On 26/05/2013,
you requested for the version in force on 26/05/2013
incorporating all amendments published on or before 26/05/2013.
The closest version currently available is that of 01/05/2013.
ORDER 89A
CORRUPTION, DRUG TRAFFICKING
AND OTHER SERIOUS CRIMES
(CONFISCATION OF BENEFITS) ACT
AND OTHER SERIOUS CRIMES
(CONFISCATION OF BENEFITS) ACT
1.
—(1) In this Order, “Act” means the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) and any reference to a section shall, unless it is otherwise expressly provided, be construed as a reference to a section in the Act.
(2) Expressions used in this Order which are used in the Act have the same meanings in this Order as in the Act.
(3) An application to which this Order applies must be made —
(a)
where an action is pending, by summons in the action; and
(b)
in any other case, by originating summons.
2.
—(1) An application for a confiscation order under section 4(1) or 5(1) must be filed and served with a supporting affidavit which must state —
(a)
the grounds for believing that the defendant has derived benefits from drug trafficking or criminal conduct, as the case may be;
(b)
that the defendant has been convicted of one or more drug trafficking offences or serious offences, as the case may be, (giving particulars of each offence);
(c)
full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property, as the deponent is, to the best of his knowledge, able to provide; and
(d)
the amount to be recovered under the confiscation order.
(2) [Deleted by S 806/2005]
(3) The application shall be entitled in the matter of the defendant, naming him, and in the matter of the Act, and all subsequent documents in the matter shall be so entitled.
(4) Unless the Court otherwise directs, the supporting affidavit may contain statements of information or belief with the sources and grounds thereof.
(5) The application must be filed and served with the supporting affidavit on —
(a)
the defendant;
(b)
any person having any interest in the property to which the application relates; and
(c)
the receiver, where one has been appointed in the matter,
not less than 7 clear days before the date fixed for the hearing of the application.
3.
—(1) An application by the Public Prosecutor for a certificate under section 10(4) or for a variation of a confiscation order under section 10(6) must be filed and served with a supporting affidavit on —
(a)
the defendant;
(b)
any person having any interest in the property to which the application relates; and
(c)
the receiver, where one has been appointed in the matter,
not less than 7 clear days before the date fixed for the hearing of the application.
(2) [Deleted by S 806/2005]
(3) An application by the defendant for a certificate under section 22(1) or for a variation of a confiscation order under section 22(3) must be filed and served with a supporting affidavit on —
(a)
the Public Prosecutor; and
(b)
the receiver, where one has been appointed in the matter,
not less than 7 clear days before the date fixed for the hearing of the application.
(4) [Deleted by S 806/2005]
Protection of rights of third party where confiscation order is about to be made or has been made (O. 89A, r. 4)
4. An application for an order declaring the nature, extent and value of a person’s interest in property under section 13(1) or (3) must be filed and served with a supporting affidavit on —
(a)
the Public Prosecutor;
(b)
the defendant;
(c)
any other person having any interest in the property to which the application relates; and
(d)
the receiver, where one has been appointed in the matter,
not less than 7 clear days before the date fixed for the hearing of the application.
5.
—(1) An application for a restraint order under section 16 or for a charging order under section 17 (to either of which may be joined an application for the appointment of a receiver) must be filed and served with a supporting affidavit which must —
(a)
state the grounds for believing that the defendant has derived benefits from drug trafficking or criminal conduct, as the case may be;
(b)
state, as the case may be —
(i)
that proceedings have been instituted against the defendant for a drug trafficking offence or a serious offence, as the case may be, (giving particulars of the offence) and that they have not been concluded;
(ii)
that the defendant has been officially informed under section 122(6) of the Criminal Procedure Code (Chapter 68) that he may be prosecuted for a drug trafficking offence or a serious offence, as the case may be; and
(iii)
that after investigations for a drug trafficking offence or a serious offence, as the case may be, have been commenced against the defendant, the defendant has died or cannot be found or is outside the jurisdiction;
(c)
contain full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property, as the deponent is, to the best of his knowledge, able to provide; and
(d)
where proceedings have not been instituted, indicate when it is intended that they should be instituted.
(2) [Deleted by S 806/2005]
(3) The application shall be entitled in the matter of the defendant, naming him, and in the matter of the Act, and all subsequent documents in the matter shall be so entitled.
(4) Unless the Court otherwise directs, the supporting affidavit may contain statements of information or belief with the sources and grounds thereof.
6.
—(1) A restraint order may be made subject to conditions and exceptions, including —
(a)
conditions relating to the indemnifying of third parties against expenses incurred in complying with the order; and
(b)
exceptions relating to living expenses and legal expenses of the defendant,
but the Public Prosecutor shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2) Unless the Court otherwise directs, a restraint order made ex parte shall have effect until a day which shall be fixed for the hearing inter partes of the application.
(3) Where a restraint order is made, the Public Prosecutor must —
(a)
unless the Court otherwise provides, serve copies of the order and of the supporting affidavit on the defendant and on all other named persons restrained by the order; and
(b)
notify all other persons or bodies affected by the order of its terms.
