INTERNATIONAL TRANSFER OF PRISONERS
S 35/2011
REVISED EDITION 2023
B.L.R.O. 6/2023
International Transfer of Prisoners
B.L.R.O. 6/2023 3
REVISED EDITION 2023
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International Transfer of Prisoners Act is Brunei Act, cited as Act 265 2023, currently marked in force and first recorded in 2023.
Chapter
S 35/2011
REVISED EDITION 2023
B.L.R.O. 6/2023
International Transfer of Prisoners
B.L.R.O. 6/2023 3
REVISED EDITION 2023
Opening note
Part
Citation
This Act may be cited as the International Transfer of Prisoners Act.
Interpretation
In this Act, unless the context otherwise requires —
“agreement” includes a treaty which has been entered into with a foreign State for the transfer of prisoners;
“country” includes territory;
“designated country” means a country designated in accordance with section 3(1);
“foreign State” includes a Commonwealth country which has not notified the Commonwealth Secretary-General that it has enacted legislation to give effect to the Scheme;
“imprisonment” includes —
detention of a child or young person in a place of detention referred to in section 51 of the Children and Young
Persons Act (Chapter 219);
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detention or confinement following an order issued pursuant to section 317 or 321 of the Criminal Procedure Code
(Chapter 7); or
any other similar form of restraint of liberty that applies in a designated country, but does not include, in Brunei Darussalam, any person detained under the Internal Security Act (Chapter 133), the Criminal Law
(Preventive Detention) Act (Chapter 150) or any other written law relating to preventive detention;
“Minister” means the Minister of Home Affairs;
“prisoner” means any person who has been convicted of an offence and sentenced to imprisonment in Brunei Darussalam or in any designated country;
“responsible authority” —
means the person responsible under the law of a designated country for administering the transfer of prisoners to and from that country; and
includes a person to whom that person’s duties and powers have been lawfully delegated;
“Scheme” means the Scheme for the Transfer of Convicted
Offenders within the Commonwealth;
“transfer” means transfer of a prisoner —
In determining whether or not a person has close ties with a country, the Minister shall take into account —
whether or not he was born in that country or is descended from persons who were born in that country;
whether or not he has any relatives by birth or marriage in that country and, if so, the degree of relationship;
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Application
Where an agreement has been, or is deemed to have been, entered into between Brunei Darussalam and a foreign State for the transfer of prisoners or the enforcement of sentences, the Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, by order published in the Gazette, designate that country as a country to which this Act shall, subject to subsection (2), apply.
An order made under subsection (1) may provide that this Act applies in relation to that country subject to such limitations, conditions, exceptions, adaptations, modifications or other provisions as may be specified in the order.
Where a Commonwealth country notifies the Commonwealth
Secretary-General that it has enacted legislation to give effect to the Scheme, that notification is deemed to be an agreement entered into between Brunei
Darussalam and that country.
For the purpose of this section, the government of a designated country may request or so notify the Commonwealth Secretary-General that a territory whose external relations is the responsibility of that country be treated as —
This Act applies to any prisoner who is already serving a sentence of imprisonment on the date when its provisions are extended, pursuant to this section, to the country of which he is a citizen.
Part
Consent to transfer
Where a prisoner is sought to be transferred under this Act, his consent to the transfer must be obtained forthwith subject to section 5.
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Conditions for transfer
Subject to subsection (2), no prisoner shall be transferred under this Act unless —
he is a citizen of, is ordinarily resident in, or has close ties with, Brunei Darussalam or the designated country to or from which he is to be transferred;
at the time of receipt of the request for transfer, he still has not less than 6 months of the sentence to serve or the sentence is indeterminate;
he consents to the transfer or, where he is incapable of acting for himself by reason of his physical or mental condition or his youth, a person who is his lawful guardian or representative consents on his behalf;
In exceptional cases, a transfer may be agreed to where the term to be served by the prisoner is less than 6 months.
