CHAPTER 08:03
PROCEEDS OF SERIOUS CRIME
ARRANGEMENT OF SECTIONS
SECTION
PART I
Introduction
1. Short title
2. Interpretation
PART II
Confiscation Orders
3. Application for confiscation order
4. Decision of court in respect of application for confiscation order
5. Issue of confiscation order
6. Issue of confiscation order to victim of offence
7. Discharge of confiscation order
PART III
Restraining Orders
8. Restraining order
9. Appointment of receiver
10. Further orders of court
11. Discharge of restraining order
PART IV
Charge on Property
12. Charge on property subject to confiscation order
13. Registration of orders
PART V
Money Laundering, etc.
14. Money laundering
15. Possession of property, etc. suspected of being proceeds of serious offence
16. Contravention of restraining order
17. Duties of a designated body
PART VI
Production Orders
18. Production orders
19. Failure to comply with production order
PART VII
Mutual Assistance Between Countries
20. Foreign request for assistance
PART VIII
Search Warrants
21. Powers of search, etc.
PART IX
Miscellaneous
22. Appeals
23. Standard of proof
24. Regulations
Schedule – Business Relationships, Transactions and Services Provided by a Designated Body
Act 19, 1990,
Act 13, 2000,
Act 14, 2005,
Act 2, 2007.
An Act to deprive persons convicted of serious crimes of the benefits or rewards gained from such crimes, and to deal with the problems of money laundering, and matters incidental thereto or connected therewith.
[Date of Commencement: 2nd November, 1990]
PART I
Introduction (ss 1-2)
This Act may be cited as the Proceeds of Serious Crime Act.
(1) In this Act, unless the context otherwise requires—
“confiscation order” has the meaning assigned to it under section 5;
“production order” means an order made under section 18 for the production of a document;
“restraining order” has the meaning assigned to it under section 8;
“serious offence” means an offence the maximum penalty for which is death, or imprisonment for not less than two years.
(2) Where reference is made in this Act to anything received in connection with the commission of a serious offence, such reference shall be deemed to include a reference to anything received both in that connection and in some other connection.
(3) For the purposes of this Act a person shall be deemed to have been charged with a serious offence if any information has been laid against him for that offence, whether or not a warrant for his apprehension or a summons requiring his attendance to answer to the information has been issued.
(4) Where a person is convicted of a serious offence, and with his consent another serious offence, of which he has not been convicted, is taken into consideration by the court in passing sentence, he shall, for the purposes of this Act, be deemed to have been convicted by the court of the offence so taken into consideration.
(5) For the purposes of this Act a person shall be deemed to have obtained the proceeds of a serious offence if he receives a payment or other reward in respect of, or derives a pecuniary advantage as a result of—
(a) the commission of the offence; or
(b) any part of a course of conduct by him, alone or in association with any other person, having as its purpose or one of its purposes the carrying out or furtherance of criminal activities, of which the commission of the offence is shown to be a part.
(6) When, for the purposes of this Act, it is necessary to assess the value of any proceeds referred to in subsection (5), such value shall be deemed to be the aggregate of the values of all the payments, rewards or pecuniary advantages so received or derived.
(7) Where in this Act reference is made to the Director of Public Prosecution, such reference shall be deemed to include any person specially or generally authorised by the Director of Public Prosecution in that regard.
PART II
Confiscation Orders (ss 3-7)
3. Application for confiscation order
(1) Where a person has been convicted of a serious offence, the Director of Public Prosecution may apply to the court before which the conviction was obtained, or to the High Court, for a confiscation order in respect of that serious offence, or, if convictions were obtained for more than one serious offence, in respect of all or any of those offences.
(2) An application under subsection (1) shall be made within 12 months of the date of the conviction for the offence in respect of which it is made.
4. Decision of court in respect of application for confiscation order
(1) Where an application is made under section 3, the court shall satisfy itself that the defendant in the case concerned has received the proceeds, as defined in section 2(5), of the serious offence or offences in respect of which the application is made, and if it decides that he has, shall proceed to assess the value of the proceeds received by him:
Provided that in making such assessment where more than one serious offence is involved, the court shall make an assessment of the proceeds received by the defendant in respect of each offence separately.
