Section 2
of Drug Trafficking (Recovery of Proceeds) Act
Section 2
(1)
In this Act —
“Bureau” means the Narcotics Control Bureau;
“charging order” means an order made under subsection (1) of section 12;
“confiscation order” means an order made under section 3;
“corresponding law” has the same meaning as in the Misuse of
Drugs Act (Chapter 27);
“defendant” means a person against whom proceedings have been instituted for a drug trafficking offence (whether or not he has been convicted);
“drug trafficking” means doing or being concerned in any of the following, whether in Brunei Darussalam or elsewhere —
(a)
trafficking a controlled drug, where the trafficking contravences section 3 of the Misuse of Drugs
Act (Chapter 27) or a corresponding law;
(b)
possession of a controlled drug, for the purpose of trafficking, where possession for that purpose contravenes section 3A of that Act or a corresponding law;
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(c)
manufacturing a controlled drug where the manufacture of the drug contravenes section 4 of that Act or a corresponding law;
(d)
importing or exporting a controlled drug where the importation or exportation is prohibited by section 5 of that Act or a corresponding law;
(e)
the cultivation of any plant of the genus cannabis, or any plant of the species papaver somniferum or any plant of the genus erythroxylon, where the cultivation contravenes section 8 of that Act or a corresponding law, and includes a person doing the following, whether in
Brunei Darussalam or elsewhere, that is entering into or being otherwise concerned in an arrangement whereby —
(i)
the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated;
or
(ii)
the proceeds of drug trafficking by another person are used to secure funds that are placed at the other person’s disposal or are used for the other person’s benefit;
“drug trafficking offence” means any of the following —
(a)
an offence under sections 3, 3A, 4, 5 or 11 of the
Misuse of Drugs Act (Chapter 27);
(b)
an offence under section 126 of the Customs Act
(Chapter 36) in connection with a prohibition or restriction on importation or exportation having effect by virtue of section 5 of the Misuse of Drugs Act;
(c)
an offence under sections 20 or 22 of this Act;
(d)
an offence under section 120A of the Penal Code
(Chapter 22) of criminal conspiracy to commit any of the offences in paragraphs (a) and (b);
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(e)
an offence of attempting to commit any of those offences;
(f)
an offence at common law of inciting another to commit any of those offences;
(g)
abetting the commission of any of those offences;
“interest”, in relation to property, includes right;
“material” includes any book, document or other record in any form whatsoever, and any container or article relating thereto;
“officer of the Bureau” means the Director, Deputy Director and any officer of the Bureau;
“property” includes money and all other property, moveable or immovable, including things in action and other intangible or incorporeal property;
“realisable property” means —
(a)
any property held by the defendant; and
(b)
any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act:
Provided that 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;
“restraint order” means an order made under subsection (1) of section 11.
(2)
For the purposes of sections 3 and 7, the amount that might be recovered at a time a confiscation order is made against the defendant is —
(a)
the total of the values at that time of all the realisable property held by the defendant; less
(b)
where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations, together with the total of the values at that time of all gifts caught by this Act.
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(3)
Subject to subsections (4) to (8), for the purpose of this Act the value of property (other than cash) in relation to any person holding the property —
(a)
where any other person holds an interest in the property is —
(i)
the market value of the first mentioned person’s beneficial interest in the property; less
(ii)
the amount required to discharge any incumbrance
(other than a charging order) on that interest; and
(b)
in any other case, is its market value.
(4)
Subject to subsection (8), a reference in this Act to the value at any time (referred to in subsection (5) as “the material time”) of a gift caught by this Act of any payment or reward is a reference to —
(a)
the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the valueof money; or
(b)
where subsection (5) applies, the value there mentioned, whichever is the greater.
(5)
Subject to subsection (8), if at the material time the recipient holds —
(a)
the property which he received (not being cash); or
(b)
property which, in whole or in part, directly or indirectly represents in his hands the property which he received, the value referred to in paragraph (b) of subsection (4) is the value to him at the material time of the property mentioned in paragraph (a)
or, as the case may be, of the property mentioned in paragraph (b) so far as it so represents the property which he received, but disregarding in either case any charging order.
(6)
For the purpose of subsection (2), an obligation has priority at any time if it is an obligation of the defendant to pay —
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(a)
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; or
(b)
any sum which, if the defendant had been adjudged bankrupt or was being wound up, would be among the preferential debts, which expression —
(i)
in relation to bankruptcy, means the debts to be paid in priority under section 38 of the Bankruptcy Act
(Chapter 67) (assuming the date of the confiscation order to be the date of the receiving order); and
(ii)
in relation to winding up, means the preferential debts referred to in subsection (1) of section 250 of the
Companies Act (Chapter 39) (assuming the date of the confiscation order to be the relevant date for the purpose of that section).
(7)
A gift (including a gift made before the commencement of this
Act) is caught by this Act if —
(a)
it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a drug trafficking offence were instituted against him or, where no such proceedings have been instituted, when an application under section 3
for a confiscation order was made against him; or
(b)
it was made by the defendant at any time and was a gift of property —
(i)
received by the defendant in connection with drug trafficking carried on by him or another; or
(ii)
which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.
(8)
For the purpose of this Act —
(a)
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
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significantly less than the value of the consideration provided by the defendant; and
(b)
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 referredto in paragraph (a) bears to the value of the consideration provided by the defendant.
(9)
This Act applies to property whether it is situated in Brunei
Darussalam or elsewhere.
(10)
A reference in this Act to an offence includes a reference to an offence committed before the commencement of this Act.
(11)
A reference in this Act to anything received in connection with drug trafficking includes a reference to anything received both in that connection and in some other connection.
(12)
The following provisions shall have effect for the interpretation of this Act —
(a)
property is held by any person if he holds any interest in it;
(b)
a reference to an interest in property held by a person beneficially includes, where the property is vested in his trustee in bankruptcy or in a liquidator, a reference to an interest which would be held by him beneficially if the property were not so vested;
(c)
property is transferred by one person to another if the first person transfers or grants to the other any interest in it;
(d)
proceedings in Brunei Darussalam for a drug trafficking offence are instituted —
(i)
when a summons or warrant of arrest has been issued in respect of the offence; or
(ii)
when a person is charged with the offence after being taken into custody without a warrant, and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times;
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(e)
proceedings in Brunei Darussalam for a drug trafficking offence are concluded —
(i)
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
(ii)
on the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default);