Part
Request for transfer
Where the Minister has been informed by the responsible authority of a designated country that —
a prisoner has applied for a transfer to Brunei Darussalam and that that country has agreed to such transfer; or
that country requests such transfer and the prisoner consents thereto,
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the Minister shall, after consultation with the Attorney General and subject to section 5, determine whether or not he agrees to the transfer.
The Minister shall not, save in exceptional circumstances, agree to a transfer where less than 6 months of the sentence remain to be served.
The Minister shall —
if he agrees to the transfer, direct that a warrant in Form 1 in the Schedule be issued for that purpose.
The Minister may, on receipt of an application under subsection (1), require the designated country to provide him with such evidence as he requires to show that —
where it appears to the Minister that the prisoner is incapable of acting for himself by reason of his physical or mental condition or his youth, a person who is the lawful guardian or representative of the prisoner has made the application for or has consented to the transfer on his behalf.
Where a prisoner applies in writing to the Minister for a transfer to Brunei Darussalam, the Minister shall, after consultation with the
Attorney General, determine whether or not a request for transfer shall be made to the designated country.
The Minister shall not, save in exceptional circumstances, request for or consent to a transfer, where the prisoner still has a term of less than 6 months of his sentence to serve.
Where the designated country to which Brunei Darussalam has made the request agrees to the transfer, the Minister shall issue a warrant in
Form 2 of the Schedule for the purpose of the transfer.
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A warrant issued under subsection (3) or (7) shall, subject to this
Act, authorise —
the transfer of the prisoner by an authorised person to such place of detention as may be designated in the warrant; and
the detention of the prisoner in accordance with such a provision as may be contained in the warrant, being provisions appearing to the Minister to be appropriate for giving effect to the arrangements in accordance with which the prisoner is transferred.
, where a citizen of
Brunei Darussalam, having been charged with an offence in a designated country, has been —
ordered by a court of that country to be detained because he has been found to be insane and unfit to stand trial or to be a mentally disordered or mentally defective offender; or
found guilty of the offence but was insane at the time of the commission of the offence, that person may be transferred to Brunei Darussalam at the request of the responsible authority of that country and with the consent of the Minister or at the request of the Minister and with the consent of the responsible authority of that country.
An application under subsection (1) or (5) or a request under subsection (9) shall be accompanied by the following particulars —
the name, place and date of birth or, if the date of birth is not known, the approximate age of the prisoner;
a certified copy of the judgment or other order of the court, together with a copy of the law on which it is based or a statement of that law;
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a statement of the facts and circumstances upon which the conviction and sentence or other order was based;
where appropriate, any medical or other report pertaining to the prisoner, including a report of his treatment in the designated country together with any recommendation for further treatment in
Brunei Darussalam;
a document or statement indicating that the prisoner is a citizen of, is ordinarily resident in, or has close ties with,
Brunei Darussalam;
a copy of the relevant law of the designated country which provides that the acts on account of which the sentence has been imposed in the designated country constitute a criminal offence according to the law of the designated country, or would constitute a criminal offence if committed on its territory; and
any other information which the Minister may require to enable him to consider the desirability of a transfer.
The Minister shall cause the prisoner to be informed in writing of any action taken on a request for transfer.
Revocation of warrant
Where it appears to the Minister that, in order to give effect to any agreement which has been, or is deemed to have been, entered into with a foreign State, it is necessary that a warrant issued under this Act be revoked or varied, he may —
revoke the warrant and issue a new warrant under this Act containing provisions superseding any provision of the previous warrant.
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A warrant issued in accordance with subsection (1)(b) may provide that —
a provision contained in it is to be treated as having taken effect when the provision which that provision supersedes took effect;
anything done under or for the purposes of the superseded provision is to be treated as having been done under or for the purposes of the provision contained in the new warrant.
Effect of transfer
Where a prisoner is transferred to Brunei Darussalam, a conviction and sentence recorded by the court in the designated country from which he was transferred shall, subject to subsection (2), be deemed for all purposes to be a conviction recorded and a sentence imposed by a court of competent jurisdiction in Brunei Darussalam.
