Act No. 8 of 2019 · unexplained wealth orders and matters incidental thereto [Assented to 23rd...

BILL

AN ACT to provide for the establishment of the CivilAsset Recovery and Management Agency for therecovery of criminal property through the use of theremedies of restriction in dealings with civil assetsrestriction and forfeiture of criminal property andthe management of criminal property, andunexplained wealth orders and matters incidentalthereto

[Assented to 23rd April, 2019]

Fourth Session Eleventh Parliament Republic ofTrinidad and Tobago

REPUBLIC OF TRINIDAD AND TOBAGO

Act No. 8 of 2019

[L.S.]

ENACTED by the Parliament of Trinidad and Tobago asfollows:

PART IPRELIMINARY

1. This Act may be cited as the Civil Asset Recoveryand Management and Unexplained Wealth Act, 2019.

2. This Act shall come into operation on such date asis fixed by the President by Proclamation.

3. (1) In this Act, unless the context otherwiserequires—

“Agency” means the Civil Asset Recovery andManagement Agency established undersection 8;

“associated property” means in relation tocriminal property, terrorist property orinstrumentality of a crime that isrecoverable under this Act, that part of theproperty which is not recoverable and—

(a) is an interest in the recoverableproperty;

(b) is any other interest in theproperty in which the recoverableproperty subsists;

(c) the share of the other owner of theproperty where it is held incommon ownership; or

(d) the remainder of a larger part ofthe property which is not aseparate part;

“cash” includes coins and notes in anycurrency, postal orders, cheques of any kindincluding travellers’ cheques, bankers’drafts, bearer bonds, bearer shares andbearer negotiable instruments and otherbearer negotiable instruments in anycurrency;

Enactment

Short title

Commencement

Interpretation

2 No. 8 Civil Asset Recovery and Management 2019and Unexplained Wealth

“civil asset recovery” means the restriction orforfeiture of recoverable property or the useof an Unexplained Wealth Order under thisAct;

“Civil Asset Forfeiture Payment Order” meansan order made by the High Court undersection 48;

“consent order” means an order made by theHigh Court under section 49(1);

“criminal conduct” means conduct which-(a) constitutes a specified offence; or(b) if it occurs in a country outside of

Trinidad and Tobago—(i) would constitute an

offence in that country;and

(ii) if committed in Trinidadand Tobago wouldconstitute a specifiedoffence;

“criminal property” means property—(a) which constitutes a benefit to a

person from criminal conduct orrepresents such benefit, in wholeor in part whether directly orindirectly including economicgains and funds or propertyconverted or transformed intoother property; and

(b) which the alleged offender knowsor suspects constitutes orrepresents a benefit and for whichit is immaterial who carried outthe conduct or who benefitted fromthe conduct;

No. 8 Civil Asset Recovery and Management 2019 3and Unexplained Wealth

“excepted joint owner” means a person who hasan interest in property which is notrecoverable under this Act;

“IFRS” means the International FinancialReporting Standards as adopted from timeto time by the International AccountingStandards Board;

“instrumentality of crime” or “instrumentalities”includes—

(a) any property used or intended tobe used, in a manner, wholly or inpart in, or in connection with thecommission of a specified offence;and

(b) property that is used, intended orallocated for use in the financing ofterrorism or terrorist acts or byterrorist organizations;

“listed asset” means an item of property thatfalls within one of the following descriptionsof property:

(a) precious metals including gold,silver or platinum whether in amanufactured or unmanufacturedstate;

(b) precious stones including diamonds,rubies, sapphires, or emeraldswhether in a treated or untreatedstate;

(c) watches;(d) artistic works falling under

section 5 of the Copyright Act;(e) computers and electronics;(f) face-value vouchers, which are in a

physical form which represents the

Chap. 82:80


right to receive goods or services tothe value of the amount stated onit; and

(g) postage stamps;“Preliminary Unexplained Wealth Order”

means an order of the High Court grantedunder section 61 by which the respondent isrequired to appear before the High Court fora determination to be made as to whetheran Unexplained Wealth Order should bemade;

“property” means assets, of any kind whethertangible or intangible, moveable orimmovable, listed assets and includes cash;

“Property Manager” means the personappointed under section 17;

“reasonable living expenses” includes—(a) mortgage or rent payments;(b) allowances for food, transport,

clothing, medicine and medicaltreatment;

(c) any payments due as a result of anorder of the High Court;

(d) provision for the reasonable livingexpenses of dependents includingeducational expenses; and

(e) provision for taxes, insurancepremiums and public utilities;

“recoverable property” means criminalproperty, terrorist property or an instru-mentality of a crime;

“Seized Assets Fund” means the Fundestablished under section 59 of the Proceedsof Crime Act;

“specified offence” has the meaning assigned toit by section 2 of the Proceeds of Crime Act;

Chap. 11:27


“terrorist act” has the meaning assigned to it bysection 2 of the Anti-Terrorism Act;

“terrorist organization” has the meaningassigned to it by section 2 of the Anti-Terrorism Act;

“terrorist property” has the meaning assignedto it by section 2 of the Anti-Terrorism Act;

“Trustee” means the Civil Asset Trustee or aDeputy Civil Asset Trustee; and

“Unexplained Wealth Order” means an order ofthe High Court made under section 65 bywhich the respondent is required to pay tothe State the assessed difference betweenthe total value of the wealth of therespondent and the lawfully acquiredwealth of the respondent.

(2) References in this Act to a person disposing ofhis property includes a reference to his—

(a) divesting of—(i) a part of the property;

(ii) the property under a will,disposition, intestacy or operationof law; or

(iii) the property where he gaveunexecuted consideration whichbecame executed consideration;

(b) granting an interest in it throughmortgage, conveyance, gift or otherwise;or

(c) making a payment to a person in respectthereof.

4. (1) Upon the coming into force of this Act, this Actshall apply to all recoverable property, irrespective ofwhether or not the criminal conduct relative to therecoverable property occurred before or after the cominginto force of this Act.

Application

Chap. 12:07


(2) Subsection (1) shall not apply to tax crimeswhich occurred at any time six years or more prior to thecoming into force of this Act.

5. The standard of proof required to determine anyquestion under this Act as to whether recoverableproperty should be subject to civil asset recovery shallbe on the balance of probabilities.

6. (1) A Property Restriction Order made underthis Act is an order in rem against property believedto be criminal property, terrorist property orinstrumentalities of crime.

(2) A Civil Asset Forfeiture Order made underthis Act is an order in rem against property whichis criminal property, terrorist property orinstrumentalities of crime.

7. (1) Property which is criminal property, terroristproperty or an instrumentality of crime (hereinafterreferred to as “recoverable property”) is recoverableunder this Act.

(2) Recoverable property may be recovered—(a) in the case of criminal property or terrorist

property obtained through criminalconduct, from the person who obtained theproperty through the criminal conduct; and

(b) in the case of an instrumentality from anyperson who had the instrumentality for thepurposes of, or with the intent of using theinstrumentality for criminal conduct.

(3) Where recoverable property—(a) is disposed of, the recoverable property

continues to represent the criminalproperty, terrorist property orinstrumentality may be followed into thehands of the person who obtained it; and

(b) is converted, the property into which it wasconverted is recoverable under this Act.

Standard of proof

Orders in rem

Criminal propertywhich may berecovered


(4) Where recoverable property of a person ismixed with other property, whether the recoverableproperty is his property or belongs to another person,the portion of the mixed property which is attributableto the criminal property, terrorist property orinstrumentality represents the property obtainedthrough criminal conduct, a terrorist act or theinstrumentality.

