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Money Laundering and Proceeds of Crime Act 2002

SOLOMON ISLANDS

THE MONEY LAUNDERING AND PROCEEDS OF CRIME ACT 2002
(NO. 5 OF 2002)

Passed by the National Parliament this fourth day of December 2002:

Assented to in Her Majesty's name and on Her Majesty's behalf this tenth day of March 2003.

Rev. John Ini Lapli
Governor-General

Date of commencement: See Section 1

AN ACT TO enable the unlawful proceeds of all serious crime including drug trafficking to be identified, traced, frozen, seized and eventually confiscated; to establish an Anti-Money Laundering Commission, and to require financial institutions and cash dealers to take prudential measures to help combat money laundering.

ENACTED by the National Parliament of Solomon Islands.

_______________

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY

SECTION:

1. Short title and commencement
2. Interpretation
3. Meaning of charge in relation to a serious offence
4. Meaning of conviction in relation to serious offence
5. Meaning of quashing of convictions
6. Meaning of value of property, etc
7. Meaning of dealing with property
8. Meaning of gift
9. Meaning of deriving a benefit
10. Meaning of benefiting from the proceeds of a serious offence

PART II
MONEY LAUNDERING

11. Anti-Money Laundering Commission and its functions
12. Financial institutions and cash dealers to verify customer's identity
13. Financial institutions and cash dealers to establish and maintain customer records
14. Financial institutions and cash dealers to report suspicious transactions
15. Financial institutions and cash dealers to establish and maintain internal reporting procedures
16. Further preventive measures by financial institutions and cash dealers
17. Money-laundering offences
18. Related offences
19. Seizure and detention of suspicious imports and exports of currency
20. Commission's power to obtain search warrant
21. Property tracking and monitoring orders
22. Orders to enforce compliance with obligations under this Part
23. Secrecy obligations over-ridden
24. Immunity where suspicious transaction reported
25. Immunity where official powers or functions exercised in good faith
26. Restitution of restrained property
27. Damages

PART III
CONFISCATION

Division 1 - Confiscation and Pecuniary Penalty Orders

28. Application for confiscation order or pecuniary penalty order.
29. Notice of application.
30. Amendment of application.
31. Procedure on application.
32. Procedure in rem confiscation order where person dies or absconds.
33. Confiscation order on conviction.
34. Effect or confiscation order.
35. Voidable transfer.
36. Protection of third parties.
37. Discharge of confiscation order on quashing of conviction.
38. Payment instead of a confiscation order.
39. Application of procedure for enforcing fines.
40. Confiscation where a person dies or absconds.

Division 2 - Pecuniary Penalty Orders

41. Pecuniary penalty order on conviction.
42. Rules of determining benefit and assessing value.
43. Statements relating to benefits from commission of serious offences.
44. Amount recovered under pecuniary penalty order.
45. Variation of pecuniary penalty order.
46. Lifting the corporate veil.
47. Enforcing of pecuniary penalty orders.
48. Discharge of pecuniary penalty orders.

Division 3 - Control of Property

49. Powers to search for and seize tainted property.
50. Search warrants in relation to tainted property.
51. Searches in emergencies.
52. Record of property seized.
53. Return of seized property.
54. Search for and seizure of tainted property in relation to foreign offences.

Division 4 - Restraining Orders

55. Application for restraining order.
56. Restraining orders.
57. Undertaking by Solomon Islands.
58. Notice of application for restraining order.
59. Service of restraining order.
60. Registration of restraining order.
61. Contravention of restraining order.
62. Duration of restraining order.
63. Review of restraining orders.
64. Extension of restraining orders.

Division 5 - Realisation of property

65. Realisation of property.
66. Application of proceeds of realisation and other sums.
67. Exercise of powers of Court and receivers.
68. Application of this Part in bankruptcy or winding up.
69. Winding up of company holding realisable property.

Division 6 - Production Orders and Other Information Gathering Powers

70. Production orders.
71. Evidential value of information.
72. Failure to comply with a production order.
73. Production orders in relation to foreign offences.
74. Power to search for and seize documents relevant to locating property.
75. Search warrant for location of documents relevant to locating property.
76. Search warrants in relation to foreign offences.
77. Monitoring orders.
78. Monitoring orders not to be disclosed.
79. Regulation.

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PART I
PRELIMINARY

Short title and commencement

1. This Act may he cited as the Money Laundering and Proceeds of Crime Act, 2002 and shall come into operation on such date as the Minister may appoint by Notice published in the Gazette.

Interpretation

2. (1) In this Act, unless the context otherwise requires-

"account" means any facility or arrangement by which a financial institution or cash dealer does any one or more of the following:-

(i) accepts deposits of currency;

(ii) allows withdrawals of currency or transfers into or out of the Account;

(iii) pays cheques or payment orders drawn on a financial institution or cash dealer by, or collects cheques or payment orders on behalf of, a person;

(iv) supplies a facility or arrangement for a safety deposit box;

"appeal" includes proceedings by way of discharging or setting aside a judgment, and an application for a new trial or for stay of execution;

"authorised officer" means a person designated by the Minister as an authorised officer for the purposes of this Act;

"Cash dealer" means-

(i) a person who carries on a business of an insurer, an insurance intermediary, a securities dealer or a futures broker;

(ii) a person who carries on a business of dealing in billion, of issuing, selling or redeeming travellers' cheques, money orders or, similar instruments or of collecting, holding and delivering cash as part of a business of providing payroll services;

(iii) an operator of a casino or lottery; or

(iv) a trustee, or manager of a unit trust;

"Commission" means the Anti-Money Laundering Commission established under section 11;

"Court" means the High Court of Solomon Islands;

"currency" means the coin and paper money of Solomon Islands or of a foreign country that is designated as legal tender which is customarily used and accepted as a medium of exchange in the country of issue;

"defendant" means a person charged with a serious offence, whether or not he has been convicted of the offence, and includes in the case of proceedings for a restraining order under section 55, a person who is about to be charged with a serious offence;

"document" means any record of information, and includes -

(i) anything on which there is writing;

(ii) anything on which there are marks, figures, symbols, or perforations having meaning for persons qualified to interpret them;

(iii) anything from which sounds, images or writings can be produced, with or without the aid of anything else; or

(iv) a map, plan, drawing, photograph or similar thing;

"financial institution" has the meaning assigned thereto in the Financial Institutions Act;

(Act No. 3 of 1998)

"gift" includes any transfer of property by a person to another person directly or indirectly-

(i) after the commission of a serious crime by the first person;

(ii) for a consideration the value of which is significantly less than the value of the consideration provided by the first person; and

(iii) to the extent of the difference between the market value of the property transferred and the consideration provided by the transferee;

"interest" in relation to property, means-

(i) a legal or equitable estate or interest in the property; or

(ii) a right, power or privilege in connection with the property;

"proceedings" means any procedure conducted by or under the supervision of a judge or judicial officer however described in relation to any alleged or proven offence, or property derived from such offence, includes an inquiry, investigation, or preliminary or final determination of facts;

"proceeds of crime" means any property derived or realised directly or indirectly from a serious offence and includes, on a proportional basis, property into which any property derived or realised directly from the offence was later successively converted, transformed or intermingled, as well as income, capital or other economic gains rived or realised from such property at any time since the offence;

"property" means currency and all other real or personal property of every description, whether situated in Solomon Islands or elsewhere and whether tangible or intangible, and includes an interest in any such property;

"property of or in the possession or control of any person " includes any gift made by that person;

(i) any property held by a defendant; or

(ii) any property held by a person to whom a defendant has directly or indirectly made a gift within the meaning assigned thereto in this Act;

"serious offence" means an offence against a provision of -

(i) any law in Solomon Islands, for which the maximum penalty is imprisonment or other deprivation of liberty for a period of not less than twelve months; or

(ii) a law of a foreign State, in relation to acts or omissions, which had they occurred in Solomon Islands would have constituted an offence for which the maximum penalty is imprisonment or other deprivation of liberty of not less than twelve months;

"unit trust" means any arrangement made for the purpose of having the effect of providing, for a person having funds available for investment, facilities for the participation by the person as a beneficiary under a trust, in any profits or income arising from the acquisition, holding, management or disposal of any property pursuant to the trust.

(2) A reference in this Act to the law of-

(a) Solomon Islands; or

(b) any foreign State,

includes a reference to a written law or unwritten law of, or in force in, any part of Solomon Islands or that foreign State, as the case may be.

Meaning of charge in relation to a serious offence

3. Any reference in this Act to a person being charged or about to be charged with a serious offence is a reference to a procedure, however described, in Solomon Islands or elsewhere, by which criminal proceedings may be commenced.