Subject to subsection (3), the conviction of, and the sentence imposed upon, a transferred prisoner shall not be subject to any appeal or to any form of review in Brunei Darussalam.
Where a sentence imposed upon a transferred prisoner is by its nature or duration, incompatible with the laws of Brunei Darussalam, he may apply to the High Court for a variation of the sentence to accord with the laws of Brunei Darussalam, and the Court may, after hearing the application, grant such relief as it considers appropriate having regard to all the circumstances.
The proceedings in subsection (3) shall be in chambers and the
Public Prosecutor may appear with leave of court.
Where the Court decides to vary the sentence imposed —
it shall be bound by the findings of fact as they appear from the judgment imposed in the designated country;
it shall not convert a sanction involving deprivation of liberty to a pecuniary sanction;
it shall deduct the full period of deprivation of liberty served by the prisoner;
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it shall not be bound by any minimum term of imprisonment which the law of Brunei Darussalam provides for the offence or offences committed.
Documentary proof
A certified copy of a judgment or other order referred to in section 6(10)(c) shall —
have effect as if it were a judgment or other order of a court of competent jurisdiction in Brunei Darussalam.
Any document required under this Act to be certified shall, if that document purports to be certified or signed by a judicial officer or authority or by the person in charge of any penal institution in the country in which the prisoner was detained, and without proof of the signature or the official character of the person by whom it purports to be signed or certified, be accepted as evidence of the facts stated therein, unless the contrary is proved.
A document referred to in this section shall, when accepted —
be treated as though it was duly certified or signed in relation to a person convicted and sentenced in Brunei Darussalam; and
Detention of transferred prisoners
Subject to this section, a transferred prisoner shall be detained in a prison or such other institution as the Minister may direct for the unexpired portion of his sentence.
A transferred prisoner who is a child or young person within the meaning of the Children and Young Persons Act (Chapter 219) shall be dealt with as his age dictates in accordance with subsection (3).
A prisoner to whom subsection (2) applies shall, pursuant to a warrant in Form 3 in the Schedule issued under the hand of the Minister, be produced before the court having jurisdiction to try an offence of a similar
International Transfer of Prisoners 14
nature to that for which he has been convicted, and that court shall sentence him —
with regard to any observations made by the convicting court in passing sentence; and
A transferred prisoner referred to in section 6(9) shall be detained or confined in accordance with the law of Brunei Darussalam relating to such offenders.
A transferred prisoner undergoing a term of imprisonment shall —
be credited with any remission of that term to which he had become entitled at the date of his transfer in accordance with the law relating to remission of prison sentences in the designated country; and
thereafter be eligible to earn remission of that term as if he had been sentenced to a term of imprisonment of the same length by a court in Brunei Darussalam.
Any remission of imprisonment referred to in subsection (5)(a)
is liable to forfeiture for a disciplinary offence as if it were remission earned by virtue of subsection (5)(b).
Parole and pardon
Where a transferred prisoner has, before his transfer, been released on parole in the designated country in which he was convicted and sentenced, and that parole was subsequently revoked, the time spent on parole shall count towards the completion of his sentence in
Brunei Darussalam.
Nothing in this Act shall be so construed as to limit His Majesty the Sultan and Yang Di-Pertuan’s prerogative of mercy provided for in
Article 9 of the Constitution of Brunei Darussalam.
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Where the prerogative of mercy has been exercised in a designated country in respect of a transferred prisoner, any pardon granted pursuant thereto shall, to the extent to which that prerogative is exercised, have effect as if it were a pardon granted by His Majesty the Sultan and Yang
Di-Pertuan to the transferred prisoner in terms of Article 9 of the
Constitution of Brunei Darussalam.
Part
Foreign prisoners
In this Part, “foreign prisoner” means a prisoner who —
is a citizen of, is ordinarily resident in or appears to the
Minister to have close ties with, a designated country;
a term of imprisonment of which the unexpired portion at the time of the application for transfer is made under section 13(2) is not less than 6 months (including period of remission); or
has not been convicted and sentenced for an offence against
His Majesty the Sultan and Yang Di-Pertuan, His Successors,
His Consort or other members of the Royal Family.
