Criminal Conduct (Recovery of Proceeds) Order, 2000

The long title of this Order is "An Order to make further provision for and in relation to the recovery of the proceeds of criminal conduct; to make further provision for facilitating the enforcement of overseas forfeiture and restraint orders; and for connected purposes".

Interpretation.

of section 21;

"dealing with property" falls to be construed in accordance with subsection (9) of section 10;

"defendant" falls to be construed in accordance with paragraph {b)

of subsection (9) of section 5;

"designated country" means a country or territory outside Brunei

Darussalam designated as such by an order made by the Minister under section 31;

"drug trafficking offence" has the same meaning as in subsection (1) of section 2 of the Emergency (Drug Trafficking) (Recovery of Proceeds)

Order, 1996 (S 12/96);

"external confiscation order" means an order made by a court in a designated country for the purpose -

{a}

of recovering-

This Order applies to property whether it is situated in Brunei

Darussalam or elsewhere.

Nothing in this Order confers any power on anr court in connection with offences committed before the commencement of this Order or proceedings against a person for an offence instituted before the commencement of this Order.

A reference in this Order to property obtained, or to a pecuniary advantage derived, in connection with the commission of an offence includes a reference to property obtained or to a pecuniary advantage derived both in that connection and in some other connection.

Property is held by any person if he holds any interest in it.

A reference to property held by a person includes a reference to property vested in his trustee in bankruptcy or liquidator.

A reference to an interest held by a person beneficially in property includes a reference to an interest which would be held by him beneficially if the property were not so vested.

Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.

Proceedings for an offence are instituted -

fa) where a complaint is made in respect of that offence; or, if earlier,

Proceedings are concluded-

(a} when \disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a confiscation order being made in the proceedings; or

In this Order, "realisable property" means, subject to subsection (2) -

(a} any property held by the defendant; and

Property is not realisable property if an order under section 25 of the

Misuse of Drugs Act !Chapter 27) is in force in respect of the property.

For the purposes of this Order, the amount that may be realised under a confiscation order is -

·

(a} the total of the values at the time of realisation of all the realisable property held by the defendant, less

Subject to the following provisions of this section, for the purposes of this Order the value of property (not being cash) in relation to any person holding the property -

{a) where any other person holds an interest in the property, is -

If at the material time a person holds

{a) the property which he obtained [not being cash); or

{b) property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained, the value referred to in paragraph {b) of subsection (5) is the value to him at the material time of the property mentioned in paragraph {a) of this subsection or, as the case may be, of the property mentioned in paragraph {b) of this subsection, so far as it represents the property which he obtained, but disregarding in either case any charging order.

Subject to subsection ( 12), a reference in this Order to the value at any time (referred to in subsection (8) as "the material time") of a gift caught by this

Order is a reference to -

{a) the value of the gift to the recipient when he received it, adjusted to take account of subsequent changes in the value of money; or

{b) where subsection (8) applies, the value there mentioned, whichever is the greater.

978

l8) Subject to subsection (12). if at the material time a person holds

{aj the property which he received (not being cash); or fb} property which, in whole or in part, directly or indirectly represents in his hands the property which he received, the value referred to in subsection (7) is the value to him at the material time of the property mentioned in paragraph fa} or, as the case may be, of the property mentioned in paragraph fbJ, so far as it represents the property which he received, but disregarding in either case any charging order.

For the purpose of subsection (3), an obligation has priority at any time if it is an obligation of the defendant to pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order.

( 10)

A gift [including a gift made before the commencement of this Order) is caught by this Order if-fa) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and fb) the Court considers it appropriate in all the circumstances to take the gift into account.

( 11) The reference in subsection ( 10) to an offence to which the proceedings for the time being relate includes, where the proceedings have resulted in the conviction of the defendant, a reference to any offence which the Court takes into consideration when determining his sentence.

For the purposes of this Order-fa} the circumstances in which the defendant is to be treated as making a gift include those where he 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 defendant; and fb} in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph fa} bears to the value of the consideration provided by the defendant.

confiscation, restraint and charging orders made by the Court in relation to offences committed in Brunei Darussalam; and

the money-laundering and other offences mentioned in sections 21 to 25

committed in Brunei Darussalam.

Confiscation, restraint and charging orders and their administration and enforcement

Confiscation orders.

The Court may make such an order against an offender where-

Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Order as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of that pecuniary advantage.

The sum which an order made by the Court under this section requires an offender to pay shall not exceed -

980

{a} the benefit in respect of which it is made; or

The Court may, on the application of the Attorney General, make a confiscation order when the defendant (whether or not he has been charged)

cannot be found or who is outside Brunei Darussalam and cannot be compelled to attend before the Court, or when the identity of the owner of the property is not known.

