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Purpose of Part
45.—(1) The purpose of this Part is to establish a regime for the confiscation of benefits from organised crime activities. (2) The regime so established proposes to —(a) eliminate the chance for persons to profit from carrying out organised crime activity; and (b) remove any incentive for persons to carry out organised crime activity, and reduce their ability to do so.
Interpretation of Part
46.—(1) In this Part, unless the context otherwise requires —“CDSA” means the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992; “charging order” means an order made under section 58(1); “confiscation order” means an order made under section 61(2); “Court” means the General Division of the High Court; “gift caught by this Part” has the meaning given by section 47; “interest”, in relation to property, includes any right; “organised crime activity” has the meaning given by section 48; “realisable property” means —(a) any property held by the subject; and (b) any property held by a person to whom the subject has, directly or indirectly, made a gift caught by this Part; “realisation power” means any power under section 22 of the CDSA as applied by section 70; “restraint order” means an order made under section 57(1); “statutory period”, in relation to a confiscation order or an application for a confiscation order, means —(a) if the application for the confiscation order is preceded by a restraint order or charging order (or both) concerning the same subject and organised crime activity, the period of 7 years before the date of application for the restraint order or charging order or, if more than one of those orders were made, the earlier or earliest application for either of those orders; or (b) if the application for the confiscation order is not preceded by a restraint order or charging order concerning the same subject and organised crime activity, the period of 7 years before the date of application for the confiscation order; “statutory period”, in relation to an application for a restraint order or charging order, means the period of 7 years before the date of application for the order or, if one or more such orders concerning the same subject and organised crime activity were made previously, the earlier or earliest application for either of those orders; “subject” —(a) in relation to a restraint order, a charging order, an order under section 22 of the CDSA as applied by section 70, an order under section 36, 37, 40 or 49 of the CDSA as applied by section 72, or an application for any of those orders, means the person identified in the application as the one who has carried out organised crime activity; (b) in relation to an application for a confiscation order, means the person against whom the order is sought; or (c) in relation to a confiscation order that has been made, means the person against whom the order is made.[40/2019] (2) In this Part —(a) property is held by a person if the person holds any interest in it; (b) a reference to property held by a person includes a reference to property vested in the person’s trustee in bankruptcy or liquidator; (c) property is transferred by one person to another if the first person transfers or grants to the other any interest in the property; and (d) a reference to an interest held by a person beneficially in property includes a reference to an interest which would be held by the person beneficially if the property were not so vested in the person’s trustee in bankruptcy or liquidator.
Meaning of “gift caught by this Part”
47.—(1) In this Part, a gift is caught by this Part if it was made by the subject at any time (including before 1 June 2016) —(a) in the case of a restraint order or charging order, in the period of 6 years before the date of application for the order or, if one or more such orders were made previously concerning the same subject and organised crime activity, the earlier or earliest application for either of those orders; or (b) in the case of a confiscation order —(i) if the application for the confiscation order is preceded by a restraint order or charging order (or both) concerning the same subject and organised crime activity, in the period of 6 years before the date of application for the restraint order or charging order or, if more than one of those orders were made, the earlier or earliest application for either of those orders; or (ii) if the application for the confiscation order is not preceded by a restraint order or charging order concerning the same subject and organised crime activity, in the period of 6 years before the date of application for the confiscation order. (2) In this Part, a gift is also caught by this Part if it was made by the subject at any time (including before 1 June 2016) and which is or is part of the benefits derived by the subject from the organised crime activity. (3) In this Part, the circumstances in which the subject is to be treated as making a gift include circumstances where the subject transfers property to another person directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the subject.
Meaning and proof of “organised crime activity”
48.—(1) In this Part, “organised crime activity” means any activity —(a) carried out by a person in Singapore that amounts to a serious offence and —(i) is carried out at the direction of a group which the person knows or has reasonable grounds to believe is an organised criminal group; or (ii) is carried out in furtherance of the illegal purpose of a group which the person knows or has reasonable grounds to believe is an organised criminal group; (b) carried out by a person outside Singapore that amounts to a serious offence and —(i) is carried out at the direction of a group which the person knows or has reasonable grounds to believe is a locally‑linked organised criminal group; or (ii) is carried out in furtherance of the illegal purpose of a group which the person knows or has reasonable grounds to believe is a locally‑linked organised criminal group; or (c) carried out by a person that amounts to a Part 2 offence. (2) A person carries out an activity mentioned in subsection (1) whether or not —(a) the person is charged with or convicted of an offence in connection with the activity; (b) the person is acquitted of an offence in connection with the activity, including on appeal; or (c) the President grants a pardon in respect of the person’s conviction. (3) A reference in subsection (1)(a) or (b) to a serious offence includes an abetment of, or a conspiracy or an attempt to commit, the serious offence. (4) To avoid doubt, any defence that is available to a person who is prosecuted for an offence constituting the organised crime activity is also available to the subject in any proceedings under this Part for the same organised crime activity.
