to be entered into or other act or thing done or to be done in relation to the securities or securities‑based derivatives contracts, of that business trust which to the person’s knowledge was entered into or done in contravention of section 197, 198, 199, 200 or 201, or if entered into or done would be in contravention of section 197, 198, 199, 200 or 201; | | (c) | the price of a class of derivatives contracts will, or is likely to, rise or fall or be maintained by reason of any transaction entered into or to be entered into, or other act or thing done or to be done, in relation to that class of derivatives contracts by one or more persons which to the person’s knowledge was entered into, or done, in contravention of section 197, 200, 201, 201A or 201B, or if entered into, or done, would be in contravention of section 197, 200, 201, 201A or 201B; | | (d) | the price of a class of spot foreign exchange contracts for purposes of leveraged foreign exchange trading, will, or is likely to, rise or fall or be maintained by reason of any transaction entered into or to be entered into, or other act or thing done or to be done, in relation to that class of spot foreign exchange contracts for purposes of leveraged foreign exchange trading, by one or more persons which to the person’s knowledge was entered into, or done, in contravention of section 197, 200, 201, 201A or 201B, or if entered into, or done, would be in contravention of section 197, 200, 201, 201A or 201B. [4/2017] |
(2) For the purpose of subsection (1), the condition is either —| (a) | the person mentioned in subsection (1), or a person associated with that person, has entered into or purports to enter into any such transaction, or has done or purports to do any such act or thing; or | | (b) | the person mentioned in subsection (1), or a person associated with that person, has received, or expects to receive, directly or indirectly, any consideration or benefit for circulating or disseminating, or authorising or being concerned in the circulation or dissemination of, the statement or information. [4/2017] |
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| 203.—(1) A person to whom this subsection applies must not intentionally, recklessly or negligently fail to notify the approved exchange of such information as is required to be disclosed by the approved exchange under the listing rules or any other requirement of the approved exchange, if the person is required by the approved exchange under the listing rules or any other requirement of the approved exchange to notify the approved exchange of information on specified events or matters as they occur or arise for the purpose of the approved exchange making that information available to an organised market operated by the approved exchange. [4/2017] (2) Subsection (1) applies to any of the following:| (a) | an entity, the securities or securities‑based derivatives contracts of which are listed for quotation on an approved exchange; | | (b) | a trustee‑manager of a business trust, where the securities or securities‑based derivatives contracts of the business trust are listed for quotation on an approved exchange; | | (c) | a responsible person of a collective investment scheme, where the units in the collective investment scheme are listed for quotation on an approved exchange. [4/2017] |
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| (3) Despite section 204 or 335, a contravention of subsection (1) is not an offence unless the failure to notify is intentional or reckless. [4/2017] |
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| Penalties under this Division |
204.—(1) Any person who contravenes any of the provisions of this Division shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 7 years or to both.(2) No proceedings shall be instituted against a person for an offence in respect of a contravention of any of the provisions of this Division after —| (a) | a court has made an order against the person for the payment of a civil penalty under section 232; or | | (b) | the person has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5), |
| in respect of that contravention. |
[2/2009] |
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| Division 2 — Prohibited Conduct — Financial Benchmarks |
| Application of this Division |
205. This Division applies to —| (a) | acts occurring within Singapore in relation to financial benchmarks, whether administered in Singapore or elsewhere; and | | (b) | acts occurring outside Singapore in relation to financial benchmarks that are administered in Singapore. [4/2017] |
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| Interpretation of this Division |
206. In this Division —| “administer”, in relation to a financial benchmark, means the activity of administering the financial benchmark; |
| “international body” means the European Central Bank, the Organization of the Petroleum Exporting Countries, and such other international bodies as may be prescribed by regulations made under section 341; |
“public authority” means —| (a) | any ministry or department of the Government, or any statutory body, or any board, commission, committee or similar body, whether corporate or unincorporated, established under a public Act for a public purpose; | | (b) | in relation to a foreign country or territory, an authority of the foreign country or territory, or any board, commission, committee or similar body, whether corporate or unincorporated, established under the law of the foreign country or territory for a public purpose; or | | (c) | such other organisation as the Authority may prescribe by regulations made under section 341. [4/2017] |
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| Manipulation of financial benchmarks |
| 207.—(1) A person must not do any thing, cause any thing to be done or engage in any course of conduct, if the person’s purpose, or any of the person’s purposes, for doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) is to create a false or misleading appearance as to the price, value, performance or rate of any financial benchmark. [4/2017] (2) A person must not do any thing, cause any thing to be done or engage in any course of conduct that creates, or is likely to create, a false or misleading appearance, as to the price, value, performance or rate of any financial benchmark, if —| (a) | the person knows that doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) will create, or will likely create, that false or misleading appearance; or | | (b) | the person is reckless as to whether doing that thing, causing that thing to be done or engaging in that course of conduct (as the case may be) will create, or will likely create, that false or misleading appearance. [4/2017] |
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| Exception for conduct pursuant to policy requirement |
208. Section 207 does not apply in respect of any thing done or to be done or any course of conduct engaged by, or by a person acting on behalf of, a public authority or international body, whether in Singapore or elsewhere —| (a) | in respect of monetary policy; | | (b) | in respect of policies with respect to exchange rates, the management of public debt or foreign exchange reserves; or | | (c) | for the purpose of managing the price or value of any commodity. [4/2017] |
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| False or misleading statements |
209. A person must not make a statement, disseminate any information or express any opinion that is false or misleading in a material particular to a person who carries out the activity of administering a financial benchmark if —| (a) | the person intends that the statement, information or opinion be used for the purpose of administering a financial benchmark; and | | (b) | the person knows or ought reasonably to have known that the statement, information or opinion is false or misleading in a material particular, or is reckless as to whether the statement, information or opinion is false or misleading in a material particular. [4/2017] |
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| Penalties under this Division |
| 210.—(1) Any person who contravenes any of the provisions of this Division shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 7 years or to both. [4/2017] (2) No proceedings shall be instituted against a person for an offence in respect of a contravention of any of the provisions of this Division after —| (a) | a court has made an order against the person for the payment of a civil penalty under section 232; or | | (b) | the person has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5), |
| in respect of that contravention. |
[4/2017] |
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| 211. [Repealed by Act 4 of 2017] |
| 212. [Repealed by Act 4 of 2017] |
| Division 3 — Insider Trading |
| Application of this Division |
213. This Division applies to —| (a) | acts occurring within Singapore in relation to —| (i) | securities or securities‑based derivatives contracts of any corporation, whether formed or carrying on business in Singapore or elsewhere; | | (ii) | securities or securities‑based derivatives contracts of any business trust; | | (iii) | securities or securities‑based derivatives contracts listed for quotation or quoted on an organised market in Singapore or elsewhere; | | (iv) | securities‑based derivatives contracts, whether traded in Singapore or elsewhere; or | | (v) | CIS units —| (A) | listed for quotation or quoted on an organised market in Singapore or elsewhere; or | | (B) | traded in Singapore or elsewhere; and |
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| | (b) | acts occurring outside Singapore in relation to —| (i) | securities or securities‑based derivatives contracts of a corporation that is formed or carries on business in Singapore; | | (ii) | securities or securities‑based derivatives contracts of a business trust, the trustee of which is formed in Singapore or carries on business on behalf of the business trust in Singapore; | | (iii) | securities or securities‑based derivatives contracts listed for quotation or quoted on an organised market in Singapore; | | (iv) | securities‑based derivatives contracts traded in Singapore; or | | (v) | CIS units —| (A) | listed for quotation or quoted on an organised market in Singapore; or | | (B) | traded in Singapore. [4/2017] |
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| Interpretation of this Division |
214.—(1) In this Division —“Collective Investment Scheme unit” or “CIS unit” means —| (a) | a right or interest (however described) in a collective investment scheme (whether or not constituted as an entity), and includes an option to acquire any such right or interest in the collective investment scheme; or | | (b) | a contract or arrangement under which —| (i) | a party to the contract or arrangement is required to, or may be required to, discharge its obligations under the contract or arrangement at some future time; and | | (ii) | the value of the contract or arrangement, is determined (whether directly or indirectly, or whether wholly or in part) by reference to, derived from, or varies by reference to any of the following:| (A) | the value or amount of units of a collective investment scheme; | | (B) | fluctuations in the values or amount of units of a collective investment scheme; |
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| “debenture” has the meaning given by section 2 and, in relation to a business trust, means a debenture issued by the trustee of the business trust in its capacity as trustee of the business trust; |
| “financial performance”, in relation to a business trust, means the performance of the business relating to the trust property of the business trust which is managed and operated by the trustee of the business trust; |
