SINGAPORE Trends and Developments Contributed by: Sreenivasan Narayanan SC, Jason Lim and Palaniappan Sundararaj, Sreenivasan Chambers LLC
transaction reporting and record-keeping require - ments on the private sector. Section 35 of the CPC Key observations include the following. Section 35 (1) empowers any police officer to seize any property which is alleged or suspected to have been stolen, or which is found under circumstances that create suspicion of the commission of any offence. Property that may be seized includes: (i) property in respect of which an offence is suspected to have been committed; (ii) property that is suspected to have been used in the commission of an offence; and (iii) property that constitutes evidence of an offence. A critical limitation of Section 35 was articulated by the High Court in Rajendar Prasad Rai v Public Prose- cutor [2017] SGHC 49. In that case, the court held that Section 35 (1)(a) covers only the traceable proceeds of an identifiable crime; it does not extend to the seizure of unexplained wealth. This is an important distinction: where the authorities cannot link specific assets to a specific predicate offence, Section 35 alone will not suffice. As we discuss below, this gap is addressed by the CDSA, which takes a broader approach to the confiscation of criminal benefits. Once property has been seized, the seizing author - ity must report the seizure to the court. There is a one-year “long-stop” period after which continued seizure requires fresh judicial authorisation. Impor - tantly, the Court of Appeal held in Mustafa Ahunbay v Public Prosecutor [2013] SGHC 188 that the court’s role under Section 370 is not merely a rubber stamp; the court must be “satisfied” that continued seizure is justified, and this entails genuine judicial scrutiny. This is a point of considerable practical significance. The upshot is that the timing of an application to lift or challenge a seizure should be carefully considered. An application brought too early, before the one-year long-stop has expired, may face a lower threshold of justification in the Prosecution’s favour. Conversely, waiting for the Section 370 reporting stage may give the affected person a stronger platform to argue that continued seizure is no longer warranted.
Sections 35 (7) and 35 (8) of the CPC provide a mecha - nism to apply for the release of seized property where it is needed for basic living expenses, the payment of legal fees, or the continued operation of a business. These provisions recognize that a blanket freeze may cause disproportionate hardship, particularly where a person has not been charged with any offence. The Court of Appeal in Mustafa Ahunbay confirmed that persons with a legitimate interest in the seized property have a right to be heard at the Section 370 hearing. Affected persons may also invoke the High Court’s revisionary jurisdiction to challenge a Magis - trate’s decision to authorise continued seizure. Seized property may also be released where the affected person demonstrates that the property is unconnected to the offence under investigation, or where the investigations or criminal proceedings have been completed and there is no longer any basis for continued seizure. In practice, assembling the evi - dence to support such an application requires prompt and careful preparation, including the gathering of documentary records tracing the provenance of the assets in question. The CDSA The CDSA provides a more powerful suite of tools for restraint upon and confiscation of assets than the CPC provisions. The court in Rajendar Prasad observed that assets which could not be seized under Section 35 of the CPC might nonetheless be ame - nable to proceedings under the CDSA. The reason lies in the CDSA’s fundamentally different approach: whereas Section 35 of the CPC requires a connec - tion between the property and a specific offence, the CDSA targets the “benefits of criminal conduct” more broadly and incorporates statutory presumptions that shift the burden of proof onto the asset owner. Under Sections 4 and 5 of the CDSA, the court may make a confiscation order requiring a defendant to pay a sum equal to the value of the benefits derived from criminal conduct. Sections 18 and 19 empow - er the court to make restraint orders over realisable property to preserve assets pending the determina - tion of confiscation proceedings. A restraint order under the CDSA prohibits any person from dealing
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