Meaning of conviction in relation to a serious offence

4. For the purposes of this Act, a person shall be taken to be convicted of a serious offence if the person is convicted, whether summarily or on indictment, for the offence.

Meaning of quashing of convictions

5. For the purposes of this Act, a person's conviction for a serious offence shall be taken to be quashed in any case if the conviction is quashed or set aside.

Meaning of value of property, etc.

6. (1) Subject to subsections (2) and (3), for the purposes of this Act the value of property (other than cash) in relation to any person holding the property is-

(a) its market value, or

(b) where any other person holds an interest in the property-

(i) the market value of the first-mentioned person's beneficial interest in the property; less

(ii) the amount required to discharge any encumbrance (other than a charging order) on that interest.

(2) Subject to section 8(2), references in this Act to the value, at any time referred to in subsection (3) as "the material time", of a gift, or of any payment or reward, are references to

(a) the value of the gift, payment or reward to the recipient when he received it, adjusted to take account of any subsequent changes in the value of money; or

(b) where subsection (3) applies, the value there mentioned,

whichever is the greater.

(3) Subject to section 8(2), if at the material time the recipient holds -

(a) the property which he received (not being cash); or

(b) property which, in whole or part, directly or indirectly represents, in the recipient's hands, the property which he received,

the value referred to in subsection (2)(b) is the value to him at the material time of the property mentioned in subsection (2)(a) or as the case may be, subsection (2)(b) so far as it represents the property which he received, but disregarding in either case any changing order.

Meaning of dealing with property

7. For the purposes of this Act, dealing with property held by any person includes, without prejudice to the generality of the expression -

(a) where the property is a debt owed to that person, making a payment to any person in reduction or full settlement of the amount of the debt;

(b) making or receiving a gift of the property; or

Meaning of gift

8. (1) A transfer of property amounts to a gift within the meaning of this Act if -

(a) it was made by the defendant at any time after the commission of the serious offence, or if more than one, the earliest of the offences, to which the proceedings for the time being relate; and

(b) the Court considers it appropriate in all the circumstances to take the gift into account.

(2) For the purposes of this Act -

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly, for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b) in those circumstances, the provisions of sections 6(2) and (3) shall apply, as if the defendant had made a gift of such proportionate share in the property as the difference between the values referred to in paragraph (a) bears, to the -value of the consideration provided by the defendant.

Meaning of deriving a benefit

9. A reference to a benefit derived or obtained by or otherwise accruing to a person includes a reference to a benefit derived or obtained by, or otherwise accruing to, another person at the request or direction of the first person.

Meaning of benefiting from the proceeds of a serious offence

10. For the purposes of this Act -

(a) a person is deemed to have benefited from an offence if the person has at any time after the commencement of this Act received any payment or other reward in connection with, or derived any pecuniary advantage from, the commission of a serious offence whether committed by that person or another person;

(b) a person's proceeds of a serious offence are-

(i) any payments or other rewards received by the person in connection with; and

(ii) any pecuniary advantage derived by the person at any time from,

the commission of the offence received or derived after the commencement of this Act; and

(c) the value of a person's proceeds of a serious offence is the aggregate of the values of the payments, rewards or pecuniary advantages received by him in connection with, or derived by him from, the commission of the offence.

PART II
MONEY LAUNDERING

Anti-Money Laundering commission and its functions

11. (1) The Anti-Money Laundering Commission shall consist of-

(a) the Attorney-General or his representative as Chairman;

(b) the Commissioner of police or his representative;

(d) the Governor of the Central Bank or his representative; and

(e) such other technical experts appointed by the Minister on the recommendation of the Commission as it deems necessary in dealing with a particular transaction or investigation.

(2) The Commission -

(a) shall receive reports of suspicious transactions issued by financial institutions and cash dealers pursuant to section 14(1);

(b) shall send any such report to the appropriate law enforcement authorities, if having considered the report, the Commission also has reasonable grounds to suspect that the transaction is suspicious;

(c) may enter the premises of any financial institution or cash dealer during ordinary business hours to inspect any record kept pursuant to section 14(1), and ask any question relating to such record, make notes and take copies of the whole or any part of the record;

(d) shall send to the appropriate law enforcement authorities, any information derived from an inspection carried out pursuant to paragraph (c), if it gives the Commission reasonable grounds to suspect that a transaction involves proceeds of crime;

(e) may instruct any financial institution or cash dealer to take such steps as may be appropriate to facilitate any investigation anticipated by the Commission;

(f) may compile statistics and disseminate information within Solomon Islands or elsewhere, make recommendations arising out of any information received, issue guidelines to financial institutions and advise the Minister of Finance;

(g) shall create training requirements and provide such training for any financial institution in respect of transactions record-keeping and reporting obligations provided for in sections 13(1) and 14(1);

(h) may consult with any relevant person, institution or organisation for the purpose of exercising its power or duties under paragraphs (c), (f) or (g);

(i) shall not conduct any investigation into money laundering, other than for the purpose of ensuring compliance by a financial institution with the provisions of this Part.

Financial institutions and cash dealers to verify customer's identity

12. (1) A financial institution reasonable measures to satisfy itself as to applicant seeking to enter into a business relationship with it, or to carry out a transaction or series of transactions applicant to produce an official record establishing the true identity of the applicant, such as a birth certificate, passport or other official means of identification, and in the case of a body corporate, a certificate of incorporation together with a copy of the latest annual return submitted to the Registrar of Companies in terms of the Companies Act.
Cap. 175

(2) Where an applicant requests a financial institution or cash dealer to enter into -

(a) a continuing business; or

(b) in the absence of such a relationship, any transaction,

the institution or cash dealer shall take reasonable measures to establish whether the person is acting on behalf of another person.

(3) If it appears to a financial institution or cash dealer that an applicant requesting it to enter into any transaction, whether or not in the course of a continuing business relationship, is acting on behalf of another person, the institution or cash dealer shall take reasonable measures to establish the true identity of any person on whose behalf or for whose ultimate benefit the applicant may be acting in the proposed transaction, whether as trustee, nominee, agent or otherwise.

(4) In determining what constitutes reasonable measures for the purpose of subsection (1) or (3), regard shall be had to all the circumstances of the case, and in particular as -

(a) to whether the applicant is a person based or incorporated in a country, in which there are in force provisions applicable to it to prevent the use of the financial system for the purpose of money laundering; and

(b) to custom and practice as may from time to time be current in the relevant field of business.

(5) Nothing in this section shall require the production of any evidence of identity where -

(a) the applicant is itself a financial institution or a cash dealer to which this Act applies; or

(b) there is a transaction or a series of transactions taking place in the course of a business relationship, in respect of which the applicant has already produced satisfactory evidence of identity.

Financial institutions and cash dealers to establish and maintain customer records

13. (1) A financial institution or cash dealer shall establish and maintain-

(a) records of all transactions exceeding such amount of currency or its equivalent in foreign currency as may be specified from time to time by the Minister of Finance, carried out by it, in accordance with the requirements of subsection (3); and

(b) where evidence of a person's identity is obtained in accordance with section 12, a record that indicates the nature of the evidence obtained, and which comprises either a copy of the evidence or such information as would enable a copy of it to be obtained.

(2) Customer accounts of a financial institution or cash dealer shall be kept in the true name of the account holder.

(3) Records required under subsection (1)(a) shall contain particulars sufficient to identify -

(a) the name, address and occupation (or where appropriate business or principal activity) of each person:-

(i) conducting the transaction; or

(ii) if known, on whose behalf the transaction is being conducted,

as well as the method used by the financial institution or cash dealer to verify the identity of each such person;

(b) the nature and date of the transaction;

(d) the type and identifying number of any account with the financial institutions or cash dealer involved in the transaction;

(e) the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and data of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument, if the transaction involves a negotiable instrument other than currency; and

(f) the name and address of the financial institution or cash dealer, and of the officer, employee or agent of the financial institution or cash dealer who prepared the report.

(4) Records required under subsection (1) shall be kept by the financial institution for a period of at least five years from the date the relevant business or transaction was completed.

Financial institutions and cash dealers to report suspicious transactions

14. (1) Whenever a financial institution or cash dealer is a party to a transaction and has reasonable grounds to suspect that information that it has concerning the transaction may be relevant to the investigation or prosecution of a person for a serious offence, it shall as soon as possible but not later than three working days after forming that suspicion and whenever possible before the transaction is carried out-

(a) take reasonable measures to ascertain the purpose of the transaction, the origin and ultimate destination of the funds involved, and the identity and address of any ultimate beneficiary;

(b) prepare a. report of the transaction in accordance with subsection (2); and

(c) communicate the information contained therein to the Commission in writing or in such other form as the Minister of Finance may from time to time approve.

