22. Section 88 of the principal Act is repealed and the following sections substituted therefor:“Controls over ownership of employer of Auxiliary Police Force |
88.—(1) If a person becomes, on or after the appointed day, a 5% controller of an employer of an Auxiliary Police Force, the person must, within 7 days after becoming the 5% controller, give written notice to the Commissioner of that fact.(2) Except with the prior written approval of the Minister, a person must not —(a) | whether by a series of transactions over a period of time or otherwise, become on or after the appointed day a 25% controller, a 50% controller or an indirect controller of an employer of an Auxiliary Police Force; or | (b) | cease on or after the appointed day to be a 50% controller or a 75% controller of an employer of an Auxiliary Police Force. |
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(3) A person who, immediately before the appointed day, is a 25% controller, a 50% controller or an indirect controller of an employer of an Auxiliary Police Force is deemed to be approved by the Minister under this section to be a 25% controller, a 50% controller or an indirect controller of the employer of the Auxiliary Police Force, as the case may be. |
(4) The Minister must not approve an application made by any person under subsection (2)(a) if the Minister is satisfied that —(a) | the person is not a fit and proper person; | (b) | having regard to the person’s likely influence, the employer of the Auxiliary Police Force will not or will not continue to conduct its business prudently and in compliance with this Act; or | (c) | it is not in the public interest to do so. |
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(5) The Minister must not approve an application made by any person under subsection (2)(b) if the Minister is satisfied that —(a) | the provision of security activities and other services by the employer of the Auxiliary Police Force of which the applicant is a 50% controller or a 75% controller will not continue to be reliable; | (b) | the employer of the Auxiliary Police Force will cease to continue to conduct its business prudently and in compliance with this Act; or | (c) | it is not in the public interest to do so. |
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(6) Any approval or deemed approval under this section may be subject to such conditions as the Minister may determine. |
(7) The Minister may at any time add to, vary or revoke any condition imposed under subsection (6). |
(8) Any condition imposed under subsection (6), or added to, varied or revoked under subsection (7), has effect despite any written law or anything contained in the memorandum or articles of association, or other constitution, of a company or an organisation. |
(9) In this section, “appointed day” means the date of commencement of section 22 of the Police Force (Amendment) Act 2021. |
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Power to issue directions |
88A.—(1) The Minister may issue any direction to a person under subsection (2), (3) or (4) if the Minister is satisfied that —(a) | the person has provided false or misleading information or documents in connection with an application for approval under section 87(1) or 88(2); | (b) | any condition of approval imposed under section 87(3) or (4) or 88(6) or (7) has been contravened or has not been complied with; | (c) | in the case of a person who had obtained approval under section 87(1) in relation to acquiring as a going concern the business or undertaking of an employer of an Auxiliary Police Force —(i) | the person ceases to be a fit and proper person; or | (ii) | it is not, or is no longer, in the public interest to allow the person to continue to carry on the business relating to the Auxiliary Police Force; |
| (d) | the person has contravened section 87(1) or 88(2); | (e) | in the case of a person who has obtained the Minister’s approval under section 88(2) or who is deemed to be approved under section 88(3) —(i) | the person ceases to be a fit and proper person; | (ii) | having regard to the person’s likely influence, the employer of the Auxiliary Police Force is not, or is no longer, likely to conduct its business relating to the Auxiliary Police Force prudently or to comply with the provisions of this Act; or | (iii) | it is not, or is no longer, in the public interest to allow the person —(A) | to continue to be a 25% controller, a 50% controller or an indirect controller of the employer of the Auxiliary Police Force; or | (B) | to cease to be a 50% controller or a 75% controller of the employer of the Auxiliary Police Force; or |
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| (f) | the Minister would not have granted approval under section 87(1) or 88(2) to a person had the Minister been aware, at that time, of circumstances relevant to the person’s application for the approval. |
(2) Where the person mentioned in subsection (1) has acquired as a going concern the business or undertaking of an employer of an Auxiliary Police Force, the Minister may, by written notice —(a) | direct the person to transfer or dispose of all or any part of the equity interests or assets in the employer that are held by the person (whether alone or together with any other person) within such time and subject to such conditions as the Minister considers appropriate; | (b) | direct the person not to transfer or dispose of all or any part of the equity interests or assets in the employer that are held by the person; | (c) | direct the person to modify or terminate any agreement or arrangement relating to the acquisition as a going concern; or | (d) | make such other direction as the Minister considers appropriate. |
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(3) Where the person mentioned in subsection (1) is a 25% controller, a 50% controller or an indirect controller of an employer of an Auxiliary Police Force, the Minister may, by written notice —(a) | direct the person to take such steps as are necessary, within such period as may be specified by the Minister, to ensure that the person ceases to be a 25% controller, a 50% controller or an indirect controller of the employer of the Auxiliary Police Force; | (b) | direct the person or any of the person’s associates to transfer or dispose of all or any of the equity interests in the employer held by the person or the person’s associates (called in this section and section 88B the specified equity interests) within such time and subject to such conditions as the Minister considers appropriate; | (c) | direct the person or any of the person’s associates not to transfer or dispose of the specified equity interests; | (d) | direct the person to modify or terminate any agreement or arrangement relating to the holding of the specified equity interests, or the control of the voting power, in the employer of the Auxiliary Police Force; or | (e) | make such other direction as the Minister considers appropriate. |
