22. The principal Act is amended by inserting, immediately after section 104, the following sections:“Civil penalty for insider dealing |
104A.—(1) Whenever it appears to the Authority that any person has contravened section 103, the Authority may, with the consent of the Public Prosecutor, bring an action in a court against him 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 section 103(1), (2), (3) or (6), the court may make an order against him for the payment of a civil penalty of a sum —(a) | not exceeding 3 times —(i) | the amount of the profit that the person gained; or | (ii) | the amount of the loss that he avoided, |
as a result of the contravention; or |
| (b) | equal to $50,000 if the person is not a body corporate, or $100,000 if the person is a body corporate, |
whichever is the greater. |
|
(3) If the court is satisfied on a balance of probabilities that the person has contravened section 103(4) or (5), the court may make an order against him for the payment of a civil penalty of a sum not less than $50,000 and not more than $250,000. |
(4) A civil penalty imposed under this section shall be payable to the Authority. |
(5) If the person fails to pay the civil penalty imposed on him within the time specified in the court order, the Authority may sue for and recover the civil penalty as though the civil penalty were a judgment debt due to the Authority. |
|
Action under section 104A not to commence, etc., in certain situations |
104B.—(1) An action under section 104A shall not be commenced after the expiration of 6 years from the date of the contravention of section 103.(2) An action under section 104A shall not be commenced if the person has been convicted or acquitted in criminal proceedings for the contravention of section 103, except where he has been acquitted on the ground of the withdrawal of the charge against him. |
(3) An action under section 104A shall be stayed after criminal proceedings under section 104 have been commenced against the person for the contravention of section 103, 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discharge does not amount to an acquittal; or | (b) | the charge against him in respect of that contravention has been withdrawn. |
|
|
Civil liability for insider dealing |
104C.—(1) A person who has acted in contravention of section 103(1), (2), (3) or (6) (referred to in this section and sections 104D and 104E as the insider) shall, whether or not he had been convicted or had a civil penalty imposed on him in respect of that contravention, be liable to pay compensation to any person (referred to in this section and sections 104D and 104E as the claimant) who —(a) | contemporaneously with the dealing in securities that is the subject of the contravention (referred to in this section as the insider dealing in securities), had purchased (where the insider dealing in securities consisted of a sale of the securities) or sold (where the insider dealing in securities consisted of a purchase of the securities) securities of the same description; and | (b) | had suffered loss by reason of the difference between —(i) | the price at which the securities were dealt in in the contemporaneous dealing; and | (ii) | the price at which the securities would have been likely to have been so dealt in at the time of the contemporaneous dealing if the contravention had not occurred. |
|
(2) The amount of compensation that the insider is liable to pay to the claimant is the amount of the loss suffered by the claimant, up to the maximum recoverable amount. |
(3) An action under this section shall not be commenced after the expiration of 6 years from the date of completion of the contemporaneous dealing in which the loss occurred. |
(4) In determining whether a dealing in securities took place contemporaneously with the insider dealing in securities under subsection (1), the court shall take into account the following matters:(a) | the volume of securities of the same description traded between the date and time of the insider dealing in securities and the date and time of the dealing in securities; | (b) | the date and time the insider dealing in securities was cleared and settled; | (c) | whether the dealing in securities took place before or after the insider dealing in securities; | (d) | whether the dealing in securities took place before or after the information to which the contravention of section 103(1), (2), (3) or (6), as the case may be, relates became generally known; | (e) | such other factors and developments, whether in Singapore or elsewhere, as the court may consider relevant. |
|
(5) For the purposes of this section and section 104E, “maximum recoverable amount”, in respect of each contravention by an insider of section 103(1), (2), (3) or (6), means —(a) | the amount of the profit that the insider gained; or | (b) | the amount of the loss that he avoided, |
as a result of the contravention, after deducting all amounts of compensation that the insider had previously been ordered by a court to pay to other claimants under this section because of the same contravention. |
|
|
Action under section 104C not to commence, etc., in certain situations |
104D.—(1) Except with the leave of court, no action under section 104C may be brought against the insider in respect of a contravention of section 103(1), (2), (3) or (6) after the commencement of —(a) | criminal proceedings under section 104 against the insider for the same contravention; or | (b) | an action under section 104A against the insider for the same contravention. |
(2) Any action under section 104C against the insider in respect of a contravention of section 103(1), (2), (3) or (6), being an action that is pending on the date of commencement of —(a) | criminal proceedings under section 104 against the insider for the same contravention; or | (b) | an action under section 104A against the insider for the same contravention, |
shall be stayed, and may not thereafter be continued except with the leave of court. |
|
(3) Leave under subsection (1) or (2) may not be granted if a date has been fixed by a court under section 104E(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, shall comply with such directions relating to the filing and proof of his claim under section 104E as that court may issue in his case. |
|
Civil liability for insider dealing in event of conviction, etc. |
104E.—(1) Notwithstanding section 104C, where the insider —(a) | has been convicted of an offence under section 104; or | (b) | has an order for the payment of a civil penalty made against him under section 104A, |
in respect of the contravention of section 103(1), (2), (3) or (6), as the case may be, the court which convicted him or made the order against him (referred to in this section as 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) For the purposes of subsection (1), the relevant court shall 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) The relevant court may, after the expiry of the date fixed under subsection (1), make an order against the insider to pay to each claimant who has filed and proven his claim for compensation an amount —(a) | equal to the amount of compensation which that claimant has proven to the satisfaction of the court that he would have been entitled to if he had brought an action under section 104C against the insider himself; or | (b) | equal to the pro-rated portion of the maximum recoverable amount, calculated according to the relationship which the amount referred to in paragraph (a) bears to all amounts proved to the court, |
|
(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 section 247 of the Criminal Procedure Code (Cap. 68); or | (d) | any appeal against the conviction is withdrawn. |
|
(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 104G; or | (d) | any appeal against the imposition of the penalty is withdrawn. |
|
(6) For the purposes of this section, “maximum recoverable amount” has the same meaning given to that expression in section 104C(5). |
|
Jurisdiction of District Court |
104F. A District Court shall have jurisdiction to hear and determine any action under section 104A, 104C or 104E regardless of the monetary amount. |
104G.—(1) Rules of Court may be made —(a) | to regulate and prescribe the procedure and practice to be followed in respect of proceedings under sections 104A, 104C and 104E; and | (b) | to provide for costs and fees of such proceedings, and for regulating any matter relating to the costs of such proceedings. |
(2) Without prejudice to the generality of subsection (1), Rules of Court may, in relation to proceedings under section 104E —(a) | provide for the advertisement of a notice for the filing and proof of claims under that section; | (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 104D(2).”. |
|
|
|
|