Transfer of foreign prisoners from Brunei Darussalam
Where an agreement between Brunei Darussalam and a designated country has been, or is deemed to have been, entered into for the transfer of foreign prisoners, the Director of Prisons shall cause every foreign prisoner to be informed in a language which he understands of the purport of the agreement.
A foreign prisoner undergoing a sentence of imprisonment in
Brunei Darussalam may apply in writing to the Director of Prisons to be transferred to a designated country.
International Transfer of Prisoners 16
The Minister shall, where he agrees to the transfer, cause to be sent to the responsible authority of the designated country —
the name, place and date of birth or, if the date of birth is not known, the approximate age of the prisoner;
a certified copy of the judgment or other order of the court, together with a copy of the law on which it is based or a statement of that law;
a statement of the facts and circumstances upon which the conviction and sentence or other order was based;
where appropriate, any medical or other report pertaining to the foreign prisoner including a report of his treatment in
Brunei Darussalam together with any recommendation for further treatment in the designated country;
a document or statement indicating that the prisoner is a citizen of, is ordinarily resident in, or has close ties with, the designated country;
a statement indicating the term of the sentence which has already been served, including information on any pre-trial detention, remission and any other factor relevant to the enforcement of the sentence;
Where the designated country agrees to the transfer, the Minister shall issue a warrant in Form 4 in the Schedule authorising the transfer.
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Where a responsible authority makes a request in writing to the
Minister for the transfer of a foreign prisoner to a designated country, the
Minister shall —
direct the Director of Prisons to ascertain whether the foreign prisoner consents to the transfer and, if so, whether he does so voluntarily and with full knowledge of the legal consequences thereof;
particulars and documents of the kind set out in subsection (3);
where he agrees to the transfer, issue a warrant in Form 4 of the Schedule authorising the transfer.
A warrant issued under subsection (4) or (5) shall authorise the taking of the foreign prisoner from his place of detention to a place of departure in Brunei Darussalam and his delivery at that place into the custody of the responsible authority of the country to which the foreign prisoner is to be transferred.
The Director of Prisons shall cause the foreign prisoner to be informed in writing of any action taken on a request for transfer.
Part
Prisoners in lawful custody during transfer
Where a prisoner is being transferred to or from
Brunei Darussalam under this Act, he is deemed to be in the lawful custody of the person duly authorised to accompany him during such transfer.
Where a prisoner referred to in subsection (1) escapes from such lawful custody, he may be arrested in any part of Brunei Darussalam in the same manner as a person escaping from custody under a warrant issued for his arrest in Brunei Darussalam.
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Termination of sentence
Where a prisoner is serving a sentence in Brunei Darussalam consequent upon his transfer thereto under this Act, and the Minister is satisfied that the designated country from which he has been transferred has exercised the power of pardon or any other power which renders the sentence no longer enforceable in that country, or that the sentence has been completed, the prisoner shall no longer be subject to detention by reason only of that sentence.
Where a prisoner is serving a sentence in a designated country consequent upon his transfer from Brunei Darussalam under this Act, and the power of pardon or any other power which renders the sentence no longer enforceable in Brunei Darussalam has been exercised, or the sentence has been completed, the Minister shall forthwith inform the designated country to which the prisoner was transferred that he is no longer subject to detention by reason only of that sentence.
Cost of transfer of prisoners
Subject to this section, the cost of the transfer of a prisoner under this Act shall be met by Brunei Darussalam and by the designated country in such proportion as may be agreed upon by them and shall, in the case of
Brunei Darussalam, be paid from the Consolidated Fund.
Subject to subsection (4), in the case of a transfer of a prisoner to
Brunei Darussalam, the expenses of such transfer shall be borne by such prisoner or by someone on his behalf, and for this purpose the Minister shall have the power to require a person with or without a surety to give an undertaking to pay the expenses to the Minister.