(2) For the purpose of making an assessment under subsection (1), the court may—
(a) treat any property which the court is satisfied was held by the defendant since his conviction for the offence in respect of which the application is made, or was transferred to him at any time within a period of 5 years prior to the date when he was charged with that offence, or, in the case of a serious offence of which he is deemed to have been convicted by virtue of section 2(4), within a period of 5 years prior to the date when he was so convicted, as having been received by him as payment or reward in connection with the commission of the offence;
(b) treat any payment, reward or pecuniary advantage as having been received or derived by him, notwithstanding that it was received or derived by another person at the request or at the direction of the defendant, or that it was received or derived by him or so received or derived by that other person before the commencement of this Act, or outside Botswana;
(c) treat any property vested in any trustee or receiver by reason of the defendant’s bankruptcy, as continuing to be the defendant’s property;
(d) treat property as being held by the defendant if he holds an interest in it, or as having been transferred to him if an interest in the property has been transferred or granted to him;
(e) disregard any expenses or outgoings of the defendant in connection with the offence or any other serious offence.
(3) For the purpose of making an assessment under this section, the court may treat as property of the defendant any property that, in the opinion of the court, is subject to the effective control of the defendant, whether or not the defendant has any legal or equitable estate or interest in it, or any right, power or privilege in connection with it.
(4) Without limiting the generality of subsection (3), the court may have regard to—
(a) shareholdings in, debentures over or directorships of any company that has an interest (whether direct or indirect) in the property;
(b) any trust that has a relationship to the property; and
(c) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a), or trusts of the kind referred to in paragraph (b), and any other person or persons.
(5) For the purpose of satisfying itself in accordance with subsection (1) in respect of a serious offence, the court may have regard to the transcript of any proceedings against the defendant for the offence or offences.
(6) For the purpose of making an assessment under this section, the court shall value property, other than money, at its market value determined as at the date when the court makes the assessment, and when any person other than the defendant holds an interest in the property, the value of that interest shall be taken into account in determining the value of the property to the defendant.
5. Issue of confiscation order
(1) When a court has satisfied itself in accordance with section 4 that the defendant has received or derived any benefit from proceeds of a serious offence, it shall issue an order (in this Act referred to as a “confiscation order”) ordering the defendant to pay to the Government a pecuniary penalty of an amount equal to its own assessment of the value of the proceeds of the offence, received by the defendant or from which he has benefited, unless the court for good reason decides that the penalty shall be for a lesser amount.
(2) The penalty ordered under subsection (1) shall, for all purposes, be deemed to be a civil debt owed by the defendant to the Government, and may be enforced as if it were an order made by the court in civil proceedings instituted by the Government against the defendant to recover a debt due by him to the Government.
(3) A confiscation order following the conviction of the defendant may be issued before or after the court trying the offence or offences has passed sentence:
Provided that—
(a) where a confiscation order is made before sentence has been passed, the court in passing sentence shall take into account the total value of the confiscation order when assessing the amount of any fine or order for compensation or restitution to be imposed on the defendant; and
(b) where a confiscation order is made after sentence has been passed, the court in assessing the size of any such order shall take into account any fine or order for compensation or restitution passed by the court which sentenced the defendant.
6. Issue of confiscation order to victim of offence
(1) Notwithstanding the provisions of section 5 the court, instead of issuing a confiscation in favour of the Government, may on the application of the victim of the offence make the confiscation order in favour of the victim of the offence.
(2) A confiscation order made under this section shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as plaintiff and the offender as defendant and may be enforced as if it were an order made by the court in civil proceedings instituted by the plaintiff against the defendant to recover a debt due by him to the plaintiff.
7. Discharge of confiscation order
(1) A confiscation order made against the defendant shall be discharged—
(a) on the satisfaction of the pecuniary penalty;
(b) where the conviction or the confiscation order is set aside on appeal or where a free pardon is granted by the President in respect of the conviction.
(2) Where a confiscation order is made in respect of a conviction for more than one offence, and the successful appeal or the free pardon is not in respect of all of the offences, the confiscation order shall not be discharged, but the amount of the pecuniary penalty under the order shall be deemed to be reduced by the amount attributable to the offence or offences the conviction for which has ceased to have effect.
PART III
Restraining Orders (ss 8-11)
(1) Where a person has been or is about to be charged with a serious offence, the Director of Public Prosecutions may apply to a magistrate’s court or the High Court, ex parte, for a restraining order.
