Upon conviction for one or more predicate offences, the court may, on the application of the Public Prosecutor, make a confiscation order against the defendant in respect of benefits derived by him or her from drug dealing (section 4 CDSA) or criminal conduct (section 5 CDSA) if the court is satisfied that such benefits have been so derived.
A confiscation order involves ordering the defendant to pay an amount assessed to be the value of the benefit derived by the defendant from drug dealing or criminal conduct. For the avoidance of doubt, the court may make a confiscation order in respect of the full amount determined to be the value of the benefits derived by the defendant from drug dealing or criminal conduct. Confiscation orders operate as though they were a fine imposed by the court. In default of payment, the defendant may be subject to terms of imprisonment.
For this purpose, a person who holds any property or interest therein that is disproportionate to his or her known sources of income, the holding of which cannot be explained to the satisfaction of the court, is presumed, until the contrary is proven, to have derived benefits from drug dealing or criminal conduct. The assessed value of the benefits will be the aggregate of the values of such properties and interests.
A third party that asserts an interest in any property for which a confiscation order is sought may make an application to the court, who may, if satisfied that the third party was not involved in the defendant’s drug dealing or criminal conduct and had acquired the property for sufficient consideration and without knowledge or reasonable suspicion of its illicit origins, make an order declaring the nature, extent and value of his or her interest in the property.
A confiscation order may still be made, notwithstanding that a person may have absconded if he or she is taken to have been convicted of drug dealing or a serious offence, as provided for under section 26 of the CDSA, and if the court is satisfied on the evidence before it that the evidence would have warranted his or her conviction if it was unrebutted.
It is also possible for a court to make a substitute property confiscation order under section 29B of the CDSA if it is satisfied that the defendant had used or intended to use an instrumentality for the commission of the offence but the instrumentality is no longer available for confiscation. In such a case, the defendant is liable to pay the government an amount the court assesses to be the value of the instrumentality, as specified in the substitute property confiscation order.
In relation to organised crime activity, under the OCA, material or financial gains from organised crime activity can be confiscated without the need for a criminal conviction. This is provided that the court is satisfied, on a balance of probabilities, that the person has carried out an organised crime activity and has derived benefits from the organised crime activity. For this purpose, the expression ‘organised crime activity’ refers to any activity carried out by a person in (or outside) Singapore that amounts to a serious offence specified in the Schedule to the OCA and is carried out at the direction of or in furtherance of the illegal purpose of a group which the person knows or has reasonable grounds to believe is an (locally linked) organised criminal group. The expression also includes an activity carried out by a person that amounts to an offence under Part 2 of the OCA. Part 2 of the OCA contains a group of provisions that criminalise being a member of an organised criminal group, instructing or facilitating the commission of an offence by such a group, and recruiting of members and expending of property to support these groups.
Restraint orders and charging orders
To assist in the enforcement of confiscation orders, the High Court of Singapore is empowered to make, upon application by the Public Prosecutor, a restraint order under section 16 of the CDSA or a charging order under section 17 of the CDSA, where proceedings for confiscation orders are contemplated. A restraint order serves to prohibit any person from dealing with realisable property, while a charging order (applicable to immovable property and to capital markets products) serves to secure payment of any amount payable under a confiscation order. Similar restraint orders and charging orders are also provided under the OCA in support of confiscation orders made under the OCA.
Where realisable property is held by a company that is in the process of winding up (whether voluntarily or compulsorily), the liquidator may not exercise its functions in relation to property that is subject to a restraint order made before the passing of the winding-up resolution or making of the compulsory winding-up order (the relevant time), or any proceeds realised by the public trustee or a receiver appointed by the court. This is unless payment out of the property is made towards expenses properly incurred in the winding up of the property (section 24 CDSA).
After the relevant time has passed, the court may not exercise its power to make restraint orders and charging orders in relation to any realisable property held by the company if the effect of the orders would be to inhibit the liquidator from making distributions to the company’s creditors or to prevent making of payments towards expenses incurred in the winding up of the property. For the avoidance of doubt, charging orders made before the relevant time, as well as property subject to a restraint order made at the relevant time, remain enforceable.
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