“information” includes —| (a) | matters of supposition and other matters that are insufficiently definite to warrant being made known to the public; | | (b) | matters relating to the intentions, or the likely intentions, of a person; | | (c) | matters relating to negotiations or proposals with respect to —| (i) | commercial dealings; or | | (ii) | dealing in capital markets products that are securities, securities‑based derivatives contracts or CIS units; | | (iii) | [Deleted by Act 4 of 2017] |
| | (d) | information relating to the financial performance of a corporation or business trust, or otherwise; | | (e) | information that —| (i) | a person proposes to enter into, or had previously entered into, one or more transactions or agreements in relation to any securities, securities‑based derivatives contract or CIS unit; or | | (ii) | a person has prepared or proposes to issue a statement relating to any securities, securities‑based derivatives contract or CIS unit; and |
| | (f) | matters relating to the future; |
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| “persons who commonly invest”, in relation to investment in any kind of securities, securities‑based derivatives contracts or CIS units, means a section of the public that is accustomed, or would be likely, to deal in securities, securities‑based derivatives contracts or CIS units, or in a class of securities, securities‑based derivatives contracts or CIS units, of that kind; |
| “purchase”, in relation to securities‑based derivatives contracts or CIS units, includes a contract or arrangement under which a party acquires an option or right from another party, acquiring the option or right under the contract, or taking an assignment of the option or right, whether or not on another’s behalf; |
“sell”, in relation to securities‑based derivatives contracts or CIS units, includes a contract or arrangement under which a party acquires an option or right from another party —| (a) | grant or assign the option or right; or | | (b) | take, or cause to be taken, such action as releases the option or right, |
| whether or not on another’s behalf; |
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| “trust property” has the meaning given by section 2 of the Business Trusts Act 2004. [2/2009; 4/2017] |
(2) In this Division —| (a) | a reference to a securities‑based derivatives contract of a corporation in sections 213(a)(i) and (b)(i) and 218 is a reference to a securities‑based derivatives contract of which the underlying thing, or any of the underlying things, is a security of that corporation; and | | (b) | a reference to a securities‑based derivatives contract of a business trust in sections 213(a)(ii) and (b)(ii) and 218 is a reference to a securities‑based derivatives contract of which the underlying thing, or any of the underlying things, is a security of that business trust. [4/2017] |
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| Information generally available |
215. For the purposes of this Division, information is generally available if —| (a) | it consists of readily observable matter; | | (b) | without limiting paragraph (a) —| (i) | it has been made known in a manner that would, or would be likely to, bring it to the attention of any of the following classes of persons:| (A) | persons who commonly invest in securities of a kind of which the price or value might be affected by the information; | | (B) | persons who commonly invest in securities‑based derivatives contracts of a kind of which the price or value might be affected by the information; | | (C) | persons who commonly invest in CIS units of a kind of which the price or value might be affected by the information; and |
| | (ii) | since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed; or |
| | (c) | it consists of deductions, conclusions or inferences made or drawn from either or both of the following:| (i) | information referred to in paragraph (a); | | (ii) | information made known as referred to in paragraph (b)(i). [4/2017] |
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| Material effect on price or value of securities, securities‑based derivatives contracts or CIS units |
216. For the purposes of this Division, a reasonable person would be taken to expect information to have a material effect on the price or value of securities, securities‑based derivatives contracts or CIS units, if the information would, or would be likely to, influence any of the following persons in deciding whether or not to subscribe for, buy or sell those securities, securities‑based derivatives contracts or CIS units:| (a) | the persons who commonly invest in the securities, securities‑based derivatives contracts or CIS units; | | (b) | any one or more classes of persons who constitute the persons mentioned in paragraph (a). [4/2017] |
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| Trading and procuring trading in securities, securities‑based derivatives contracts or CIS units |
| 217.—(1) For the purposes of this Division, trading in any securities, securities‑based derivatives contracts or CIS units, that is ordinarily permitted on an organised market is taken to be permitted on that organised market even though trading in such securities, securities‑based derivatives contracts or CIS units (as the case may be) on that organised market is suspended. [4/2017] | (2) For the purposes of this Division but without limiting the meaning that the expression “procure” has apart from this section, if a person incites, induces, or encourages an act or omission by another person, the firstmentioned person is taken to procure the act or omission by the other person. |
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| Prohibited conduct by connected person in possession of inside information |
218.—(1) Subject to this Division, where —| (a) | a person who is connected to a corporation possesses information concerning that corporation that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities or securities‑based derivatives contracts of that corporation; and | | (b) | the connected person knows or ought reasonably to know that —| (i) | the information is not generally available; and | | (ii) | if it were generally available, it might have a material effect on the price or value of those securities or securities‑based derivatives contracts of that corporation, |
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| subsections (2), (3), (4), (5) and (6) apply. |
[4/2017] (1A) Subsections (2), (3), (4A), (5) and (6) apply if —| (a) | a person is connected to —| (i) | a corporation that is the trustee of, or manages or operates, a business trust; or | | (ii) | a corporation that is the trustee or manager of a collective investment scheme —| (A) | that invests primarily in real estate and real estate‑related assets specified by the Authority in the Code on Collective Investment Schemes; and | | (B) | all or any units of which are listed on an approved exchange; |
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| | (b) | the connected person possesses —| (i) | where the person is connected to a corporation mentioned in paragraph (a)(i), any information concerning the corporation or business trust that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities or securities‑based derivatives contracts of the corporation or business trust; or | | (ii) | where the person is connected to a corporation mentioned in paragraph (a)(ii), any information concerning the corporation or collective investment scheme that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities or securities‑based derivatives contracts of the corporation, or the price or value of CIS units in the scheme; and |
| | (c) | the connected person knows or ought reasonably to know that —| (i) | the information is not generally available; and | | (ii) | if it were generally available, it might have a material effect on —| (A) | where the person is connected to a corporation mentioned in paragraph (a)(i), the price or value of securities or securities‑based derivatives contracts of the corporation or business trust; or | | (B) | where the person is connected to a corporation mentioned in paragraph (a)(ii), the price or value of securities or securities‑based derivatives contracts of the corporation, or the price or value of CIS units in the collective investment scheme. [4/2017] |
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(2) The connected person must not (whether as principal or agent) —| (a) | subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell —| (i) | the securities or securities‑based derivatives contracts mentioned in subsection (1); or | | (ii) | the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1A); or |
| | (b) | procure another person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell —| (i) | the securities or securities‑based derivatives contracts mentioned in subsection (1); or | | (ii) | the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1A). [4/2017] |
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(3) The connected person must not, directly or indirectly, communicate the information mentioned in subsection (1) or (1A), or cause the information to be communicated, to another person if the connected person knows, or ought reasonably to know, that the other person would or would be likely to —| (a) | subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell —| (i) | the securities or securities‑based derivatives contracts mentioned in subsection (1); or | | (ii) | the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1A); or |
| | (b) | procure a third person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell —| (i) | the securities or securities‑based derivatives contracts mentioned in subsection (1); or | | (ii) | the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1A). [4/2017] |
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(4) In any proceedings for a contravention of subsection (2) or (3) against a person connected to a corporation referred to in subsection (1), where the prosecution or claimant proves that the connected person was at the material time —| (a) | in possession of information concerning the corporation to which the person was connected; and | | (b) | the information was not generally available, |
| it is presumed, until the contrary is proved, that the connected person knew at the material time that — |
| (c) | the information was not generally available; and | | (d) | if the information were generally available, it might have a material effect on the price or value of securities or securities‑based derivatives contracts of that corporation. [4/2017] [Act 25 of 2021 wef 01/04/2022] |
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(4A) In any proceedings for a contravention of subsection (2) or (3) against a person connected to a corporation mentioned in subsection (1A)(a)(i) or (ii), the presumption in subsection (4B) applies until the contrary is proved, if the prosecution or claimant proves that the connected person was at the material time —| (a) | in possession of information concerning the corporation, business trust or collective investment scheme, as the case may be; and | | (b) | the information was not generally available. [4/2017] [Act 25 of 2021 wef 01/04/2022] |
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(4B) For the purpose of subsection (4A), the presumption is the connected person knew at the material time that —| (a) | the information was not generally available; and | | (b) | if the information were generally available, it might have a material effect on —| (i) | where the person is connected to a corporation mentioned in subsection (1A)(a)(i), the price or value of securities or securities‑based derivatives contracts of the corporation or business trust; or | | (ii) | where the person is connected to a corporation mentioned in subsection (1A)(a)(ii), the price or value of the securities or securities‑based derivatives contracts of the corporation or the price or value of CIS units in the collective investment scheme. [4/2017] |