In this Order-

(a} references to an offence to which this Order applies are references to any offence, committed in Brunei Darussalam, other than a drug trafficking offence, punishable in Brunei Darussalam (whether or not with any other method of punishment) with imprisonment for a term of not less than five years or for life or which is a capital offence;

If the prosecution has given the Court such a notice, the Court shall determine whether it ought to make a confiscation order.

When considering whether to make a confiscation order, the Court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.

If the Court determines that it ought to make such an order, it shall, before sentencing or otherwise dealing with the defendant in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount specifying the offence or offences.

Where the Court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before -

(a}

imposing any fine on him;

No written law restricting the power of the Court dealing with an offender in a particular way from dealing with him also in any other way shall, by reason only of the making of a C<?nfiscation order, restrict it from dealing with an offender in any way it considers appropriate in respect of an offence to which this

Order applies.

Where

(a} the Court makes both a confiscation order and an order for payment by way of compensation under section 382 of the Criminal

Procedure Code (Chapter 7) against the same person in the same proceedings; and 982

27th. JUNE 1 2000

[bj it appears to the Court that he will not have sufficient means to satisfy both the orders in full, it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufftciency of his means shall be paid out of any sums recovered under the confiscation order.

Postponed determinations.

More than one postponement may be made under subsection ( 1) in relation to the same case.

Unless it is satisfied that there are exceptional circumstances, the Court shall not specify a period under subsection (1) which-

Where the defendant appeals against his conviction, the Court may, on that account 983

A postponement or extension under subsections (1) or (4,) may be made-

Unless the Court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.

Where the Court exercises its power under subsections (1) or (4), it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences.

\8)

Where the Court has so proceeded, section 6 shall have effect as if-

In sentencing, or otherwise dealing with, the defendant in respect of the offence or any of the offences at any time during the specified period, the Court shall not-fa)

impose any fine on him; or

In this section, "date of conviction" means-

(a} the date on which the defendant was convicted of the offence concerned; or

(b} where he was convicted in the same proceedings, but on different dates, of two or more offences which may be taken together for the purpose of subsection (2) of section 5, the date of the latest of those convictions.

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27th.

2000

Statements, etc., relevant to making of confiscation orders.

a defendant has been convicted of an offence to which this Order applies and the prosecution tenders to the Court a written statement as to any matters relevant -

to determining whether the defendant has benefited from the offence or from any other offence to which this Order applies of which he is convicted in the same proceedings or which is taken into consideration in determining his sentence; or

the defendant accepts to any extent any allegation in the statement, the Court may, for the purpose of so determining or making such an assessment, treat his acceptance as conclusive of the matters to which it relates.

[2) Where-

a statement is tendered under paragraph (a) of subsection (1); and

the Court is satisfied that a copy of that statement has been served on the defendant, the Court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

If the defendant fails in any respect to comply with a requirement under subsection [2), he may be treated for the purpose of this section as accepting every allegation in the statement apart from 985

Where-

(a} there is tendered to the Court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and

{b) the prosecution accepts to any extent any allegation in the statement, the Court may, for the purpose of that determination, treat the acceptance by the prosecution as conclusive of the matters to which it relates.

If the Court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under this section or otherwise), the Court may issue a ruling as to the matters concerned and shall do so if satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the

Court assesses to be the value of the defendant's benefit from the offence or, if more than one, all the offences in respect of which the order may be made.

Cases in which restraint orders and charging orders may be made.

The powers conferred on the Court by subsection (1) of section 10 and subsection ( 1) of section 11 are exercisable where -

(a}

proceedings have been instituted against the defendant for an offence to which this Order applies;

Those powers are also exercisable where -

(a} the Court is satisfied that proceedings will be instituted against a person within seven days of the application for an order under subsection (1) of section 10 or subsection (1) of section 11; and

For the purposes of sections 10 and 11, at any time when those powers are exercisable but before proceedings have been instituted -

986

(a} a reference in this Order to the defendant shall be construed as a reference to the person referred to in paragraph {a) of subsection 12);

and

{b)

a reference in this Order to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in paragraph {a) of subsection (2) for an offence to which this Order applies.

Where the Court has made an order under subsection (1) of section 10 or subsection (1) of section 11, by virtue of subsection (2)

{a)

the prosecution shall notify the Court immediately if proceedings have not been instituted within seven days of the application for the order; and

{b) the Court shall discharge the order if proceedings in respect of the offence have not been instituted within seven days of the application for an order under subsection (1) of section 10 or subsc;ction ( 1) of section 11.

Restraint orders.

Without prejudice to the generality of subsection (1), a restraint order may make such provision as the Court thinks fit for the living expenses and legal expenses of the defendant.