(5) For the purposes of subsection (4), criminalproperty, terrorist property or an instrumentality of aperson is mixed with other property, if it is used—

(a) to increase funds held in a bank account;(b) in part payment for the acquisition of an

asset;(c) for the restoration or improvement of land;(d) by a person holding a leasehold interest in

land to acquire the freehold; or(e) in such other manner so as to vest in

another person an interest in thecriminal property, terrorist property orinstrumentality.

(6) Where a person who has criminal property orterrorist property obtains further property consisting ofprofits accruing in respect of the criminal property orterrorist property, those profits may be recovered underthis Act.

(7) Recoverable property ceases to be recoverableunder this Act—

(a) if it is vested, forfeited or otherwisedisposed of, under this Act;

(b) if pursuant to a judgment in civilproceedings, the defendant makes paymentto the claimant or the claimant otherwiseobtains property from the defendant;


(c) if the claim of a claimant is based on thecriminal conduct of the defendant;

(d) if civil proceedings have commenced andthe property obtained by the claimantwould be recoverable property;

(e) if the property is the subject of proceedingsin the High Court for which a trustee hasbeen appointed; or

(f) while a forfeiture applies to the recoverableproperty, whether made under this Act orany other written law.

(8) If a person grants an interest in recoverableproperty belonging to him, the interest is also to betreated as obtained through criminal conduct.

(9) Where a person holds recoverable property andis able to satisfy the Court, on a balance of probabilities,that the property was obtained in good faith for valuewithout notice that it was recoverable property, theproperty ceases to be recoverable.

PART IICIVIL ASSET RECOVERY, MANAGEMENT AND

UNEXPLAINED WEALTH AGENCY8. (1) There is hereby established an Agency to be

known as the Civil Asset Recovery and ManagementAgency (hereinafter referred to as “the Agency”) whichshall be responsible for the recovery, management anddisposal of criminal property, terrorist property or aninstrumentality under this Act.

(2) The Agency shall be a body corporate.9. (1) The Agency shall comprise a Civil Asset

Trustee and two Deputy Civil Asset Trustees.(2) The Civil Asset Trustee and one of the Deputy

Civil Asset Trustees shall be Attorneys-at-law of at leastten years’ standing appointed by the President on the

Composition ofAgency

Establishment ofCivil Asset Recoveryand ManagementAgency


advice of the Judicial and Legal Services Commissionwith experience and qualifications in any of thefollowing areas:

(a) asset recovery;(b) asset management; or(c) finance and audit.

(3) The second Deputy Trustee shall be a personwho possesses qualifications and experience in—

(a) asset recovery;(b) asset management; or(c) finance and audit or law,

and shall be appointed by the President on the advice ofthe Prime Minister and Leader of the Opposition.

(4) In the event the Prime Minister and Leader ofthe Opposition cannot agree on the joint advice, thePresident shall appoint the second Deputy Trustee afterconsultation with the Prime Minister and Leader of theOpposition.

(5) For the purposes of subsection (3)(c), a personshall have at least ten years’ experience and possessqualifications in finance and audit.

(6) Where a Civil Asset Trustee or Deputy CivilAsset Trustee under subsection (2) is temporarilyabsent or incapable of performing his duties due toillness or other cause, the Judicial and Legal ServicesCommission shall appoint a person possessing the samequalifications and experience to act in the place of thatCivil Asset Trustee or Deputy Civil Asset Trusteeduring the period of the vacancy or the period of absenceor temporary incapacity.

(7) Where the Deputy Trustee appointed undersubsection (3) is temporarily absent or incapable ofperforming his duties due to illness or other cause, thePresident may on the advice of the Prime Minister and


Leader of Opposition appoint a person possessing thequalifications and experience set out in subsection (3) toact in the place of that Deputy Trustee during theperiod of the vacancy or the period of absence ortemporary incapacity.

(8) In the event that the Prime Minister andLeader of the Opposition cannot agree on the jointadvice for the purposes of subsection (7), the Presidentshall appoint a Trustee after consultation with thePrime Minister and Leader of the Opposition.

(9) During the period of a vacancy, where twoTrustees of the Agency are present those Trustees shallconstitute the Agency and all actions taken by themduring that period are deemed to have been taken as ifall Trustees were present.

(10) A person appointed to fill a vacancy shall holdoffice as a Trustee for the unexpired term of hispredecessor.

10. (1) The Civil Asset Trustee shall be appointed fora term not exceeding five years and shall be eligible forreappointment.

(2) A Deputy Civil Asset Trustee shall beappointed for a term not exceeding four years and shallbe eligible for reappointment.

(3) The Salaries Review Commission, undersection 141 of the Constitution, shall review the salariesand other conditions of service of the Civil Asset Trusteeand the Deputy Civil Asset Trustees.

(4) The salary, remuneration and other conditionsof the Trustees shall not be altered to theirdisadvantage after their appointment and during theirtenure of office and such salary, remuneration andallowances of the Trustees shall be a charge on theConsolidated Fund.

Tenure andremuneration ofTrustees


11. No person is qualified to be appointed as CivilAsset Trustee or Deputy Civil Asset Trustee if thatperson—

(a) is an undischarged bankrupt;(b) is of unsound mind; or(c) has at any time had a record of a criminal

conviction for any indictable or summaryoffence which carries a term ofimprisonment of at least twelve months.

12. (1) The Civil Asset Trustee, may at any time,resign from office by notice in writing addressed to thePresident.

(2) A Deputy Civil Asset Trustee may resign, atany time, from office by notice in writing addressed tothe President, through the Civil Asset Trustee.

13. The President in his own discretion may, at anytime revoke the appointment of a Trustee if theTrustee—

(a) is declared bankrupt in accordance with thelaws of Trinidad and Tobago or any othercountry;

(b) becomes of unsound mind;(c) is, for whatever reason, incapable of

performing or unable to perform his dutiesas a member;

(d) is convicted of an indictable offence or issentenced to imprisonment for a term of sixmonths or more;

(e) has become a person who would bedisqualified for appointment pursuant tosection 11;

(f) misbehaves in office or, brings his officeinto disrepute; or

(g) for any other reasonable cause.

Disqualification of aTrustee

Resignation ofTrustee

Revocation ofappointment


14. (1) The functions of the Agency shall be—(a) to secure the detention, custody or

preservation of any recoverable propertyvested in it under a Civil Asset RestrictionOrder, Civil Asset Forfeiture Order orseized or forfeited to the State under anywritten law unless the recoverable propertyis to be used as an exhibit in courtproceedings;

(b) to manage criminal property, terroristproperty or instrumentality vested in itunder a Civil Asset Restriction Order, CivilAsset Forfeiture Order or an UnexplainedWealth Order or seized or forfeited by theState under any written law; and

(c) in the case of criminal property, terroristproperty or instrumentality other thancash or money, to realize the value of thecriminal property vested in it under a CivilAsset Forfeiture Order, or seized orforfeited by the State under any writtenlaw as far as practicable, in the mannerbest calculated to maximize the amountpayable to the Seized Assets Fund.