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(5) In this Division —| (a) | “connected person” means a person referred to in subsection (1) or (1A) who is connected to a corporation; and | | (b) | a person is connected to a corporation if —| (i) | the person is an officer of that corporation or of a related corporation; | | (ii) | the person is a substantial shareholder in that corporation or in a related corporation; or | | (iii) | the person occupies a position that may reasonably be expected to give the person access to information of a kind to which this section applies by virtue of —| (A) | any professional or business relationship existing between the person (or the person’s employer or a corporation of which the person is an officer) and that corporation or a related corporation; or | | (B) | being an officer of a substantial shareholder in that corporation or in a related corporation. [2/2009] |
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(6) In subsection (5), “officer”, in relation to a corporation, includes —| (a) | a director, secretary or employee of the corporation; | | (b) | a receiver, or receiver and manager, of property of the corporation; | | (c) | a judicial manager of the corporation; | | (d) | a liquidator of the corporation; and | | (e) | a trustee or other person administering a compromise or arrangement made between the corporation and another person. |
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| Prohibited conduct by other persons in possession of inside information |
219.—(1) Subject to this Division, where —| (a) | a person who is not a connected person referred to in section 218 (called in this section the insider) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities, securities‑based derivatives contracts or CIS units; and | | (b) | the insider knows that —| (i) | the information is not generally available; and | | (ii) | if it were generally available, it might have a material effect on the price or value of those securities, securities‑based derivatives contracts or CIS units, as the case may be, |
|
| subsections (2) and (3) apply. |
[4/2017] (2) The insider must not (whether as principal or agent) —| (a) | subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell, any such securities, securities‑based derivatives contracts or CIS units, as the case may be; or | | (b) | procure another person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell, any such securities, securities‑based derivatives contracts or CIS units, as the case may be. [4/2017] |
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(3) The insider must not, directly or indirectly, communicate the information mentioned in subsection (1), or cause the information to be communicated, to another person if the insider knows, or ought reasonably to know, that the other person would or would be likely to —| (a) | subscribe for, purchase or sell, or enter into an agreement to subscribe for, purchase or sell, the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1); or | | (b) | procure a third person to subscribe for, purchase or sell, or to enter into an agreement to subscribe for, purchase or sell, the securities, securities‑based derivatives contracts or CIS units mentioned in subsection (1). [4/2017] |
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| Not necessary to prove intention to use |
| 220.—(1) To avoid doubt, in any proceedings against a person for a contravention of section 218 or 219, it is not necessary for the prosecution or claimant to prove that the accused person or defendant intended to use the information referred to in section 218(1)(a) or (1A)(a) or 219(1)(a) in contravention of section 218 or 219, as the case may be. [Act 25 of 2021 wef 01/04/2022] | (2) In any proceedings against a person for a contravention of section 218 or 219, it is not necessary for the prosecution or claimant to prove the absence of facts or circumstances which if they existed would, by virtue of sections 222 to 230 or any regulations made under section 341, preclude the act from constituting a contravention of section 218 or 219, as the case may be. [Act 25 of 2021 wef 01/04/2022] |
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| Penalties under this Division |
221.—(1) A person who contravenes section 218 or 219, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 or to imprisonment for a term not exceeding 7 years or to both.(2) No proceedings shall be instituted against a person for an offence in respect of a contravention of section 218 or 219 after —| (a) | a court has made an order against the person for the payment of a civil penalty under section 232; or | | (b) | the person has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5), |
| in respect of that contravention. |
[2/2009] |
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| Exception for redemption of units in collective investment scheme |
222. Sections 218(2) and 219(2) do not apply in respect of the redemption of units in a collective investment scheme by a trustee or manager under a trust deed relating to that collective investment scheme in accordance with a buy‑back covenant contained or deemed to be contained in the trust deed at a price that is required by the trust deed to be calculated, so far as is reasonably practicable, by reference to the underlying value of the assets less —| (a) | any liabilities of that collective investment scheme to which the units relates; and | | (b) | any reasonable charge for purchasing the units. |
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| Exception for underwriters |
223.—(1) Sections 218(2) and 219(2) do not apply in respect of —| (a) | subscribing for, or purchasing, securities, securities‑based derivatives contracts or CIS units under an underwriting agreement or a sub‑underwriting agreement; | | (b) | entering into an agreement referred to in paragraph (a); or | | (c) | selling securities, securities‑based derivatives contracts or CIS units subscribed for, or purchased, under an agreement referred to in paragraph (a). [4/2017] |
(2) Sections 218(3) and 219(3) do not apply in respect of the communication of information in relation to securities, securities‑based derivatives contracts or CIS units —| (a) | to a person solely for the purpose of procuring the person to enter into an underwriting agreement in relation to any such securities, securities‑based derivatives contracts or CIS units; or | | (b) | by a person who may be required under an underwriting agreement to subscribe for, or purchase, any such securities, securities‑based derivatives contracts or CIS units if the communication is made to another person solely for the purpose of procuring the other person to do either or both of the following:| (i) | enter into a sub‑underwriting agreement in relation to any such securities, securities‑based derivatives contracts or CIS units; | | (ii) | subscribe for, or purchase, any such securities, securities‑based derivatives contracts or CIS units. [4/2017] |
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| Exception for purchase pursuant to legal requirement |
| 224.—(1) Sections 218(2) and 219(2) do not apply in respect of the purchase of securities, securities‑based derivatives contracts or CIS units pursuant to a requirement imposed by the Government, a statutory body or any regulatory authority, or any requirement imposed under any written law or order of court. [4/2017] | (2) Sections 218(2) and 219(2) do not apply in respect of the sale of securities, securities‑based derivatives contracts or CIS units pursuant to any requirement imposed by the Government or any requirement imposed under any written law or order of court. [4/2017] |
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| Exception for information communicated pursuant to legal requirement |
| 225. Sections 218(3) and 219(3) do not apply in respect of the communication of information pursuant to a requirement imposed by the Government, a statutory body or any regulatory authority, or any requirement imposed under any written law or order of court. |
| Attribution of knowledge within corporations |
226.—(1) For the purposes of this Division —| (a) | a corporation is taken to possess any information which an officer of the corporation possesses and which came into his or her possession in the course of the performance of duties as such an officer; and | | (b) | if an officer of a corporation knows or ought reasonably to know any matter or thing because he or she is an officer of the corporation, it is to be presumed, until the contrary is proved, that the corporation knows or ought reasonably to know that matter or thing. |
(2) A corporation does not contravene section 218(2) or 219(2) by entering into a transaction or agreement at any time merely because of information in the possession of an officer of the corporation if —| (a) | the decision to enter into the transaction or agreement was taken on its behalf by a person other than that officer; | | (b) | it had in operation at that time arrangements that could reasonably be expected to ensure that the information was not communicated to the person who made the decision and that no advice with respect to the transaction or agreement was given to that person by a person in possession of the information; and | | (c) | the information was not so communicated and no such advice was so given. |
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| Attribution of knowledge within partnerships and limited liability partnerships |
227.—(1) For the purposes of this Division —| (a) | a partner of a partnership or a limited liability partnership (as the case may be) is taken to possess any information —| (i) | which another partner of the partnership or limited liability partnership (as the case may be) possesses and which came into such other partner’s possession in his or her capacity as a partner of the partnership or limited liability partnership (as the case may be); or | | (ii) | which an employee of the partnership or a manager of a limited liability partnership (as the case may be) possesses and which came into the possession of such an employee or manager in the course of the performance of his or her duties as such an employee or manager; and |
| | (b) | if a partner or employee of a partnership or a partner, manager or employee of a limited liability partnership (as the case may be) knows or ought reasonably to know any matter or thing in his or her capacity as such a partner, manager or employee, it is to be presumed that every partner of the partnership or limited liability partnership (as the case may be) knows or ought reasonably to know that matter or thing. |
(2) The partners of a partnership or limited liability partnership (as the case may be) do not contravene section 218(2) or 219(2) by entering into a transaction or agreement at any time merely because one or more (but not all) of the partners, or a manager or managers, or an employee or employees, of the partnership or limited liability partnership (as the case may be) are in actual possession of information if —| (a) | the decision to enter into the transaction or agreement was taken on behalf of the partnership or limited liability partnership by any one or more of the following persons:| (i) | a partner who is taken to have possessed the information merely because another partner, or a manager or employee, of the partnership or limited liability partnership, was in possession of the information; | | (ii) | an employee of the partnership or limited liability partnership or a manager of the limited liability partnership who was not in possession of the information; |