A restraint order may apply-

{a)

to all realisable property held by a specified person, whether or not the property is described in the order; and

{b)

to realisable property held by a specified person, being property transferred to him after the making of the order.

This section shall not have effect in relation to any property for the time being subject to a charge under section 11.

A restraint order-

{a)

may be made only on an application by the prosecution;

. {b)

may be made on an ex parte application to a judge in chambers; and 987

{c)

shall provide for notice to be given to persons affected by the order.

A restraint order -

(a} may be discharged or varied in relation to any property; and

{b) shall be discharged when proceedings for the offence have been concluded.

An application for the discharge or variation of a restraint order may be made by any person affected by it.

Where the Court has made a restraint order, it may at any time appoint a receiver-

{a}

to take possession of any realisable property; and

{b) in accordance with the Court's directions, to manage or otherwise deal with any property in respect of which he is appointed, subject to such conditions and exceptions as may be specified by the Court; and may require any person having possession of property in respect of which a receiver has been appointed under this section to give possession of it to the receiver.

For the purpose of this section, dealing with any property held by any person includes (without prejudice to the generality of the expression)

{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 Brunei Darussalam.

Where the Court has made a restraint order, a police officer may, for the purpose of preventing any realisable property being removed from Brunei

Darussalam, seize the property.

Property seized under subsection (10) shall be dealt with in accordance with the Court's directions.

( 12)

In the case of a restraint order made in respect of land

{a} the restraint order shall inhibit for a specified period of time or until the occurrence of a specified event, or generally until further order, the registration of any dealing with any land, lease or charge;

{b)

a copy of the restraint order under the seal of the Court, with the particulars of the land, lease or charge thereby affected shall be sent 988

to the officer in charge of the Land Office who shall register it in the

Register kept by him under section 7 of the Land Code (Chapter 40)

in respect of that land and no restraint order shall bind or affect the land, lease or charge until it has been registered; and

{c} so long as the restraint order remains registered no instrument which is inconsistent with it shall be registered.

Charging orders.

The Court may 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; and

(bJ in any other case, of an amount not exceeding the amount payable under the confiscation order.

For the purposes of this Order, a charging order is an order which imposes on any such realisable property as may be specified in the order a charge for securing the payment of money to the Government.

A charging order-

{a} may be made only on an application by the prosecution;

{b)

may be made on an ex parte application to a judge in chambers;

{c) shall provide for notice to be given to persons affected by the order, in such manner as the Court may direct; and

Subject to subsection (6}, a charge may be imposed by a charging order only on-

989

{a} any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Order

The assets referred to in subsection (4) are-

In any case where a charge is imposed by a charging order on any interest in an asset of a kind mentioned in paragraph (b) of subsection (5), the

Court may provide for the charge to extend to any interest or dividend payable in respect of such asset.

The Court may make an order discharging or varying the charging order and shall make an order discharging the charging order if the proceedings for the offence have been concluded or the amount, payment of which is secured by the charge, has been paid into Court. ·

An application for the discharge or variation of a charging order may be made by any person affected by it.

A charge imposed by a charging order made in relation to any interest in land shall be registered as a charge in the Register kept under the Land Code

(Chapter 40) by the officer in charge of the Land Office.

( 10)

Subject to any provision made under section 12 or by Rules of Court, a charge imposed by a charging order shall have the like effect and shall be 990

enforceable in the same courts and in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustees by writing under their hand.

Realisation of property.

Where-

{a} a confiscation order has been made;

{b) the order is not subject to appeal; and

{c) the proceedings in which it was made have not been concluded, the Court may, on an application by the prosecution, exercise the powers conferred by subsections (2) to (6).

The Court may appoint a receiver in respect of the realisable property.

The Court may empower a receiver appointed under subsection (ZL under section 10, or in pursuance of a charging order

{a} to enforce any charge imposed under section 11 on realisable property or on any interest or dividend payable in respect of such property; and

{b)

in relation to any realisable property, other than property for the time being subject to a charge under section 11, to take possession of the property, subject to such conditions and exceptions as may be specified by the Court.

The Court may order any person having possession of realisable property to give possession of it to any such receiver.

The Court may empower any such receiver to realise any realisable property in such manner as it may direct.

The Court may order any person holding an interest in any realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this

Order as it may direct and it may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

Subsections (4) to (6) do not apply to property for the time being subject to a charge under section 11.

The Court shall not in respect of any property exercise the powers conferred by paragraph {a) of subsection (3) or by subsections (5) or (6) unless a reasonable opportunity has been given for persons holding an interest in the property to make representations in the Court.

Application of proceeds of realisation and other sums.

