On 20/06/2013,
you requested for the version in force on 20/06/2013
incorporating all amendments published on or before 20/06/2013.
The closest version currently available is that of 17/01/2011.
Confiscation of benefits of offence under section 23
23A.
—(1) Where a defendant is convicted of any offence under section 23(1)(a) or (b), the court shall, on the application of the Public Prosecutor, make a confiscation order against the defendant in respect of benefits derived by him from the commission of the offence if the court is satisfied that such benefits have been so derived.
[9/2006]
(2) Where the court is satisfied that benefits have been derived by the defendant from the commission of any offence under section 23(1)(a) or (b), the court shall, before sentencing or otherwise dealing with him in respect of the offence concerned, determine in accordance with subsections (4) to (8) the amount to be recovered in his case by virtue of this section.
[9/2006]
(3) Subject to subsection (7), the benefits derived by a defendant from the commission of any offence under section 23(1)(a) or (b) shall be —
(a)
any estate or interest (including any income accruing from such estate or interest) in residential property held in trust by or for the benefit of the defendant in contravention of section 23(1)(a) or (b); or
(b)
where that estate or interest in residential property is disposed of before conviction, the money, or the market value of any property other than money, paid to or received by the defendant, or another person at the request or direction of the defendant, on account of the disposal of the estate or interest in the residential property.
[9/2006]
(4) The amount to be recovered from the defendant under a confiscation order under this section shall be the amount the court assesses to be the value of the benefits derived by the defendant from the commission of any offence under section 23(1)(a) or (b).
[9/2006]
(5) For the purposes of this section —
(a)
the value of the benefits derived by a defendant from the commission of any such offence shall be the aggregate of the properties, estates and interests referred to in subsection (3)(a) or (b), as the case may be, relating to that defendant;
(b)
the value of the estate or interest in residential property referred to in subsection (3)(a) shall be the market value of the estate or interest at the date of conviction or the date of the commission of the offence, whichever is the higher; and
(c)
in calculating the value of benefits derived by a defendant from the commission of any offence under section 23(1)(a) or (b), any expenses or outgoings of the defendant in connection with the commission of the offence shall be disregarded.
[9/2006]
(6) Any question of fact to be decided by a court in proceedings under this section shall be decided on a balance of probabilities.
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(7) A benefit derived by a defendant convicted of any offence under section 23(1)(a) or (b) shall not be taken into account if —
(a)
a confiscation order against the defendant has been imposed in respect of that benefit under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A);
(b)
a confiscation order against the defendant has previously been made under this section and that benefit is shown to the court to have been taken into account in determining the amount to be recovered under that order; or
(c)
a confiscation order against another defendant has previously been made under this section in relation to an offence committed in the same transaction as the offence by the first-mentioned defendant and that benefit, being an estate or interest referred to in subsection (3)(a), is shown to the court to have been taken into account in determining the amount to be recovered under the order against that other defendant.
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(8) Any relevant evidence admitted in the proceedings against the defendant for any offence under section 23(1)(a) or (b) shall, if the court thinks fit, be taken into account in determining the amount to be recovered under subsection (2).
[9/2006]
(9) Subject to subsection (1), where a court orders the defendant to pay any amount under a confiscation order —
(a)
section 319 of the Criminal Procedure Code 2010 shall have effect as if that amount were a fine imposed on him by the court; and
(b)
for the purposes of section 319(1)(b)(iv) of the Criminal Procedure Code 2010, the term for which the court may direct the defendant to be imprisoned in default of payment of any amount under the confiscation order shall be as follows:
(i)
if the amount does not exceed $2 million — imprisonment for a term not exceeding 5 years; and
(ii)
if the amount exceeds $2 million — imprisonment for a term not exceeding 10 years.
[9/2006]
(10) Where —
(a)
a warrant to commit the defendant to prison is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of an offence under section 23(1)(a) or (b); and
(b)
at the time the warrant is issued, the defendant is liable to serve any term of imprisonment in respect of the offence,
the term of imprisonment to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b).
[9/2006]
(11) This section shall not apply in respect of any offence committed before 31st March 2006.
[9/2006]