| | (b) | the partnership or limited liability partnership had in operation at that time arrangements that could reasonably be expected to ensure that the information was not communicated to the person or persons who made the decision and that no advice with respect to the transaction or agreement was given to that person or any of those persons by a person in possession of the information; and | | (c) | the information was not so communicated and no such advice was so given. |
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| (3) A partner of a partnership or limited liability partnership (as the case may be) does not contravene section 218(2) or 219(2) by entering into a transaction or agreement otherwise than on behalf of the partnership or limited liability partnership merely because he or she is taken to possess information that is in the possession of another partner, a manager or an employee of the partnership. |
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| Exception for knowledge of individual’s own intentions or activities |
| 228. An individual does not contravene section 218(2) or 219(2) by entering into a transaction or agreement in relation to securities, securities‑based derivatives contracts or CIS units merely because the individual is aware that the individual proposes to enter into, or has previously entered into, one or more transactions or agreements in relation to those securities, securities‑based derivatives contracts or CIS units. [4/2017] |
| Exception for corporations and its officers, etc. |
| 229.—(1) A corporation does not contravene section 218(2) or 219(2) by entering into a transaction or agreement in relation to securities, securities‑based derivatives contracts or CIS units merely because the corporation is aware that it proposes to enter into or has previously entered into, one or more transactions or agreements in relation to those securities, securities‑based derivatives contracts or CIS units. [4/2017] | (2) Subject to subsection (3), a corporation does not contravene section 218(2) or 219(2) by entering into a transaction or agreement in relation to securities, securities‑based derivatives contracts or CIS units merely because an officer of the corporation is aware that the corporation proposes to enter into, or has previously entered into, one or more transactions or agreements in relation to those securities, securities‑based derivatives contracts or CIS units. [4/2017] |
| (3) Subsection (2) does not apply unless the officer of the corporation mentioned in that subsection became aware of the matters referred to in that subsection in the course of the performance of duties as such an officer. |
| (4) Subject to subsection (5), a person does not contravene section 218(2) or 219(2) by entering into a transaction or agreement on behalf of a corporation in relation to securities, securities‑based derivatives contracts or CIS units merely because the person is aware that the corporation proposes to enter into, or has previously entered into, one or more transactions or agreements in relation to those securities, securities‑based derivatives contracts or CIS units. [4/2017] |
| (5) Subsection (4) does not apply unless the person became aware of the matters referred to in that subsection in the course of the performance of duties as an officer of the corporation or in the course of acting as an agent of the corporation. |
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| Unsolicited transactions by holder of capital markets services licence and representatives |
230.—(1) The holder of a capital markets services licence to deal in capital markets products, or a representative of such a holder, does not contravene section 218(2) or 219(2) by subscribing for, purchasing or selling, or entering into an agreement to subscribe for, purchase or sell, securities, securities‑based derivatives contracts or CIS units if —| (a) | the holder or representative entered into the transaction or agreement concerned on behalf of another person (called in this section the principal) under a specific instruction by the principal to enter into that transaction or agreement which was not solicited by the holder or representative; | | (b) | the holder or representative has not given any advice to the principal in relation to the transaction or agreement or otherwise sought to procure the principal’s instructions to enter into the transaction or agreement; and | | (c) | the principal is not an associate of the holder or representative. [2/2009; 4/2017] |
| (2) Nothing in this section affects the application of section 218(2) or 219(2) in relation to the principal. |
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| Parity of information defences |
231.—(1) In any proceedings against a person for a contravention of section 218(2) or 219(2) because the person entered into, or procured another person to enter into, a transaction or agreement at a time when certain information was in the firstmentioned person’s possession, it is a defence if the court is satisfied that —| (a) | the information came into the firstmentioned person’s possession solely as a result of the information having been made known as referred to in section 215(b)(i); or | | (b) | the other party to the transaction or agreement knew, or ought reasonably to have known, of the information before entering into the transaction or agreement. |
(2) In an action against a person for a contravention of section 218(3) or 219(3) because the person communicated information, or caused information to be communicated, to another person, it is a defence if the court is satisfied that —| (a) | the information came into the firstmentioned person’s possession solely as a result of the information having been made known as referred in section 215(b)(i); or | | (b) | the other person knew, or ought reasonably to have known, of the information before the information was communicated. |
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| Division 4 — Civil Liability |
232.—(1) Whenever it appears to the Authority that any person has contravened any provision in this Part, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the person to seek an order for a civil penalty in respect of that contravention.(2) If the court is satisfied on a balance of probabilities that the person has contravened a provision in this Part, the court may make an order against the person for the payment of a civil penalty of a sum not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the person gained as a result of the contravention; or | | (ii) | the amount of the loss that the person avoided as a result of the contravention; |
| | (b) | $2 million. [4/2017] |
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(3) The civil penalty ordered under subsection (2) must not be less than —| (a) | in the case where the person is a corporation, $100,000; and | | (b) | in any other case, $50,000. [4/2017] |
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| (4) Despite subsections (2) and (3), the court may make an order against a person against whom an action has been brought under this section if the Authority, with the consent of the Public Prosecutor, has agreed to allow the person to consent to the order with or without admission of a contravention of a provision in this Part and the order may be made on such terms as may be agreed between the Authority and the defendant. |
| (5) Nothing in this section prevents the Authority from entering into an agreement with any person to pay, with or without admission of liability, a civil penalty within the limits referred to in subsection (2) or (3) for a contravention of any provision in this Part. |
| (6) A civil penalty imposed under this section must be paid into the Consolidated Fund and is to be treated as a judgment debt due to the Government for the purposes of section 10 of the Government Proceedings Act 1956. [34/2012; 4/2017] |
| (7) If the person fails to pay the civil penalty imposed on the person within the time specified in the court order referred to in subsection (4) or specified under the agreement referred to in subsection (5), the Authority may recover the civil penalty on behalf of the Government as though the civil penalty were a judgment debt due to the Authority. [34/2012] |
| (8) Any defence that is available to a person who is prosecuted for a contravention of any provision in this Part, is also available to a defendant to an action under this section in respect of that contravention. |
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| Action under section 232 not to commence, etc., in certain situations |
233.—(1) An action under section 232 must not be commenced after the expiration of 6 years from the date of the contravention of any of the provisions in this Part.| (2) An action under section 232 must not be commenced if the person has been convicted or acquitted in criminal proceedings for the contravention of any of the provisions in this Part, except where the person has been acquitted on the ground of the withdrawal of the charge against the person. |
(3) An action under section 232 must be stayed after criminal proceedings have been commenced against the person for the contravention of any of the provisions in this Part, and may thereafter be continued only if —| (a) | that person has been discharged in respect of that contravention and the discharge does not amount to an acquittal; or | | (b) | the charge against the person in respect of that contravention has been withdrawn. |
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234.—(1) A person who has acted in contravention of any of the provisions in this Part (called in this section and sections 235 and 236 the contravening person) is, if the contravening person had gained a profit or avoided a loss as a result of that contravention, whether or not the contravening person had been convicted or had a civil penalty imposed on the contravening person in respect of that contravention, liable to pay compensation to any person (called in this section and sections 235 and 236 the claimant) who —| (a) | had been dealing in capital markets products of the same description contemporaneously with the contravention; and | | (b) | had suffered loss by reason of the difference between —| (i) | the price at which the capital markets products were dealt in contemporaneously with the contravention; and | | (ii) | the price at which the capital markets products would have been likely to have been so dealt in at the time of the contemporaneous dealing if —| (A) | in the case where the contravening person had acted in contravention of section 218 or 219, the information mentioned in section 218(1) or (1A) or 219(1) (as the case may be) had been generally available; or | | (B) | in any other case, the contravention had not occurred. [2/2009; 34/2012; 4/2017] |
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(1A) Without affecting subsection (1), the contravening person is, whether or not the contravening person had gained a profit or avoided a loss as a result of that contravention, and whether or not the contravening person had been convicted or had a civil penalty imposed on the contravening person in respect of that contravention, liable to pay compensation to the claimant, if —| (a) | the contravening person has contravened section 199, 200 or 201 in connection with any dealing in capital markets products, by —| (i) | making, disseminating or publishing any false, misleading or deceptive statement, information, promise or forecast; or | | (ii) | concealing or omitting to state any material fact; and |
| | (b) | the claimant —| (i) | in reliance on that statement, information, promise or forecast or in ignorance of that concealed or omitted material fact, had (whether contemporaneously with the contravention or otherwise) been dealing in capital markets products of the same description; and | | (ii) | had suffered loss. [34/2012; 4/2017] |