Application of Part
49.—(1) This Part applies in respect of organised crime activity which —(a) if it is one that amounts to an offence mentioned in section 48(1)(a) or (b), is carried out before, on or after 1 June 2016; or (b) if it is one that amounts to an offence mentioned in section 48(1)(c), is carried out on or after 1 June 2016. (2) This Part applies to any property, whether situated in Singapore or elsewhere.
Nature of proceedings
50. Proceedings under this Part (other than offences under provisions of the CDSA incorporated by section 72) are civil proceedings.
No criminal proceedings required for confiscation order, etc.
51. The organised crime activity on which a confiscation order, restraint order or charging order is based does not need to be, or to have been, the subject of any criminal proceedings.
Confiscation order must not impact on sentence
52. A court sentencing a person for an offence mentioned in section 48(1) must not take into account any confiscation order, or any application or proposed application for a confiscation order, in determining the appropriate sentence or other manner of dealing with the person for the offence.
Acquittal, etc., does not impact on confiscation
53.—(1) Subsection (2) applies if criminal proceedings are instituted or pending or have been discontinued or determined in respect of any organised crime activity that is the basis for —(a) a restraint, charging or confiscation order; or (b) an application for such an order. (2) If this subsection applies, the order or application is not affected by the criminal proceedings, even if —(a) the subject is acquitted, or is acquitted on appeal; or (b) the President grants a pardon in respect of the subject’s conviction.
Evidence obtained in investigations may be used in proceedings under this Part
54. To avoid doubt, any book, document, statement or other information obtained in the exercise of any power under this Act or any other written law is not inadmissible in any proceedings under this Part by reason only that it was first obtained in the exercise of that power; and the admissibility of such matter is to be determined in accordance with the rules of evidence under any written law and any relevant rules of law.
Confiscation order not affected by CDSA confiscation order
55. A confiscation order is not affected by an application for or the making of a confiscation order under the CDSA in relation to the same subject and organised crime activity.
Application for restraint or charging order
56. A restraint order or charging order —(a) may be made only on an application by the Public Prosecutor; (b) must be made to the Court and may be made on an application without notice to a Judge in chambers; and[Act 25 of 2021 wef 01/04/2022] (c) must provide for notice to be given to persons affected by the order.
Restraint orders
57.—(1) The Court, when hearing an application for a restraint order, may, if it has reasonable grounds to believe that the subject has carried out organised crime activity within the statutory period, make an order that realisable property is not to be disposed of, or dealt with, other than as provided for in the restraint order. (2) A restraint order may be subject to such conditions and exceptions as the Court may specify in the order. (3) The Court may vary a restraint order in relation to any property. (4) In this section, dealing with property held by any person includes —(a) where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and (b) removing the property from Singapore.
Charging orders
58.—(1) The Court, when hearing an application for a charging order, may, if it has reasonable grounds to believe that the subject has carried out organised crime activity within the statutory period, make a charging order on realisable property for securing the payment to the Government —(a) where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; or (b) in any other case, of an amount not exceeding the amount payable under the confiscation order. (2) A charging order is an order imposing on any property specified in the order a charge for securing the payment of money to the Government. (3) A charging order may be subject to such conditions and exceptions as the Court may specify in the order. (4) The Court may vary a charging order.
