Section 94
of Criminal Asset Recovery Order, 2012
Section 94
(1)
Where a foreign country requests the Attorney General to make arrangements for the enforcement of –
(a)
a foreign restraining order, against property that is believed to be located in Brunei Darussalam;
(b)
a foreign confiscation order, made in respect of a serious offence, against property that is believed to be located in Brunei Darussalam;
Incorporating amendments until S 22/2017
(Cleancopy) NHN/Amiriah/Bb/Karimah as of 26.12.2019
*Note: amendment on page 7,75,81,123 on 11.01.2020
93
BLUV as at 11th March 2017
(c)
a foreign benefit recovery order, made in respect of a serious offence, where some or all of the property available to satisfy the order is believed to be located in Brunei Darussalam, the Attorney General may apply to the High Court for registration of the order.
(2)
The High Court shall, on application by the Attorney General, register a foreign restraining order if the Court is satisfied that at the time of registration, the order is in force in the foreign country.
(3)
The High Court shall, on application by the Attorney General, register a foreign confiscation order or a foreign benefit recovery order if the Court is satisfied that –
(a)
at the time of the registration, the order is in force in the foreign country and is not subject to appeal; and
(b)
where the person the subject of the order did not appear in the confiscation proceedings in the foreign country, that –
(i)
the person was given notice of the proceedings in sufficient time to enable him to defend them; or
(ii)
the person had absconded or died before such notice could be given.
(4)
For the purposes of subsections (2) and (3), a statement contained in the foreign request to the effect that –
(a)
the foreign restraining order is in force in the foreign country;
(b)
the foreign confiscation order is in force in the foreign country and is not subject to appeal; and
(c)
the foreign benefit recovery order is in force in the foreign country and is not subject to appeal, where the person the subject of the foreign confiscation order or foreign benefit recovery order did not appear in the proceedings in the foreign country, that he was given notice of the proceedings in sufficient time to enable him to defend them, or that the person had absconded or died before such notice could be given is prima facie evidence of those facts, without proof of the signature or official character of the person appearing to have signed the foreign request.
Incorporating amendments until S 22/2017
(Cleancopy) NHN/Amiriah/Bb/Karimah as of 26.12.2019
*Note: amendment on page 7,75,81,123 on 11.01.2020
94
BLUV as at 11th March 2017
(5)
Where a foreign restraining order, foreign confiscation order or foreign benefit recovery order is registered in accordance with this section, a copy of any amendments made to the order in the foreign country (whether before or after registration), may be registered in the same way as the order but shall not have effect for this order until they are so registered.
(6)
The High Court shall, on application by the Attorney General, cancel the registration of –
(a)
a foreign restraining order, if it appears to the Court that the order has ceased to have effect;
(b)
a foreign confiscation order, if it appears to the Court that the order has been satisfied or has ceased to have effect;
(c)
a foreign benefit recovery order, if it appears to the Court that the order has been satisfied or has ceased to have effect.
(7)
Where an amount of money (if any) payable or remaining to be paid under a foreign confiscation order or foreign benefit recovery order registered in the High Court under this section is expressed in a currency other than that of Brunei Darussalam, the amount shall, for the purpose of any action taken in relation to that order, be converted into the currency of
Brunei Darussalam on the basis of the exchange rate prevailing on the date of registration of that order.
(8)
For the purpose of subsection (7), a certificate issued by the Authority stating the exchange rate prevailing on the specified date shall be admissible in any judicial proceedings as evidence of the facts so stated.
(9)
Where a foreign restraining order against property is registered under this section, the High Court may, upon application by a person claiming an interest in the property, order the Attorney General, give an undertaking with respect the payment of damages or costs in relation to the registration to operation of the order.
Incorporating amendments until S 22/2017
(Cleancopy) NHN/Amiriah/Bb/Karimah as of 26.12.2019
*Note: amendment on page 7,75,81,123 on 11.01.2020
95
BLUV as at 11th March 2017
(10)
Subject to subsection (9), where the foreign restraining order, foreign confiscation order or foreign benefit recovery order comprises a facsimile copy of a duly authenticated foreign order, or amendment made to such an order, the facsimile shall be regarded for the purposes of this Order as the same as the duly authenticated foreign order.
(11)
Registration effected by means of a facsimile message ceases to have effect at the end of the period of 21 days commencing on the date of registration, unless a duly authenticated original of the order has been registered by that time.
(12)
Where a foreign restraining order has been registered pursuant to this section,
Part IV applies in relation to the order as if the serious offence the subject of the order had been committed in Brunei Darussalam and the order had been made pursuant to that Part subject to the following modifications –
(a)
sections 53, 54(3), 54(4), 58 and 59 were omitted;
(b)
a reference in section in section 52, 54, 55 or 57 to a restraining order included a reference to an order under section 95; and
(c)
the reference in section 54(1) to the making of a restraining order were a reference to the registration by the High Court of a foreign restraining order under this section and the making of an order under section 95.
(13)
Where a foreign confiscation order has been registered pursuant to this section,
Part IV applies in relation to the order as if the serious offence the subject of the order had been committed in Brunei Darussalam and the order had been made pursuant to that Part subject to the following modifications –
(a)
all reference to an appeal against the making of an order and to the relevant appeal date were omitted; and
(b)
a period of 6 weeks were substituted for the period of 6 months provided in section 71(3).
Incorporating amendments until S 22/2017
(Cleancopy) NHN/Amiriah/Bb/Karimah as of 26.12.2019
*Note: amendment on page 7,75,81,123 on 11.01.2020
96
BLUV as at 11th March 2017
(14)
Where a foreign benefit recovery order has been registered pursuant to this section, Part IV applies in relation to the order as if it were a benefit recovery order made by the High Court under Part IV at the time of registration and requiring payment to the
Government of the amount payable under the order.
(15)
Where a foreign benefit recovery order is registered in the High Court under this Part, any amount paid, whether in Brunei Darussalam or elsewhere, in satisfaction of the foreign benefit recovery order shall be taken to have been paid in satisfaction of the debt that arises by reason of the registration of the foreign benefit recovery order in the High Court.
(16)
Subject to subsection (17), where any order has been registered under this section and the High Court is notified that it has been established to the satisfaction of the foreign court that the property constitutes proceed of crimes or tainted property, the Court may order that the property be recovered and be vested in the ·Government until such arrangement is made by the Attorney General with the foreign country for its transfer or disposal.
(17)
The Court may make an order under subsection (16) on such conditions as it thinks fit to impose, including any condition as to payment of debts, sale, transfer or disposal of any property.
Registered foreign restraining orders – High Court may direct authorised officer or person appointed by High Court to take custody and control of property.