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| (2) The amount of compensation that the contravening person is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant referred to in subsection (1)(b), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L, up to the maximum amount recoverable. [34/2012] |
(2A) The amount of compensation that the contravening person is liable to pay to the claimant under subsection (1A) is —| (a) | in any case where the claimant had contemporaneously with the contravention been dealing in capital markets products of the same description, and had suffered the loss referred to in subsection (1)(b), any one of the following amounts that is elected by the claimant:| (i) | the amount of the loss suffered by the claimant referred to in subsection (1)(b), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L, up to the maximum amount recoverable; | | (ii) | the amount of any loss that reasonably results from the claimant’s reliance on the statement, information, promise or forecast referred to in subsection (1A)(a)(i) or ignorance of the concealed or omitted material fact referred to in subsection (1A)(a)(ii), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L; or |
| | (b) | in any other case, the amount of any loss that reasonably results from the claimant’s reliance on the statement, information, promise or forecast referred to in subsection (1A)(a)(i) or ignorance of the concealed or omitted material fact referred to in subsection (1A)(a)(ii), after deducting any amount of compensation paid or payable to the same claimant in respect of the same contravention under an order of court or an agreement to pay by the contravening person or any defendant, defendant corporation or defendant partnership under Division 4 or 5 or under an order for disgorgement under section 236L. [34/2012; 4/2017] |
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| (3) Any defence that is available to a person who is prosecuted for a contravention of any provision in this Part, is also available to a defendant to an action under this section in respect of the contravention. |
| (4) An action under this section must not be commenced after the expiration of 6 years from the date of completion of the dealing in which the loss occurred. [34/2012; 4/2017] |
(5) For the purposes of this section, in determining whether any dealing in capital markets products took place contemporaneously with the contravention, the court is to take into account the following matters:| (a) | the volume of capital markets products of the same description dealt in between the date and time of the contravention, and the date and time of the dealing in capital markets products; | | (b) | if the contravention was effected by a transaction or transactions involving the dealing in capital markets products, the date on and time at which the transaction or transactions were cleared and settled; | | (c) | whether the dealing in capital markets products took place before or after the contravention; | | (d) | in the case of a contravention under section 203, 218 or 219, whether the dealing in capital markets products that are securities, securities‑based derivatives contracts or CIS units as defined in section 214(1) (as the case may be) took place before or after the information to which the contravention relates became generally known; | | (e) | such other factors and developments, whether in Singapore or elsewhere, as the court may consider relevant. [34/2012; 4/2017] |
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(6) In this section and section 236, “maximum recoverable amount”, in respect of each contravention by a contravening person means —| (a) | the amount of the profit that the contravening person gained; or | | (b) | the amount of the loss that the contravening person avoided, |
| as a result of the contravention, after deducting all amounts of compensation that the contravening person had previously been ordered by a court to pay, in respect of the same contravention, to other claimants (each being a claimant whose claim is one where the amount of compensation that the contravening person is liable to pay is specified under subsection (2) or (2A)(a)(i)). |
[34/2012] |
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| Action under section 234 not to commence, etc., in certain situations |
235.—(1) Except with the permission of court, no action under section 234 may be brought against the contravening person in respect of a contravention of any of the provisions in this Part which resulted in the contravening person gaining a profit or avoiding a loss after the commencement of —| (a) | criminal proceedings under this Part against the contravening person for the same contravention; or | | (b) | an action under section 232 against the contravening person for the same contravention. [Act 25 of 2021 wef 01/04/2022] |
(2) Any action under section 234 against the contravening person in respect of a contravention of any of the provisions in this Part which resulted in the contravening person gaining a profit or avoiding a loss, being an action that is pending on the date of commencement of —| (a) | criminal proceedings under this Part against the contravening person for the same contravention; or | | (b) | an action under section 232 against the contravening person for the same contravention, |
| must be stayed, and may not thereafter be continued except with the permission of court. |
[Act 25 of 2021 wef 01/04/2022] |
| (3) Permission under subsection (1) or (2) may not be granted if a date has been fixed by a court under section 236(1) for the filing of claims, and in that event the claimant to the proposed action or the action that has been stayed (as the case may be) must comply with such directions relating to the filing and proof of the claimant’s claim under section 236 as that court may issue in the claimant’s case. [Act 25 of 2021 wef 01/04/2022] |
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| Civil liability in event of conviction, etc. |
236.—(1) Despite section 234, where the contravening person —| (a) | has been convicted of an offence under this Part; or | | (b) | has an order for the payment of a civil penalty made against the contravening person under section 232, other than by way of a default judgment or a consent order made with or without admission of contravention under section 232(4), |
| in respect of the contravention of any of the provisions in this Part, the court which convicted the contravening person or made the order against the contravening person (called in this section the relevant court) may, after the conviction or the order imposing the civil penalty has been made final, fix a date on or before which all claimants have to file and prove their claims for compensation in respect of that contravention. |
[2/2009; 34/2012] | (2) For the purposes of subsection (1), the relevant court must not fix a date that is earlier than 3 months from the date the conviction or the order imposing the civil penalty (as the case may be) has been made final. |
| (3) Subject to subsection (3A), the relevant court may, after the expiry of the date fixed under subsection (1), make an order against the contravening person to pay compensation to each claimant who has filed and proven that claimant’s claim for compensation. [34/2012] |
(3A) Where the amount of compensation that a claimant would have been entitled if the claimant had brought an action under section 234 is specified under section 234(2) or (2A)(a)(i), the compensation amount ordered by the relevant court for that claimant is equal to the lesser of the following amounts:| (a) | the amount of compensation which that claimant has proven to the satisfaction of the court that the claimant would have been entitled to if the claimant had brought an action under section 234 against the contravening person; | | (b) | the pro‑rated portion of the maximum recoverable amount, calculated according to the relationship which the amount referred to in paragraph (a) bears to the total amount of all other claims (each being a claim the claimant of which is one who, if the claimant had brought an action under section 234, would have been entitled to the amount of compensation specified under section 234(2) or (2A)(a)(i)) which have been proved to the court. [34/2012] |
|
(4) For the purposes of this section, a conviction is made final if —| (a) | the conviction is upheld on appeal, revision or otherwise; | | (b) | the conviction is not subject to further appeal; | | (c) | no notice of appeal against the conviction is lodged within the time prescribed by sections 377 and 378 of the Criminal Procedure Code 2010; or | | (d) | any appeal against the conviction is withdrawn. [15/2010] |
|
(5) For the purposes of this section, an order imposing a civil penalty is made final if —| (a) | the order is not set aside on appeal or revision or is varied only as to the amount of the civil penalty to be imposed; | | (b) | the order is not subject to further appeal; | | (c) | no notice of appeal against the imposition of the penalty is lodged within the time prescribed by Rules of Court made under section 238; or | | (d) | any appeal against the imposition of the penalty is withdrawn. |
|
|
| Division 5 — Attributed Liability |
| Interpretation of this Division |
236A. In this Division, unless the context otherwise requires —| “defendant” means an individual liable to an order for a civil penalty under section 236H in respect of a contravention of any provision in this Part committed by a corporation, partnership, limited liability partnership or unincorporated association; |
“defendant corporation” means a corporation ––| (a) | liable to be punished under section 236B(1) or to an order for a civil penalty under section 236B(3) in respect of a contravention of any provision in this Part committed by its employee or officer; or | | (b) | liable to an order for a civil penalty under section 236C(1); |
|
“defendant partnership” means a partnership or limited liability partnership ––| (a) | liable to be punished under section 236E(1) or to an order for a civil penalty under section 236E(3) in respect of a contravention of any provision in this Part committed by a partner or employee of the partnership or a partner, manager or employee of the limited liability partnership, as the case may be; or | | (b) | liable to an order for a civil penalty under section 236F(1); |
|
| “partnership”, in Subdivision (2), means the partnership at the time of the contravention by the contravening person referred to in section 236E(1) or 236F(1), as the case may be. [2/2009] |
|
| Subdivision (1) — Corporations |
| Liability of corporation when employee or officer commits contravention with consent or connivance of corporation |
236B.—(1) Where an offence of contravening any provision in this Part is proved to have been committed by an employee or an officer of a corporation (called in this section the contravening person) —| (a) | with the consent or connivance of the corporation; and | | (b) | for the benefit of the corporation, |
| the corporation shall be guilty of that offence as if the corporation had committed the contravention, and shall be liable to be proceeded against and punished accordingly. |
[2/2009] (2) No proceedings shall be instituted against a corporation under subsection (1) after —| (a) | a court has made an order against the corporation for the payment of a civil penalty under subsection (3); or | | (b) | the corporation has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5) (as that provision is applied to an action under subsection (3) by subsection (6)), |
| in respect of the same contravention. |
[2/2009] |
| (3) Where it appears to the Authority that a corporation is liable to be punished under subsection (1) for a contravention committed by a contravening person, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the corporation to seek an order for a civil penalty in respect of that contravention as if the corporation had committed the contravention, whether or not such action is brought against the contravening person. [2/2009] |