(2) In exercising its functions under this Act, theAgency shall have the following powers:

(a) to remove, take possession of and preserve,store or manage criminal property,terrorist property or instrumentality forthe length of time or the term it determinesproper and in accordance with the CivilAsset Restriction Order or Civil AssetForfeiture Order;

(b) to comply with the terms of any order towhich the property is subject, including anorder to comply with environmental,

Functions andpowers of Agency


industrial, labour or property standards orto pay taxes, utility charges or othercharges;

(c) to incur expenditure for the purpose of—(i) acquiring any part of the recoverable

property or any interest in it, which isnot vested in it; and

(ii) discharging any liabilities, orextinguishing any rights to whichthe recoverable property is subject;

(d) to manage recoverable property including—(i) selling or otherwise disposing of

assets comprising the recoverableproperty which are perishable orwhich ought to be disposed ofbefore their value diminishes;

(ii) where the recoverable propertycomprises assets of a trade orbusiness, carrying on or arrangingfor another to carry on, the trade orbusiness; and

(iii) incurring capital expenditurein respect of the recoverableproperty;

(e) to sell recoverable property or any part of itor interest in it;

(f) to start, carry on or defend any legalproceedings in respect of the recoverableproperty;

(g) to make arrangements for the insurance ofthe recoverable property;

(h) to destroy recoverable property that haslittle value, particularly in relation to thecost of storage;

(i) to destroy contraband or recoverableproperty that is inherently dangerous;


(j) to donate property for humanitarianpurposes if it cannot be sold, despitereasonable efforts, after a year;

(k) to share information with, and receiveinformation from, law enforcementauthorities; and

(l) for the purpose or in connection with theexercise of any of its functions to—

(i) hold property;(ii) enter into contracts;

(iii) sue and be sued;(iv) employ agents;(v) execute a power of authority, deed

or other instrument; and(vi) power to do any other act which is

necessary.15. (1) A Trustee or Property Manager who has any

actual, apparent or reasonably foreseeable conflict of adirect or indirect interest in a matter underconsideration by the Agency shall disclose the fact of hisinterest in writing to the President at the earliestopportunity and shall not participate in theconsideration of the matter.

(2) A person to whom this section applies whorecklessly or knowingly fails to comply withsubsection (1) commits an offence and is liable onsummary conviction to a fine of five hundred thousanddollars and to imprisonment for a term of five yearsunless he proves to the satisfaction of the High Courtthat he did not know that—

(a) the matter in which he had an interest wasthe subject of consideration by the Agency;or

(b) he had an interest in the matter underconsideration by the Agency.

Disclosure of interest


16. (1) A Trustee shall not be held personally liablefor anything done, omitted to be done or permitted to bedone in good faith in the course of the operations of theAgency under this Act.

(2) No civil or criminal proceedings shall lieagainst a Trustee who, in good faith, disclosesinformation as permitted under this Act.

(3) Any sum of money, damages or cost recoveredagainst the Agency for anything done or omitted to bedone or permitted to be done in good faith in the courseof the operations of the Agency shall be paid out of theconsolidated fund.

17. (1) There shall be a Property Manager of theAgency who shall have responsibility for takingpossession of, preserving, managing, disposing of,realising, or otherwise dealing with any property whichis the subject to any proceedings under this Act.

(2) The Property Manager under subsection (1)shall be appointed by the President in his owndiscretion for a period of time as determined in hisinstrument of appointment.

(3) The Salaries Review Commission shall set theterms and conditions of the Property Manager whichshall not be altered to his disadvantage after hisappointment and during his term of office.

(4) The President in his own discretion may atany time revoke the appointment of the PropertyManager if the Property Manager—

(a) is declared bankrupt in accordance with thelaws of Trinidad and Tobago or any othercountry;

(b) becomes of unsound mind;(c) is, for whatever reason, incapable of

performing or unable to perform his dutiesas the Property Manager;

Immunity of Trustee

Property Manager


(d) is convicted of an indictable offence or issentenced to imprisonment for a term of sixmonths or more;

(e) misbehaves in office or brings his office intodisrepute; or

(f) for any other reasonable cause.(5) Subject to any limits contained in any order of

a High Court in relation to any property subject of theorder, the Property Manager shall have the powers of areceiver.

(6) In exercising his powers as receiver, theProperty Manager may—

(a) remove;(b) take possession of;(c) preserve;(d) manage;(e) modify;(f) store;(g) sell or otherwise dispose of; and(h) deal with,

the property in any manner that he thinks appropriateand proper.

(7) In removing, taking possession of, preserving,storing and managing property, the Property Managermay do so for the length of time and on the terms thathe considers proper.

(8) The Property Manager may in respect ofproperty subject of an order under this Act—

(a) insure the property;(b) destroy the property that has little value,

where the cost of storage and maintenanceis high;


(c) allow for the destruction of property that isinherently dangerous;

(d) donate property for humanitarianpurposes;

(e) make provision for the property to be usedby the State; and

(f) where the recoverable property is thesubject of a Civil Asset Forfeiture Order,realize the recoverable property.

18. No action or other proceeding may be commencedagainst any party in respect of the actions of theProperty Manager for any act done in good faith in theperformance or intended performance of any duty underthis Part, or in the exercise or intended exercise of anypower under this Act or for any neglect or default in theperformance or exercise in good faith of any such duty orpower.

19. (1) The Agency may employ such persons asit considers necessary for the due and efficientperformance of its functions under this Act on suchterms and conditions as are agreed upon between theAgency and the person and shall be guided by anyguidelines for contractual employment issued by theChief Personnel Officer, from time to time.

(2) The Agency may engage experts, advisers andconsultants to assist in the conduct of its responsibilitiesunder the Act.

(3) The use of an adviser, expert or consultantshall not relieve the Agency of its functions under thisAct and Regulations made hereunder.

(4) An employee of the Agency shall not be heldpersonally liable for anything done, omitted to be doneor permitted to be done in good faith during theoperations of the Agency under this Act.

Liability of PropertyManager

Staff and experts ofAgency


(5) An employee, expert, adviser or consultantengaged by the Agency shall fully disclose to the Agencyin writing any actual, apparent or reasonablyforeseeable conflict of a direct or indirect interest hemay have with the activities of the Agency.

(6) An employee whose direct or indirect interestis likely to be affected in any way, on any matter undersubsection (1), shall as soon as possible after therelevant facts come to his knowledge, disclose in writingto the Civil Asset Trustee the nature of the interest.

(7) An employee, expert, adviser or consultantengaged by the Agency who recklessly or knowinglyfails to comply with subsection (5) commits an offenceand is liable on summary conviction to a fine of fivehundred thousand dollars and to imprisonment for aterm of five years unless he proves that he did not knowthat—

(a) the matter in which he had an interest wasthe subject of consideration by the Agency;or

(b) he had an interest in the matter underconsideration by the Agency.

(8) Before any employee, expert, adviser orconsultant commences duty under this Act, he shalltake the Oath of Office and Secrecy set out inSchedule 1.

PART IIIFINANCIAL PROVISIONS

20. In this Part, “Minister” means the Minister withresponsibility for finance.

21. (1) There is hereby established a fund to beknown as “the Civil Asset Recovery and ManagementFund”.

Definition ofMinister

Schedule 1

Civil Asset Recoveryand ManagementFund


(2) The monies in the Fund shall comprise—(a) money appropriated by Parliament for the

purposes of the Agency;(b) any money and property paid or provided to

the Agency and fees, subsidies, donations,gifts, charges, rent, interest and otherincome derived from the investment of thefunds of the Agency;

(c) any money derived from the disposal of, ordealing with real or personal property heldand owned by the Agency;

(d) monies borrowed by the Agency with theapproval of the Minister for the purpose ofmeeting any of its obligations and for dis-charging its functions;

(e) monies from the Seized Assets Fund usedto defray the cost of management of crimi-nal property, terrorist property and instru-mentality; and

(f) all other monies lawfully received by, ormade available to the Agency with theapproval of the Minister.