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(4) Where the person mentioned in subsection (1) is a person (A) who has ceased to be a 50% controller or a 75% controller of an employer of an Auxiliary Police Force as a result of a person (B) acquiring any equity interest from A (called in this section and section 88B the acquired equity interest), the Minister may do any one or more of the following:(a) | direct B to take such steps as are necessary, within such period as may be specified by the Minister, to cease to hold all or any of the acquired equity interest; | (b) | direct A to take such steps as are necessary, within such period as may be specified by the Minister, to resume being a 50% controller or a 75% controller, as the case may be; | (c) | direct B to transfer or dispose of all or any of the acquired equity interest within such time and subject to such conditions as the Minister considers appropriate; | (d) | direct A to acquire all or any of the acquired equity interest within such time and subject to such conditions as the Minister considers appropriate; | (e) | direct B not to transfer or dispose of all or any of the acquired equity interest; | (f) | direct A or B to modify or terminate any agreement or arrangement relating to the acquired equity interest; | (g) | make such other direction as the Minister considers appropriate. |
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(5) Before issuing any direction to a person under subsection (2), (3) or (4), the Minister must, unless the Minister decides that it is not practicable or desirable to do so, give to the person written notice of the Minister’s intention to issue the direction and specify a date by which the person may make written representations with regard to the proposed direction. |
(6) Upon receipt of any written representation mentioned in subsection (5), the Minister must consider it for the purpose of determining whether to issue the direction. |
(7) Any person to whom a direction is issued under this section must comply with the direction. |
(8) The Minister may vary, suspend or revoke any direction issued under this section. |
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88B.—(1) Any direction issued to a person under section 88A takes effect despite the provisions of any other written law or anything contained in the memorandum or articles of association or other constitution of any company or organisation.(2) Without affecting subsection (1), where any direction is issued under section 88A(3) or (4), then, until the direction is carried out or is suspended or revoked —(a) | the voting rights in respect of the specified equity interest or acquired equity interest that is subject to the direction are not exercisable unless the Minister expressly permits such rights to be exercised; | (b) | the voting power that the person to whom the direction is issued controls, whether alone or together with that person’s associates, in the employer of an Auxiliary Police Force concerned is not exercisable unless the Minister expressly permits that power to be exercised; | (c) | no equity interest of the employer of an Auxiliary Police Force is to be issued or offered (whether by way of rights, bonus or otherwise) in respect of the specified equity interest or acquired equity interest unless the Minister expressly permits such issue or offer; and | (d) | except in a winding up of the employer of an Auxiliary Police Force, no amount may be paid by the employer of the Auxiliary Police Force (whether by way of dividends or otherwise) in respect of the specified equity interest or acquired equity interest that is subject to the direction unless the Minister expressly authorises such payment. |
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Offences, penalties and defences |
88C.—(1) A person who contravenes section 88(1) or (2) or 88A(7) shall be guilty of an offence and shall be liable on conviction —(a) | in the case of an individual —(i) | to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 3 years or to both; and | (ii) | in the case of a continuing offence, to a further fine not exceeding $50,000 for every day or part of a day during which the offence continues after conviction; or |
| (b) | in any other case —(i) | to a fine not exceeding $1 million; and | (ii) | in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part of a day during which the offence continues after conviction. |
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(2) Where a person is charged with an offence in respect of a contravention of section 88(1), it is a defence for the person to prove, on a balance of probabilities, that —(a) | the person was not aware that the person had contravened that section; and | (b) | the person has, within 14 days after becoming aware that the person had contravened that section, notified the Commissioner of the contravention. |
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(3) Where a person is charged with an offence in respect of a contravention of section 88(1), it is also a defence for the person to prove, on a balance of probabilities, that even though the person was aware of the contravention —(a) | the contravention occurred as a result of an increase in the holding of equity interest or in the voting power controlled by any of the person’s associates; | (b) | the person has no agreement or arrangement, whether oral or in writing and whether express or implied, with that associate with respect to the acquisition, holding or disposal of equity interest in, or under which they act together in exercising their voting power in relation to, the employer of the Auxiliary Police Force; and | (c) | the person has, within 14 days after the date of the contravention, notified the Commissioner of the contravention. |
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(4) Where a person is charged with an offence in respect of a contravention of section 88(2), it is a defence for the person to prove, on a balance of probabilities, that —(a) | the person was not aware that the person had contravened that section; and | (b) | the person has, within 14 days after becoming aware that the person had contravened that section, notified the Minister of the contravention and, within such time as may be determined by the Minister, taken such actions in relation to the person’s holding of equity interest or control of voting power in the employer of the Auxiliary Police Force as the Minister may direct. |
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(5) Where a person is charged with an offence in respect of a contravention of section 88(2), it is also a defence for the person to prove, on a balance of probabilities, that even though the person was aware of the contravention —(a) | the contravention occurred as a result of an increase or a decrease in the holding of equity interest or in the voting power controlled by any of the person’s associates; | (b) | the person has no agreement or arrangement, whether oral or in writing and whether express or implied, with that associate with respect to the acquisition, holding or disposal of equity interest in, or under which they act together in exercising their voting power in relation to, the employer of the Auxiliary Police Force; and | (c) | the person has, within 14 days after the date of the contravention, notified the Minister of the contravention and, within such time as may be determined by the Minister, taken such actions in relation to the person’s holding of equity interest or control of voting power in the employer of the Auxiliary Police Force as the Minister may direct. |
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(6) Except as provided in subsections (2), (3), (4) and (5), it is not a defence for a person charged with an offence in respect of a contravention of section 88(1) or (2) to prove that the person did not intend to or did not knowingly contravene that provision.”. |
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