(4) If the court in subsection (3) is satisfied on a balance of probabilities that the corporation is liable to be punished under subsection (1) for a contravention of any provision of this Part, the court may make an order against the corporation for the payment of a civil penalty of a sum not less than $100,000 but not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the corporation gained as a result of the contravention by the contravening person; or | | (ii) | the amount of the loss that the corporation avoided as a result of the contravention by the contravening person; |
| | (b) | $2 million. [4/2017] |
|
| (5) [Deleted by Act 4 of 2017] |
| (6) Sections 232(4) to (7) and 233 apply in relation to an action brought against a corporation under subsection (3) as they apply in relation to an action under section 232. [2/2009] |
(7) Any defence that would be available to —| (a) | the contravening person if the contravening person were prosecuted for the contravening person’s contravention; or | | (b) | the corporation if it were prosecuted under subsection (1) in respect of that contravention, |
| is also available to the corporation in an action under subsection (3) in respect of that contravention. |
[2/2009] |
(8) The means by which consent or connivance of the corporation under subsection (1) or (3) may be established include proving that —| (a) | the corporation’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; | | (b) | a high managerial agent of the corporation intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; or | | (c) | a corporate culture existed within the corporation that directed or encouraged non‑compliance with the relevant provision. [2/2009] |
|
(9) In this section —| “board of directors” means the body (by whatever name called) exercising the executive authority of the corporation; |
| “corporate culture” means an attitude, policy, rule, course of conduct or practice existing within the corporation generally or in the part of the corporation in which the relevant activity takes place; |
| “high managerial agent” means an employee, agent or officer of the corporation with duties of such responsibility that his or her conduct may fairly be assumed to represent the corporation’s policy. [2/2009] |
|
|
| Civil penalty when corporation fails to prevent or detect contravention by employee or officer |
236C.—(1) A corporation which fails to prevent or detect a contravention of any provision in this Part committed by an employee or officer of the corporation (called in this section the contravening person), which contravention is —| (a) | committed for the benefit of the corporation; and | | (b) | attributable to the negligence of the corporation, |
| commits a contravention and shall be liable to an order for a civil penalty under this section. |
[2/2009] | (2) Where it appears to the Authority that a corporation has committed a contravention under subsection (1), the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the corporation to seek an order for a civil penalty. [2/2009] |
(3) If the court is satisfied on a balance of probabilities that the corporation has committed a contravention under subsection (1), the court may make an order against the corporation for the payment of a civil penalty of a sum not less than $100,000 but not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the corporation gained as a result of the contravention by the contravening person; or | | (ii) | the amount of the loss that the corporation avoided as a result of the contravention by the contravening person; |
| | (b) | $2 million. [4/2017] |
|
| (4) [Deleted by Act 4 of 2017] |
| (5) Sections 232(4) to (7) and 233 apply in relation to an action brought against a corporation under subsection (2) as they apply in relation to an action under section 232. [2/2009] |
| (6) Any defence that would be available to the contravening person if the contravening person were prosecuted for the contravening person’s contravention is also available to the corporation in an action under subsection (2) in respect of its failure to prevent or detect that contravention. [2/2009] |
(7) For the purposes of subsection (1), in determining whether a contravention is attributable to the negligence of a corporation, the court is to take into account the following matters:| (a) | whether the corporation has established adequate policies and procedures for the purposes of preventing and detecting market misconduct; | | (b) | whether the corporation has consistently enforced compliance with its policies and procedures referred to in paragraph (a); | | (c) | such other factors as the court may consider relevant. [2/2009] |
|
|
| Civil liability of corporation for contravention by employee or officer |
236D.—(1) A defendant corporation which has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by the contravening person referred to in section 236B(1) or 236C(1) is, whether or not it had been convicted or had a civil penalty imposed on it, liable to pay compensation to any person (called in this section the claimant) who ––| (a) | had been dealing in capital markets products of the same description contemporaneously with the contravention by the contravening person; and | | (b) | had suffered loss by reason of the difference between —| (i) | the price at which the capital markets products were dealt in contemporaneously with the contravention by the contravening person; and | | (ii) | the price at which the capital markets products would have been likely to have been so dealt in at the time of the contemporaneous dealing if —| (A) | in any case where the contravening person had acted in contravention of section 218 or 219, the information referred to in section 218(1) or 219(1) (as the case may be) had been generally available; or | | (B) | in any other case, the contravention by the contravening person had not occurred. [2/2009; 34/2012; 4/2017] |
|
|
(2) The amount of compensation that the defendant corporation is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable —| (a) | by the contravening person under an order of court or an agreement to pay; or | | (b) | under an order for disgorgement under section 236L, |
| to the same claimant in respect of the same contravention, up to the maximum recoverable amount. |
[2/2009] |
(3) Any defence that would be available to —| (a) | the contravening person if the contravening person were prosecuted for the contravening person’s contravention; or | | (b) | the defendant corporation if it were prosecuted under section 236B(1) or had an action brought against it under section 236C(2), |
| is also available to the defendant corporation in an action under this section in respect of that contravention. |
[2/2009] |
| (4) An action under this section must not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing in which the loss occurred. [2/2009; 4/2017] |
| (5) In determining whether the dealing took place contemporaneously with the contravention by the contravening person, the court is to take into account the matters set out in section 234(5). [2/2009; 4/2017] |
(6) In this section, “maximum recoverable amount” means —| (a) | the amount of profit that the defendant corporation gained; or | | (b) | the amount of the loss that it avoided, |
| as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant corporation had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention. |
[2/2009] |
|
| Subdivision (2) — Partnerships and limited liability partnerships |
| Liability of partnership and limited liability partnership when partner, etc., commits contravention with consent or connivance |
236E.—(1) Where an offence of contravening any provision of this Part is proved to have been committed by a partner or employee of a partnership or a partner, manager or employee of a limited liability partnership (called in this section the contravening person) —| (a) | with the consent or connivance of the partnership or limited liability partnership; and | | (b) | for the benefit of the partnership or limited liability partnership, |
| the partnership or limited liability partnership shall be guilty of that offence as if it had committed the contravention, and every partner of that partnership, or the limited liability partnership (as the case may be) shall be liable to be proceeded against and punished accordingly. |
[2/2009] (2) No proceedings shall be instituted against any partner of the partnership or the limited liability partnership under subsection (1) after —| (a) | a court has made an order against the partner or limited liability partnership for the payment of a civil penalty under subsection (3); or | | (b) | the partner or limited liability partnership has entered into an agreement with the Authority to pay, with or without admission of liability, a civil penalty under section 232(5) (as that provision is applied to an action under subsection (3) by subsection (6)), |
| in respect of the same contravention. |
[2/2009] |
| (3) Where it appears to the Authority that a partnership or a limited liability partnership is liable to be punished under subsection (1) for a contravention committed by a contravening person, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the partnership or limited liability partnership to seek an order for a civil penalty in respect of that contravention as if the partnership or limited liability partnership had committed the contravention, whether or not such action is brought against the contravening person. [2/2009] |
(4) If the court in subsection (3) is satisfied on a balance of probabilities that the partnership or limited liability partnership is liable to be punished under subsection (1) for a contravention of any provision of this Part, the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum not less than $50,000 but not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the partnership or limited liability partnership gained as a result of the contravention by the contravening person; or | | (ii) | the amount of the loss that the partnership or limited liability partnership avoided as a result of the contravention by the contravening person; |
| | (b) | $2 million. [4/2017] |
|
| (5) [Deleted by Act 4 of 2017] |
| (6) Sections 232(4) to (7) and 233 apply in relation to an action brought against a partnership or limited liability partnership under subsection (3) as they apply in relation to an action under section 232. [2/2009] |
(7) Any defence that would be available to —| (a) | the contravening person if the contravening person were prosecuted for the contravening person’s contravention; or | | (b) | the partnership or limited liability partnership if it were prosecuted under subsection (1) in respect of that contravention, |
| is also available to the partnership or limited liability partnership in an action under subsection (3) in respect of that contravention. |
[2/2009] |
(8) The means by which consent or connivance of the partnership or limited liability partnership under subsection (1) or (3) may be established include proving that —| (a) | the executive partners of the partnership or limited liability partnership intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; | | (b) | a high managerial agent of the partnership or limited liability partnership intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the contravention; or | | (c) | a corporate culture existed within the partnership or limited liability partnership that directed or encouraged non‑compliance with the relevant provision. [2/2009] |
|
(9) In this section —| “corporate culture” means an attitude, policy, rule, course of conduct or practice existing within the partnership or limited liability partnership generally or in the part of the partnership or limited liability partnership in which the relevant activity takes place; |
