ORDER 94
SECURITIES AND FUTURES ACT CIVIL PENALTY ACTIONS
1.
—(1) In this Order —
“Act” means the Securities and Futures Act (Chapter 289) and any reference to a section shall be construed as a reference to a section in the Act;
“Authority” means the Monetary Authority of Singapore established under section 3 of the Monetary Authority of Singapore Act (Chapter 186);
“civil penalty action” means any proceedings commenced by the Authority under section 232.
(2) These Rules apply to proceedings under section 232, subject to the following Rules of this Order.
2.
—(1) A civil penalty action shall be commenced by writ.
(2) Order 6 (other than Rule 2) shall apply to a civil penalty action unless modified by this Rule.
(3) The Authority shall endorse on the writ —
(a)
a statement of the provision of the Act contravened by the defendant;
(b)
the address of the Authority or, if the Authority sues by a solicitor, the Authority’s address and the solicitor’s name or firm and a business address of the solicitor;
(c)
where a defendant is sued in a representative capacity, a statement of the capacity in which he is sued;
(d)
the number of days within which an appearance is required to be entered under Order 12, Rule 4; and
(e)
a statement of claim or, if the statement of claim is not endorsed on the writ, a concise statement of the nature of the claim made or the relief or remedy required in the action.
(4) The address for service of the Authority shall be —
(a)
where the Authority sues by a solicitor, the business address of the solicitor endorsed on the writ; or
(b)
where the Authority sues in person, the address within the jurisdiction endorsed on the writ.
(5) The Authority must, on presenting the writ for sealing, file with the Registrar the consent of the Public Prosecutor referred to in section 232 (1).
3. Order 18 (other than Rules 8(2), 12(1A) to (1C), 16 and 23) shall apply to the pleadings in a civil penalty action.
4.
—(1) Where the Authority has not applied for any order apart from an order for a civil penalty against the defendant in respect of the same contravention of the Act, then, if the defendant fails to enter an appearance, the Authority may, after the time limited for appearing and —
(a)
upon filing an affidavit proving due service of the writ on the defendant; and
(b)
(where the statement of claim was not endorsed on or served with the writ) upon serving a statement of claim on him,
apply to the Court for judgment against him; and upon hearing the application the Court shall give such judgment as the Authority appears entitled to.
(2) An application under paragraph (1) shall be by summons.
(3) Where the Authority has applied for any other order in addition to an order for a civil penalty against the defendant in respect of the same contravention of the Act, then, if the defendant fails to enter an appearance, the Authority may, after the time limited for appearing and —
(a)
upon filing an affidavit proving due service of the writ on the defendant; and
(b)
(where the statement of claim was not endorsed on or served with the writ) upon serving a statement of claim on him,
proceed with the civil penalty action as if he had entered an appearance.
(4) Where, by reason of any defendant’s satisfying the claim or complying with the demands thereof or for any other like reason it has become unnecessary for the Authority to proceed with the civil penalty action, then, if the defendant fails to enter an appearance, the Authority may, after the time limited for appearing, enter judgment with the leave of the Court against that defendant for costs.
(5) An application for leave under paragraph (4) shall be by summons which must, unless the Court otherwise orders, and notwithstanding anything in Order 62, Rule 10, be served on the defendant against whom it is sought to enter judgment.
(6) Order 13 shall not apply to a civil penalty action other than Rules 7 and 8 of that Order.
5.
—(1) If the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the Authority, the Authority may, after the expiration of the period fixed under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application, the Court shall give such judgment as the Authority appears entitled to.
(2) Where the Authority brings a civil penalty action against more than one defendant, then, if one of the defendants makes default as mentioned in paragraph (1), the Authority may —
(a)
if the claim against the defendant in default is severable from the claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or
(b)
set down the action for judgment against the defendant in default at the time when the action is set down for trial, or is set down for judgment, against the other defendants.
(3) An application under paragraph (1) shall be by summons.
(4) Order 19 shall not apply to a civil penalty action other than Rules 1, 8 and 9 of that Order.
7.
—(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, Rule 9) shall not be issued without the leave of Court.
(2) An application for the grant of such leave must be made by summons in Form 18 and the summons must be served on the Authority.
8.
—(1) Subject to the provisions of this Rule, Order 24 (other than Rule 18) shall apply to a civil penalty action.