Duration of orders
59.—(1) A restraint or charging order expires on the earlier of the following:(a) the date that is the end of the period of 3 months after the date on which the order is made; (b) the date of the satisfaction of, or the refusal by the Court to make, a confiscation order concerning the same subject and organised crime activity. (2) Despite subsection (1) —(a) if the Court refuses to make a confiscation order, but the Public Prosecutor indicates that the Public Prosecutor will appeal against that decision, a restraint or charging order expires on the date specified in subsection (4); (b) if a restraint or charging order is made on an application without notice, it has effect until a day fixed for the hearing inter partes of the application, unless the Court otherwise directs; and[Act 25 of 2021 wef 01/04/2022] (c) subject to paragraph (a), if the duration of a restraint or charging order is extended by the Court, the restraint or charging order expires on the date specified by the Court under section 60. (3) On the expiry of a restraint or charging order, any further order associated with that restraint or charging order also expires. (4) If subsection (2)(a) applies, a restraint or charging order that is in force when the Court refuses to make a confiscation order does not expire until —(a) the last day of the prescribed period from the date of that decision, if a notice of appeal has not been lodged on or before that day; or (b) if a notice of appeal has been lodged on or before the last day mentioned in paragraph (a), the day that appeal is withdrawn or dismissed or (if the appeal is allowed) such later day as the court hearing the appeal determines. (5) Despite any provision of this section, the Court —(a) may make an order discharging a restraint or charging order in relation to any property; and (b) must make an order discharging a charging order if the amount, payment of which is secured by the charge, is paid into Court.
Extending duration of order
60.—(1) If the Court has made a restraint or charging order, the Public Prosecutor may, before the order expires, apply to the Court to extend its duration. (2) The Public Prosecutor must serve a copy of the application on any person who, to the knowledge of the Public Prosecutor, will be affected by the order. (3) The Court may, on such application, order that the operation of the restraint or charging order be extended for a period not exceeding 3 months. (4) On making an order of extension, the Court may vary the restraint or charging order in any way it considers fit, including, without limitation, by specifying whether all or part of the property in question is to remain subject to the restraint or charging order during the extended period of operation. (5) The duration of a restraint or charging order may be extended more than once under this section. (6) If, before a restraint or charging order would otherwise expire under section 59(1), an application is made to the Court under this section and the application is granted, the restraint or charging order expires on the date specified in the Court’s order.
Application for confiscation order
61.—(1) The Public Prosecutor may apply to the Court for a confiscation order. (2) The Court is to make a confiscation order against a subject if it is satisfied on a balance of probabilities that —(a) the subject has carried out organised crime activity within the statutory period; and (b) the subject has derived benefits from the organised crime activity. (3) For the purposes of subsection (2), if it is proved on a balance of probabilities that the subject holds or has at any time (whether before, on or after 1 June 2016) held any property or any interest in the property (including income accruing from the property or interest) disproportionate to the subject’s known sources of income, the holding of which cannot be explained to the satisfaction of the Court, then the subject is, until the contrary is proved on a balance of probabilities, presumed to have derived benefits from the organised crime activity. (4) For the purposes of subsection (3), any expenditure by the subject (whether incurred before, on or after 1 June 2016) is, until the contrary is proved, presumed to have been met out of the subject’s benefits from the organised crime activity.
Amount to be recovered under confiscation order
62.—(1) The amount to be recovered from the subject under the confiscation order is the amount the Court assesses to be the value of the benefits the subject derived from the organised crime activity carried out within the statutory period. (2) For the purposes of this section —(a) the benefits derived by the subject from the organised crime activity are any property or any interest in property (including income accruing from the property or interest) held by the subject at any time, whether before, on or after 1 June 2016, being property or interest that is disproportionate to the subject’s known sources of income, and the holding of which cannot be explained to the satisfaction of the Court; and (b) the value of the benefits derived by the subject from the organised crime activity is the sum of the values of the properties and interests mentioned in paragraph (a). (3) In determining the value of benefits under subsection (2)(b), the Court must leave out of account the value of any benefits of organised crime activity that are shown to the Court to have been taken into account in determining the amount to be recovered under any confiscation order previously made against the subject under this Act or the CDSA. (4) The amount in the confiscation order is recoverable from the subject by the Attorney-General in any civil court of competent jurisdiction as though it were a judgment debt due to the Government.
Confiscation order if subject has absconded or died
63.—(1) The Court may make a confiscation order even if the subject has absconded or died. (2) In subsection (1), a subject has absconded if the subject is outside jurisdiction, or is unable to be found in the period of 6 months before the date of the application for the confiscation order despite all reasonable efforts having been made to find the subject.
Settlement
64.—(1) The Public Prosecutor may enter into a settlement with any person as to any property or any sum of money to be confiscated under this Part. (2) A settlement does not bind the parties unless the Court approves it. (3) The Court may approve the settlement if it is satisfied that the settlement is consistent with —(a) the purposes of this Part; and (b) the overall interests of justice.