(2) A report required by subsection (1) shall -

(a) contain particulars of the matters specified in subsection (1) (a) and in section 12(1);

(b) contain a statement of the grounds on which the financial institution or cash dealer holds the suspicion; and

(3) A financial institution or a cash dealer which has reported a suspicious transaction in accordance with this Part shall, if requested to do so by the Commission, give such further information as it has in relation to the transaction.

Financial institutions and cash dealers to establish and maintain internal reporting procedures

15. A financial institution or a cash dealer shall establish and maintain internal reporting procedures to-

(a) identify persons to whom an employee is to report any information which comes to the employee's attention in the course of employment, and which gives rise to knowledge or suspicion by the employee that another person is engaged in money laundering;

(b) enable any person identified in accordance with paragraph (a) to have reasonable access to information that may be relevant in determining whether sufficient basis exists to report the matter pursuant to section 14(1); and

(c) require the identified person to report the matter pursuant to section 14(1), in the event that he determines that sufficient basis exists.

Further preventive measures by financial institutions and cash dealers

16. A financial institution or cash dealer shall establish and maintain internal reporting procedures to -

(a) take appropriate measures for the purpose of making employees aware of the laws of Solomon Islands relating to money laundering, and related policies established and maintained by it pursuant to this Act; and

(b) provide its employees with appropriate training in the recognition and handling of money laundering transactions.

Money-laundering offences

17. (1) A person commits the offence of money laundering if the person -

(a) acquires, possesses or uses property, knowing; or having reason to believe that it is derived directly or indirectly from acts or omissions -

(i) in Solomon Islands which constitute an offence against any law of Solomon Islands punishable by imprisonment for not less than twelve months;

(ii) outside Solomon Islands which, had they occurred in Solomon Islands, would have constituted an offence against the law of Solomon Islands arid punishable by imprisonment for not less than twelve months;

(b) renders assistance to another person for -

(i) the conversion or transfer of property derived directly or indirectly from those acts or omissions, with the aim of concealing or disguising the illicit origin of that property, or of aiding any person involved in the commission of the offence to evade the legal consequences thereof; or

(ii) concealing or disguising the true nature, origin, location, disposition, movement or ownership of the property derived directly or indirectly from those acts or omissions.

(2) Any person who is guilty of an offence under this section shall on conviction be liable to -

(a) in the case of an individual, to a fine not exceeding one hundred and fifty thousand dollars or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding two hundred thousand dollars.

Related offences

18. (1) A person shall not open or operate an account with a financial institution or a cash dealer in a false name.

(2) A person who contravenes subsection (1) shall be guilty of an offence and on conviction be liable -

(a) in the case of an individual, to a fine not exceeding one hundred thousand dollars or to imprisonment not exceeding ten years or to both such fine and imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding two hundred thousand dollars.

(3) A financial institution or cash dealer who fails to comply with any requirement of this Part for which no penalty is specified commits an offence; and shall on conviction be liable -

(a) in the case of an individual, to a fine not exceeding two hundred and fifty thousand dollars or to imprisonment not exceeding ten years or to both such fine and imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding five hundred thousand dollars.

(4) In determining whether a person has complied with any requirement of subsection (1) the Court shall have regard to all the circumstances of the case, including such custom and practice as may from time to time be current in the relevant trade, business, profession or employment, and may take account of any relevant guidance adopted and approved by a public authority exercising public interest supervisory functions in relation to the financial institution or cash dealer, or any other body that regulates or is representative of the trade, business, profession or employment carried on by that person.

(5) Any person who discloses to another person any information of a report being prepared under section 14 or other information or matter likely to prejudice any investigation of an offence or possible offence of money laundering shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand dollars or to imprisonment for or a term not exceeding one month.

(6) In proceedings for an offence against subsection (5), it is a defence to prove that the person did not know or have reasonable grounds to suspect that the disclosure was likely to prejudice any investigation of an offence or possible offence of money laundering under section 17.

Seizure and detention of suspicious imports or exports of currency

19. (1) An authorised officer may seize and, in accordance with this section detain, any currency which is being imported into or exported from Solomon Islands, if -

(a) the amount is more than the prescribed sum; and

(b) he has reasonable grounds for suspecting that it is -

(i) property derived from a money laundering offence; or

(ii) intended by any person for use in the commission of a money-laundering offence.

(2) Currency detained under subsection (1) shall not be detained for more than seventy two hours after seizure, unless a magistrate orders its continued detention for a period not exceeding three months from the date of seizure, upon being satisfied that -

(a) there are reasonable grounds for the suspicion referred to in subsection (1)(b); and

(b) its continued detention is justified while -

(i) its origin or derivation is further investigated; or

(ii) consideration is given to the institution in Solomon Islands or elsewhere of criminal proceedings against any person for an offence with which the currency is connected.

(3) A magistrate may subsequently order continued detention of the currency if satisfied of the matters mentioned in subsection (2), so however, that the total period of detention shall not exceed two years, from the date of the order made under that subsection.

(4) Subject to subsection (5), currency detained under this section may be released in whole or in part to the person on whose behalf it was imported or exported -

(a) by order of a magistrate that its continued detention is no longer justified, upon application by or on behalf of that person and after considering any views of the Director of Public Prosecutions to the contrary; or

(b) by an authorised officer, if satisfied that its continued detention is no longer justified.

(5) No currency detained under this section shall be released whereof -

(a) an application is made under Part III for the purpose -

(i) the confiscation of the whole or any part of the currency; or

(ii) its restraint pending determination of its liability to confiscation; or

(b) proceedings are instituted in Solomon Islands or elsewhere against any person for an offence with which the currency is connected,

unless and until the proceedings relating to the relevant application or the proceedings for the offence, as the case may be, have been concluded.

Commission's power to obtain search warrant.

20. (1) The Commission or any police officer may obtain apply to the Magistrate's Court for a warrant to enter any premises belonging to or in the possession or control of a financial institution, cash dealer, or any officer or employee thereof, and to search the premises and remove any document, material or other thing therein for the purposes of the investigation, as ordered by the Court and specified in the warrant.

(2) The Court shall grant the application if it is satisfied that there are reasonable grounds to believe that -

(a) the financial institution or cash dealer has failed to keep a transaction record, or report a suspicious transaction, as required by this Act; or

(b) an officer or employee of a financial institution or cash dealer is committing, has committed or is about to commit an offence of money laundering.

Property tracking and monitoring Orders

21. For the purpose of determining whether any property belongs to or is in the possession or under the control of any person, the Commission or a police officer may, upon application to the Court obtain an order -

(a) that any document relevant to -

(i) identifying, locating or quantifying any such property; or

(ii) identifying or locating any document necessary for the transfer of any such property,

belonging to, or in the possession or control of that person be delivered forthwith to the Commission or the police officer; or

(b) that the financial institution or cash dealer forthwith produce to the Commission or the police officer all information obtained about any transaction conducted by or for that person during such period before or after the order as the Court directs.

Orders to enforce compliance with obligations under this Part

22. (1) The Commission or any police officer may, upon application to the Court, after satisfying the Court that a financial institution or cash dealer has failed to comply with any obligation provided for under sections 12, 13, 14, 15 or 16, obtain an order against all or any officers or employees of the institution or dealer in such terms as the Court deems necessary, in order to enforce compliance with such obligation.

(2) In granting the order pursuant to subsection (1), the Court may order that should the financial institution or cash dealer fail without reasonable excuse to comply with all or any provisions of the order, such institution, dealer, officer or employee shall pay a financial penalty in the sun and in the manner directed by the Court.

Secrecy obligations over-ridden

23. The provisions of this Act shall have effect notwithstanding any obligations as to secrecy or other restriction on disclosure or information imposed by law or otherwise.

Immunity where suspicious transaction reported

24. No action, suit or other proceedings shall lie against any financial institution or cash dealer, or any officer, employee or other representative of the institution acting in the ordinary course of the person's employment or representation, in relation to any action taken in good faith by that institution or person pursuant to section 14(1).

Immunity where official powers or functions exercised in good faith

25. No suit, prosecution or other legal proceedings shall lie against the Government or any officer or other person in respect of anything done by or on behalf of that person, with due diligence and in good faith in the exercise of any power or the performance of any function under this Act or any regulation made thereunder.