22. (1) The money in the Fund shall be applied indefraying the following expenditure:

(a) the acquisition of property by the Agency inthe course of performing its functions orexercising its powers;

(b) the remuneration, allowances, advances,loans, pensions and gratuities payable tostaff, experts, advisers and consultants;

(c) contributions to a pension fund plan;(d) capital and operating expenses, including

maintenance and insurance of the propertyof the Agency;

Funds of the Agency


(e) management of criminal property underthe control of the Agency;

(f) starting, carrying on and defending anylegal proceedings; and

(g) any other expenditure authorized by theAgency in the performance of its functions.

(2) The Agency, may in accordance with IFRS,make provision for future expenditure in any categoryreferred to in subsection (1).

(3) Where monies from the Seized Assets Fundare insufficient to manage criminal property under thecontrol of the Agency, the balance shall be defrayed outof the Consolidated Fund.

23. (1) The Agency shall prepare a budget inaccordance with IFRS or in such other form as theMinister may direct for each financial year and theAgency shall submit estimates so prepared to theTreasury not later than the deadline date stipulated bythe Minister having first obtained approval of theestimates of expenditure from the Minister.

(2) The Agency shall, at such time as theMinister directs, furnish him with any furtherinformation in relation to estimates he may require.

(3) Subject to the provisions of the Constitutionand the Exchequer and Audit Act, the estimates ofexpenditure, as approved by the Minister, shall be theexpenditure budget of the Agency for the financial yearto which it pertains.

24. (1) The financial year of the Agency shall be theperiod of twelve months beginning on the first day ofOctober in any year to the thirtieth day of September inthe following year, but the period from the date ofcommencement of this Act to the end of September nextfollowing shall be deemed to be the first financial year.

Financial year

Estimates ofexpenditure

Chap. 69:01


(2) The Agency may, with the approval of theMinister, vary its financial year.

25. (1) The Agency shall cause to be kept properaccounts and records of transactions and affairs of theAgency and shall do all things necessary to ensurethat—

(a) all monies received are properly brought toaccount;

(b) all payments out of its money are correctlymade and properly authorized; and

(c) adequate control is maintained over theproperty and over the incurring ofliabilities by the Agency.

(2) Within three months after the end of eachfinancial year the Agency shall cause to be prepared, inrespect of that year-

(a) a report setting out the activities of theAgency; and

(b) financial statements prepared inaccordance with IFRS,

and a copy of such report and financial statements shallbe forwarded to the Minister and shall be laid inParliament within sixty days from the date of receipt bythe Minister.

(3) Where the standards included in IFRS areinappropriate or inadequate for any type of accountingmethod, the Comptroller of Accounts may provide suchinstructions as may be necessary.

26. (1) The accounts of the Agency are publicaccounts for the purposes of section 116 of theConstitution.

(2) On completion of an audit of the Agency, theAuditor General or an auditor authorized by himto undertake the audit, as the case may be, shallimmediately draw to the attention of the Minister and

Audit of accounts

Accounts


the Civil Asset Trustee any irregularity disclosed by theaudit, which, in the opinion of the Auditor General orthe auditor is of sufficient importance to justify so doing.

(3) For the purpose of an audit conductedpursuant to this Act, the Exchequer and Audit Act shallapply as if an audit referred to in this Part is one towhich that Act applies.

(4) As soon as the accounts of the Agency havebeen audited, the Auditor General shall submit hisreport in accordance with section 116 of theConstitution and shall simultaneously forward a copy ofthe said report to the Minister.

(5) Nothing in this section precludes the AuditorGeneral or an auditor engaged by the Agency orthe Minister from performing a management orcomprehensive audit of the activities of the Agency.

27. The Minister may, on behalf of the Government,out of money appropriated by the Parliament for thatpurpose, lend money to the Agency on such terms andconditions as he determines in writing.

28. The Agency shall submit a report annually toParliament within three months after the end of thecalendar year on the activities of the Agency for theprevious year, commencing one year after the cominginto operation of this Act.

Realized proceeds

29. (1) The Agency shall make out of the sums whichrepresent the realized proceeds of property which arevested in the Agency under a Civil Asset ForfeitureOrder or which it obtained pursuant to a Civil AssetForfeiture Order—

(a) first, any payment required to be made byit by virtue of section 48;

Borrowing from theGovernment

Annual report

Applying realizableproceeds

Chap 3:01


(b) next, any payment of legal expenses whichare payable under sections 34(9)(b) and45(4)(b);

(c) any fees payable to a liquidator or receiverof a company appointed by, or supervisedby the High Court; and

(d) any sums which remain to be paid to theAgency.

(2) Sums under subsection (1)(d) shall be paidinto the Seized Assets Fund after any period—

(a) referred under section 43(3) has expired orthe application for compensation has beendetermined; or

(b) within which an appeal may be made or if aperson appealed after the appeal has beendetermined whichever is the later.

PART IVCIVIL ASSET RECOVERY

30. For the purposes of this Part—“FIU” means the “Financial Intelligence Unit of

Trinidad and Tobago” established under theFinancial Intelligence Unit of Trinidad andTobago Act; and

“property lawfully obtained” means propertythat has been acquired through legitimateactivities and includes property acquired byinheritance or other legitimate transfer.

31. (1) Where during the course of a criminalinvestigation for a specified offence the Commissioner ofPolice or such other person delegated by him notbelow the rank of Assistant Superintendent,Comptroller of Customs and Excise or the Chairman ofthe Board of Inland Revenue has reasonable grounds to

Interpretation ofcertain words andphrases in Part IV

Chap. 72:01

Referral of mattersto the Director ofPublic Prosecutions


suspect that the offence involves recoverable propertyhe may forward an investigative report to the Directorof Public Prosecutions.

(2) Where upon receipt of an investigative reportunder subsection (1), the Director of Public Prosecutionsis of the view that—

(a) there is insufficient evidence to pursuecriminal charges for a specified offencebut there is sufficient evidence that theproperty is recoverable property;

(b) the defendant whose property may be thesubject of a Property Restriction Order—

(i) has absconded the jurisdiction;(ii) is outside of the jurisdiction;

(iii) is too ill to face trial; or(iv) has died,

and an application should be made for therecoverable property to be forfeited to theState, he may refer the matter to theAgency.

32. (1) Prior to an application for a PropertyRestriction Order under section 33 or a Civil AssetForfeiture Order under section 44, the Agency shall asfar as possible have—

(a) an equity valuation done for any companywhich may be subject to an Order underthis Part, to accurately determine the debtload and equity of the company; and

(b) a valuation of any other asset which may bethe subject of the Order.

(2) Where it is not possible to conduct an equityvaluation or valuation prior to an application for a

Agency to requireequity valuation fora company


Property Restriction Order or a Civil Asset ForfeitureOrder, the Agency shall as soon as is reasonalblypracticable after the Property Restriction Order or theCivil Asset Forfeiture Order is made, cause to havedone—

(a) an equity valuation for any company beingthe subject of the Order to accuratelydetermine the debt load and equity of thecompany; and

(b) a valuation of any other asset which is thesubject of the Order.

Property Restriction Orders

33. (1) Upon referral of a matter by the Director ofPublic Prosecutions under section 31, the Agency shallapply to the High Court in the prescribed form for anorder to be known as “a Property Restriction Order” toprohibit a person from dealing with recoverableproperty until such time as an application can be madeto forfeit the recoverable property under this Act.