(2) An application for a restraining order may be made in respect of one, or more than one, serious offence and shall be supported by an affidavit of a police officer of or above the rank of Inspector—
(a) stating the serious offence or offences in respect of which the application is made;
(b) stating that the officer has a reasonable belief that the defendant committed the offence, or each of the offences, as the case may be, and that he received or derived proceeds from the said commission;
(c) identifying the property which the officer reasonably believes to represent the proceeds received or derived by the defendant from the said commission; and
(d) the basis for such beliefs.
(3) An application for a restraining order shall not be made or continued if proceedings against the defendant in respect of the serious offence or offences are abandoned or cease to have effect.
(4) Where, on an application under this section, the magistrate’s court or the High Court is satisfied that there is reasonable cause to believe that the defendant has benefited from the proceeds of the serious offence or offences in respect of which the application is made, the court may, by order (herein referred to as a “restraining order”), prohibit any person from dealing in any way with any property to which the order applies, subject to such conditions as may be specified in the order.
(5) A restraining order shall identify the defendant and the offence or offences in respect of which it is made, and shall provide for notice to be given to any person affected by the order.
(6) A restraining order may apply to—
(a) property described in the order, being property—
(i) of the defendant or
(ii) received in connection with, or derived from, the commission of the offence and held by any person, other than the defendant in the order; or
(b) all property of the defendant, whether described in the order or not, and including property acquired by the defendant after the making of the order.
(7) The conditions, subject to which a restraining order may be made, may include conditions with respect to the meeting of reasonable living and business expenses of any person to whom the order applies, or who is affected by the order.
(8) The magistrate’s court or the High Court may rescind or vary an order made under this section if the defendant gives security, satisfactory to the court, for the payment of any future pecuniary penalty which may be made in respect of any serious offence to which the application for a restraining order relates, or if the defendant gives undertakings, satisfactory to the court, concerning any of his property which might become liable to a future pecuniary penalty.
(1) The High Court may appoint a receiver to take possession of any property to which a restraining order relates, and, in accordance with such directions, or subject to such conditions or exceptions as the court may give or impose, to manage or otherwise deal with any property in respect of which he is appointed.
(2) Any person having possession of any property in respect of which a receiving order is made under this section, shall give control or possession thereof to the receiver.
(3) The High Court may, on application, or of its own motion, revoke the appointment of a receiver, or vary the conditions or exceptions subject to which he was appointed.
(4) Where a confiscation order is made against the defendant, any property in respect of which the receiver was appointed and which is in his possession or under his control, shall be made available by the receiver, to such extent as may be necessary, to satisfy the amount of the pecuniary penalty imposed under the confiscation order, unless the High Court otherwise directs.
(5) A person appointed a receiver under subsection (1) shall be paid such remuneration as may be specified by the High Court.
(6) Where the appointment of a receiver ceases, whether by reason of the discharge of the restraining order or for some other reason, any property in respect of which he was appointed and which is then in his possession or under his control, shall be dealt with by the receiver as the High Court directs.
(7) Where a receiver takes any action in relation to property which is not property in respect of which he was appointed, being action which he would be entitled to take if it were such property, and believing and having reasonable grounds for believing, that he is entitled to take that action in relation to that property, he shall not be liable to any person in respect of any loss or damage resulting from his action, except in so far as, and to the extent that, the loss or damage results from his own negligence.
(1) When the High Court makes a restraining order, or at any subsequent time, either of its own motion or on application made to it by the Director of Public Prosecutions, the defendant or, with leave of the court by any other person, as appropriate, it may—
(a) vary the property to which the order is to apply;
(b) vary any condition or exception subject to which the order is made;
(c) order the examination of the defendant, or any other person, whether affected by the order or not, before the High Court, or before any specified person, concerning the nature and location of any property to which the order relates; or
(d) make or vary any order relating to any undertaking given in accordance with section 8(8).
(2) Any statement or disclosure made by a person in answer to questions put to him in the court of an examination referred to in subsection (1)(c) shall be admissible against him in any civil proceeding, any proceeding relating to the giving of false testimony in the course of the examination, or any proceeding for the making of a confiscation order for the purpose only of assessing the value of the benefit to the person from the proceeds of the serious offence or offences, but shall not otherwise be admissible in evidence against him.