Subject to subsection (2), such of-

If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute them

{a) among such of those persons who held property which has been realised under this Order; and

{b)

in such proportions, as the Court may direct after giving a reasonable opportunity for such persons to make representations to the Court.

The receipt of any sum by the Chief Registrar of the Supreme Court on account of an amount payable under a confiscation order shall reduce the amount so payable, but he shall apply the money received for such of the purposes specified in this section as may be specified in the confiscation order and in the order so specified.

If the money was paid to the Chief Registrar of the Supreme Court by a receiver appointed under this Order or in pursuance of a charging order, he shall first pay the receiver's remuneration and expenses.

After making any payment required by subsection (4L the Chief

Registrar of the Supreme Court shall reimburse any amount paid under subsection

of section 18.

The Chief Registrar of the Supreme Court shall fmally pay any compensation directed to be paid out of any sums recovered under the confiscation order under subsection (7) of section 6.

Any money remaining in the hands of the Chief Registrar of the Supreme

Court after he has made all the payments required by the foregoing provisions of this section shall be treated as if it were a fine imposed by the Court.

Where under subsection (3) a sum falls to be applied in payment both of compensation and of other outgoings -

{a)

the person entitled to the compensation shall be liable to pay to the

Government such an amount as bears to the remuneration or expenses the same proportion as the amount payable in accordance with the direction under subsection (7) of section 6 bears to the total amount payable under the confiscation order;

{b)

the Chief Registrar of the Supreme Court shall deduct from the amount falling to be applied in payment of the compensation an amount equal to the amount of any liability arising by virtue of paragraph {a);

{c)

notwithstanding the deduction under paragraph {b), the person entitled to the compensation shall be treated as having received the whole amount which falls to be applied in payment of it; and

{d) the amount deducted shall be treated as if it were a fine imposed by the Court.

Exercise of powers by Court or receiver.

This section applies to the powers conferred on the Court by sections 10

to 13, or on a receiver appointed under this Order or in pursuance of a charging order.

Subject to the following provisions of this section, those powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant's case, the value for the time being of realisable property held by any person by the realisation of that property.

In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Order, the powers shall be exercised with a view to releasing no more than the value for the time being of the gift.

The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.

If, on an application by any person affected by a confiscation order, including the defendant, the Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the order it shall issue a certificate to that effect, giving it's reasons.

For the purpose of subsection (1)-

(a} in the case of realisable property held by a person against whom an order of adjudication for bankruptcy has been made, the Court shall take into account the extent to which any property held by him may be distributed among creditors; and

The Court may, on an application under this section, substitute for the amount to be recovered under the order such lesser amount as it thinks just in all the circumstances of the case.

Bankruptcy of defendant, etc.

any proceeds of property realised under subsection 18} of section 10

or subsections (5} or (6) of section 12 for the time being in the hands of a receiver appointed under sections 10 or 12,

994

is excluded from the property of the bankrupt for the purposes of the Bankruptcy

Act (Chapter 67).

Where any order of adjudication for bankruptcy has been made against any person, the powers conferred on the Court by sections 10 to 13 or on a receiver appointed by such order shall not be exercised in relation to -

Nothing in the Bankruptcy Act (Chapter 67) shall be taken as restricting or enabling the restriction of the exercise of the powers conferred on the Court by sections 10 to 13 or on a receiver.

Subsection (2) does not affect the enforcement of a charging order -

Where, in the case of a debtor-

Where any order for bankruptcy has been made against a person who has directly or indirectly made a gift caught by this Order, sections 31 and 4 7 of the Bankruptcy Act (Chapter 67) shall not apply 995

{a)

in respect of the making of the gift at any time when proceedings for an offence to which this Order applies have been instituted against him and have not been concluded; or

Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator or any provisional liquidator shall not be exercisable in relation to -

(a}

any property for the time being subject to a restraint order made before the relevant time; and

{b}

any proceeds of property realised under subsection (8) of section 10

or subsections (5) or (6) of section 12 for the time being in the hands of a receiver appointed under sections 10 or 12.

Where, such an order has been made or such a resolution has been passed, the powers conferred on the Court by sections 10 to 12 or on a receiver appointed by the order shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable so as to -

{a}

inhibit him from exerc1smg those functions for the purpose of distributing any property held by the company to the company's creditors; or

{b}

prevent the payment out of any property of any expenses (including the remuneration of the liquidator or any provisional liquidator)

properly incurred in the winding up in respect of the property.

Nothing in the Companies Act (Chapter 39) shall be taken as restricting, or enabling the restriction of, the exercise of those powers.

Subsection (2) does not affect the enforcement of a charging order made before the relevant time or on property which was subject to a restraint order at the relevant time.