| “executive partners” means the partners exercising the executive authority of the partnership or limited liability partnership; |
| “high managerial agent” means a partner, manager or employee of the partnership or limited liability partnership with duties of such responsibility that his or her conduct may fairly be assumed to represent the partnership or limited liability partnership’s policy. [2/2009] |
|
|
| Civil penalty when partnership or limited liability partnership fails to prevent or detect contravention by partner, etc. |
236F.—(1) A partnership or limited liability partnership which fails to prevent or detect a contravention of any provision in this Part committed by a partner or employee of the partnership or a partner, manager or employee of the limited liability partnership, as the case may be (called in this section the contravening person), which contravention is —| (a) | committed for the benefit of the partnership or limited liability partnership; and | | (b) | attributable to the negligence of the partnership or limited liability partnership, |
| commits a contravention and shall be liable to an order for a civil penalty under this section. |
[2/2009] | (2) Where it appears to the Authority that a partnership or limited liability partnership has committed a contravention under subsection (1), the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the partnership or limited liability partnership to seek an order for a civil penalty. [2/2009] |
(3) If the court is satisfied on a balance of probabilities that the partnership or limited liability partnership has committed a contravention under subsection (1), the court may make an order against the partnership or limited liability partnership for the payment of a civil penalty of a sum not less than $50,000 but not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the partnership or limited liability partnership gained as a result of the contravention by the contravening person; or | | (ii) | the amount of the loss that the partnership or limited liability partnership avoided as a result of the contravention by the contravening person; |
| | (b) | $2 million. [4/2017] |
|
| (4) [Deleted by Act 4 of 2017] |
| (5) Sections 232(4) to (7) and 233 apply in relation to an action brought against a partnership or limited liability partnership under subsection (2) as they apply in relation to an action under section 232. [2/2009] |
| (6) Any defence that would be available to the contravening person if the contravening person were prosecuted for the contravening person’s contravention is also available to the partnership or limited liability partnership in an action under subsection (2) in respect of its failure to prevent or detect that contravention. [2/2009] |
(7) For the purposes of subsection (1), in determining whether a contravention is attributable to the negligence of a partnership or limited liability partnership, the court is to take into account the following matters:| (a) | whether the partnership or limited liability partnership has established adequate policies and procedures for the purposes of preventing and detecting market misconduct; | | (b) | whether the partnership or limited liability partnership has consistently enforced compliance with its policies and procedures referred to in paragraph (a); | | (c) | such other factors as the court may consider relevant. [2/2009] |
|
|
| Civil liability of partnership or limited liability partnership for contravention by partner, etc. |
236G.—(1) A defendant partnership which has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by the contravening person referred to in section 236E(1) or 236F(1) is, whether or not the partners of the partnership or the limited liability partnership had been convicted or the partnership or limited liability partnership had a civil penalty imposed on it, liable to pay compensation to any person (called in this section the claimant) who —| (a) | had been dealing in capital markets products of the same description contemporaneously with the contravention by the contravening person; and | | (b) | had suffered loss by reason of the difference between —| (i) | the price at which the capital markets products were dealt in contemporaneously with the contravention by the contravening person; and | | (ii) | the price at which the capital markets products would have been likely to have been so dealt in at the time of the contemporaneous dealing if —| (A) | in any case where the contravening person had acted in contravention of section 218 or 219, the information referred to in section 218(1) or 219(1) (as the case may be) had been generally available; or | | (B) | in any other case, the contravention by the contravening person had not occurred. [2/2009; 34/2012; 4/2017] |
|
|
(2) The amount of compensation that the defendant partnership is liable to pay to the claimant under subsection (1) is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable —| (a) | by the contravening person under an order of court or an agreement to pay; or | | (b) | under an order for disgorgement under section 236L, |
| to the same claimant in respect of the same contravention, up to the maximum recoverable amount. |
[2/2009] |
(3) Any defence that would be available to —| (a) | the contravening person if the contravening person were prosecuted for the contravening person’s contravention; or | | (b) | the defendant partnership if it were prosecuted under section 236E(1) or had an action brought against it under section 236F(2), |
| is also available to the defendant partnership in an action under this section in respect of that contravention. |
[2/2009] |
| (4) An action under this section must not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing in which the loss occurred. [2/2009; 4/2017] |
| (5) In determining whether the dealing took place contemporaneously with the contravention by the contravening person, the court is to take into account the matters set out in section 234(5). [2/2009; 4/2017] |
(6) In this section, “maximum recoverable amount” means —| (a) | the amount of profit that the defendant partnership gained; or | | (b) | the amount of the loss that it avoided, |
| as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant partnership had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention. |
[2/2009] |
|
| Subdivision (3) — Officers, partners, etc., of entities |
| Civil penalty against officer of corporation, etc. |
236H.—(1) Where it appears to the Authority that a corporation, partnership, limited liability partnership or unincorporated association (called in this section the contravening person) has contravened any provision in this Part —| (a) | with the consent or connivance of a person (called in this section the defendant) who is an officer or (where its affairs are managed by its members) a member of the corporation, a partner of the partnership, a partner or manager of the limited liability partnership, or an officer of the unincorporated association (other than a partnership) or a member of its governing body, as the case may be; or | | (b) | as a result of any neglect on the part of the defendant, |
| the Authority may, with the consent of the Public Prosecutor, bring an action in a court against the defendant to seek an order for a civil penalty in respect of that contravention as if the defendant had committed the contravention, whether or not such action is brought against the contravening person. |
[2/2009] (2) If the court is satisfied on a balance of probabilities that the contravening person has contravened a provision in this Part with the consent or connivance of the defendant, or as a result of any neglect on the part of the defendant, the court may make an order against the defendant for the payment of a civil penalty of a sum not less than $50,000 but not exceeding the greater of the following:| (a) | 3 times —| (i) | the amount of the profit that the defendant gained as a result of the contravention by the contravening person; or | | (ii) | the amount of the loss that the defendant avoided as a result of the contravention by the contravening person; |
| | (b) | $2 million. [4/2017] |
|
| (3) [Deleted by Act 4 of 2017] |
| (4) Sections 232(4) to (7) and 233 apply in relation to an action brought against a defendant under subsection (1) as they apply in relation to an action under section 232. [2/2009] |
(5) Any defence that would be available to —| (a) | the contravening person if it were prosecuted for its contravention; or | | (b) | the defendant if he or she were prosecuted under section 331 in respect of that contravention, |
| is also available to the defendant in an action under subsection (1) in respect of that contravention. |
[2/2009] |
|
| Civil liability of officer of corporation, etc. |
236I.—(1) A defendant who has gained a profit or avoided a loss as a result of the contravention of a provision in this Part by a contravening person referred to in section 236H(1) is, whether or not the defendant had been convicted under section 331 or had a civil penalty imposed on the defendant under section 236H, liable to pay compensation to any person (called in this section the claimant) who —| (a) | had been dealing in capital markets products of the same description contemporaneously with the contravention by the contravening person; and | | (b) | had suffered loss by reason of the difference between —| (i) | the price at which the capital markets products were dealt in contemporaneously with the contravention by the contravening person; and | | (ii) | the price at which the capital markets products would have been likely to have been so dealt in at the time of the contemporaneous dealing if —| (A) | in any case where the contravening person had acted in contravention of section 218 or 219, the information referred to in section 218(1) or 219(1) (as the case may be) had been generally available; or | | (B) | in any other case, the contravention by the contravening person had not occurred. [2/2009; 34/2012; 4/2017] |
|
|
(2) The amount of compensation that the defendant is liable to pay to the claimant is the amount of the loss suffered by the claimant, after deducting any amount of compensation paid or payable ––| (a) | by the contravening person under an order of court or an agreement to pay; or | | (b) | under an order for disgorgement under section 236L, |
| to the same claimant in respect of the same contravention, up to the maximum recoverable amount. |
[2/2009] |
(3) Any defence that would be available to —| (a) | the contravening person if it were prosecuted for its contravention; or | | (b) | the defendant if he or she were prosecuted under section 331 in respect of that contravention, |
| is also available to the defendant in an action under this section in respect of that contravention. |
[2/2009] |
| (4) An action under this section must not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing in which the loss occurred. [2/2009; 4/2017] |
| (5) In determining whether a dealing in capital markets products took place contemporaneously with the contravention by the contravening person, the court is to take into account the matters referred to in section 234(5)(a) to (e). [2/2009; 4/2017] |
(6) In this section, “maximum recoverable amount” means —| (a) | the amount of the profit that the defendant gained; or | | (b) | the amount of the loss that the defendant avoided, |
| as a result of the contravention by the contravening person, after deducting all amounts of compensation that the defendant had previously been ordered by a court to pay to other claimants under this section in respect of the same contravention. |
[2/2009] |
|
| Subdivision (4) — General |
| Actions not to commence or stayed in certain situations |