11. Discharge of restraining order
(1) A restraining order shall be deemed to be discharged—
(a) if the proceedings against the defendant in respect of the serious offence giving rise to it are discontinued, or if the defendant is not charged with the serious offence within a week of the making of the order;
(b) if a confiscation order is made against the defendant in respect of the same serious offence to which the restraining order relates; or
(c) if a confiscation order is not applied for within the period specified in section 3(2).
(2) The High Court may, on application by the defendant, discharge a restraining order if the defendant gives security or undertakings of the kind referred to in section 8(8).
(3) Where a restraining order is made in respect of more than one offence, and the proceedings against the defendant in respect of one or some of the offences are discontinued, or if he is not charged with all of the offences within the period specified in subsection 1(a), the order shall be discharged only in relation to the offence or offences so discontinued or not so charged.
PART IV
Charge on Property (ss 12-13)
12. Charge on property subject to consfication order
(1) Where a confiscation order is made in respect of property subject to a restraining order, then, by virtue of this section, and unless the High Court otherwise directs, a charge is created on the property to secure payment to Government or the victim of the offence, as the case may be, of the amount of any pecuniary penalty imposed under the confiscation order.
(2) A charge created by subsection (1) shall be subject to every encumbrance to which the property was subject immediately before the confiscation order was made, but shall have priority over all other encumbrances, and shall remain on the property despite any disposal of the property:
Provided that this subsection shall not affect the title of a bona fide purchaser of the property for value, who acted in good faith and who, at the time of the purchase, had no notice of the charge.
(3) A charge on property created by this section shall cease to have effect if the confiscation order is discharged, or if the property is disposed of with the consent of the High Court, or in the circumstances referred to in the proviso to subsection (2).
If a restraining order or a confiscation order is in respect of property, charges over, incumbrances on, title to or documents relating to which are registrable under the law of Botswana, the Director of Public Prosecutions or the receiver may register such order, and any person who purchases the property after such registration shall be deemed to have notice of the order, and of the effect thereof.
PART V
Money Laundering, etc. (ss 14-17)
(1) For the purposes of this section, a person shall be deemed to engage in money laundering if he engages, directly or indirectly, in a transaction that involves money, or other property, that is the proceeds of a serious offence, whether committed in Botswana or elsewhere, or if he receives, possesses, conceals, disposes of, or brings into Botswana, any money, or other property that is the proceeds of a serious offence, whether committed in Botswana or elsewhere, and the person knows, or ought reasonably to know, that such money or other property is derived or realised, directly or indirectly, from some sort of unlawful activity.
(2) A person who engages in money laundering shall be guilty of an offence and shall be liable, if he is an individual to imprisonment for a term not exceeding three years or to a fine not exceeding P10 000, or both, or if the offender is a body of persons, then, every person who at the time of the commission of the offence was a director, manager or partner of such body shall be liable to a fine not exceeding P25 000.
15. Possession of property, etc. suspected of being proceeds of serious offence
(1) Any person who receives, possesses, conceals, disposes of or brings into Botswana any money, or other property, that may reasonably be suspected of being proceeds of a serious offence, shall be guilty of an offence and liable, if he is an individual, to imprisonment for a term not exceeding three years or to a fine not exceeding P10 000, or both, or if the offender is a body of persons, then, every person who at the time of the commission of the offence was a director, manager or partner of such body, shall be liable to a fine not exceeding P25 000.
(2) For the purposes of this section, references in subsection (1) to—
(i) concealing money or property shall include references to concealing or disguising the nature, source, location, disposition, movement, ownership or any rights with respect to such money or property;
(ii) disposing of any money or property shall include references to converting, transferring or removing such money or property and the provision of advice or assistance in relation to disposing, converting, transferring or removing such money or property.
[13 of 2000, s. 2(a).]
(3) In any proceedings, where it is proved to the satisfaction of the court that a person had engaged in acts mentioned in subsections (1) and (2), or had reason to know or believe that such money or other property, directly or indirectly represented another person’s proceeds of a serious offence, it shall be presumed that the person so knew or believed unless the contrary is proved.
[15 of 2000, s. 2(b).]
(4) For the purposes of subsection (3), to believe that money or property, whether in whole or in part directly or indirectly, represent another person’s proceeds of a serious offence, shall include having reasonable cause to suspect that the money or property represented such proceeds.
[15 of 2000, s. 2(c).]