Restitution of restrained property

26. Where an investigation has commenced against a person for a serious offence, property was restrained under this Act in relation to that offence, and any of the following occurs -

(a) the person is not charged in Solomon Islands with the serious offence;

(b) the person is charged with a serious offence in Solomon Islands, but not convicted of that offence; or

(c) a conviction for that serious offence in Solomon Islands is taken to be quashed and no conviction for such an offence substituted,

the Court shall order restitution of the restrained property.

Damages

27. Nothing in this Act affects the right of a person whose property has been restrained to seek the payment of damages, either actual or punitive, in cases where it is alleged that the action involved any abuse of process.

PART III
CONFISCATION

Division 1 - Confiscation and Pecuniary Penalty Orders

Application for confiscation order or pecuniary penalty order

28. (1) Where a person is convicted of a serious offence, the Director of Public Prosecutions may, not later than six months after the conviction, apply to the Court for one or both of the following orders -

(a) a confiscation order against property that is tainted property in respect of the offence;

(b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.

(2) An application under subsection (1) may be made in respect of one or more than one offence.

(3) Where an application under this section is finally determined, no further application for a confiscation order or a pecuniary penalty order may be made in respect of the offence for which the person was convicted without the leave of the Court. The Court shall not give such leave unless it is satisfied that-

(a) the property or benefit to which the new application relates was identified after the previous application was determined;

(b) necessary evidence became available after the previous application was determined; or

Notice of application

29. (1) Where the Director of Public Prosecutions applies for a confiscation order against property in respect of the person's conviction of a serious offence -

(a) the Director of Public Prosecutions shall give not less than fourteen days written notice of the application to the person and to any other person who the Director of Public Prosecutions has reason to believe may have an interest in the property;

(b) the person and any other person who claims an interest in the property may appear and adduce evidence at the hearing of the application; and

(c) the Court may, at any time before the final determination of the application, direct the Director of Public Prosecutions to -

(i) give notice of the application to any person who, in the opinion of the Court, appears to have an interest in the property; and

(ii) publish in the Gazette or a newspaper published and circulating in Solomon Islands, a notice of the application.

(2) Where the Director of Public Prosecutions applies for a pecuniary penalty order against a person -

(a) the Director of Public Prosecutions shall give the person not less than fourteen days notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

Amendment of application

30. (1) The Court hearing the application under section 28(1) may, before the final determination of the application, and on the application of the Director of Public Prosecutions, amend the application to include any other property or benefit, as the case may be, upon being satisfied that-

(a) the property or benefit was not reasonably capable of identification when the application was made; or

(b) necessary evidence became available only after the application was originally made.

(2) Where the Director of Public Prosecutions applies to amend an application for a confiscation order and the amendment would have the effect of including additional property in the application for confiscation, he shall give not less than fourteen days written notice of the application to amend to any person who he has a reason to believe may have an interest in the property to be included in the application for a confiscation order.

(3) Any person who claims an interest in the property to be included in the application for a confiscation order may appear and adduce evidence at the hearing of the application to amend.

(4) Where the Director of Public Prosecutions applies to amend an application for a pecuniary penalty order against a person and the effect of the amendment would be to include an additional benefit in the application he shall give the person not less than fourteen days written notice of the application to amend.

Procedure on application

31. (1) Where an application is made to the Court for a confiscation order or a pecuniary penalty order in respect of a person's conviction of a serious offence, the Court may, in determining the application, have regard to the transcript of any proceedings against the person for the offence.

(2) Where an application is made for a confiscation order or a pecuniary penalty order to the Court before which the person was convicted, and the Court has not, when the application is made, passed sentence on the person for the offence, the Court may, if it is satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the order.

Procedure for in rem confiscation order where person dies or absconds

32. (1) Where -

(a) an information has been laid alleging the commission of the offence by a person; and

(b) a warrant for the arrest of the person has been issued in relation to that information,

the Director of Public Prosecutions may apply to the Court for a confiscation order in respect of any tainted property if the defendant has died or absconded.

(2) For the purposes of subsection (1), the person is deemed to have absconded if reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during the period of six months commencing on the day the warrant was issued, and the person shall be deemed to have so absconded on the last day of that period.

(3) Where the Director of Public Prosecutions applies under this section for a confiscation order against any tainted property the Court shall, before hearing the application -

(a) require notice of the application to be given to any person who, in the opinion of the Court, appears to have an interest in the property; and

(b) direct notice of the application to be published in the Gazette and in a newspaper published and circulating in Solomon Islands containing such particulars and for so long as the Court may require.

Confiscation order on conviction

33. (1) Where, upon application by the Director of Public Prosecutions, the Court is satisfied that property is tainted property in respect of a serious offence for which a person has been convicted, the Court may order that specified property be confiscated.

(2) In determining whether property is tainted property the Court may infer, in the absence of evidence to the contrary -

(a) that the property was used in or in connection with the commission of the offence if it was in the person's possession at the time of, or immediately after the commission of the offence for which the person was convicted; or

(b) that the property was derived, obtained or realised as a result of the commission of the offence if it was acquired by the person before, during or within a reasonable time after the period of the commission of the offence for which the person was convicted, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the acquisition of that property.

(3) Where the Court orders that property, other than money, be confiscated, the Court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.

(4) In considering whether a confiscation order should be made under subsection (1) the Court shall have regard to -

(a) the rights and interests, if any, of third parties in the property;

(b) the gravity of the offence concerned;

(d) the use that is ordinarily made of the property, or the use to which the property was intended to be put.

(5) Where the Court makes a confiscation order, the Court may give such directions as are necessary or convenient for giving effect to the order.

Effect of confiscation

34. (1) Subject to subsection (2), where the Court makes a confiscation order against any property, the property vests absolutely in the Government of Solomon Islands by virtue of the order.

(2) Where property ordered to be confiscated is registrable property -

(a) the property vests in the Government of Solomon Islands in equity but does not vest in the Government of Solomon Islands at law until the applicable registration requirements have been complied with;

(b) the Government of Solomon Islands is entitled to be registered as owner of the property; and

(c) the Director of Public Prosecutions has power on behalf of the Government of Solomon Islands to do or authorise the doing of anything necessary or convenient to obtain the registration of the Government of Solomon Islands as owner, including the execution of any instrument to be executed by a person transferring an interest in property of that kind.

(3) Where the Court makes a confiscation order against property -

(a) the property shall not, except with the leave of the Court and in accordance with any directions of the Court, be disposed of, or otherwise dealt with, by or on behalf of the Government of Solomon Islands before the relevant appeal date; and

(b) if, after the relevant appeal date, the order has not been discharged, the property may be disposed of and the proceeds applied or otherwise dealt with in accordance with the direction of the Permanent Secretary, Ministry of Finance.

(4) In this section -

"registrable property" means property the title to which is passed by registration in accordance with the provisions of the Land and Titles Act;

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"relevant appeal date" used in relation to a confiscation order made in consequence of a person's conviction of a serious offence means -

(a) the date on which the period allowed by rules of court for the lodging of an appeal against a person's conviction or for the lodging of an appeal against the making of a confiscation order expires without an appeal having been lodged, whichever is the later, or

(b) where an appeal against a person's conviction or against the making of a confiscation order is lodged, the date on which the appeal lapses in accordance with the rules of court or is finally determined, whichever is the later.

Voidable transfers

35. The Court may -

(a) before making a confiscation order; and

(b) in the case of property in respect of which a restraining order was made, where the order was served in accordance with section 59,

set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the restraining order, unless the conveyance or transfer was made for valuable consideration to a person acting in good faith and without notice.

Protection of third parties

36. (1) Where an application is made for a confiscation order against property, a person who claims an interest in the property may apply to the Court, before the confiscation order is made, for an order under subsection (2).

(2) If a person applies to the Court for an order under this section in respect of property and the Court is satisfied on a balance of probabilities -

(a) that the person was not in any way involved in the commission of the offence; and

(b) where the person acquired the interest during or after the commission of the offence, that he acquired the interest -

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he acquired it, property that was tainted property,

the Court shall make an order declaring the nature, extent and value at the time the order is made of the person's interest.

(3) Subject to subsection (4), where a confiscation order has already been made directing the confiscation of property, a person who claims an interest in the property may, before the end of the period of twelve months commencing on the day on which the confiscation order is made, apply under this subsection to the Court for an order under subsection (2).

(4) A person who -

(a) had knowledge of the application for the confiscation order before the order was made; or

(b) appeared at the hearing of that application,

shall not be permitted to make an application under subsection (3), except with leave of the Court.

(5) A person who makes an application under subsection (1) or (3) shall give not less than fourteen days written notice of the making of the application to the Director of Public Prosecutions, who shall be a party to any proceedings in the application.