In this section, "relevant time" means -

(a} where an order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

{b} where such an order has been made and, before the presentation of the petition for the winding up of the company by the Court, such a resolution had been passed by the company, the time of the passing of the resolution;

{c}

in any other case where such an order has been made, the time of the making of the order for winding up.

996

Receivers: supplementary provisions.

Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under subsection 14) of section 13, be paid by the prosecution or, in a case where proceedings for an offence to which this Order applies has not been instituted, by the person on whose application the receiver was appointed.

Without prejudice to the generality of any written law, where-

{a) any person acting as a receiver seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order; and

{b) at the time of the seizure or disposal he believed, and had reasonable grounds for believing, that he was entitled (whether in pursuance of an order of the Court or otherwise) to seize or dispose of that property, he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage was caused by his negligence in so acting; and a person so acting shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.

Any person who, acting as a receiver, incurs expenses-

{a) in respect of such property as is mentioned in paragraph {a) of subsection ( 1) and in so doing did not know and had no reasonable grounds to believe that the property was for the time being subject to a restraint order; or

the proceedings have not resulted in his conviction for any such offence; or

{b) where he was convicted of one or more such offences -

[i)

the conviction or convictions have been quashed; or

The Court shall not order compensation to be paid in any case unless it is satisfied that

{a) there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence or offences; and

The Court shall not order compensation to be paid in any case where it appears to it that the proceedings would have been instituted or continued even if the serious default had not occurred.

The amount of compensation to be paid under this section shall be such as the Court thinks just in all the circumstances of the case.

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27th. JUNE 1 2000

Money-laundering and other offences

Code of Practice and Reporting Authority.

Subject to subsection {3), a person who enters into or is otherwise concerned in an arrangement whereby-

{a}

the retention or control by or on behalf of another (call him "A"J of property which is the proceeds of N.s criminal conduct is facilitated

(whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

{b) property which is the proceeds of N.s criminal conduct is used

{i)

to secure funds that are placed at N. s disposal; or

[ii)

for N.s benefit to acquire property by way of investment, knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, is guilty of an offence.

{2)

In this section1 a reference to any person 1s proceeds of criminal conduct includes a reference to property which in whole or in part directly or indirectly represents in his hands his proceeds of criminal conduct.

Where a person discloses to the Reporting Authority a suspicion or belief that any funds or investment are derived from or used in connection with criminal conduct, or discloses to such Reporting Authority any matter on which such a suspicion or belief is based -

999

{a} the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by any contract, written law, rules of professional conduct or otherwise and shall not give rise to any civil or criminal liability; and

{b) if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he does not commit an offence under this section if -

In proceedings against a person for an offence under this section, it is a defence to prove -

{a} that he did not know or have reason to suspect that the arrangement related to any person's proceeds of criminal conduct;

(bJ that he did not know or have reason to suspect that by the arrangement the retention or control by or on behalf of A of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in subsection (1);

or

{c)

that

In the case of a person who was in employment at the relevant time, subsections {3) and (4) shall have effect in relation to disclosures and intended disclosures to the appropriate person in accordance with the procedure established by his employer for the making of .such disclosures as they have effect in relation to disclosures and intended disclosures to the Reporting Authority.

Where information is disclosed to the Reporting Authority under subsection (3L the Reporting Authority shall not disclose the information without the consent of the Attorney General who, when considering whether to give his consent, shall take into account -

{a} the purpose for which such further disclosure is to be made; and

{b) the interests of third parties,

1000

and the Attorney General may impose such conditions on such further disclosure as he may think fit.

Subsection (6) does not apply to information received by the Reporting

Authority relating to any matter which it is required to disclose to any person or authority in Brunei Darussalam.

Subject to subsections (6) and (7), the Reporting Authority may disclose any information received under this section -

A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding fourteen years, a fine or both.

In this Order, "criminal conduct" means conduct which constitutes an offence to which this Order applies or would constitute such an offence if it had occurred in Brunei Darussalam.

( 11)

No prosecution shall be instituted for an offence under this section without the consent of the Attorney GeneraL

Acquisition, possession or use of property representing proceeds of criminal conduct.

A person is guilty of an offence if, knowing that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of criminal conduct, he acquires or uses that property or has possession of it.

In proceedings against a person for an offence under this section, it is a defence to prove that he acquired or used the property or had possession of it for adequate consideration.

1001

For the purpose of subsection (2)-

{a} a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and

{b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.

The provision for any person of services or goods which are of assistance to him in criminal conduct shall not be treated as consideration for the purpose of subsection (2).