16. Contravention of restraining order
A person who knowingly contravenes the terms of a restraining order by disposing of, or otherwise dealing with money or property to which the order relates shall be guilty of an offence and liable to imprisonment for a term not exceeding three years or to a fine not exceeding P10 000, or both.
17. Duties of a designated body
(1) This section shall apply to the following persons or body of persons whose business consists of or includes the provision of services involving the acceptance or holding of money or property for or on behalf of other persons or whose business appears to the Minister to be otherwise liable to be used for the purpose of committing or facilitating the commission of a serious offence under this Act, or any corresponding or similar offence under the law of any country (referred to in this section as a “designated body”) namely—
(a) a bank licensed under the Banking Act (Cap. 46:04);
(b) a building society registered under the Building Society Act (Cap. 42:03);
(c) a collective investment undertaking established under the Collective Investment Undertakings Act (Cap. 56:09);
(d) Botswana Savings Bank established under the Botswana Savings Bank Act (Cap. 65:03);
(e) a post office designated under the Post Office Act (Cap. 72:01);
(f) a licensed stockbroker in terms of the Botswana Stock Exchange Act (Cap. 56:08);
[2 of 2007, s. 107.]
(g) a long term insurance business specified under the Insurance Industry Act (Cap. 46:01);
(h) a person who transacts foreign exchange business licensed under the Bank of Botswana Act (Cap. 55:01);
(i) an international financial services centre certification committee constituted under the Income Tax Act (Cap. 52:01);
(j) any other person or body as may by order be prescribed by the Minister under subsection (23).
[13 of 2000, s. 3.]
(2) This section shall apply to business relationships, transactions and services, of a kind specified under the Schedule, provided by a designated body under subsection (1) which business relationships, transactions or services are liable to be used for the purposes of committing or facilitating the commission of a serious offence.
[13 of 2000, s. 3.]
(3) The Minister may, after consultation with the Directorate on Corruption and Economic Crime established under the Corruption and Economic Crime Act (Cap. 08:05) (referred to in this section as the “Directorate”) and the Regulatory Authority designated under the Collective Investment Undertakings Act (Cap. 56:09) (referred to in this section as the “Regulatory Authority”), by Order published in the Gazette, amend the Schedule accordingly.
[13 of 2000, s. 3.]
(4) This section shall not apply where a designated body enters into a business relationship, concludes a transaction or provides a service of a kind specified under the Schedule for another designated body or a body corresponding to a designated body in a state or country prescribed for the time being by the Minister as not applicable.
[13 of 2000, s. 3.]
(5) No designated body shall enter into a business relationship, conclude a transaction or provide a service of a kind specified under the Schedule unless the proof of identity required by subsections (6) and (7) has been obtained.
[13 of 2000, s. 3.]
(6) A designated body shall take reasonable measures to obtain the required proof of the identity of a person for whom it proposes to enter into a business relationship, conclude a transaction or provide a service of a kind specified under the Schedule if—
(a) the service is in respect of either a single transaction or a series of transactions which are or appear to be linked and amount in the aggregate to an amount prescribed in Regulations; or
(b) on reasonable grounds, it suspects that the business relationship, transaction or service is connected to the commission of a serious offence under this Act.
[13 of 2000, s. 3.]
(7) Where a designated body proposing to enter into a business relationship, concludes a transaction or provides a service of a kind specified under the Schedule for a person whom it knows or has reason to believe to be acting for a third party, the designated body shall take reasonable measures to obtain the required proof of the identity of the third party and the authority of the person to conclude a transaction on behalf of the third party.
[13 of 2000, s. 3.]
(8) Subsections (6) and (7) shall not apply to a long term insurance business listed in subsection (1) where—
(a) the amount of the periodic premiums to be paid in respect of the life policy in any twelve month period does not exceed the amount prescribed in Regulations; or
(b) a single premium to be paid in respect of a life policy does not exceed the amount prescribed for the purpose in Regulations.
[13 of 2000, s. 3.]
(9) Paragraph (a) of subsection 8 excludes—
(a) a pension scheme taken out by virtue of a contract of employment or the occupation of the person to be insured under the life policy provided that the life policy in question does not contain a surrender clause and may not be used as collateral for a loan; or
(b) a transaction or a series of transactions taking place in the course of a long term insurance business in respect of which payment is made from an account held in the name of the other party with a designated body or a body corresponding to a designated body prescribed under subsection (4).
[13 of 2000, s. 3.]
