Interpretation of this Part
104. In this Part, unless the context otherwise requires —“enforce” means enforce through criminal, civil or administrative proceedings;
“enforcement” means the taking of any action to enforce a law or regulatory requirement against a specified person, being a law or regulatory requirement that relates to any financial advisory service in the foreign country of the regulatory authority concerned;
“foreign country” means a country or territory other than Singapore;
“investigation” means an investigation to determine if a specified person has contravened or is contravening a law or regulatory requirement, being a law or regulatory requirement that relates to any financial advisory service in the foreign country of the regulatory authority concerned;
“material” includes any information, book, document or other record in any form whatsoever, and any container or article relating thereto;
“regulatory authority”, in relation to a foreign country, means an authority of the foreign country exercising any function that corresponds to a regulatory function of the Authority under this Act;
“relevant day” means —(a)
6 March 2000, in relation to any financial advisory service in respect of securities or futures contracts as defined in section 2(1) in force immediately before 8 October 2018;
(b)
1 October 2002, in relation to any financial advisory service in respect of investment products as defined in section 2(1) in force immediately before 8 October 2018 (other than securities or futures contracts mentioned in paragraph (a)); or
(c)
8 October 2018, in relation to any other financial advisory service;
“supervision”, in relation to a regulatory authority, means the taking of any action for or in connection with the supervision of a subject matter in the foreign country of the regulatory authority, being a subject matter relating to any financial advisory service.[77
[4/2017]
Application of this Part
105. This Part does not apply to any request for assistance mentioned in section 19(1) of the Financial Services and Markets Act 2022.[77A
[31/2017]
[Act 18 of 2022 wef 28/04/2023]
Conditions for provision of assistance
106.—(1) The Authority may provide the assistance mentioned in section 108 to a regulatory authority of a foreign country if the Authority is satisfied that all of the following conditions are fulfilled:(a)
the request by the regulatory authority for assistance is received by the Authority on or after the relevant day;
(b)
the assistance is intended to enable the regulatory authority, or any other authority of the foreign country, to carry out supervision, investigation or enforcement;
(c)
the contravention of the law or regulatory requirement to which the request relates took place on or after the relevant day;
(d)
the regulatory authority has given a written undertaking that any material or copy thereof obtained pursuant to its request will not be used for any purpose other than a purpose that is specified in the request and approved by the Authority;
(e)
the regulatory authority has given a written undertaking not to disclose to a third party (other than a designated third party of the foreign country in accordance with paragraph (f)) any material received pursuant to the request unless the regulatory authority is compelled to do so by the law or a court of the foreign country;
(f)
the regulatory authority has given a written undertaking to obtain the prior consent of the Authority before disclosing any material received pursuant to the request to a designated third party, and to make such disclosure only in accordance with such conditions as may be imposed by the Authority;
(g)
the material requested for is of sufficient importance to the carrying out of the supervision, investigation or enforcement to which the request relates and cannot reasonably be obtained by any other means;
(h)
the matter to which the request relates is of sufficient gravity; and
(i)
the rendering of assistance will not be contrary to the public interest or the interest of the investing public or policy owners.
(2) For the purposes of subsection (1)(e) and (f), “designated third party”, in relation to a foreign country, means —(a)
any person or body responsible for supervising the regulatory authority in question;
(b)
any authority of the foreign country responsible for carrying out the supervision, investigation or enforcement in question; or
(c)
any authority of the foreign country exercising a function that corresponds to a regulatory function of the Authority under this Act.[78
Other factors to consider for provision of assistance
107. In deciding whether to grant a request for assistance mentioned in section 108 from a regulatory authority of a foreign country, the Authority may also have regard to the following:(a)
whether the act or omission that is alleged to constitute the contravention of the law or regulatory requirement to which the request relates would, if it had occurred in Singapore, have constituted an offence under this Act;
(b)
whether the regulatory authority has given or is willing to give an undertaking to the Authority to comply with a future request by the Authority to the regulatory authority for similar assistance;
(c)
whether the regulatory authority has given or is willing to give an undertaking to the Authority to contribute towards the costs of providing the assistance that the regulatory authority has requested for.[79
Assistance that may be rendered
108.—(1) Despite the provisions of any prescribed written law or any requirement imposed thereunder or any rule of law, the Authority or any person authorised by the Authority may, in relation to a request by a regulatory authority of a foreign country for assistance —(a)
transmit to the regulatory authority any material in the possession of the Authority that is requested by the regulatory authority or a copy thereof;
(b)
order any person to provide to the Authority any material that is requested by the regulatory authority or a copy thereof, and transmit the material or copy to the regulatory authority;
(c)
order any person to transmit directly to the regulatory authority any material that is requested by the regulatory authority or a copy thereof;
(d)
order any person to make an oral statement to the Authority on any information requested by the regulatory authority, record such statement, and transmit the recorded statement to the regulatory authority; or
(e)
request any Ministry, Government department or statutory authority to provide to the Authority any material that is requested by the regulatory authority or a copy thereof, and transmit the material or copy to the regulatory authority.
(2) The assistance referred to in subsection (1)(c) may only be rendered if the material sought is to enable the regulatory authority to carry out investigation or enforcement.
(3) An order under subsection (1)(b), (c) or (d) has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by any prescribed written law or any requirement imposed thereunder, any rule of law, any contract or any rule of professional conduct.
(4) A person is not excused from making an oral statement pursuant to an order made under subsection (1)(d) on the ground that the statement might tend to incriminate him or her but, where the person claims before making the statement that the statement might tend to incriminate him or her, that statement is not admissible in evidence against him or her in criminal proceedings other than proceedings for an offence under section 109.
(5) This section does not compel an advocate and solicitor —(a)
to provide or transmit any material or copy thereof that contains; or
(b)
to disclose,
a privileged communication made by or to the advocate and solicitor in that capacity.
(6) An advocate and solicitor who refuses to disclose, or to provide or transmit any material or copy thereof that contains, any privileged communication is nevertheless obliged to give the name and address (if he or she knows them) of the person to whom, or by or on behalf of whom, the privileged communication was made.
(7) Any advocate and solicitor who contravenes subsection (6) shall be guilty of an offence.[80
Offences under this Part
109. Any person who —(a)
without reasonable excuse, refuses or fails to comply with an order under section 108(1)(b), (c) or (d);
(b)
in purported compliance with an order under section 108(1)(b) or (c), provides to the Authority or transmits to the regulatory authority any material or copy thereof known to the person to be false or misleading in a material particular; or
(c)
in purported compliance with an order made under section 108(1)(d), makes a statement to the Authority that is false or misleading in a material particular,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.
[81
Immunity from criminal or civil liability
110.—(1) No civil or criminal proceedings, other than proceedings for an offence under section 109, shall lie against any person for —(a)
providing to the Authority or transmitting any material or copy thereof to the Authority or a regulatory authority of a foreign country if he or she had provided or transmitted that material or copy in good faith in compliance with an order made under section 108(1)(b) or (c);
(b)
making a statement to the Authority in good faith and in compliance with an order made under section 108(1)(d); or
(c)
doing or omitting to do any act, if he or she had done or omitted to do the act in good faith and as a result of complying with such an order.
(2) Any person who complies with an order mentioned in subsection (1)(a) or (b) is not to be treated as being in breach of any restriction on the disclosure of information or thing imposed by any prescribed written law or any requirement imposed thereunder, any rule of law, any contract or any rule of professional conduct.[82
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