(2) Where the recoverable property is moneywhich is held in an account in a financial institution, themoney may be all or part of the credit balance of theaccount.

(3) The Civil Asset Trustee shall, in making anapplication to the High Court under this Part take intoconsideration—

(a) whether the recoverable property can beidentified; and

(b) that evidence of criminal conduct is to beassessed at the civil standard.

(4) An application under subsection (1) shall beaccompanied by an affidavit from the investigatingofficer.

(5) An application under subsection (1) may bemade ex parte and without notice.

Application forProperty RestrictionOrder


(6) The hearing of an application for a PropertyRestriction Order may be heard in camera.

34. (1) Where an application is made undersection 33(1) and the High Court is satisfied that—

(a) there are reasonable grounds to believethat the property to which the applicationrelates is recoverable property orassociated property; or

(b) the property to which the application forthe order relates includes property of whichthere are reasonable grounds to suspect isassociated property, and the Agency hasnot established the identity of the personwho holds it,

it may grant a Property Restriction Order.(2) Where the High Court has made a Property

Restriction Order, the High Court may, at any time—(a) direct the Agency—

(i) to seize, take possession anddeliver up for safekeeping orotherwise secure any recoverableproperty; and

(ii) to manage or otherwise deal withany recoverable property in respectof which it is appointed, subject tosuch exception and conditions asmay be specified by the High Court;

(b) require any person having possession ofrecoverable property in respect of which theAgency is appointed under this section togive possession of it to the Agency;

(c) order that the property or any part of therecoverable property specified in theProperty Restriction Order shall be dealtwith in a particular manner including by anencumbrance that is ordered by the court

Grant of PropertyRestriction Order


on such recoverable property in favour ofthe Agency together with an order thatprohibits any further encumbrance orwhich prohibits dealing in or with suchrecoverable property;

(d) order the preservation, management ordisposition of the recoverable property orpart of the recoverable property specifiedin the Property Restriction Order as theHigh Court considers appropriate.

(3) Within fourteen days of a PropertyRestriction Order being granted, or such other period asthe High Court may direct, notice of the order shall beserved on all persons known to the Agency and anyperson claiming to have an interest in the propertyaffected by the order, and such other person as the HighCourt may direct.

(4) Where the High Court is satisfied that aProperty Restriction Order has been applied for or madein respect of any property in respect of whichproceedings are pending, the High Court may eitherstay the proceedings or allow them to continue on suchterms as it thinks fit.

(5) The High Court in making a PropertyRestriction Order under this section may—

(a) exclude specified property or propertydescribed in the Property Restriction Orderfrom the Property Restriction Order;

(b) otherwise make exclusions on theprohibitions on dealing with the property towhich the Property Restriction Orderapplies; or

(c) make such other orders as it considersappropriate in the interest of justice.


(6) Where the High Court makes a PropertyRestriction Order, under this section, the State, theAgency or any other agency of the State shall not usethe property subject of the Property Restriction Orderfor the use of the State or the Agency or any agency ofthe State.

(7) The Remedies of Creditor’s Act shall apply inrelation to a Property Restriction Order as they apply inrelation to orders issued or made for the purpose ofenforcing judgments and registering a memorandum oflis pendens.

(8) Where a Property Restriction Order is beingmade, the High Court may in the order—

(a) make provision for meeting out of theproperty or a specified part of the property,reasonable living expenses;

(b) make provision for reasonable legalexpenses, including expenses incurred indefending a criminal charge or anyproceedings connected thereto and anyproceedings under this Act;

(c) make provision for expenses necessary toenable a person to carry on any trade,business, profession or occupation;

(d) make provision for fees or service chargesfor routine holding or maintenance offrozen funds or other financial assets oreconomic resources;

(e) make the person to whom the propertyrelates subject to any other condition thatthe High Court considers reasonable;

(f) indicate into which account held in afinancial institution any excess cash shallbe placed; or

(g) prohibit the person to whom the propertyrelates from possessing or controlling cashin excess of an amount to be prescribed bythe Judge.

Chap. 8:09


(9) Where the High Court provides in a PropertyRestriction Order for a person to meet legal expensesthat the person has incurred or may incur in respect ofproceedings under this Part, the High Court shallensure that the provision—

(a) is limited to reasonable legal expenses thatthe person has reasonably incurred or thatthe person reasonably incurs;

(b) specifies the total amount that may bereleased for legal expenses in pursuance ofthe exclusion; and

(c) includes any other matter the High Courtconsiders appropriate in the circumstances.

(10) Where provisions are made undersubsection (8)(a), (b) or (c), and unrecoverable assetsexist from which provision for financial arrangementscan be made for those provisions, no financialarrangement shall be made out of the recoverableproperty.

(11) Where a Property Restriction Order has beenmade and the Agency has been directed to manage orotherwise deal with any recoverable property in respectof which it is appointed, the Agency may do anythingthat is reasonably necessary to preserve the recoverableproperty and its value including—

(a) becoming a party to any civil proceedingsthat affect the recoverable property;

(b) ensuring that the recoverable property isinsured;

(c) realising or otherwise dealing withrecoverable property if—

(i) it is perishable, subject to wastingor other forms of loss;

(ii) its value is volatile or the cost ofstorage or maintenance is likely toexceed its value,


subject to the proviso that this power maybe exercised without the prior approval ofthe High Court only in circumstancewhere—

(iii) all persons known, by the agency,to have an interest in therecoverable property consent to therealization or other dealing withthe recoverable property;

(iv) the delay involved in obtainingsuch approval is likely to result in asignificant diminution in the valueof the recoverable property; or

(v) the cost of obtaining such approvalwould, in the opinion of thereceiver, be disproportionate to thevalue of the recoverable propertyconcerned;

(d) whether the recoverable property consistswholly or partly of a business—

(i) employing, or terminating theemployment of, persons in thebusiness;

(ii) doing any other thing that isnecessary or convenient forcarrying on the business on a soundcommercial basis;

(iii) selling, liquidating or winding upthe business if it is not a viableconcern, subject to obtaining theprior approval of the High Court; or

(iv) if the recoverable property includesshares in a company, exercisingrights attaching to the shares as ifthe Agency were the registeredholder of the shares.


35. (1) The High Court may at any time vary or setaside a Property Restriction Order on an applicationmade by—

(a) the Agency; or(b) any person affected by the order,

where it appears in the interest of justice to do so.(2) Before varying or setting aside a Property

Restriction Order the High Court shall give any personwho may be affected by its decision an opportunity to beheard.

(3) The power under subsection (1) to vary aProperty Restriction Order shall include the power tomake exclusions from the prohibition on makingwithdrawal payments from the account to which theProperty Restriction Order applies for the purpose ofenabling a person by, or for whom the account isoperated—

(a) to meet his reasonable living expenses;(b) to carry on any trade, business, profession

or occupation; or(c) to meet reasonable legal expenses.

(4) The High Court shall not, under sub-section (3), exclude property or amount from therecoverable property identified in the PropertyRestriction Order unless it is satisfied that the personcannot meet such expenses out of property that is notsubject to a Property Restriction Order and the HighCourt determines that it is in the interest of justice tomake such an exclusion.