Effect of death on proceedings
65.—(1) Where the power conferred by this Part to make a confiscation order is to be exercised in relation to a deceased subject, the order is to be made against the estate of the deceased subject. (2) Sections 61(3) and (4) and 62(2) and (3) do not apply to any deceased subject. (3) The following provisions apply in determining whether a deceased subject had derived benefits from organised crime activity carried out by the subject within the statutory period and in determining those benefits and the value of those benefits:(a) a deceased subject is, until the contrary is proved on a balance of probabilities, presumed to have derived benefits from the organised crime activity if the subject had, at any time (whether before, on or after 1 June 2016) since the beginning of the period of 6 years ending on the date of the subject’s death, held any property or interest in property disproportionate to the subject’s known sources of income, and the holding of which cannot be explained to the satisfaction of the Court; (b) the benefits derived by a deceased subject from the organised crime activity are any property or interest in property held by the subject during the period mentioned in paragraph (a), being property or interest disproportionate to the subject’s known sources of income, and the holding of which cannot be explained to the satisfaction of the Court; (c) the value of the benefits derived by a deceased subject from the organised crime activity is the sum of the values of those properties and interests less the value of any benefits of organised crime activity that are shown to the Court to have been taken into account in determining the amount to be recovered under any confiscation order previously made against the deceased subject under this Act or the CDSA. (4) In this section, a reference to property or interest in property includes a reference to income accruing from the property or interest.
Exclusion of subject’s property for undue hardship
66.—(1) On application by a subject within the prescribed time after a confiscation order has been made, the Court may exclude any property held by the subject from the exercise of any realisation power, if the Court is satisfied that, having regard to all of the circumstances, undue hardship is reasonably likely to be caused to the subject if the power is exercised in relation to that property. (2) The circumstances to which the Court may have regard under subsection (1) include, without limitation —(a) the use that is ordinarily made, or was intended to be made, of the property; (b) the nature and extent of the subject’s interest in the property; and (c) the circumstances of the organised crime activity concerned. (3) Nothing in this section prevents the exercise of any realisation power over property excluded under subsection (1) if —(a) after the exercise of the realisation powers on other property, there is still a debt due to the Government under section 62(4); and (b) the subject agrees to the exercise of those powers over the property excluded under subsection (1) in order to pay all or part of that debt.
Relief for third party
67.—(1) On application by a person other than the subject within the prescribed time after a confiscation order has been made, the Court may grant such relief in relation to the exercise of any realisation power on any property held by that person as the Court considers appropriate if the Court is satisfied that, having regard to all the circumstances, undue hardship is reasonably likely to be caused to the person if the realisation power is exercised in relation to that property. (2) The circumstances to which the Court may have regard under subsection (1) include, without limitation —(a) the use that is ordinarily made, or was intended to be made, of the property; (b) the nature and extent of the person’s interest in the property; (c) the degree (if any) to which the person had knowledge of the organised crime activity concerned; and (d) the circumstances of the organised crime activity concerned. (3) On application by a person other than the subject within the prescribed time after a confiscation order has been made, the Court must grant such relief in relation to the exercise of any realisation power on property held by that person as the Court considers appropriate, if the Court is satisfied that —(a) the person was not in any way involved in the organised crime activity concerned; (b) the person had acquired the interest without knowing, and in circumstances that would not have aroused a reasonable suspicion, that the subject was involved in organised crime activity or the property was the benefits of such activity (if applicable); and (c) the person had acquired the interest for sufficient consideration. (4) The Court is to exercise its power under subsection (3) with a view to allowing the person to retain or recover the value of any property held by the person. (5) Regulations may be made under this Act for defining the value of property for the purposes of subsection (4).
Compensation
68.—(1) If —(a) no proceedings under Division 3 are instituted against the subject or such proceedings are withdrawn; (b) such proceedings are instituted but the Court refuses to make a confiscation order against the subject; or (c) the confiscation order against the subject is revoked on appeal, the Court may, on application by a person who held property which was realisable property, order compensation to be paid by the Government to the applicant if, having regard to all the circumstances, the Court considers it appropriate to make the order. (2) The Court must not order compensation under subsection (1) unless it is satisfied that —(a) there has been some serious default on the part of the Public Prosecutor, any person carrying out the duties of the Public Prosecutor under this Part, or a law enforcement officer; and (b) the applicant has suffered loss as a result of anything done in relation to the property by, or as a result of a restraint or charging order, or the provisions of sections 19, 20 and 22 of the CDSA as applied by section 70. (3) The amount of compensation that may be ordered is the amount that the Court thinks just, having regard to the loss suffered and any other relevant circumstances.