(4) Where a charging order is made, the Public Prosecutor must —
(a)
unless the Court otherwise directs, serve copies of the order and supporting affidavit on the defendant and, where property to which the order relates is held by another person, on that person; and
(b)
serve a copy of the order on such of the persons or bodies specified in Order 50, Rule 2(1), as shall be appropriate.
7.
—(1) Any person or body on whom a restraint order or a charging order is served or who is notified of such an order may apply to discharge or vary the order.
(2) The summons and any supporting affidavit must be filed and served on —
(a)
the Public Prosecutor; and
(b)
the defendant where he is not the applicant,
not less than 2 clear days before the date fixed for the hearing of the application.
8.
—(1) Where a restraint order or a charging order has been made, an application may be made by the Public Prosecutor or, where the case is one of urgency, by way of an ex parte application —
(a)
to discharge or vary such order;
(b)
for a restraint order or a charging order in respect of other realisable property; or
(c)
for the appointment of a receiver.
(2) The supporting affidavit must, where the application is for a restraint order or a charging order, contain full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property, as the deponent is, to the best of his knowledge, able to provide.
(3) The application and supporting affidavit must be filed and served on the defendant and, where a receiver has been appointed in the matter, on the receiver, not less than 2 clear days before the date fixed for the hearing of the application.
(4) Rule 6(3) and (4) shall apply to the service of restraint orders and charging orders, respectively, made under this Rule on persons other than the defendant.
9.
—(1) An application for an order under section 19 must be filed and served with a supporting affidavit on —
(a)
the defendant;
(b)
any person having any interest in the realisable property to which the application relates; and
(c)
the receiver, where one has been appointed in the matter,
not less than 7 clear days before the date fixed for the hearing of the application.
(2) [Deleted by S 806/2005]
(3) The supporting affidavit must contain full particulars of the realisable property to which it relates and specify the person or persons holding such property, as the deponent is, to the best of his knowledge able to provide, and a copy of the confiscation order, of any certificate issued by the Court under section 10(2) and of any charging order made in the matter must be exhibited to such affidavit.
(4) The Court may, on an application under section 19, exercise the power conferred by section 20(1) to direct the making of payments by the receiver.
10.
—(1) Subject to this Rule, Order 30, Rules 2 to 6 shall apply where the Public Trustee is appointed as receiver in pursuance of a charging order or under section 16 or 19.
(2) It shall not be necessary for an affidavit of fitness to be sworn or for the Public Trustee to give security, unless the Court otherwise orders.
(3) Where the Public Trustee has fully paid the amount payable under the confiscation order and any sums remain in his hands, he must apply for directions as to the distribution of such sums.
(4) The application must be filed and served with a supporting affidavit on —
(a)
the defendant; and
(b)
any other person who held property realised by the receiver,
not less than 7 clear days before the date fixed for the hearing of the application.
11. An application for an order for compensation under section 50 must be filed and served with an affidavit stating the grounds of the application on —
(a)
the person alleged to be in default; and
(b)
the Public Prosecutor,
not less than 7 clear days before the date fixed for the hearing of the application.
12.
—(1) An application for disclosure of information under section 42 must state the nature of the order sought, specifying the grounds of the application and whether material sought to be disclosed is to be disclosed to a receiver appointed under section 16 or 19 or in pursuance of a charging order or to an authorised officer.
(2) The application and supporting affidavit must be filed and served on the public body —
(a)
not less than 7 clear days before the date fixed for the hearing of the application; and
(b)
where the public body is a Government department, in accordance with Order 73, Rule 3.
(3) The supporting affidavit shall state the grounds for believing that the conditions in section 42(4) and, if appropriate, section 42(7A) are fulfilled.
Investigation into drug trafficking and criminal conduct — discharge and variation of orders (O. 89A, r. 13)
13.
—(1) An application for a production order under section 30 must be supported by affidavit and may be made ex parte.
(2) An application under section 34 for a warrant in Form 210 may be made ex parte.
(3) Where an order under section 30 has been made, the person required to comply with the order may apply to the Court for the order to be discharged or varied, and on hearing such an application the Court may discharge the order or make such variations to it as the Court thinks fit.
(4) Subject to paragraph (5), where a person proposes to file an application under paragraph (3) for the discharge or variation of an order, he shall serve a copy of the application, not later than 2 clear days before the filing of the application, on the authorised officer by whom the application for an order was made, or if such officer is not known or cannot be found, on another authorised officer.
(5) The Court may direct that paragraph (4) need not be complied with if the Court is satisfied that the person making the application has good reason to seek a discharge or variation of the order as soon as possible and it is not practicable to comply with that paragraph.
(6) Notwithstanding Order 60, Rule 4, no person may inspect or take a copy of any document relating to —
(a)
the application referred to in paragraph (1); or
(b)
an application to vary or discharge such an order under paragraph (3),
without the leave of Court.
14.
—(1) An application for a production order against a financial institution under section 31(1) must be supported by affidavit and may be made ex parte.
(2) Notwithstanding Order 60, Rule 4, no person may inspect or take a copy of any document relating to such application without the leave of Court.