Where a person discloses to the Reporting Authority a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of criminal conduct, or discloses to such Reporting

Authority any matter on which such a suspicion or belief is based -

{a} the disclosure shall not be treated as a breach of any restriction upon the disclosure of information by any written law or otherwise and shall not give rise to any civil or criminal liability; and

{b)

if he does any act in relation to that property in contravention of subsection (1), he does not commit an offence under this section if-

For the purpose of this section, having possession of any property shall be taken to be doing an act in relation to it.

Where information is d.isclosed to the Reporting Authority under subsection (3) of section 21, the Reporting Authority shall not disclose the information without the consent of the Attorney General who, when considering whether to give his consent, shall take into account

{a} the purpose for which such further disclosure is to be made; and

{b) the interests of third parties, and the Attorney General may impose such conditions on such further disclosure as he may think fit.

1002

Subsection (7) does not apply to information received by the Reporting

Authority relating to any matter which it is required to disclose to any person or authority in Brunei Darussalam.

Subject to subsections (7) and (8), the Reporting Authority may disclose any information received under this section -

(a} in relation to criminal conduct, to any law enforcement agency in

Brunei Darussalam;

In proceedings against a person for an offence under this section, it is a defence to prove that -

In the case of a person who was in employment at the relevant time, subsections (5) and (8) shall have effect in relation to disclosures and intended disclosures to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures and intended disclosures to the Reporting Authority.

A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding fourteen years, a fi.ne or both.

No member of the Reporting Authority or other person is guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement or intended enforcement of any provision of this Order or of any other written law relating to criminal conduct or to the proceeds of such conduct.

1003

No prosecution shall be instituted for an offence under this' section without the consent of the Attorney General.

Concealing, transferring, etc., proceeds of criminal conduct.

conceals or disguises property which is, or in whole or in part directly or indirectly represents, his proceeds of criminal conduct;

or

converts or transfers that property or removes it from Brunei

Darussalam, for the purpose of avoiding prosecution for an offence or of avoiding the making or enforcement of a confiscation order.

A person is guilty of an offence if, knowing or having reasonable grounds for suspecting that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of criminal conduct, he-

In subsection (1), the reference to concealing or disguising property includes a reference to concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.

A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding fourteen years, a fine or both.

No prosecution shall be ·instituted for an offence under this section without the consent of the Attorney General.

Failure to disclose knowledge or suspicion of money-laundering.

he knows or suspects that another person is engaged in money·

laundering;

1004

(bJ the information or other matter on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment; and

(cJ he does not disclose the information or other matter to a police officer as soon as is reasonably practicable after it comes to his attention.

Subsection ( 1) does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.

It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter.

Where a person discloses to a police officer-

{aJ his suspicion or belief that another person is engaged in money-lau:r;tdering; or

(bJ any information or other matter on which that suspicion or belief is based, the disclosure shall not be treated as a breach of any restriction imposed by any written law or otherwise.

Without prejudice to subsections (3) or (4), in the case of a person who was in employment at the time in question, it is a defence to a charge of committing an offence under this section that he disclosed the information or other matter to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.

A disclosure to which subsection (5) applies shall not be treated as a breach of any restriction imposed by any written law or otherwise.

For the purpose of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated or given to him-

1005

(aJ by, or by a representative of, a client of his in connection with the giving by him of legal advice to that client;

(bJ by, or by a representative of, a person seeking legal advice from him; or

(cJ by any person -

No information or other matter shall be treated as coming to a professional legal adviser in privileged circumstances if it is communicated or given with a view to furthering any criminal purpose.

A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding fourteen years, a fine or both.

No prosecution shall be instituted for an offence under this section without the consent of the Attorney General.

In this section, "money-laundering" means doing any act-

{a}

which constitutes an offence under sections 21, 22 or 23; or

{b)

in the case of an act done outside Brunei Darussalam, which would constitute such an offence if done in Brunei Darussalam, and for the purpose of this subsection, having possession of any property shall be taken to be doing an act in relation to it.

Tipping-off.

A person is guilty of an offence if-

{a}

he knows or has reasonable grounds for suspecting that a disclosure

("the disclosure") has been made to the Reporting Authority under sections 21 or 22; and

{b}

he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

1006

A person is guilty of an offence if-

{a} he knows or suspects that a disclosure of a kind mentioned in subsection (3) of section 21 or subsection (5) of section 22 ("the disclosure 11

) has been made; and

Nothing in subsections 11) to (3) makes it an offence for a person to disclose information or any other matter to an advocate and solicitor for the purposes of legal advice or for an advocate and solicitor to disclose any information or other matter -

(a} to, or to a representative of, a client of his in connection with the giving by him of legal advice to that client; or

Subsection (4) does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.