(6) Any person exercising the powers conferred on the Court by section 67 shall, on application by any person who has obtained an order under subsection (2), and where the period allowed by the rules of court with respect to the making of an appeal has expired and any appeal from that order has been determined -

(a) direct that the property or part thereof to which the interest of the applicant relates, be returned to the applicant; or

(b) direct that an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

Discharge of confiscation order on quashing of conviction

37. (1) Where the Court makes a confiscation order against property in reliance on a person's conviction of a serious offence and the conviction is subsequently quashed the quashing of the conviction discharges the order.

(2) Where a confiscation order against property is discharged as provided for in subsection (1) or by the Court of Appeal hearing an appeal against the making of the order, any person who claims to have an interest in the property immediately before the making of the confiscation order may apply to the Commissioner of Lands in writing for the transfer of the interest to the person.

(3) On receipt of an application under subsection (2) the Commissioner of Lands shall-

(a) if the interest is vested in the Government of Solomon Islands, give directions that the property or part thereof to which the interest of the applicant relates be transferred to the person; or

(b) in any other case, direct that there be payable to the person an amount equal to the value of the interest as at the time the order is made.

(4) In the exercise of his powers under this section, and section 36(6), the Commissioner of Lands shall have the power to do or authorise the doing of anything necessary or convenient to effect the transfer or return of the property, including the execution of any instrument and the making of any application for the registration of an interest in the property on any appropriate register.

Payment instead of a confiscation order

38. Where the Court is satisfied that a confiscation order should be made in respect of the property of a person convicted of a serious offence, but that the property or any part thereof or interest therein cannot be made subject to such an order and, in particular -

(a) cannot, on the exercise of due diligence be located;

(b) has been transferred to a third party in circumstances which do not give rise to a. reasonable inference, that the title or interest was transferred for the purpose of avoiding the confiscation of the property;

(d) has been substantially diminished in value or rendered worthless; or

(e) has been co-mingled with other property that cannot be divided without difficulty,

the Court may, instead or ordering the property or part thereof or interest therein to be confiscated, order the person to pay to the Government of Solomon Islands an amount equal to the value of the property, part or interest.

Application of procedure for enforcing fines

39. Where the Court orders a person to pay an amount under section 38, that amount shall be treated as if it were a fine imposed upon him in respect of a conviction for a serious offence, and the Court shall -

(a) notwithstanding anything contained in any other Act, impose in default of the payment of that amount, a teen of imprisonment of two years; or

(b) direct that the term of imprisonment imposed pursuant to paragraph (a) be served consecutively to any other form of imprisonment imposed on that person, or that the person is then serving.

Confiscation where a person dies or absconds

40. (1) Subject to section 32(3), where an application is made to the Court under section 32(1) for a confiscation order against any tainted property in consequence of a person having died or absconded in connection with a serious offence and the Court is satisfied that -

(a) any property is tainted property in respect of the offence;

(b) proceedings in respect of a serious offence committed in relation to that property were commenced; and

the Court may order that the property or such property as is specified by the Court in the order be confiscated.

(2) The provisions of sections 33, 34, 35 and 36 shall apply with such modifications as are necessary to give effect to this section.

Division 2 - Pecuniary Penalty Orders

Pecuniary penalty order on conviction

41. (1) Subject to this section, where the Director of on conviction public Prosecutions applies to the Court for a pecuniary penalty order against a person in respect of that person's conviction for a serious offence the Court shall, if it is satisfied that the person has benefited from that offence, order him to pay to the Government of Solomon Islands an amount equal to the value of his benefit from the offence or such lesser amount as the Court certifies in accordance with section 44(2) to be the amount that might be realised at the time the pecuniary penalty order is made.

(2) The Court shall assess the value of the benefits derived by a person from the commission of an offence in accordance with sections 42, 43, 44 and 45.

(3) The Court shall not make a pecuniary penalty order under this section -

(a) until the period allowed by the rules of court for the lodging of an appeal against conviction has expired without such appeal having been lodged; or

(b) where an appeal against conviction has been lodged, until the appeal lapses in accordance with the rules of court or is finally determined, whichever is the later date.

Rules determining benefit and assessing value

42. (1) Where a person obtains property as the result of, or in connection with the commission of a serious offence, his benefit is the value of the property so obtained.

(2) Where a person derived an advantage as a result of or in connection with the commission of a serious offence, his advantage shall be deemed to be a sum of money equal to the value of the advantage so derived.

(3) The Court in determining whether a person has benefited from the commission of a serious offence or from that offence taken together with other serious offences shall, unless the contrary is proved, deem -

(a) all property appearing to the Court to be -

(i) held by the person on the day on which the application is made; and

(ii) all property appearing to the Court to be held by the person at any time -

(A) within the period between the day the serious offence, or the earliest serious offence, was committed and the day on which the application is made; or

(B) within the period of six years immediately before the day on which the application is made, whichever is the longer,

to be property that carne into the possession or under the control of the person by reason of the commission of that serious offence or those serious offences for which the person was convicted;

(b) any expenditure by the person since the beginning of that period to be expenditure met out of payments received by him as a result of, or in connection with, the commission of that serious offence or those serious offences; and

(c) any property received or deemed to have been received by the person at any time as a result of, or in connection with the commission by him of that serious offence or those serious offences as property received by him free of any interest therein.

(4) Where a pecuniary penalty order has been previously made against a person, in assessing the value of any benefit derived by him from the commission of the serious offence, the Court shall leave out of account any benefits that are shown to the Court to have been taken into account in determining the amount to be recovered under that order.

(5) If evidence is given at the hearing of the application that the value of the person's property at any time after the commission of the serious offence exceeded the value of the person's property before the commission of the offence then the Court shall, subject to subsection (6) treat the value of the benefit as being not less than the amount of that excess.

(6) If, after evidence of the kind referred to in subsection (5) is given, the person satisfies the Court that the whole or part of the excess was due to causes unrelated to the commission of the serious offence, subsection (5) does not apply to the excess or, as the case may be, that part.

Statements relating to benefits from commission of serious offences

43. (1) Where -

(a) a person has been convicted of a serious offence and the Director of Public Prosecutions tenders to the Court a statement as to any matters relevant to -

(i) determining whether the person has benefited from the offence or any other serious offence of which he is convicted in the same proceedings or which is taken into account in determining his sentence; or

(ii) an assessment of the value of the person's benefit from the offence or any other serious offence of which he is convicted in the same proceedings or which is taken into account; and

(b) the person accepts to any extent an allegation in the statement,

the Court may, for the purposes of so determining or making that assessment, treat the acceptance, as conclusive of the matters to which it relates.

(5) An allegation may be accepted of a matter indicated for the purposes of this section, either -

(a) orally before the Court; or

(b) in writing, in accordance with rules of court.

(6) An acceptance by a person under this section that he received any benefits from the commission of a serious offence is admissible in any proceedings for any offence.

Amount recovered under pecuniary penalty order

44. (1) Subject to subsection (2), the amount to be recovered in the person's case under a pecuniary penalty order shall be the amount which the Court assesses to be the value of the person's benefit from the serious offence, or if more than one, all the offences in respect of which the order may be made.

(2) Where the Court is satisfied as to any matter relevant for determining the amount which might be realised at the time the pecuniary penalty order is made (whether by acceptance under section 43 or otherwise), the Court may issue a certificate giving the Court's opinion as to the matters concerned, and shall do so if satisfied that the amount that might be realised at the time the pecuniary penalty order is made is less than the amount that the Court assesses to be the value of the person's benefit from the offence, or if more than one, all the offences in respect of which the pecuniary penalty order may be made.

Variation of pecuniary penalty order

45. Where -

(a) the Court makes a pecuniary penalty order against a person in relation to a serious offence;

(b) in calculating the amount of the pecuniary penalty order, the Court took into account a confiscation order of the property or a proposed confiscation order in respect of property; and

(c) an appeal against confiscation or a confiscation order is allowed, or the proceedings from the proposed confiscation order terminate without the proposed confiscation order being made;

the Director of Public Prosecutions may apply to the Court for a variation of the pecuniary penalty order to increase the amount of the order by the value of the property not so confiscated and the Court may, if it considers it appropriate to do so, vary the order accordingly.

Lifting the corporate veil

46. (1) In assessing the value of benefits derived by a person from the commission of a serious offence, the Court may treat as property of the person any property that, in the opinion of the Court, is subject to the effective control of the .person, whether or not he has-

(a) any legal or equitable interest in the property; or

(b) any right, power or privilege in connection with the property.

