SINGAPORE Law and Practice Contributed by: Jason Lim, Sreenivasan Narayanan SC and Palaniappan Sundararaj, Sreenivasan Chambers LLC
inclusion of gifts in this definition prevents the dissipa - tion of value by the defendants through gifts made to his associates. The CDSA empowers the Court to impose restraint orders. The High Court may issue restraint orders prohibiting dealings with “realisable property” where there is reasonable cause to believe benefits have been derived and proceedings have commenced. Judicially appointed receivers can take possession and manage or deal with the property. On the conviction of an accused person, the High Court may make a confiscation order. Under Section 20 of the CDSA, upon application by the Public Prosecutor, the High Court also has the power to make a charging order on realisable prop - erty for securing payment to the government where a confiscation order has not been made. Charging orders may be made over land or securities, receiv - ers can be appointed and the court can order sale and application of proceeds towards the quantified recoverable amount. Procedure Confiscation is brought in the General Division of the High Court, upon application by the Public Prosecu - tion. It proceeds on affidavit evidence. In practice, the Public Prosecutor tenders a sworn financial analysis (frequently using a “concealed income” methodology) as a “statement” under Section 9 of the CDSA, set - ting out the benefit assessment and the defendant’s known income; the court may then issue a certificate under Section 10 (2) stating the amount that might be realised at the date of the order. Sections 4 (4) and 5 (6) of the CDSA provide that where a person holds any property that is dispropor - tionate to their known sources of income, the holding of which cannot be explained to the satisfaction of the court, such property shall be presumed to have derived benefits from criminal conduct. Quantification is value based. The court assesses the value of “benefits derived”, including any income accruing, and then determines the “amount to be recovered” as either that value or, where the immedi -
ately realisable property is less, the amount that might then be realised. The certificate under Section 10 (2) of the CDSA is the mechanism to record the latter finding. The High Court has routinely coupled the con - fiscation order with specific realisation directions and, where appropriate, liberty to apply for supplementary orders if further assets become available thereafter. Enforcement and Consequences of Non-Payment The CDSA does not provide for interest to accrue on unpaid confiscation amounts or for automatic default imprisonment upon non-payment. There are two limiting mechanisms that deal with the scenario where assets are insufficient. Firstly, the recoverable amount is capped at the amount of assets that might be realised at the time of the confiscation order. This ensures the order does not over-extend beyond the presently available pool of assets. Secondly, the CDSA contemplates further applications where new assets are identified. This ensures that recovery can be increased if more prop - erty is discovered. Treatment of Gains/Profits on Invested Proceeds Civil recovery or asset tracing proceedings can run in parallel with criminal cases. The CDSA allows for the recovery any profits, gains or income accruing on the benefits of criminal conduct. The statutory definition of “benefits derived” include “income accruing from such property or interest”, and the court applies these definitions when quantifying the benefits figure that it orders the defendant to pay. In practice, this means that profits, interest including compound interest and dividends can constitute the benefit from criminal conduct. 6.4 Victim Compensation and Asset Recovery Section 359 of the Criminal Procedure Code 2010 states that a court may, after the conviction of an offender, consider compensation to any of the victims of the offence. Quite apart from this, the court can order the return of any seized assets and case exhibits to their rightful owners, after criminal proceedings are concluded.
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