(10) Where a designated body establishing a business relationship, is requested to carry out a transaction or provides a service of a kind specified under the Schedule, the designated body shall keep the following records—
(a) in the case of the identification of a prospective customer or the third party on whose behalf the customer is acting, copies of documentation presented to identify such customer or third party and proof of authority of the customer to conclude such transaction;
(b) in the case of transactions, the original documents or copies of the nature of the business relationship established or transaction concluded; and
(c) identifying particulars of all accounts involved in such business relationship, transaction or service.
[13 of 2000, s. 3.]
(11) A designated body shall keep all records referred to in subsection (10) in the prescribed manner for a period of at least five years commencing on the date of the—
(a) termination of the relevant business relation with the customer; or
(b) completion of the execution of a transaction.
[13 of 2000, s. 3.]
(12) For the purposes of an investigation under this Act, the Directorate may require a designated body to furnish information or produce documents relevant to the investigation.
[13 of 2000, s. 3.]
(13) Any information kept in the records of a designated body in the prescribed form shall be admissible as evidence in any proceedings in a court of law.
[13 of 2000, s. 3.]
(14) Where a designated body which is party to a transaction involving the payment or receipt by it of money exceeding an amount prescribed from time to time, it shall, within five days of concluding such a transaction, report the prescribed details of the transaction to the Directorate and to the Regulatory Authority.
[13 of 2000, s. 3.]
(15) Where a designated body that is party to a transaction in respect of which there are reasonable grounds to suspect that the transaction brings or will bring the proceeds of serious crime into its possession or it may facilitate the transfer of the proceeds of serious crime, the designated body shall, within ten days of becoming party to such a transaction, report the suspicion to the Directorate and to the Regulatory Authority.
[13 of 2000, s. 3.]
(16) A designated body that intends to transfer or convey an amount of cash in the form of Pula currency or foreign currency, exceeding the amount prescribed from time to time, out of or into the country shall report the prescribed details in respect of the transfer to the Directorate and to the Regulatory Authority before the transfer takes place.
[13 of 2000, s. 3.]
(17) A designated body that has disclosed information in compliance with a duty imposed by subsections (14), (15) and (16) may continue to carry out the transaction or provide a service of a kind specified under the Schedule unless the designated body is directed by the Directorate or the Regulatory Authority to suspend the carrying out of that transaction or service.
[13 of 2000, s. 3.]
(18) No duty of secrecy or confidentiality or any other restriction on the disclosure of any information as to the affairs of a customer of a designated body, whether imposed by law, common law or an agreement, shall affect a duty imposed by subsections (14), (15) and (16).
[13 of 2000, s. 3.]
(19) A designated body shall, in relation to the carrying on of its business, adopt internal measures to prevent and detect the commission of a serious offence under this Act.
[13 of 2000, s. 3.]
(20) Measures adopted under subsection (19) shall include the—
(a) procedures to be followed by directors, officers and employees in the conduct of the business of a designated body;
(b) instructions given to directors, officers and employees of a designated body on the prevention of the use of the financial system for the purpose of engaging in activities of money laundering; and
(c) training of directors, other officers and employees of a designated body for the purpose of enabling them to identify transactions which may relate to the commission of a serious offence under this Act.
[13 of 2000, s. 3.]
(21) Any person who gives information to the Directorate or the Regulatory Authority under this section shall not give information which is false or misleading.
[13 of 2000, s. 3.]
(22) Any person who, without lawful authority or reasonable excuse, discloses—
(a) to any customer of whom information relating to him is being reported to the Directorate or to the Regulatory Authority the fact that he is subject to an investigation in respect of an offence alleged or suspected to have been committed by him under this Act; or
(b) to any other person either the identity of any person who is subject to such an investigation or any details of an investigation,
shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding one year or to a fine not exceeding P2,000 or to both.
[13 of 2000, s. 3.]
(23) No civil or criminal proceedings shall be instituted against any designated body or its directors, officers and employees, for breach of any restriction on disclosure of information imposed by contract or any legislative, regulatory or administrative provision, if they report to the Directorate or Regulatory Authority in good faith.
[13 of 2000, s. 3.]
(24) Where an offence is committed by a designated body, every director, officer or employee of the designated body who knowingly authorises or permits the offence shall be liable to the same penalty as the designated body.
[13 of 2000, s. 3.]