(2) Without prejudice to the generality of subsection (1), the Court may have regard to -

(a) shareholdings in, debentures over or directorships in any company that has an interest, whether direct or indirect, in the property, and for this purpose the Court may order the investigation and inspection of the books of a named company;

(b) any trust that has any relationship to the property;

(c) any relationship whatsoever between the, persons having an interest in the, property or in companies of the kind referred to in paragraph (a) or trust of the -kind referred to in paragraph (b), and any other persons.

(3) Where the Director of Public Prosecutions makes an application for an order under subsection (3) that property is available to satisfy a pecuniary penalty order against a person.

(a) the Director of Public Prosecutions shall give written notice of the application to the person and to any person who the Director of Public Prosecutions has reason to believe may have an interest in the property; and

(b) a person and any person who claims an interest in the property may appear and adduce evidence at the hearing.

Enforcement of pecuniary penalty orders

47. Where the Court orders a person to pay an amount under a pecuniary penalty order, the provisions of section 39 shall apply with such modifications as the Court may determine for the purpose of empowering the Court to impose a term of imprisonment on a person in default of compliance by him with a pecuniary penalty order.

Discharge of pecuniary orders

48. A pecuniary penalty order is discharged -

(a) if the conviction of the serious offence or offences in reliance on which the order was made is or is taken to be quashed and no conviction for the offence or offences is substituted;

(b) if the order is quashed on appeal; or

Division 3 - Control of Property

Powers to search for and seizure of tainted property

49. (1) A police officer may -

(a) search a person for tainted property;

(b) enter upon land or upon or into premises and search the land or premises for tainted property; and

(c) in either case, seize any property found in the course of the search that the police officer believes, on reasonable grounds to be tainted property,

provided that the search or seizure is made -

(i) with the consent of the person or the occupier of the land or premises as the case may be; or

(ii) under warrant issued under section 50.

(2) Where a police officer searches a person under this Division, he may also search -

(a) the clothing that is being worn by the person; and

(b) any property in, or apparently in, the person's immediate control.

Search warrants in relation to tainted property

50. (1) Where a police officer has reasonable grounds for suspecting that there is, or may be within the next seventy-two hours, tainted property of a particular kind -

(a) on a person;

(b) in the clothing that is being worn by a person;

(d) upon land or upon or in any premises,

the police officer may lay before a magistrate an information on oath setting out those grounds and apply for the issue of a warrant to search the person, the land or the premises as the case may be, for tainted property of that kind.

(2) Where an application is made under subsection (1) for a warrant to search a person, land or premises, the magistrate may, subject to subsection (4) issue a warrant authorising a police officer (whether or not named in the warrant) with such assistance and by suet] force as is necessary and reasonable -

(a) to search the person for tainted property of that kind;

(b) to enter upon the land or in or upon any premises and to search the land or premises for tainted property of that kind; and

(c) to seize property found in the course of the search that the police officer believes on reasonable grounds to be tainted property of that kind.

(3) A warrant may be issued under subsection (2) in relation to tainted property, whether or not an information has been laid in respect of the relevant offence.

(4) A magistrate shall not issue a warrant under subsection (2) unless, where an information has not been laid in respect of the relevant offence at the time when the application for the warrant is made, the magistrate is satisfied that -

(a) an information will be laid in respect of the relevant offence within forty-eight hours; and

(b) the property is tainted property.

(5) A warrant issued under this section shall state -

(a) the purpose for which it is issued, including a reference to the nature of the relevant offence;

(b) a description of the kind of property authorised to be seized;

(d) whether entry is authorised to be made at any time of the day or night or during specified hours.

(6) If during the course of searching under a warrant issued under this section, a police officer finds -

(a) property that the police officer believes on reasonable grounds to be tainted property either of a type not specified in the warrant or tainted property in relation to another serious offence; or

(b) any thing the police officer believes on reasonable grounds may afford evidence as to the commission of a serious offence,

the police officer may seize that property or thing and the warrant shall be deemed to authorise such seizure.

Searches in emergencies

51. (1) Where, a police officer suspects on reasonable grounds that -

(a) particular property is tainted property;

(b) it is necessary to exercise the power of search and seizure in order to prevent the concealment, loss or destruction of the property; and

(c) the circumstances are so urgent that they require immediate exercise of the power without the authority of a warrant or the order of a court,

the police officer may -

(i) search a person;

(ii) enter upon land, or upon or into premises and search for the property; and

(iii) if property is found, seize the property.

(2) If during the course of a search conducted under this section, a police officer finds -

(a) property that the police officer believes on reasonable grounds to be tainted property; or

(b) anything the police officer believes on reasonable grounds may afford evidence as to the commission of a criminal offence,

the police officer may seize that property or thing.

Record of property seized

52. A police officer who seizes property under section 50 or section 51 shall detain the property seized, taking reasonable care to ensure that the property is preserved.

Return of seized property

53. (1) Where property has been seized under section 50 or section 51 (otherwise than because it may afford evidence of the commission of an offence), a person who claims an interest in the property may apply to the Court for an order that the property be returned to the person.

(2) Where a person makes an application under subsection (1) and the Court is satisfied that -

(a) the person is entitled to possession of the property;

(b) the property is not tainted property; and

(c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property,

the Court shall order the return of the property to the person.

Search for and seizure of tainted property in relation to foreign offences

54. Where a foreign State requests assistance to locate seize property suspected to be tainted property in respect of an offence within its jurisdiction, the provisions of sections, 50 and 51 mutatis mutandis provided that the Attorney-General has, under section 4 of the Mutual Assistance in Criminal Matters Act, 2002, authorised the giving of assistance to the foreign State.

Division 4 - Restraining Orders

Application for restraining orders

55. (1.) The Director of Public Prosecutions may apply to the Court for a restraining order against any realisable property held by the defendant or specified realisable property held by a person other than the defendant.

(2) An application for a restraining order may be made ex parte and shall be in writing and be accompanied by an affidavit stating:-

(a) where the defendant has been convicted of a serious offence, the serious offence for which he was convicted, the date of the conviction, the Court before which the conviction was obtained and whether an appeal has been lodged against the conviction;

(b) where the defendant has not been convicted of a serious offence, the serious offence for which he is charged or about to be charged and the grounds for believing that the defendant committed the offence;

(d) the name and address of the person who is believed to be in possession of the property;

(e) the grounds for the belief that the property is tainted property in relation to the offence;

(f) the grounds for the belief that the defendant derived a benefit directly or indirectly from the commission of the offence;

(g) where the application seeks a restraining order against property of a person other than the defendant, the grounds for the belief that the property is tainted property in relation to the offence and is subject to the effective control of the defendant; and

(h) the grounds for the belief that a confiscation order or a pecuniary penalty order may be or is likely to be made under this Part in respect of the property.

Restraining orders

56. (1) Subject to this section, where the Director of Public Prosecutions applies to the Court for a retraining order against property and the Court is satisfied that:-

(a) the defendant has been convicted of a serious offence, or has been charged or is about to be charged with a serious offence;

(b) where the defendant has not been convicted of a serious offence, there are reasonable grounds for believing that the defendant committed the offence;

(c) there is reasonable cause to believe that the property is tainted property in relation to an offence, or that the defendant derived a benefit directly or indirectly from the commission of the offence;

(d) where the application seeks a restraining order against property of a person other than the defendant, there are reasonable grounds for believing that the property is tainted property in relation to an offence and that the property is subject to the effective control of the defendant; or

(e) there are reasonable grounds for believing that a confiscation order or a pecuniary penalty order is likely to be made under this Part in respect of the property,

the Court may make an order prohibiting the defendant or any person from disposing of, or otherwise dealing with, the property or such part thereof or interest therein as is specified in the order, except in such manner as may be specified in the order.

(2) Where an order has been made under subsection (1) the Court may at the request of the Director of Public Prosecutions, if satisfied that the circumstances so require -

(a) direct the Registrar of the court or such other person as the Court may appoint, to take custody of the property or such part thereof as is specified in the order and to manage or otherwise deal with all or any part of the property in accordance with the directions of the Court; and

(b) require any person having possession of the property to give possession thereof to the Registrar of the Court or to the person appointed under paragraph (a) to take custody and control of the property.

(3) An order under subsection (1) may be made subject to such conditions as the Court thinks fit and, without limiting the generality of this subsection, may make provision for meeting out of the property or a specified part of the property, any or all of the following -

(a) the person's reasonable living expenses (including the reasonable living expenses of the person's dependants, if any) and reasonable business expenses;

(b) the person's reasonable expenses in defending the criminal charge and any proceedings under this Division; and

(4) In determining whether there are reasonable grounds for believing that property is subject to the effective control of the defendant, the Court may have regard to the matters referred to in section 46.