236J.—(1) Except with the permission of court, no action may be brought against —| (a) | a defendant corporation under section 236B, 236C or 236D; | | (b) | a defendant partnership (including, in the case of a partnership, any of the partners) under section 236E, 236F or 236G; or | | (c) | a defendant under section 236H or 236I, |
| which relates to a contravention of a provision in this Part (called in this section the primary contravention) by a contravening person referred to in section 236B(1) or 236C(1) (in relation to the defendant corporation), 236E(1) or 236F(1) (in relation to the defendant partnership) or 236H(1) (in relation to the defendant), as the case may be, after the commencement of –– |
| (d) | criminal proceedings in respect of the primary contravention against the contravening person; or | | (e) | an action under section 232 in respect of the primary contravention against the contravening person, |
| and any such action in paragraph (a), (b) or (c) pending on the date of commencement of the proceedings or action in paragraph (d) or (e) must be stayed, and may not thereafter be continued except with the permission of court. |
[2/2009] [Act 25 of 2021 wef 01/04/2022] (2) Permission under subsection (1) may not be granted if ––| (a) | in the criminal proceedings referred to in subsection (1)(d), the contravening person has been acquitted of the primary contravention; or | | (b) | in the action under section 232 referred to in subsection (1)(e), the court is not satisfied that the contravening person has committed the primary contravention. [2/2009] [Act 25 of 2021 wef 01/04/2022] |
|
(3) Except with the permission of court, no action under section 236D, 236G or 236I may be brought against the defendant corporation, defendant partnership or defendant in respect of a primary contravention after the commencement of —| (a) | criminal proceedings against the defendant corporation under section 236B(1), the defendant partnership (including, in the case of a partnership, any of the partners) under section 236E(1) or the defendant under section 331 in respect of the same contravention; | | (b) | an action against the defendant corporation under section 236B(3), the defendant partnership under section 236E(3) or the defendant under section 236H in respect of the same contravention; or | | (c) | an action against the defendant corporation under section 236C(2) or the defendant partnership under section 236F(2) in respect of the failure to prevent or detect that contravention, |
| and any such action under section 236D, 236G or 236I (as the case may be) pending on the date of commencement of the proceedings or action in paragraph (a), (b) or (c) must be stayed, and may not thereafter be continued except with the permission of court. |
[2/2009] [Act 25 of 2021 wef 01/04/2022] |
| (4) Permission under subsection (3) may not be granted if a date has been fixed by a court under section 236K for the filing of claims, and in that event the claimant to the proposed action or the action that has been stayed (as the case may be) must comply with such directions relating to the filing and proof of the claimant’s claim under section 236K as that court may issue in the claimant’s case. [2/2009] [Act 25 of 2021 wef 01/04/2022] |
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| Civil liability in event of conviction or civil penalty |
236K.—(1) Despite section 236D, 236G or 236I, where a defendant corporation, defendant partnership (including, in the case of a partnership, any of the partners) or defendant —| (a) | has been convicted of an offence under this Division; or | | (b) | has had an order for the payment of civil penalty made against it, him or her under this Division, other than by way of a default judgment or a consent order made with or without admission of contravention, |
| and has gained a profit or avoided a loss as a result of the contravention by the contravening person referred to in section 236B(1), 236C(1), 236E(1), 236F(1) or 236H(1) (as the case may be) the court which convicted or made the order for a civil penalty against the defendant corporation, defendant partnership (or any of the partners thereof) or defendant may, after the conviction or the order imposing the civil penalty has been made final, fix a date on or before which all claimants have to file and prove their claims against the defendant corporation, defendant partnership or defendant (as the case may be) for compensation in respect of that contravention. |
[2/2009] (2) Section 236(2) to (5) applies, with the necessary modifications, to an action under subsection (1), and in such application —| (a) | any reference to the contravening person is to be read as the defendant corporation, the defendant partnership or the defendant in subsection (1); and | | (b) | the reference to an action under section 234 is to be read as an action under section 236D (in relation to the defendant corporation), 236G (in relation to the defendant partnership) or 236I (in relation to the defendant), as the case may be. [2/2009] |
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| (3) In this section, “claimant” means any person who would qualify as a claimant to bring an action against the defendant corporation, defendant partnership or defendant under section 236D, 236G or 236I, as the case may be. [2/2009] |
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| Order for disgorgement against third party |
236L.—(1) Without affecting any action under section 234, 236, 236D, 236G, 236I or 236K, where —| (a) | a person has been convicted by a court of an offence in respect of a contravention of any provision in this Part; | | (b) | a person has had an order for the payment of a civil penalty made against the person under section 232 or any of the provisions in this Division by a court, other than by way of a default judgment or a consent order made with or without admission of contravention, in respect of a contravention of any provision in this Part; or | | (c) | in an action commenced under this section, a court is satisfied on a balance of probabilities that a contravention by a person of any provision in this Part has occurred, |
| the court may, on the application of the Authority or any claimant, make an order against any other person (called in this section a third party) who has received the whole or any part of the benefit of that contravention for disgorgement of that benefit, being benefit derived from trades carried out for the third party by the person referred to in paragraph (a), (b) or (c). |
[2/2009] | (2) The court must issue a notice to a third party against whom an application for an order for disgorgement under subsection (1) is made, giving the third party an opportunity to show cause, within such time as may be specified in the notice, why the order should not be made. [2/2009] |
| (3) An application for an order for disgorgement under subsection (1) must not be commenced after the expiration of 6 years from the date on which the contravention referred to in that subsection was committed. [2/2009] |
(4) The court is not to make an order for disgorgement against a third party, or is not to order disgorgement of the entire benefit derived by the third party, if the court is satisfied, on a balance of probabilities, that —| (a) | the third party acquired the benefit without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the benefit was derived from the contravention referred to in subsection (1); and | | (b) | the third party has so altered the third party’s position in reliance on the third party having an indefeasible interest in the benefit that, in the opinion of the court, it would be inequitable to make the order for disgorgement or to order disgorgement of the entire benefit derived by the third party, as the case may be. [2/2009] |
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| (5) Despite subsection (4), the court may make an order for disgorgement against a third party referred to in subsection (4) of a sum that is, in the opinion of the court, equitable. [2/2009] |
| (6) The court may, after the order for disgorgement has been made final, fix a date, not earlier than 6 months from the date the order for disgorgement has been made final, on or before which all claimants have to file and prove their claims for compensation in respect of the contravention referred to in subsection (1). [2/2009] |
(7) The court may, after the expiry of the date fixed under subsection (6), order that each claimant who has filed and proven the claimant’s claim for compensation be paid out of the sum under the final order for disgorgement, an amount —| (a) | equal to the amount of loss suffered by the claimant, after deducting any other compensation paid or payable to the same claimant under an order of court or an agreement to pay in respect of the same contravention; or | | (b) | equal to the pro‑rated portion of the sum under the final order for disgorgement, calculated according to the relationship which the amount referred to in paragraph (a) bears to all amounts proved to the court, |
[2/2009] |
| (8) Any sum remaining under the order for disgorgement must be paid into the Consolidated Fund and is to be treated as a debt due to the Government for the purposes of section 10 of the Government Proceedings Act 1956. [2/2009; 4/2017] |
(9) If the third party fails to pay the sums under the order for disgorgement within the time specified in the court order under subsection (7) ––| (a) | each claimant may recover the sum due to the claimant under the order for disgorgement as though it were a judgment debt due to the claimant; and | | (b) | the remaining sum under the order for disgorgement may be recovered by the Authority as though it were a judgment debt due to the Authority and paid into the Consolidated Fund. [2/2009] |
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| (10) After the expiry of the date fixed under subsection (6), no person may make any subsequent application under this section for an order for disgorgement against the third party in respect of the same contravention. [2/2009] |
(11) For the purposes of this section, an order for disgorgement is made final if —| (a) | the order is not set aside on appeal or revision or is varied only as to the sum to be disgorged; | | (b) | the order is not subject to further appeal; | | (c) | no notice of appeal against the order is lodged within the time prescribed by Rules of Court; or | | (d) | any appeal against the order is withdrawn. [2/2009] |
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(12) In this section —| “benefit”, in relation to a contravention of any provision in this Part, means a profit gained or loss avoided as a result of that contravention; |
| “claimant”, in relation to a contravention of any provision in this Part, means any person who would qualify as a claimant under section 234 in respect of that contravention. [2/2009] |
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| Division 6 — Miscellaneous |
[2/2009] | Jurisdiction of District Court |
| 237. A District Court has jurisdiction to hear and determine any action or application under Division 4 or 5 regardless of the monetary amount. [34/2012] |
238.—(1) Rules of Court may be made —| (a) | to regulate and prescribe the procedure and practice to be followed in respect of proceedings under Divisions 4 and 5; and | | (b) | to provide for costs and fees of such proceedings, and for regulating any matter relating to the costs of such proceedings. [2/2009; 34/2012] |
(2) Without limiting subsection (1), Rules of Court may, in relation to proceedings under sections 236, 236K and 236L —| (a) | provide for the advertisement of a notice for the filing and proof of claims under those sections; | | (b) | prescribe the procedure for the filing, proof and hearing of those claims; and | | (c) | provide for the payment of the costs and fees of an action that has been stayed under section 235(2) or 236J. [2/2009] |
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