(25) A person who contravenes a provision of this section shall be guilty of an offence and shall be liable on conviction, to a fine not exceeding P2,500,000 or to imprisonment for a term not exceeding three years or to both.
[13 of 2000, s. 3.]
(26) The Minister may, after consultation with the Minister responsible for Finance and Development Planning make Regulations prescribing the—
(a) other persons or bodies to be designated bodies for the purposes of subsection (1);
(b) business relationships, transactions or services for the purposes of subsection (3);
(c) limits of amounts of money involved in business relationships, transactions or services for the purposes of subsection (6);
(d) states or countries for the purposes of subsection (4);
(e) documents or other information that may be accepted as proof of a person’s identity;
(f) manner of ascertaining another person’s identity;
(g) manner in which records shall be kept by a designated body;
(h) manner in which information shall be reported to the Directorate and to the Regulatory Authority;
(i) aspects that shall be addressed in the internal measures adopted by a designated body;
(j) amount in respect of which transfer of money into or out of the country shall be reported.
[13 of 2000, s. 3.]
PART VI
Production Orders (ss 18-19)
(1) Where a person has been convicted of a serious offence, or there are reasonable grounds for suspecting that he has committed a serious offence, and there are reasonable grounds for suspecting that documents relevant to the offence, or that may assist in any way in tracking or identifying the proceeds of the offence, or in assessing the value of those proceeds, or in tracking, identifying or assessing the value of any property of the person convicted of the offence, or suspected of having committed the offence, are in the possession of or under the control of any person, the Director of Public Prosecutions may apply to a magistrate or a judge of the High Court for a production order in respect of those documents.
(2) An application for a production order shall be supported by an affidavit sworn by a police officer of or above the rank of Inspector setting out the grounds for the application, and the basis for any suspicions as to the commission of the offence, or as to the location of any such documents as are referred to in subsection (1).
(3) A magistrate or a judge before whom an application is made under this section, may, if he is satisfied that there are reasonable grounds for making the order, issue a production order, subject to such conditions as he may think fit to impose, ordering any person to produce to a police officer any document of the kind referred to in subsection (1) that are in such person’s possession or under his control, or to make such documents available to a police officer for inspection, at such time or place as may be specified in the order.
(4) Where a document is produced or made available to a police officer under this section he may take extracts from it or make copies of it, and if it was ordered to be produced to him, he may retain it if, and for so long as, its retention is reasonably necessary for the purposes of this Act.
(5) A person shall not be excused from producing or making available a document when ordered to do so under this section on the ground that producing it or making it available might tend to incriminate him or make him liable to a penalty, or that it would or might be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document:
Provided that any information, document or thing obtained as a direct or indirect consequence of the production or making available of the document shall not be admissible in evidence against the person producing it or making it available in any criminal proceedings except in respect of an offence under section 19.
(6) For the purposes of the proviso to subsection (5) proceedings on an application for a confiscation order or a restraining order are not criminal proceedings.
(7) Where a police officer retains a document pursuant to an order under this section, he shall, on request of the person to whom the order is addressed, give to that person a copy of the document, certified under his hand to be a true copy of the document.
(8) Where a production order requires a person to produce a document to a police officer, the person may apply to a magistrate’s court or the High Court for a variation of the order, and if the court is satisfied that the document is essential to the business activities of the person, and the interests of justice will not thereby be jeopardised, it may vary the terms of the production order so that it requires the person to make the document available to a police officer for inspection.
19. Failure to comply with production order
Where a person is required in accordance with the terms of a production order to produce a document to a police officer or to make a document available to a police officer for inspection, and contravenes the order without reasonable excuse, or in purported compliance with the order produces or makes available a document which he knows or has good reason to know is false or misleading in a material particular without disclosing that the document is so false or misleading, and without providing correct information, if he possesses or can reasonably acquire such correct information, shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding three years or to a fine not exceeding P10 000, or both.
PART VII
Mutual Assistance Between Countries (s 20)
20. Foreign request for assistance
(1) Where, in any country to which the Mutual Assistance in Criminal Matters Act (Cap. 08:04) applies, an order similar to a confiscation order or a restraining order is made against any person, in respect of an offence that is the equivalent of a serious offence as defined in this Act, and the order is registered by the High Court in accordance with the said Act, the provisions of this Act shall have effect as if the order were made under this Act, subject to such modifications as may be prescribed, as it has effect to a confiscation order or a restraining order, as the case may be.
