§ 36 — Penalties under this Part

36.—(1) A person who is guilty of an offence under this Part for which no penalty is expressly provided shall be liable on conviction —(a)

if the offender is an individual —(i)

to a fine not exceeding —(A)

in the case of an offence under section 18(3), 19(10), 20(2) or 21(11), or an offence under section 32(8) if the offender is a person mentioned in section 32(2)(a), the higher of the following amounts:(AA)

the transaction value;

(AB)

$500,000; or

(B)

in any other case, $500,000; or

(ii)

to imprisonment for a term not exceeding 3 years,

or to both and, 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)

if the offender is not an individual, to a fine not exceeding —(i)

in the case of an offence under section 18(3), 19(10), 20(2) or 21(11), or an offence under section 32(8) if the offender is a person mentioned in section 32(2)(a), the higher of the following amounts:(A)

the transaction value;

(B)

$1 million; or

(ii)

in any other case, the higher of the following amounts:(A)

10% of the annual turnover of the offender’s business;

(B)

$1 million,

and, 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.

(2) For the purposes of this section —(a)

the transaction value is —(i)

in the case of an offence under section 18(3) — if the offender became a Level A controller of a designated entity by acquiring any equity interest or voting power in any entity — the value of the consideration for that acquisition;

(ii)

in the case of an offence under section 19(10) —(A)

the value of the consideration for the acquisition of any equity interests or voting power in any entity by which the offender became a Level B controller, Level C controller, Level D controller or indirect controller of a designated entity;

(B)

the value of the consideration for the transfer or disposal of any equity interests or voting power in any entity by which the offender ceased to be a Level Y controller or Level Z controller of a designated entity; or

(C)

the value of the consideration for the acquisition by the offender of the business or undertaking, or the part of the business or undertaking, as a going concern;

(iii)

in the case of an offence under section 20(2) —(A)

the value of the consideration for the acquisition of any equity interests or voting power in any entity by which a person became a Level A controller, Level B controller, Level C controller, Level D controller or indirect controller of the relevant designated entity;

(B)

the value of the consideration for the transfer or disposal of any equity interests or voting power in any entity by which a person ceased to be a Level Y controller or Level Z controller of the relevant designated entity; or

(C)

the value of the consideration for the acquisition of the business or undertaking, or part of the business or undertaking, of the relevant designated entity acquired by a person;

(iv)

in the case of an offence under section 21(11) — if the offender is a party to the transaction to which the validation notice relates (being an acquisition, transfer or disposal mentioned in sub‑paragraph (ii)(A), (B) or (C)) — the value of that transaction determined in the manner set out in sub‑paragraph (ii)(A), (B) or (C); or

(v)

in the case of an offence under section 32(8) — if the offender is the person mentioned in section 32(2)(a), the value of the consideration for the acquisition or disposal mentioned in section 32(2)(a)(i), (ii), (iii), (iv) or (vi); and

(b)

the annual turnover of a person’s business is ascertained from the person’s latest audited accounts.

(3) To avoid doubt, the value of a transaction that is void under section 21(1) or (12) is to be determined as if the transaction were not void.

—(1) A person who is guilty of an offence under this Part for which no penalty is expressly provided shall be liable on conviction —(a)

if the offender is an individual —(i)

to a fine not exceeding —(A)

in the case of an offence under section 18(3), 19(10), 20(2) or 21(11), or an offence under section 32(8) if the offender is a person mentioned in section 32(2)(a), the higher of the following amounts:(AA)

the transaction value;

(AB)

$500,000; or

(B)

in any other case, $500,000; or

(ii)

to imprisonment for a term not exceeding 3 years,

or to both and, 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)

if the offender is not an individual, to a fine not exceeding —(i)

in the case of an offence under section 18(3), 19(10), 20(2) or 21(11), or an offence under section 32(8) if the offender is a person mentioned in section 32(2)(a), the higher of the following amounts:(A)

the transaction value;

(B)

$1 million; or

(ii)

in any other case, the higher of the following amounts:(A)

10% of the annual turnover of the offender’s business;

(B)

$1 million,

and, 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.

(2) For the purposes of this section —(a)

the transaction value is —(i)

in the case of an offence under section 18(3) — if the offender became a Level A controller of a designated entity by acquiring any equity interest or voting power in any entity — the value of the consideration for that acquisition;

(ii)

in the case of an offence under section 19(10) —(A)

the value of the consideration for the acquisition of any equity interests or voting power in any entity by which the offender became a Level B controller, Level C controller, Level D controller or indirect controller of a designated entity;

(B)

the value of the consideration for the transfer or disposal of any equity interests or voting power in any entity by which the offender ceased to be a Level Y controller or Level Z controller of a designated entity; or

(C)

the value of the consideration for the acquisition by the offender of the business or undertaking, or the part of the business or undertaking, as a going concern;

(iii)

in the case of an offence under section 20(2) —(A)

the value of the consideration for the acquisition of any equity interests or voting power in any entity by which a person became a Level A controller, Level B controller, Level C controller, Level D controller or indirect controller of the relevant designated entity;

(B)

the value of the consideration for the transfer or disposal of any equity interests or voting power in any entity by which a person ceased to be a Level Y controller or Level Z controller of the relevant designated entity; or

(C)

the value of the consideration for the acquisition of the business or undertaking, or part of the business or undertaking, of the relevant designated entity acquired by a person;

(iv)

in the case of an offence under section 21(11) — if the offender is a party to the transaction to which the validation notice relates (being an acquisition, transfer or disposal mentioned in sub‑paragraph (ii)(A), (B) or (C)) — the value of that transaction determined in the manner set out in sub‑paragraph (ii)(A), (B) or (C); or

(v)

in the case of an offence under section 32(8) — if the offender is the person mentioned in section 32(2)(a), the value of the consideration for the acquisition or disposal mentioned in section 32(2)(a)(i), (ii), (iii), (iv) or (vi); and

(b)

the annual turnover of a person’s business is ascertained from the person’s latest audited accounts.

(3) To avoid doubt, the value of a transaction that is void under section 21(1) or (12) is to be determined as if the transaction were not void.