(2) Subject to the provisions of this Rule, the Authority may in a civil penalty action be required by the Court to give discovery of documents or produce documents for inspection.
(3) Any order of the Court made under Order 24 shall be construed as not requiring the disclosure of any document the withholding of which is authorised or required under any written law or rule of law on the ground that its disclosure would be injurious to the public interest.
(4) Where an order of the Court made under Order 24 directs that a list of documents made in answer to an order for discovery against the Authority be verified by affidavit, the affidavit shall be made by such officer of the Authority as may be authorised.
(5) The Authority may be ordered to give discovery of or produce for inspection under Order 24 the following documents which are or have been in the Authority’s possession, custody or power as a result of the performance or exercise by the Authority of any of its functions, duties or powers under the Act:
(a)
any book voluntarily produced by the defendant to the Authority;
(b)
any book produced by or seized from any person pursuant to section 163 or 164;
(c)
any acknowledgement of receipt issued by the Authority for any book referred to in paragraphs (a) and (b);
(d)
any correspondence between the Authority or its solicitors and the defendant, his agents or his solicitors;
(e)
any examination requirement served on the defendant pursuant to section 154;
(f)
any production requirement served on the defendant pursuant to section 163;
(g)
any warrant issued in respect of the defendant’s premises pursuant to section 164;
(h)
any written record made pursuant to section 158 of statements made by the defendant to the Authority;
(i)
trading information relating to the defendant’s trading activities which the Authority relies on or will rely on in the civil penalty action, in the form relied on or to be relied on (whether printed, written, graphical, pictorial, electronic or in any other form);
(j)
any other document which the Authority relies on or will rely on in the civil penalty action.
(6) The Authority may not be ordered to give discovery of or produce for inspection under Order 24 any document apart from those listed in paragraph (5) unless the Court is of the opinion that there are strong and exceptional grounds to order the Authority to give discovery of or produce for inspection such document, except that no order shall be made in respect of a document falling within any of the following descriptions:
(a)
documents which are or have been in the Authority’s possession, custody or power as a result of the performance or exercise by the Authority of any of its supervisory functions, duties or powers under any written law other than the Act;
(b)
complaints or requests received by the Authority to investigate or provide assistance on possible or alleged contravention of the Act, or any other documents received by the Authority of a similar nature;
(c)
the Authority’s internal books;
(d)
any correspondence between the Authority and the Government or any statutory body, or any document received by the Authority from or copy of any document sent by the Authority to the Government or any statutory body;
(e)
any correspondence between the Authority and —
(i)
any overseas regulatory authority;
(ii)
any securities exchange, futures exchange or clearing house; or
(iii)
the complainant.
(7) Nothing in paragraph (6) shall affect the operation of the Evidence Act (Chapter 97).
(8) In this Rule, “book” has the same meaning as in section 2 (1).
9. Order 25 (other than Rules 1A and 8) shall apply to a civil penalty action.
10.
—(1) Subject to the provisions of this Rule, Order 26 (other than Rule 3(3)) shall apply to a civil penalty action.
(2) Interrogatories without order shall not be served on the Authority.
(3) Subject to the provisions of this Rule, the Authority may in a civil penalty action be required by the Court to answer interrogatories.
(4) Paragraph (3) is without prejudice to any written law or rule of law which authorises or requires the refusal to answer any question on the ground that the answering of the question would be injurious to the public interest.
(5) Any order of the Court made under Order 26 shall be construed as not requiring the disclosure of any document the withholding of which is authorised or required under any written law or rule of law on the ground that its disclosure would be injurious to the public interest.
(6) Where an order of the Court made under Order 26 directs that interrogatories be answered by the Authority, the interrogatories shall be answered by such officer of the Authority as the Court may direct.
(7) Order 26A shall not apply to a civil penalty action.
12. Where an order is sought under section 232 (4), the Authority shall file the consent of the Public Prosecutor referred to in that provision.
13. Notwithstanding anything in Order 59, no order shall be made for the costs of a defendant to be paid by the Authority where the Authority discontinues a civil penalty action or withdraws all claims made against the defendant in a civil penalty action on the ground of the death or the bankruptcy or winding up of the defendant, or the commencement of bankruptcy or winding up proceedings against the defendant, after the commencement of the civil penalty action.