(5) Where the High Court makes an exclusion forthe purpose of enabling a person to meet legal expensesand that person has incurred or may incur in respect ofproceedings under this Part, the High Court shallensure that the exclusion—

(a) is limited to reasonable legal expenses thatthe person has reasonably incurred or thatthe person reasonably incurs; and

Variation or settingaside of PropertyRestriction Order


(b) specifies the total amount that may bereleased for reasonable legal expenses inpursuance of the exclusion; or

(c) includes any other matter the HighCourt considers appropriate in thecircumstances.

(6) Where the High Court makes an order underthis section and while the order is in effect—

(a) the High Court may stay any action,execution or other legal process in respectof the property to which the order applies;and

(b) no distress may be levied against theproperty to which the order applies exceptwith the permission of the High Court andsubject to such terms as the High Courtmay impose.

36. For the purposes of the execution of a PropertyRestriction Order granted under section 34, the HighCourt may require the person to whom the PropertyRestriction Order applies to bring the property and anydocuments relating to the property which are in hispossession or control to such place as may be specifiedby the Agency or to place it in the custody of the Agencyand to do anything he is reasonably required to do bythe Agency for the preservation of the property or thedocuments.

37. (1) Where the High Court has made a PropertyRestriction Order, it may, at any time, upon applicationby—

(a) anyone with an interest in the property;(b) anyone who claims an interest in the

property; or(c) the Agency,

make any further order in respect of the recoverableproperty including an order to revoke the Property

Requirement ofrespondent under aProperty RestrictionOrder

Third party rights


Restriction Order or to carry out the order, where itappears to the High Court to be in the interest of justiceto do so.

(2) In considering an application undersubsection (1)(a) or (b), the applicant shall satisfy theCourt that—

(a) he was deprived of the property he claimsor of property which it represents byunlawful conduct;

(b) the property he was deprived of was notproperty recoverable under this Actimmediately before he was deprived of it;and

(c) he has a legal or equitable interest in theproperty claims.

38. (1) Where a High Court has made a PropertyRestriction Order, the High Court may, at any timethereafter, make any further order that it considersappropriate.

(2) A further order under subsection (1) mayinclude an order—

(a) to appoint the Agency as receiver, or areceiver of the Court’s choosing to takecustody and control of the property or apart of the property that is specified in theProperty Restriction Order and to manageor otherwise deal with the whole or anypart of the property in accordance with anydirections of the High Court;

(b) authorizing a police officer to search for andseize any other recoverable property toprevent the recoverable property frombeing removed from Trinidad and Tobago;or

(c) for the preservation, management ordisposition of the recoverable property orpart of the recoverable property specified inthe Property Restriction Order as the HighCourt considers appropriate.

Further provision re:Property RestrictionOrder


(3) An order under subsection (2)(b) to search forand seize any other recoverable property may begranted where the Agency establishes that-

(a) a Property Restriction Order would not beeffective to preserve the recoverableproperty; or

(b) there is reasonable suspicion of risk ofdissipation or alienation of the recoverableproperty if the order is not granted.

(4) If, during the course of a search under anorder granted under subsection (2)(b), a police officerfinds any property that he believes, on reasonablegrounds, is of a kind that could have been included inthe order has its existence, or its existence at that placebeen known of at the time of the application for theorder, he may seize the recoverable property and theseizure order shall be deemed to authorise the seizureprovided—

(a) notice of the seizure of the recoverableproperty is reported within forty-eighthours to the High Court; and

(b) a record of the seizure of the property is leftat the premises from which the recoverableproperty was seized and is given to theoccupier of the premises.

(5) Property seized under an order granted undersubsection (2)(b) may be retained by or on behalf of theAgency for twenty-eight days from the date of seizureand the Agency may subsequently make an applicationfor a Property Restriction Order in respect of therecoverable property.

(6) Where no application is made by the Agencywithin fourteen days of the expiration of an order undersubsection (5), the property seized shall be returned tothe person from whom it was seized within fourteendays thereafter or as soon as it is reasonablypracticable.


39. A Property Restriction Order granted undersection 34 or a further order granted under section 38expires ninety days after the date on which notice of theorder is given under section 38—

(a) unless an application for a Civil AssetForfeiture Order under section 44 has beenmade; or

(b) the Property Restriction Order is revokedbefore its expiration date.

40. Where the High Court has made a PropertyRestriction Order, the order shall require the Agencyto—

(a) give notice of the orders to public or privateinstitutions; and

(b) publish a notice of the Property RestrictionOrder in the Gazette and for two days with-in a two-week period in two newspapers indaily circulation in Trinidad and Tobago.

41. (1) Where the Agency makes an application for aProperty Restriction Order under section 33 in respectof land, the Agency shall be treated as a personinterested in any land to which the application relatesor to which a Property Restriction Order made on theapplication relates and the Agency may, at that time,request the Court to direct the Registrar General torestrict or prohibit dealings with the land.

(2) The Registrar General shall, on an Orderbeing granted under subsection (1), enter the restrictionin the relevant Register.

(3) Where the Agency makes an application for aProperty Restriction Order under section 33 in respectof a motor vehicle, the Agency shall be treated as aperson interested in the motor vehicle to which theapplication relates or to which a Property RestrictionOrder made on the application relates and the Agencymay, at that time, request the Court to direct theCommissioner of Transport to restrict or prohibitdealings with the motor vehicle.

Requirement toinform specifiedagencies of PropertyRestriction Order

Notice of PropertyRestriction Orderto be given to publicand privateinstitutions

Expiration of aProperty RestrictionOrder


(4) The Commissioner of Transport may, on anapplication made under subsection (3), enter therestriction in the relevant Register.

(5) Where the Agency makes an application for aProperty Restriction Order under section 33 in respectof a ship, the Agency shall be treated as a personinterested in the ship to which the application relates orto which a Property Restriction Order made on theapplication relates and the Agency may, at that time,request the Court to direct the agency responsible forregistration of Trinidad and Tobago ships in Trinidadand Tobago to restrict or prohibit dealings with theTrinidad and Tobago ship.

(6) The Agency responsible for registration ofTrinidad and Tobago ships in Trinidad and Tobago shallon an Order being granted under subsection (5), enterthe restriction in the relevant Register.

42. Where a Property Restriction Order is grantedunder section 34 in respect of property that is notlocated in Trinidad and Tobago, the Attorney Generalmay request the assistance of the country where theproperty is located under Part VI to—

(a) prohibit any person from dealing with theproperty; or

(b) assist in managing the property includingsecuring its detention, custody orpreservation.

43. (1) If, in the case of property to which a PropertyRestriction Order has at any time applied, the HighCourt does not, in the course of the proceedings,determine that the property is recoverable under thisAct, the person to whom the property belongs may makean application to the High Court for compensation.

(2) Subsection (1) shall not apply where, the HighCourt—

(a) has made an order under section 37 inrespect of the property; or

Compensation

Enforcement abroadof PropertyRestriction Order


(b) makes a consent order under section 49.(3) If a High Court has made a decision by which

no Property Restriction Order can be made in respect ofthe property, the application for compensation shall bemade within three months, beginning—

(a) with the date of the decision;(b) if an application is made for leave to

appeal, with the date on which theapplication is withdrawn or refused; or

(c) if the application is granted, with the dateon which the proceedings on appeal areconcluded,

or within such further period as the Court considersjust in the circumstances.

(4) If the proceedings in respect of the propertyhave been discontinued, the application forcompensation shall be made within the period of threemonths beginning with the discontinuance or withinsuch further period as the Court considers just in thecircumstances.

(5) If the High Court is satisfied that theapplicant has suffered loss as a result of the PropertyRestriction Order, it may require the Agency to paycompensation to the applicant.