In this section, "money-laundering" means doing any act -

{a} which constitutes an offence under sections 21, 22 or 23; or

(b} in the case of any act done outside Brunei Darussalam, which would constitute such an offence if done in Brunei Darussalam, and for the purpose of this subsection, having possession of any property shall be taken to be doing an act in relation to it.

A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding five years, a fine or both.

No prosecution shall be instituted for an offence under this section without the consent of the Attorney General.

No member of the Reporting Authority or any other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement or intended enforcement, of 1007

BRUNEI DARUSSALAM GOVERNMENT GAZETTE any provision of this Order or of any other written law relating to any offence to which this Order applies.

Supplementary

Application of procedure for enforcing fines.

Where the Court has ordered a defendant to pay any amount under this

Order, sections 253, 254, 255 and 256 of the Criminal Procedure Code (Chapter 7)

shall have effect as if that amount were a fine imposed on him by the Court.

Where-fa) the Court has directed that in default of payment of an amount ordered to be paid under this Order in respect of an offence the defendant shall serve a term of imprisonment; and

For the purpose of paragraph (b) of subsection (2) -

Where a document is required under this Order to be served on a person who cannot be found, or who is outside Brunei Darussalam and cannot be compelled to attend before the Court in respect of proceedings under this Order, the Court may dispense with service of the document and the proceedings may be continued to their final conclusion in his absence.

1008

Order to make material available.

A police officer may, for the purpose of an investigation, whether within

Brunei Darussalam or elsewhere, into an offence to which this Order applies, apply to the Court for an order under subsection (2) in relation to particular material or to material of a particular description.

If on such an application the Court is satisfied that the conditions in subsection (4) have been fulfilled, it may make an order that the person who appears to it to be in possession of the material to which the application relates shall-

{a} produce it to a police officer to take away; or

{b) give a police officer access to it, within such period as the order may specify.

The period to be specified in an order under subsection (2) shall be seven days, unless it appears to the Court that a longer or shorter period would be appropriate in the patticular circumstances of the application.

The conditions referred to in subsection (2) are that there are reasonable grounds 1009

{a} for suspecting that a specified person has carried on or has benefited from an offence to which this Order applies;

{b) for suspecting that the material to which the application relates

Where the Court has made an order under paragraph (b) of subsection

in relation to material on any premises, it may, on the application of a police officer, order any person who appears to it to be entitled to grant entry to the premises to allow a police offi.cer to enter those premises to obtain access to the material.

The Chief Justice may, with the approval of His Majesty the Sultan and

Yang Di-Pertuan, make Rules of Court as to

{a} the discharge and variation of orders under this section; and

{b) proceedings relating to such orders.

(7}

Where the material to which an application under this section relates consists of information contained in a computer -

{a} an order under paragraph {a} of subsection (2} shall have effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and

A police officer may, for the purpose of an investigation into an offence to which this Order applies, apply to the Court for a warrant under this section in relation to specified premises.

On such application, the Court may issue a warrant authorising a police officer to enter and search such premises if it is satisfied that -

1011

{a) an order made under subsection (2) of section 28 in relation to material on the premises has not been complied with;

{b) the conditions in subsection (3) of this section have been fulfilled; or

{c) the conditions in subsection (4) of this section have been fulfilled.

The conditions referred to in paragraph {b) of subsection (2) are that-

{a)

there are reasonable grounds for suspecting that a specifted person has carried on or has benefited from an offence to which this Order applies;

{b) the conditions in paragraphs {b) and {c) of subsection (4) of section 28 have been fulfilled in relation to any material on such premises;

and

{c)

it would not be appropriate to make an order under section 28 in relation to the material because -

Where a police officer has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than any items subject to legal privilege, which is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the warrant was issued.

·

Criminal Offences Confiscations Fund.

There is hereby established a fund called the Criminal Offences

Confiscations Fund which, subject to this section, shall be managed and controlled by the Permanent Secretary.

The Minister may authorise the payment into the Fund of such sum or sums as may be necessary to set up or maintain it, and any such payments shall be charged on and paid out of the Consolidated Fund.

All amounts

{a) contributed by the Government towards the establishment or maintenance of the Fund;

{b) recovered under or in satisfaction of a confiscation order; or

{c)

received under an assets-sharing agreement,

1012

shall be included in the monies which are paid into the Fund.

Monies paid into the Fund shall not form part of the Consolidated Fund.

Subject to subsection (6), monies in the Fund shall be applied by the

Permanent Secretary-

{a}

in promoting or supporting measures that, in his opinion, may assist-

Before promoting or supporting any measure under paragraph {a} of subsection (4), the Permanent Secretary shall consult the Attorney General and such other persons as he may consider appropriate.