Any expenses referred to in subsection (2) shall be regarded as a civil debt owed to the Government.
Subsection (2) does not apply where it appears to the Minister that it would be unreasonable for him to exercise the power conferred by that subsection because —
the means of such prisoner are insufficient to meet the expenses, and their recovery, whether immediately or at some future time, from such prisoner or from any other source, is impracticable.
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Transit
Where —
a designated country has agreed with a third country to transfer a prisoner into or out of its territory pursuant to an arrangement relating to the transfer of convicted prisoners; and
that country seeks permission for the prisoner and any escorting officer to land and transit in Brunei Darussalam during the course of the transfer, the Minister shall, subject to subsection (2), issue his authority for the transit in Form 5 of the Schedule.
The Minister may refuse to issue an authority for transit where —
the offence for which the sentence was imposed is not an offence under the law of Brunei Darussalam; or
the person being transferred is wanted in Brunei Darussalam in respect of any offence against the law of Brunei Darussalam.
An authority issued under subsection (1) shall authorise the holding of the prisoner in custody in Brunei Darussalam for such time as is reasonably necessary to facilitate the transfer between the requesting country and the country of destination.
A person who is being transferred pursuant to an authority issued under subsection (1) shall not, while in Brunei Darussalam, be detained or otherwise subjected to any restriction on his liberty in respect of an offence committed or sentence imposed prior to his departure from the sentencing country.
Regulations
The Minister may, with the approval of His Majesty the Sultan and
Yang Di-Pertuan, make regulations which are necessary or expedient for giving effect to and carrying out the provisions of this Act, including the prescription of fees and of any other thing required to be or which may be prescribed under this Act, and for the due administration thereof.
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FORM 1
(section 6(3)(b))
WARRANT FOR CUSTODY OF PRISONER UPON REQUEST
To : The Director of Prisons
Pursuant to a request for transfer under section 6(1) of the International
Transfer of Prisoners Act made by ................................................................
(name of designated country), I have agreed to the transfer of .....................
(name of person) to Brunei Darussalam;
......................................... (name of designated country) has agreed to arrange for the transfer of ......................................... (name of person) from
.................................................................... (name of designated country) to
Brunei Darussalam;
Upon such transfer, ......................... (name of person) will be brought by such authorised person to ................................................. (Jerudong Prison/
Maraburong Prison) to undergo the remainder of his imprisonment sentence of ............ years and .............................. months; and
.................................................. (name of person) has freely consented to be transferred to Brunei Darussalam.
Now THEREFORE, in exercise of the powers conferred on me by section 6(3)(b) of the
International Transfer of Prisoners Act, I hereby direct you to receive
.................................................................. (name of person) into your custody in
.............................. (name of foreign country) and to convey him in custody to
Brunei Darussalam and there to keep him safely in custody of .............................. to be further dealt with in accordance with the provisions of the International Transfer of
Prisoners Act.
Dated this ........................ day of .........................., 20 ........... .
Minister of Home Affairs
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B.L.R.O. 6/2023 21
FORM 2
(section 6(7))
WARRANT FOR CUSTODY OF PRISONER UPON REQUEST FROM
BRUNEI DARUSSALAM
To : The Director of Prisons
A request for transfer under section 6(7) of the International Transfer of
Prisoners Act, has been made to transfer .......................................................
(name of person), currently a prisoner in .................................................
(name of designated country), to Brunei Darussalam;
Pursuant to such request, ...................................................... (name of designated country) has agreed to arrange for the transfer of
....................................................... (name of person) to Brunei Darussalam for him to undergo the remainder of his imprisonment sentence of .......... years and ............. months in Brunei Darussalam; and
....................................................... (name of person) has freely consented to be transferred to Brunei Darussalam.
Now THEREFORE, in exercise of the powers conferred on me by section 6(5) of the
International Transfer of Prisoners Act, I hereby direct you to receive
.................................................................. (name of person) into your custody in
.............................. (name of foreign country) and to convey him in custody to
Brunei Darussalam and there to keep him safely in custody of .............................. to be further dealt with in accordance with the provisions of the International Transfer of
Prisoners Act.