(6) If, but for section 47(2), any right mentionedthere would have operated in favour of, or becomeexercisable by, any person, that person may within theperiod of three months beginning with the order underthat section or within such further period as the Courtconsiders just in the circumstances, apply to the HighCourt for compensation under this section.

(7) If the High Court is satisfied that, inconsequence of the operation of section 44, the right ofpre-emption, right of return or other similar rightcannot subsequently operate in favour of the applicantor become exercisable by him, the High Court mayrequire the agency to pay compensation to theapplicant.


(8) The amount of compensation to be paid underthis section is the amount the High Court thinksreasonable, having regard to the loss suffered and anyother relevant circumstances.

Civil Asset Forfeiture Order

44. (1) Where a Property Restriction Order has beenmade under section 34 and the Agency is satisfied thatan order should be made to forfeit the property specificto the Property Restriction Order, the Agency may applyto the High Court for an order (hereinafter referred to asa “Civil Asset Forfeiture Order”).

(2) A Civil Asset Forfeiture Order is an order inrem against assets which are recoverable property,which removes the legal ownership in the property andvests it in the State.

(3) An application for a Civil Asset ForfeitureOrder may be made in respect of recoverable propertyinto which original proceeds have been converted,whether by sale or otherwise.

(4) An application for a Civil Asset ForfeitureOrder shall be supported by an affidavit from theinvestigating officer relative to the application whichmay contain, unless the High Court otherwise directs,statements of information of belief with the sources andgrounds thereof.

(5) Where the Agency makes an application for aCivil Asset Forfeiture Order against recoverableproperty under this section—

(a) it shall serve a copy of the application onany person whom the Agency has reason tobelieve has an interest in the recoverableproperty;

(b) any person claiming an interest in therecoverable property may appear andadduce evidence at the hearing of theapplication; and

Application for aCivil AssetForfeiture Order


(c) at any time before the final determinationof the application, the High Court maydirect the Agency to provide such noticethat the High Court deems appropriate toany person, who in the opinion of the HighCourt, appears to have an interest in therecoverable property.

(6) Service of notice under subsection (5) shall bemade in accordance with rules applicable in CivilProceedings Rules.

(7) Any person who asserts an interest in therecoverable property and who seeks to oppose themaking of a Civil Asset Forfeiture Order, or who wishesto exclude his interest from a Civil Asset ForfeitureOrder shall file an appearance in accordance with theCivil Proceedings Rules.

(8) Where an application is made for a Civil AssetForfeiture Order before the High Court, the High Courtmay determine, by its own procedures, the evidence thatmay be adduced before it and, in particular, shall ensurethat the person with an interest of any nature in therecoverable property has the opportunity to makerepresentations to the High Court as to whether a CivilAsset Forfeiture Order should be granted.

45. (1) The High Court may, where it is satisfied thaton the balance of probabilities that the recoverableproperty should be forfeited, grant a Civil AssetForfeiture Order to forfeit such property.

(2) In order to satisfy the High Court undersubsection (1) that the property is—

(a) criminal property, it is not necessary toshow that the property is derived directlyor indirectly, in whole or in part, from aparticular offence, or that any person hasbeen charged in relation to the particularoffence, only that it is criminal property;

Grant of a CivilAsset ForfeitureOrder


(b) an instrumentality, it is not necessary toshow that the property was used orintended to be used to commit a particularoffence, or that any person has beencharged in relation to the particularoffence, only that it was used or intended tobe used to commit an offence; and

(c) terrorist property, it is not necessary toshow that—

(i) the property was derived from aspecific terrorist act;

(ii) the property has been, or is being,or is intended to be used by aterrorist or a terrorist organization,to commit a specific terrorist act, aslong as it is shown that it has been,is being or is intended to be used bysome terrorist organization or tocommit some terrorist act;

(iii) the property is owned or controlledby, or on behalf of a specificterrorist or terrorist organization,as long as it is shown to be ownedor controlled by, or on behalf ofsome terrorist organization;

(iv) the property has been provided orcollected for the purpose ofsupporting a terrorist or a specificterrorist organization or funding aspecific terrorist act, as long as it isshown to have been provided orcollected for the purpose ofproviding support to some terroristorganisation or funding someterrorist act; or

(v) any person has been charged inrelation to any matter undersubparagraph (i), (ii) or (iii)provided that always the evidence


reveals that the property isconnected to terrorism howeverevidenced.

(3) Property may be found to be recoverableproperty under subsection (1) even if a person wasacquitted of any offence, charges were withdrawn beforea verdict was returned or if the proceedings were stayed.

(4) Without prejudice to the generality of sub-section (1), the High Court in making a Civil AssetForfeiture Order may make it subject to such conditionsand exceptions as the High Court considers fit, and mayin particular—

(a) make provision for meeting out of theproperty or a specified part of the property,reasonable living expenses, including butnot limited to—

(i) mortgage or rent payments;(ii) allowances for food, medicine and

medical treatment;(iii) any payment due as a result of an

order of the High Court;(iv) provision for the reasonable living

expenses of dependents includingeducational expenses; and

(v) provision for taxes, insurancepremiums and public utilities;

(b) make provision for reasonable expenses,including expenses incurred in defendingany legal proceedings including anyproceedings under this Act;

(c) make provision for expenses necessary toenable a person to carry on any trade,business, profession or occupation; or

(d) be made subject to any other condition thatthe High Court considers reasonable.


(5) Where provisions are made under sub-section (4)(a), (b), or (c), and unrecoverable assets existfrom which provision for financial arrangements can bemade for those provisions, no financial arrangementshall be made out of the recoverable property.

(6) A Civil Asset Forfeiture Order shall have theeffect of vesting the forfeited property in the PropertyManager who shall be responsible for realising theproperty in accordance with section 73.

(7) A Civil Asset Forfeiture Order may apply toall criminal property, instrumentalities of crime orterrorist property, whether the property—

(a) is described in the order or not; or(b) was transferred to the person subject of an

order after the making of the order.(8) A Civil Asset Forfeiture Order shall provide

for notice to be given to persons affected by the order.(9) A Civil Asset Forfeiture Order—

(a) may be discharged or varied in relation toany property; and

(b) shall be discharged on the conclusion of theproceedings or application in question.

(10) An application for a Civil Asset ForfeitureOrder may be made where a person, now deceased,committed the conduct on which the application for theorder is based.

(11) An application for the discharge or variationof a Civil Asset Forfeiture Order may be made by anyperson who has interest in the property subject to theorder.

(12) The High Court shall not make a Civil AssetForfeiture Order, if it is satisfied that the right of theAgency to recover the recoverable property has beensatisfied by a previous Civil Asset Forfeiture Order oran order under section 49.


(13) Where the High Court has made a Civil AssetForfeiture Order, the Order shall require the Agencypublish a notice of the Civil Asset Forfeiture Order inthe Gazette and for two days within a two-week periodin two newspapers in daily circulation in Trinidad andTobago.

(14) Subject to subsection (12), the High Court,where it is satisfied that a Civil Asset Forfeiture Ordermay be made in respect of two or more related items ofrecoverable property, however the making of the CivilAsset Forfeiture Order in respect of both or all of themis not required in order to satisfy the right of the Agencyto recover recoverable property, the High Court maymake a Civil Asset Forfeiture Order in relation to someof the related items of property or a part of any of therelated items of the recoverable property.

(15) Property forfeiture under subsection (1) shallbe dealt with in accordance with the direction of theHigh Court.