Monies paid into the Fund, while not applied for any of the purposes mentioned in subsection (5), may be-

{a}

held in the custody of the Permanent Secretary; or

{b)

placed in the name of the Fund, in a current or deposit account, with one or more banks selected by the Permanent Secretary, and any interest earned on such monies while held in such an account shall be credited to such account.

1013

In this section-

"assets-sharing agreement" means an agreement entered into-

{a}

between Brunei Darussalam and any other country or territory;

or

designate countries and territories outside Brunei Darussalam to whose external confiscation orders and proceedings this Order shall, subject to subsection (2), apply;

specify appropriate authorities of designated countries that are to give effect to the provisions of this Order in relation to external confiscation orders and to related proceedings; and

specify in respect of designated countries the steps (apart from an application to the Court for an external confiscation order) that need to be taken there to amount to an institution of proceedings.

The provisions contained in the Schedule apply to external confiscation orders and to any proceedings which have been, or are to be, instituted and which may result in external confiscation orders being made in designated countries.

Registration of external confiscation orders.

the amount payable under the external confiscation order is at least fifty thousand dollars, except that the Court may register an order where the amount payable is less if the Attorney General certifies that it is in the public interest to register the order;

it is satisfied, where the person against whom the order so made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

it is of the opinion that enforcing the order in Brunei Darussalam would not be contrary to the interests of justice.

In this subsection, "appeal" includes-

any proceedings by way of discharging or setting aside a judgment; and

The Court shall not register an external confiscation order made in a designated country 'where the Attorney General has issued a certificate to the effect that the application to register the order is against the public interest.

The Court shall cancel the registration of an external confiscation order if it appears to it that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.

Proof of orders and judgments of courts of designated country.

any order made or judgment given by a court of a designated country purporting to bear the seal of that court or to be signed by any person in his capacity as a judge, magistrate or officer of the

Court, shall be deemed without further proof to have been duly sealed or, as the case may be, to have been signed by that person;

and

a document, duly authenticated, which purports to be a copy of any order made or judgment given by a court of a designated country shall be deemed without further proof to be a true copy.

A document purporting to be a copy of any order made or judgment given by a court of a designated country is duly authenticated for the purpose of paragraph (a) of subsection ( 1) if it purports to be certified by any person in his 1015

BRUNEI DARUSSALAM GOVERNMENT GAZETTE capacity as a judge, magistrate or officer of that court or by or on behalf of the appropriate authority of the designated country.

Evidence in relation to proceedings and orders in designated country.

For the purposes of sections 31 and 32, and of the other provisions of this

Order as applied by subsection (2) of section 31, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating-

In any such proceedings, a statement contained in a document, duly authenticated, which purports to have been received in evidence or to be a copy of a document so received, or to set out or summarise evidence given in proceedings in a court of a designated country, shall be admissible as evidence of any fact stated therein.

A document is duly authenticated for the purpose of subsection (2) if it purports to be certified by any person in his capacity as a judge, magistrate or officer of the court of the designated country or by or on behalf of the appropriate authority of the designated country.

1016

Nothing in this section shall prejudice the admission of any evidence, whether contained in any document or otherwise1 which is admissible apart from this section.

Representation of government of designated country.

Where-

(a} a confiscation order has been made under section 5;

(b} a request has been sent by the Attorney General to the appropriate authority of a designated country for assistance in enforcing that order; and

For the purpose of this section, and without prejudice to the admissibility of any evidence which may be admissible apart from this subsection, a certificate purporting to be issued by or on behalf of the appropriate authority of a designated country stating that property has been recovered there in execution of a request by the Attorney General, stating the value of the property so recovered and the date on which it was recovered, shall in any proceedings in a court in

Brunei Darussalam, be admissible as evidence of the facts so stated.

Currency conversion.

Where the value of property recovered as described in subsection (1) of section 36 is expressed in a currency other than that of Brunei Darussalam currency created by subsection (1) of section 8 of the Currency Act (Chapter 32), the extent to which the amount payable under the confiscation order is to be reduced under that subsection shall be calculated on the basis of the exchange rate prevailing on the date on which the property was recovered in the designated country concerned.

1017

[2)

Where an amount of money payable or remaining to be paid under an external confiscation order registered in the Court under section 32 is expressed in a currency other than that of Brunei Darussalam, for the purpose of any action taken in relation to that order under this Order as applied by subsection (2) of section 31 the amount shall be converted into Brunei Darussalam currency on the basis of the exchange rate prevailing on the date of the registration of the order.

For the purpose of this section, a written certificate purporting to be signed by any officer of a bank licensed under section 4 of the Banking Act

(Chapter 95), and stating the exchange rate prevailing on a specified date shall be admissible as evidence of the facts so stated.

Rules of Court.