5. The principal Act is amended by inserting, immediately after section 29, the following Part:“PART IVA CONFISCATION OF PROPERTY OF CORRESPONDING VALUE TO INSTRUMENTALITIES |
29A.—(1) This Part applies in relation to any drug dealing offence or serious offence, whether committed before, on or after the date of commencement of section 5 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) (Amendment) Act 2014.(2) However, nothing in this Part imposes any duty or confers any power on a court in connection with any proceedings against a person for a drug dealing offence or a serious offence for which he has been convicted by a court before the date of commencement of section 5 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) (Amendment) Act 2014. |
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Substitute property confiscation order |
29B.—(1) Where a defendant is convicted, or is by reason of section 26 taken to be convicted, of a drug dealing offence or a serious offence, the court shall, on the application of the Public Prosecutor, make a substitute property confiscation order against the defendant, if the court is satisfied that —(a) | the defendant had used or intended to use any property (referred to in this Part as an instrumentality) for the commission of the offence; and | (b) | the instrumentality is not available for forfeiture as mentioned in subsection (2). |
(2) For the purposes of subsection (1), an instrumentality is not available for forfeiture if —(a) | the instrumentality is not held by the defendant; | (b) | the instrumentality is held by the defendant and has been seized under any written law, but has been ordered to be released, or to be disposed of in favour of any person other than the defendant; or | (c) | the instrumentality has been sold or otherwise disposed of, or cannot be found. |
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(3) When a court makes a substitute property confiscation order against the defendant, the defendant is liable to pay to the Government the amount which —(a) | the court assesses to be the value of the instrumentality at the time the drug dealing offence or serious offence was committed; and | (b) | is specified in the order. |
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(4) For the purposes of subsection (3), the value of the instrumentality shall be its full value, even if the defendant did not expend any amount for the purpose of using it for the commission of the offence, or did not expend an amount equal to its full value for that purpose. |
(5) If a substitute property confiscation order is made against 2 or more defendants in respect of the same instrumentality, the defendants are jointly and severally liable to pay to the Government the amount specified in the order. |
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Modified application of Parts II, III and IV |
29C.—(1) The provisions of Parts II, III and IV shall apply in relation to, and for the purpose of enabling the satisfaction of, a substitute property confiscation order as they apply in relation to, and for the purpose of enabling the satisfaction of, a confiscation order, subject to —(a) | the following modifications:(i) | a reference in section 4(2) or 5(2) to a court being satisfied that a defendant has derived benefits from drug dealing or from criminal conduct shall be read as a reference to a court being satisfied that the defendant had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; | (ii) | a reference in section 4(2) or 5(2) to a determination in accordance with section 10 of the amount to be recovered by virtue of section 4 or 5 shall be read as a reference to a determination in accordance with sections 10 and 29B(3) and (4) of the amount to be recovered by virtue of section 29B; | (iii) | the reference in section 9(1) to a determination of whether benefits have been derived by a defendant from drug dealing or from criminal conduct shall be read as a reference to a determination of whether the defendant had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; | (iv) | a reference in section 9(1) or 10(3) or (6) to an assessment of the value of benefits derived by a defendant from drug dealing or from criminal conduct shall be read as a reference to an assessment of the value of the instrumentality in accordance with section 29B(3) and (4); | (v) | the reference in section 9(6) to an acceptance by a defendant that benefits have been derived by him from drug dealing or from criminal conduct shall be read as a reference to an acceptance by the defendant that he had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; | (vi) | each reference in section 14 to an order to pay an amount under section 4 or 5 shall be read as a reference to an order to pay an amount under a substitute property confiscation order; | (vii) | a reference in section 15(1) or (2) to the High Court being satisfied that there is reasonable cause to believe that benefits have been derived by a person from drug dealing or from criminal conduct shall be read as a reference to the High Court being satisfied that there is reasonable cause to believe that the person had used or intended to use any property for the commission of the drug dealing offence or serious offence in question; | (viii) | the reference in section 17(1)(a) to a confiscation order shall be read as a reference to a substitute property confiscation order; and |
| (b) | such other modifications as may be prescribed for the purposes of this subsection. |
(2) Where both a confiscation order and a substitute property confiscation order are made against a defendant in relation to the same drug dealing offence or serious offence, then —(a) | a reference in section 17(1)(b) or 20(2) to the amount payable under a confiscation order shall be read as a reference to the total amount payable under both orders; | (b) | a reference in section 20(1) or 21(2) or (6) to the satisfaction of a confiscation order shall be read as a reference to the satisfaction of both orders; and | (c) | each reference in section 22 to the amount to be recovered under a confiscation order shall be read as a reference to the amount to be recovered under either order or both orders, as the case may be. |
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(3) In this section, a reference to Parts II, III and IV —(a) | includes a reference to section 2, insofar as that section applies to the interpretation of the provisions of those Parts; but | (b) | excludes any reference to sections 4(1), (4), (4A), (5) and (6), 5(1), (6), (7) and (8), 7, 8, 10(1), 13 and 28(3A), (4), (4A), (4B) and (6), and all other provisions that are rendered inapplicable by regulations made for the purpose of subsection (1)(b).”. |
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