Rules of Court
69. Rules of Court may provide for the manner in which proceedings under this Part may be commenced or carried on.
Application of CDSA provisions
70.—(1) The following provisions of the CDSA apply in relation to a restraint order, a charging order, a confiscation order, and an application for any of these orders, as well as for the purpose of enabling the satisfaction of a confiscation order, as they apply in relation to a restraint order, a charging order and a confiscation order under the CDSA and an application for any of those orders, and for the purpose of enabling the satisfaction of a confiscation order under the CDSA, subject to the modifications in subsection (3):Sections 13(2) to (6)(a), 14, 15(1) to (6) and (9)(b), 18(3), 19(2), (3), (6), (8) and (9), 20(4) to (7), 21, 22(3) to (9), 23, 24, 25 (other than subsection (4)(b)), 26, 27 and 28. (2) The provisions of this Part are, accordingly, to be read subject to the provisions of the CDSA mentioned in subsection (1), as modified by subsection (3). (3) The modifications to the provisions of the CDSA mentioned in subsections (1) and (2) are —(a) a reference in those provisions to the defendant is a reference to the subject; (b) a reference to the court in those provisions (other than section 15(5) of the CDSA) is a reference to the Court; (c) a reference in those provisions to realisable property under the CDSA is a reference to realisable property as defined in section 46(1); (d) a reference in those provisions to a gift caught by the CDSA is a reference to a gift caught by this Part; (e) a reference in those provisions to the benefits derived by the defendant from drug dealing or from criminal conduct is a reference to the benefits derived by the subject from organised crime activity; (f) a reference in section 15(9)(b) of the CDSA to the circumstances under section 15(9)(a) of the CDSA is a reference to the circumstances under section 47(3); (g) a reference in those provisions to a receiver appointed under section 19 or 22 of the CDSA is a reference to a receiver appointed under that provision of the CDSA as applied by this section; (h) a reference in section 21(4) of the CDSA to section 20(8) of the CDSA is a reference to section 59(5); (i) an application to the Court to exercise the powers conferred by section 22(3) to (7) of the CDSA may be made, and those powers may be exercised, after the confiscation order is made and either in the same proceedings or in separate proceedings, except that an order under any of those provisions of the CDSA may only take effect, and any power conferred on the Public Trustee or a receiver by such an order may only be exercised —(i) after any pending appeal against the confiscation order has been dealt with and the order is not revoked, or the period for bringing an appeal has lapsed; and (ii) if the confiscation order has not been fully satisfied within the period specified in the order; (j) except as otherwise stated in this section or prescribed in paragraph (k), a reference in those provisions to a provision of the CDSA is a reference to that provision of the CDSA as applied by this section; and (k) any other modifications that may be prescribed for the purposes of this section.
Right of appeal
71.—(1) An appeal may be made to the Court of Appeal in relation to any decision of the Court under this Part. (2) Rules of Court may provide for the manner in which an appeal under subsection (1) may be made.
Application of information-gathering powers in CDSA
72.—(1) Sections 36 to 41, 49 (other than subsections (2), (3), (11)(b) and (12)) and 77 (other than subsection (2)) of the CDSA also apply for the purpose of any proceeding or proposed proceeding under this Part, as they apply for the purpose of an investigation into drug dealing or criminal conduct, or (as the case may be) a drug dealing offence or serious offence, under the CDSA, subject to the modifications in subsection (2). (2) The modifications to those provisions of the CDSA are —(a) a reference in those provisions to an authorised officer is a reference to such law enforcement officer, or an officer within such class of law enforcement officers, as may be prescribed; (b) a reference in those provisions to grounds for suspecting that a specified person has carried on or has benefited from drug dealing or from criminal conduct is a reference to grounds for suspecting that the subject has carried out organised crime activity; (c) a reference in those provisions to a restraint order, charging order or confiscation order under the CDSA is a reference to a restraint order, charging order or confiscation order under this Part; (d) a reference in those provisions of the CDSA to a specified person or defendant is a reference to the subject; (e) an order under section 49 of the CDSA may be made by the Court only if it has reasonable grounds to believe that the subject has carried out organised crime activity; and (f) any other modifications that may be prescribed for the purposes of this section.
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