(2) Where a request for assistance in identifying, locating or assessing the value of the proceeds of a serious offence is transmitted under the terms of the<CS:”Hidden – Grey – 8_2″> Mutual Assistance in Criminal Matters Act (Cap. 08:04), and the request is not refused under that Act, the provisions of this Act—
(a) in relation to production orders and their enforcement shall have effect, subject to such modifications as may be prescribed, as they have effect in the circumstances described in section 18(1); and
(b) in relation to search warrants and their enforcement shall have effect, subject to such modifications as may be prescribed, as they have effect in the circumstances described in section 21.
PART VIII
Search Warrants (s 21)
(1) Where a person has been convicted of a serious offence, or there are reasonable grounds for suspecting that a person has committed a serious offence, and there are reasonable grounds for suspecting that there is on any land, or upon any premises, any document such as is described in section 18(1) in relation to the offence, the Director of Public Prosecutions may apply to a magistrate or a judge of the High Court for a search warrant in respect of that land or those premises.
(2) A police officer of or above the rank of Inspector may, under the authority of a search warrant issued under subsection (1), enter upon any land or upon or into any premises specified in the warrant, to search for and seize any document which he believes on reasonable grounds to be a document such as is described in section 18(1).
(3) A magistrate or judge shall not issue a search warrant under this section unless he is satisfied that—
(a) the document involved cannot be identified or described with sufficient particularity for the purpose of obtaining a production order in respect of it;
(b) a production order has been given in respect of the document and has not been complied with;
(c) a production order in respect of the document would be unlikely to be effective because there are reasonable grounds to suspect that it would not be complied with; or
(d) the investigation for the purposes of which the search warrant is sought might be seriously prejudiced if immediate access to the document is not obtained without prior notice to any person.
(4) If, in the course of a search authorised under this section, a document or any other thing is found that the person conducting the search believes on reasonable grounds to be a document such as is referred to in section 17(1), though not of a kind specified in the warrant, or such as will afford evidence, relating to the serious offence in respect of which the warrant was issued, or to any other serious offence, and it is believed on reasonable grounds that it is necessary to seize that document or thing immediately to prevent its concealment, loss or destruction, the warrant shall be deemed to authorise such seizure.
PART IX
Miscellaneous (ss 22-24)
There shall be a right of appeal by any interested party in respect of the issue of a confiscation order, a restraining order or a search warrant under this Act, or by the Director of Public Prosecutions against the refusal of a court to issue a confiscation order, a restraining order or a search warrant.
Any question of fact to be decided in connection with any application under this Act shall be decided on a balance of probabilities:
Provided that where the issue is whether a person has been convicted of, or charged with, or about to be charged with a serious offence, or has had a serious offence taken into account in being sentenced for another serious offence, the court shall require to be satisfied beyond a reasonable doubt on such issue.
The Minister may make regulations for or with respect to any matter that is required or permitted by this Act to be prescribed, or for or with respect to any matter that is necessary or desirable for carrying out or giving effect to the purposes of this Act.
SCHEDULE
BUSINESS RELATIONSHIPS, TRANSACTIONS AND SERVICES
PROVIDED BY A DESIGNATED BODY
[13 of 2000, s. 4.]
(section 17(3))
1. Lending
2. Financial leasing
3. Money transmission services
4. Issuing and administering means of payment (e.g. credit cards, travellers’ cheques and bankers’ drafts)
5. Guarantees and commitments
6. Trading for own account or for account of customers in:
(a) money market instruments;
(b) foreign exchange;
(c) financial futures and options;
(d) exchange and interest rate instruments;
(e) transferrable securities
7. Participation in share issues and the provision of services related to such issues;
8. Advice to undertakings on capital structure, industrial strategy and related questions and advice and services relating to mergers and the purchase of undertakings;
9. Money broking;
10. Portfolio management and advice;
11. Safekeeping and administration of securities;
12. Safe custody services, including:
– consumer credit;
– mortgage credit;
– factoring, with or without recourse;
– financing of commercial transactions (including forfeiting);
13. All types of direct life assurance (including annuities, supplementary insurance carried on by life assurance undertakings, permanent health insurance, capital redemption, operations management of group pension funds, marriage assurance, birth assurance);
14. Any other activity which may be prescribed.