Dated this ........................ day of .........................., 20 ........... .
Minister of Home Affairs
International Transfer of Prisoners 22
FORM 3
(section 10(3))
WARRANT TO PRODUCE
To : The Director of Prisons
Pursuant to an application for transfer under section 6(1) of the
International Transfer of Prisoners Act / a request for transfer under section 6(1)
of the
International
Transfer of
Prisoners
Act
(delete as applicable), made by .....................................................................
(name of designated country), I have agreed to the transfer of .....................
(name of person) to Brunei Darussalam;
........................................... (name of person) has freely consented to be transferred to Brunei Darussalam;
Upon such transfer, ............................ (name of person) has been in the custody of Jerudong Prison/Maraburong Prison (delete as applicable)
since ............................ (date when prisoner was taken into custody).
Now THEREFORE, in exercise of the powers conferred on me by section 10(3) of the
International Transfer of Prisoners Act, I hereby direct you to produce
.................................................................. (name of person) before a court having jurisdiction to be dealt with in accordance with the provisions of .................
[insert section of relevant law] ................... .
Dated this ........................ day of .........................., 20 ........... .
Minister of Home Affairs
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B.L.R.O. 6/2023 23
FORM 4
(section 13(4))
WARRANT FOR TRANSFER OF FOREIGN PRISONER FROM
BRUNEI DARUSSALAM UPON APPLICATION OR REQUEST
To : The Director of Prisons
Pursuant to an application for transfer made under section 13(2) of the
International Transfer of Prisoners Act / request for transfer made under section 13(5)
of the
International
Transfer of
Prisoners
Act
(delete as applicable) to transfer ...................................................................
(name of person) currently a prisoner in Brunei Darussalam, to ..................................... (name of designated country);
........................................... (name of designated country) has agreed to arrange for the transfer of ........................................... (name of person)
to .................................................. (name of designated country) from
Brunei Darussalam for him to undergo the remainder of his imprisonment term of ................ years and .................. months; and
.................................................. (name of person) has freely consented to be transferred to ................................................ (name of designated country making request for transfer).
Now THEREFORE, in exercise of the powers conferred on me by section 13(4) of the
International Transfer of Prisoners Act, I hereby authorise the transfer and direct you to take ...................... (name of person) from ............................................. (name of place of detention) to ......................................... (place of departure) into the custody of the responsible authority of the ............................................... (name of designated country).
Dated this ........................ day of .........................., 20 ........... .
Minister of Home Affairs
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FORM 5
(section 17(1))
AUTHORITY FOR TRANSIT OF TRANSFERRED PRISONER
To : The Director of Prisons
Pursuant to an application for transfer made by
................................................ (name of designated country making request for transfer) to transfer ................................................ (name of person)
currently a prisoner in ..................................... (name of country having custody of prisoner), to ................................................. (name of country making the request for transfer);
................................. (name of designated country having custody of prisoner) has agreed to arrange for the transfer of .................................
................................................................................. (name of person) to
.......................................... (name of designated country making request for transfer);
.................................................. (name of person) has freely consented to be transferred to ............................................. (name of designated country making request for transfer); and
....................................................... (name of country having custody of prisoner) has sought permission for .............................................................
(name of person) and an authorised escorting officer to land and transit in
Brunei Darussalam during the course of the transfer.
Now THEREFORE, in exercise of the powers conferred on me by section 17 of the
International Transfer of Prisoners Act, I hereby authorise the transit and direct you to receive ....................................................... (name of person) into your custody in
....................................................................... Jerudong Prison / Maraburong Prison
(delete as applicable) for such time as is reasonably necessary to facilitate the transfer between ....................................................... (name of designated country having custody of prisoner) and ........................................................................ (name of designated country making the request for transfer).
Dated this ........................ day of .........................., 20 ........... .
Minister of Home Affairs
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