Confiscation Orders under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act

The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A) (the “CDSA”) is a statute under which the Singapore High Court is conferred with the power to make certain confiscation orders. These confiscation orders include restraint orders to prohibit persons from dealing with realisable property and charging orders on realisable property to secure the payment to the Government.

While the powers under the CDSA are perhaps less often utilized than the police powers of seizure under the Criminal Procedure Code (Cap 68) (the “CPC”), they have been dealt with in a recent High Court decision, Public Prosecutor v Rajendar Prasad Rai [2017] SGHC 132.

In this case, the Public Prosecutor had applied for several orders, including:

  • Restraining orders against the Defendant and his wife to prohibit them from dealing with monies exceeding S$500,000 held in 3 bank accounts; and
  • Charging orders to be imposed on 4 private properties owned by the Defendant and his wife.

Straits Law’s N. Sreenivasan S.C., assisted by Jason Lim, represented the Defendant.

 

Background to the Application

The CDSA application made by the Prosecution was not their first attempt to seize the property of the Defendant. The Defendant is currently facing charges under section 5(b)(i) of the Prevention of Corruption Act (Cap 241). Around the time that the Defendant was charged, his and his wife’s property had been seized by the police pursuant to section 35 of the CPC, which allows for seizure of the following:

  • Property in respect of which an offence is suspected to have been committed;
  • Property which is suspected to have been used or intended to be used to commit an offence; or
  • Property which is suspected to constitute evidence of an offence.

The Defendant and his wife challenged the seizure of their property as being wrongful. After failing to succeed before the Magistrate in the State Courts, the Defendant and his wife filed Criminal Motions No. 71 and No. 72 of 2016, which were heard by the Honourable Chief Justice Sundaresh Menon in the High Court earlier this year.

Upon hearing parties, Menon CJ found in favour of the Defendant and his wife. In his written Grounds of Decision, the Chief Justice stated that the Magistrate’s Order suffered from “significant irregularities” and that “the threshold of “serious injustice”” had been crossed, such that the Magistrate’s Order should be set aside (see Rajendar Prasad Rai and another v Public Prosecutor and another matter [2017] SGHC 49). Ultimately, the Defendant’s and his wife’s seized property had to be released.

 

The CDSA Application

The Chief Justice’s decision was made on 13 March 2017. On 16 March 2017, the Prosecution filed their application under the CDSA by way of an Originating Summons, which was heard inter partes before the Honourable Justice Lai Siu Chiu.

According to section 15 of the CDSA, the High Court may make a restraint order or a charging order where:

  • Proceedings have been instituted against the defendant for a drug dealing offence or a serious offence, as the case may be;
  • The proceedings have not been concluded; and
  • The Court is satisfied that there is reasonable cause to believe that benefits have been derived by the defendant from drug dealing or from criminal conduct, as the case may be.

The distinction between seizure of property under the CPC and under the CDSA is clear from the above. While the CPC requires that the property in question must be somehow connected to the alleged offences, under the CDSA it is enough to show reasonable cause that the property has been derived from criminal conduct. Indeed, Justice Lai noted that the powers under the CDSA are “very wide indeed and do not have the restrictions contained in s 35(1) of the CPC”.

Along the same vein, the Prosecution argued that to show reasonable cause, it was enough to show that the Defendant had accumulated a disproportionate amount of unexplained wealth, which was likely to be derived from criminal activities. The Prosecution attempted to do this by way of a “concealed income analysis report”. The Defendant contested this method of showing unexplained wealth, arguing that it was a flawed analysis and was insufficient to show reasonable cause that the property was derived from criminal conduct.

In arriving at her decision, the Honourable Justice Lai found that while there were discrepancies in the “concealed income analysis report”, the State did have “indirect proof” that the Defendant had disproportionate wealth likely to be derived from criminal conduct. As such, she granted the restraint orders and charging orders that the Prosecution had applied for (with some variations).

However, Justice Lai also made it clear that the orders made were only temporary measures until the State was ready to proffer charges against the Defendant under the CDSA, and that this should be done promptly.

The Honourable Justice Lai’s decision has been appealed by the Defendant and will go before the Court of Appeal on a date yet to be fixed.

If you have any queries pertaining to this article, please feel free to contact Mr N. Sreenivasan S.C. at sreeni@straitslaw.com.sg or Mr Jason Lim at jasonlim@straitslaw.com.sg, or the Straits Law Director who usually attends to your matters.