(5) Where the Registrar of the court or other person appointed under subsection (2) is given a direction in relation to any property, he may apply to the Court for directions on any question respecting the management or preservation of the property under his control.

(6) An application under section 55 shall be served on all persons interested in the application or such of them as the Court thinks expedient and all such persons shall have the right to appear at the hearing and be heard.

(7) When the application is made under section 55(1) on the basis that a person is about to be charged, any order made by the Court shall lapse if the person is not charged within reasonable time.

Undertaking by the Government of Solomon Islands

57. (1) Before making an order under section 56(1), the Court may require the Director of Public Prosecutions on behalf the Government of Solomon Islands to give such undertakings as the Court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and execution of the order.

(2) For the purposes of this section, the Director of Public Prosecutions may give such undertakings with respect to the payment of damages or costs or both as are required by the Court.

Notice of application for restraining order

58. Before making a restraining order the Court may require notice to be given to, and may hear, any person who, in the opinion of the Court, appears to have an interest in the property, unless the Court is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property.

Service of restraining order

59. A copy of a restraining order shall be served on a person affected by the order in such manner as the Court directs or as may be prescribed by rules of court.

Registration of restraining order

60. (1) A. copy of a restraining, order which affects lands in Solomon Islands shall be registered with the Commissioner of Lands.

(2) A restraining order is of no effect with respect to registered land unless it is registered as a charge, under the Land and Titles Act.

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(3) Where particulars of a restraining order are registered under the Land and Titles Act, a person who subsequently deals with the property shall, for the purposes of section 61 be deemed to have notice of the order at the time of the dealing.

Contravention of restraining order

61. (1) A person who knowingly contravenes a restraining order by disposing of or otherwise dealing with property that is subject to the restraining order commits an offence and shall upon conviction be liable -

(a) in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding twenty-five thousand dollars.

(2) Where a restraining order is made against property and the. property is disposed of, or otherwise dealt with, in contravention of the restraining order, and the disposition or dealing was not for, sufficient consideration or not in favour of a person who acted in good faith and without notice, the Director of Public Prosecutions may apply to the Court that made the restraining order for an order that the disposition or dealing be set aside.

(3) Where the Director of Public Prosecutions makes an application under subsection (2) in relation to a disposition or dealing, the Court may -

(a) set aside the disposing or dealing as from the day on which the disposition or dealing took place; or

(b) set aside the disposition or dealing as from the day of the order under this subsection and declare the respective rights of any persons who acquired interest in the property on, or after the day on which the disposition or dealing took place, and before the day of the order under this subsection.

Duration of restraining Order

62. A restraining order remains in force until -

(a) it is discharged, revoked or varied;

(b) the period of six months from the date on which it is made or such later time as the Court may determine;

(c) a confiscation order or a pecuniary penalty order, as the case may be, is made in respect of property which is the subject of the order.

Review of restraining order

63. (1) A person who has an interest in property in respect of which a restraining order was made, may at any time, apply to the Court for an order under subsection (4).

(2) An application under subsection (1) shall not be heard by the Court unless the applicant has given to the Director of Public Prosecutions at least three working days notice in writing of the application.

(3) The Court may require notice of the application to be given to, and may hear, any person who in the opinion of the Court appears to have an interest in the property.

(4) On an application under subsection (1), the Court may revoke or vary the order or make the order subject to such conditions as the Court thinks fit. For the purposes of this subsection the Court may -

(a) require the applicant to enter into recognisances; or

(b) vary the order to permit the payment of reasonable living expenses to the applicant, including his dependants, if any, and reasonable legal or business expenses of the applicant.

(5) An order under subsection (4) may only be made if the Court is satisfied that -

(a) the applicant is the lawful owner to the property or is entitled to lawful possession thereof, and appears to be innocent of any complicity, in the commission of a serious offence or of any collusion in relation to such offence; and

(b) the property will no longer be required for the purposes of any investigation or as evidence in any proceedings.

Extension of restraining order

64. (1) The Director of Public Prosecutions may apply to the Court that made it restraining order for an extension of the period of the operation of the order.

(2) Where the Director of Public Prosecutions makes an application under subsection (1), the Court may extend the operation of a restraining order for a specified period, if it is satisfied that a confiscation order may be made in respect of the property or part thereof or that a pecuniary penalty order may be made against the person.

Division 5 - Realisation of Property

Realisation of property

65. (1) Where:-

(a) a pecuniary penalty order is made;

(b) the order is not subject to appeal; and

the Court may, on application by the Attorney-General, exercise the powers conferred upon the Court by this section.

(2) The Court may appoint a receiver in respect of realisable property.

(3) The Court may empower a receiver appointed under subsection (2) to take possession of any realisable property subject to such conditions or exceptions as may be specified by the Court.

(4) The Court may order any person having possession of realisable property to give possession of it to any such receiver.

(5) The Court may empower any such receiver to realise any realisable property in such manner as the Court may direct.

(6) The Court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or has the case may be, the recipient of a gift within the meaning of this Act as the Court may direct, and the Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7) The Court shall not, in respect of any property, exercise the powers conferred by subsection (3, (4), (5) or (6), unless a reasonable opportunity has been given for persons holding any interest in the property to make representation to the Court.

Application of proceeds of realisation and other sums

66. (1) Subject to subsection (2), the following; property in the hands of a receiver appointed under section 56 or 65 that is to say:-

(a) the proceeds of they realisation of any property under section 65; and

(b) any other sums, being property held by the defendant,

shall, after such payments, if any, as the Court may direct have been made out of those sums, be payable to the Registrar of the Court and be applied on the defendant's behalf towards the satisfaction of the pecuniary penalty order in the manner provided by subsection (3).

(2) If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute the sums remaining -

(a) among such of those persons who held property which has been realised under this Part; and

(b) in such proportions,

as the Court may direct, after giving a reasonable opportunity for those persons to make representations to the Court.

(3) Property received by the Registrar of the Court on account of an amount payable under a confiscation order shall be applied as follows:-

(a) if received by him from a receiver under subsection (1), it shall first be applied in payment of the receiver's remuneration and expenses; and

(b) the balance shall be paid or, as the case may be, transferred, to the Government of Solomon Islands for the use of prevention of drug abuse or drug or alcoholic related diseases.

Exercise of powers by Court and receivers

67. (1) The following provisions of this section apply to the powers conferred on the Court by sections 56, 63, 64 and 65 or on a Receiver appointed under section 56(2) or section 65(2).

(2) Subject to the following provisions of this section, the powers shall be exercised with a view to making available for satisfying the pecuniary penalty order or, as the case may be, any pecuniary, penalty order that may be made in the defendant's case, the value for the time being of realisable property held by any person by the realisation of such property.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift within the meaning of this Act, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) The powers shall be exercised with the view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.

(5) An order may be, made or other action taken in respect of the debt owed by Solomon Islands.

(6) In exercising these powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order.

Application of this Part in bankruptcy or winding up

68. (1) Where a person who holds realisable property is adjudged bankrupt:

(a) property for the time being subject to a restraining order made before the order adjudging him bankrupt; and

(b) any proceeds of property realised by virtue of section 65(5) or (6) for the time being in the hands of a person appointed under section 56(2) or 65(2),

is excluded from the property of the bankrupt for the purposes of the Bankruptcy Act.

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(2) Where a person has been adjudged bankrupt the powers conferred on the Court by sections 56 and 65 or on a person appointed under section 56(2) or 65(2) shall not be exercised into property of the time being comprised in the property of the bankrupt for the purposes of the Bankruptcy Act.

(3) Where in the case of a debtor, a receiver stands appointed under section 75 of the Bankruptcy the debtor is subject to a restraint order under that Act, the powers conferred on the receiver not apply to property for the time being subject or, a receiver stands ct and any property of or for the purposes of y virtue of that Act do to such restraint order.

(4) Where a person is adjudged bankrupt and has directly or indirectly made a gift within the meaning of this Act -

(a) no order shall be made in pursuance of the provision of the Bankruptcy Act in respect of the making of the gift at any time when the person has been charged with a serious offence and the proceedings have not been concluded by the acquittal of the defendant or proceedings, or when property of the person to whom the gift was made is subject to a restraint order or a charging order made under or for the purposes of that Act.; and

(b) any order made in pursuance of the provisions of the Bankruptcy Act after the conclusion of the proceedings shall take into account any realisation under this Part of property held by the person to whom the gift was made.

Winding up of company holding realisable property

69. (1) Where realisable property is held by a company and an order for the winding up of made or a resolution has been passed by the company for its voluntary or any provisional winding up, the functions of the liquidator shall not be exercisable in relation to:

(a) property for the time being subject to a restraining order made before the relevant time; or

(b) any proceeds of property realised by virtue of section 65(5) or (6) for the time being in the hands of a person appointed under section 56(2) or 65(2),

but there shall be payable out of such property any expenses (including the remuneration of the liquidator or provisional liquidator) properly incurred in the winding up in respect of the property.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the Court by section 56 or 65 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable -

(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company's creditors; or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Subsection (2) does not affect the enforcement of charging order: -

(a) made before the relevant time; or

(b) on property which was subject to a restraining order at the relevant time.

(4) Nothing in the Companies Act shall be taken a restricting, or enabling the restriction of, the exercise of the power conferred on the Court by section 56 or 65.

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(5) In this section -

(a) "company" means any company within the meaning of the Companies Act;

(b) "liquidator" includes any person appointed t the office of liquidator (whether provisionally or otherwise) under the Companies Act; and

(i) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

(ii) where such an order has, been made and before the presentation of the petition for the winding up of the com any by the Court, such a resolution had been passed by the company, the time of the passing of the resolution; and

(iii) in any other case where such an order has been made, the time of making of the order.

Division 6 - Production Orders and other Information Gathering Powers

Production orders

70. (1) Where a person has convicted of a serious offence and a police officer has reasonable grounds for suspecting that any person has possession or control of -

(a) a document relevant t or quantifying property of the person locating a document necessary for the such person; or

(b) a document relevant to identifying, locating or quantifying tainted property in relation to the offence, or to identifying or locating a document necessary for the transfer of tainted property in relation to the offence,

the police officer may apply ex parte and in writing to a judge in chambers for an order against the person suspected of having possession or control of a document of the kind referred. The application shall be supported by an affidavit.

(2) The judge may, if he considers there are reasonable grounds for so doing, make an order that the person produce to a police officer, at a time and place specified in the order, any documents of the kind referred to in subsection (1), provided that an order under this subsection may not require the production of bankers books.

(3) A police officer to whom documents are produced may -

(a) inspect the documents;

(b) make copies of the documents; or

(4) Where a police officer restrains documents produced to him, he shall make a copy of the documents available to the person who produced them.

(5) A person is not entitled to refuse to produce documents ordered to be produced under this section on the ground that -

(a) the document might tend to incriminate the person or make the person liable to a penalty; or

(b) the production of the document would be in breach of an obligation (whether imposed by law or otherwise) of the person not to disclose the existence or contents of the document.

Evidential value of information

71. (1) Where a person produces a document pursuant to an order under this section, the production of the document, or any information, document or thing obtained as a direct or indirect consequence of the production of the document, is not admissible against the person in any criminal proceedings except proceedings under section 72.

(2) For the purposes of subsection (1), proceedings on an application for a restraining order, a confiscation order or a pecuniary penalty order are not criminal proceedings.

Failure to comply with a production order

72. Where a person is required by a production order to produce a document to a police officer, the person is guilty of an offence against this section if he -

(a) contravenes the order without reasonable cause; or

(b) in purported compliance with the order, produces or makes available a document known to the person to be false or misleading in a material particular and does not so indicate to the police officer and provide to the police officer any correct information of which the person is in possession, and shall on conviction be liable-

(i) in the case of an individual, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both such fine and imprisonment; or

(ii) in the case of a body corporate, to a fine not exceeding two thousand dollars.

Production orders in relation to foreign offences

73. Where a foreign State requests assistance to locate or seize property suspected to be tainted in respect of an offence within its jurisdiction, the provisions of section 69 apply mutatis mutandis provided that the Attorney-General has, under section 4(2) of the Mutual Assistance in Criminal Matters Act, 2002, authorised the giving of assistance to the foreign State.

Power to search for and seize documents relevant to locating property

74. A police officer may:-

(a) enter upon land or into premises;

(b) search the land or premises for any document of the type described in section 70(1); and

(c) seize any document found in the course of that search that the police officer believes, on reasonable grounds, to be a relevant document in relation to a serious offence,

provided that the entry, search and seizure is made within the content of the occupier of the land or the premises, or under warrant issued under section 75.

Search warrant for location of documents relevant to locating property

75. (1) Where -

(a) a person has been charged or convicted of a serious offence; or

(b) the police officer has reasonable grounds for suspecting that there is, or may be within the next seventy-two hours, upon any land or upon or in any premises, a document of the type described in section 70(1) in relation to the offence,

the police officer may make application supported by information on oath to a magistrate for a search warrant in respect of that land or those premises.

(2) Where an application is made under subsection (1) for a warrant to search land or premises, the magistrate may, subject to subsection (4) issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable -

(a) to enter upon the land or in or upon any premises and to search the land or premises for property of that kind; and

(b) to seize property found in the course of the search that the police officer believes on reasonable grounds to be property of that kind.

(3) A magistrate shall not issue a warrant under subsection (2) unless he is satisfied that -

(a) a production order has been given in respect of the document and has not been complied with;

(b) a production order in respect of the document would be unlikely to be effective;

(c) the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the document without any notice to any person; or

(d) the document involved cannot be identified or described with sufficient particularity to enable a production order to be obtained.

(4) A warrant issued under this section shall state -

(a) the purpose for which it is issued, including a reference to the nature of the relevant offence;

(b) a description of the kind of documents authorised to be seized;

(d) whether entry is authorised to be made at any time of the day or night or during specified hours.

(5) If during the course of searching under a warrant issued under this section, a police officer finds -

(a) a document of the type described in section 70(1) that the police believes on reasonable grounds to relate to the relevant offence, or to another serious offence; or

(b) any thing the police officer believes on reasonable grounds may afford evidence as to the commission of a serious offence,

the police officer may seize that property or thing and the warrant shall be deemed to authorise such seizure.

Search warrants in relation to foreign offences

76. Where a foreign State requests assistance to locate or seize property suspected to be tainted property in respect of an offence within its jurisdiction, the provisions of section 75 apply mutatis mutandis, provided that the Attorney-General has, under section 4(2) of the Mutual Assistance in Criminal Matters Act 2002, authorised the giving of assistance to the foreign State.

Monitoring orders

77. (1) The Director of Public Prosecutions or a police officer may apply, ex parte and in writing to a judge for an order (in this section called a "(monitoring order)" directing a financial institution to give information to a police officer. An application under this subsection shall be supported by an affidavit.

(2) A monitoring order shall -

(a) direct a financial institution to disclose information obtained by the institution about transactions conducted through an account held by a particular person with the institutions;

(b) not have retrospective effect; and

(3) A judge shall not issue a monitoring order unless he is satisfied that there are reasonable grounds for suspecting that the person in respect of whose account the order is sought -

(a) has committed or was involved in the commission, or is about to commit or be involved in the commission of a serious offence; or

(b) has benefited directly or indirectly, or is about to benefit directly or indirectly from the commission of a serious offence.

(4) A monitoring order shall specify -

(a) the name or names in which the account is believed to be held; and

(b) the class of information that the institution is required to give.

(5) Where a financial institution, which has been given notice of a monitoring order, knowingly-

(a) contravenes the order; or

(b) provides false or misleading information in purported compliance with the order,

the institution commits an offence against this subsection and shall on conviction be liable:-

(i) in the case of an individual, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both such fine and imprisonment; or

(ii) in the case of a body corporate, to a fine not exceeding five thousand dollar.

Monitoring orders not to be disclosed

78. (1) A financial institution that is, or has been subject to a monitoring order shall not disclose the existence or operation of the order to any person except to -

(a) an officer or agent of the institution for the purpose of ensuring compliance with the order;

(b) a legal practitioner for the purpose of obtaining legal advice or representation in respect of the order; or

(2) A person who contravenes subsection (1) shall be guilty of an offence and on conviction be liable -

(a) in the case of an individual, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both such fine and imprisonment; or

(b) in the case of a body corporate, to a fine not exceeding five thousand dollars.

(3) A person described in subsection (1)(a), (b) or (c) shall not disclose the existence or operation of a monitoring order except to another such person, and may do so only for the purposes of the performance of the person's duties or functions.

(4) A person who contravenes subsection (3) shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding one year or to both such fine and imprisonment.

(5) Nothing in this section prevents the disclosure of information concerning a monitoring order for the purpose of or in connection with legal proceedings or in the course of proceedings before a court, provided that nothing in this section shall be construed as requiring a legal practitioner to disclose to any court the existence or operation of a monitoring order.

Regulation

79. The Minister may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient.

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