46. Where a Civil Asset Forfeiture Order is grantedunder section 45, it shall require the Agency to—

(a) give notice of the orders to public or privateinstitutions;

(b) give notice to all persons known to theperson making the claim that have aninterest in the property specified in theCivil Asset Forfeiture Order;

(c) publish a notice of the Civil AssetForfeiture Order in two newspapers indaily circulation in Trinidad and Tobago;and

(d) publish the Civil Asset Forfeiture Order onthe website of the Agency.

47. (1) A Civil Asset Forfeiture Order is to have effectin relation to any property despite any provision, ofwhatever nature, which would otherwise prevent,penalize or restrict the vesting of the property.

Notice of grant ofCivil AssetForfeiture Order

Rights ofpre-emption


(2) A right of pre-emption, right of return or othersimilar right does not operate or become exercisable soas to frustrate the vesting of any property or the Stateunder a Civil Asset Forfeiture Order.

(3) Once property has been vested in the Stateunder a Civil Asset Forfeiture Order, a right ofpre-emption right or return or other similar rightcannot operate or be exercisable in respect of theproperty.

(4) For the purposes of this section, “a right ofreturn” means any right under a provision for thereturn or reversion of property in specifiedcircumstances.

48. (1) Where a Civil Asset Forfeiture Order has beenmade in respect of property, the person who—

(a) holds the associated property; or(b) is an excepted joint owner,

shall, where the Agency agrees, apply to the High Courtfor an order (hereinafter referred to as “a Civil AssetForfeiture Payment Order”) to allow for a payment tothe Agency and to allow for the vesting, creating orextinguishing of any interest in the property.

(2) The amount of payment shall be the amountthat the Agency and the applicant under subsection (1)agree which represents-

(a) property which is associated with therecoverable property and is specified ordescribed in the application;

(b) associated property which does not belongto the defendant, where the claim form orthe application has been served on theperson to whom the property belongs or theHigh Court has dispensed with service; and

(c) the recoverable property belonging to jointowners or one of the owners is an exceptedjoint owner.

Agreements aboutassociated propertyand joint property


(3) Where a Civil Asset Forfeiture Payment Orderis made under subsection (1), and the Agency, based onfurther information coming to its attention, issubsequently of the view that the amount of losssuffered is less than the amount of the Civil AssetForfeiture Payment Order, the Agency may apply to theHigh Court to reduce the amount of the payment to anamount that the Agency and the applicant agree isreasonable, having regard to that loss and any otherrelevant circumstances.

(4) The High Court, where it is satisfied upon anapplication under subsection (3) that the amount to bepaid should be reduced, may amend the Civil AssetForfeiture Payment Order made under subsection (1).

(5) Where there is no agreement undersubsection (1) and the High Court thinks it just andequitable to do so, the High Court may, by Order—

(a) vest associated property in the Agency;(b) extinguish the interest of the excepted joint

owner; or(c) secure the interest of the excepted joint

owner.(6) An amended Civil Asset Forfeiture Payment

Order under subsection (4), may provide for either orboth of the following:

(a) for the Agency to pay an amount to a personwho holds the associated property or who isthe excepted joint owner; and

(b) for the creation of interest in favour of thatperson or the imposition of liabilities orconditions in relation to the property vestedin the Agency.

(7) In making a Civil Asset Forfeiture PaymentOrder under subsection (5) or (6), the High Court shalltake into consideration—

(a) the rights of any person who holds theassociated property or who is an excepted


joint owner and the value to him of thatproperty or as the case may be of his shareincluding any value which cannot beassessed in term of money; and

(b) the interest of the Agency in receiving therealized proceeds of the property.

49. (1) The High Court may make an order(hereinafter referred to as a “consent order”) stayingany proceedings for a Civil Asset Forfeiture Order onterms agreed by the parties for the disposal of theproceedings, if each person, to whom the property whichis the subject of the proceedings or the agreement, is aparty to both the proceedings and the agreement.

(2) An order under subsection (1) may, as well asstaying the proceedings—

(a) make provision for any property which maybe recoverable under this Act to cease to berecoverable; and

(b) make any further provision which the HighCourt thinks appropriate.

50. (1) If, in the course of hearing an application for aCivil Asset Forfeiture Order, the High Court is satisfied,on a balance of probabilities, that the property that isthe subject of the application is recoverable property,but that a person is a legitimate owner, the High Courtshall make any order it considers necessary to protectthat person’s interest in the property.

(2) For the purposes of subsection (1) “a legitimateowner” means in the case of—

(a) criminal property, a person who—(i) was the rightful owner of the

property before the criminalconduct occurred and was deprivedof the property by the criminalconduct; or

Orders regardinglegitimate owners

Staying ofproceedings andother options of theHigh Court


(ii) acquired the property in good faithand for fair value after the criminalconduct and did not and could notreasonably have known theproperty was criminal property;

(b) instrumentalities, a person who has doneall that can reasonably be done to preventthe property from being used as aninstrumentality; and

(c) terrorist property, a person who can satisfythe High Court that he would be thelegitimate owner if the property fell underparagraphs (a) or (b).

(3) The High Court shall not make an orderunder subsection (1), if the property is property that isunlawful for a person to possess in Trinidad and Tobago.

51. A person who has absconded from any process ofthe court and is still an absconder in Trinidad andTobago may not appear, whether personally or througha representative, in proceedings for a Civil AssetForfeiture Order or contesting the granting of a CivilAsset Forfeiture Order.

Specific Requirements for Certain Types of Properties

52. (1) Where land which is the subject of a PropertyRestriction Order is subject to government rates andtaxes or encumbered as security for mortgages or loans,the Property Restriction Order should provide that theperson to whom the property relates or other occupantof the land is required to maintain up to date paymentsof taxes and other debts that have the potential toencumber the land with a lien.

(2) Where the person to whom the propertyrelates or other occupant of the land fails to pay rates,taxes and loan payments in respect of the property, theAgency shall inform the High Court of such failure andthe High Court may order the person to pay the relevantrates, taxes and loan payments.

Fugitive claims

Real property


(3) Taxes and liens will take priority over a CivilAsset Forfeiture Order made under this Act.

(4) The Agency may, in making an application fora Property Restriction Order, enter into an agreementwith the person to whom the property relates or otheroccupant of the land to grant continued occupancy,conditional on the payment of the expenses and thatgrants the Agency the immediate right to takepossession and evict the occupants if the conditions arenot met.

(5) Where the Agency is required to evict theoccupants under subsection (4), the Agency may leasethe property at a rate that is sufficient to meetexpenses or to sell the asset and use the proceeds to payoutstanding debts.

53. (1) Prior to an application for a Civil AssetRestraint Order in respect of stocks, bonds andbrokerage accounts, the Agency shall ensure that theasset is valued and determines how best to preserve thevalue of the asset.

(2) Cash, restrained under this Act and placedinto the possession of the Agency by the High Courtunder a Property Restraint Order, shall be preserved bythe Agency in an interest-bearing account until a CivilAsset Forfeiture Order is made under this Act.

(3) Financial instruments such as cashiercheques, money orders, certificates, deposits, stocks,bonds and brokerage accounts may also be seized withprocedures taken to preserve or redeem their value.

54. (1) Where the Agency is required to maintain amotor vehicle, airplane or boat under a PropertyRestriction Order or a Civil Asset Forfeiture Order, theAgency shall maintain the motor vehicle, airplane orboat in a secure, appropriate storage facility.

(2) The Agency may, with the permission of theHigh Court under a Property Restriction Order or aCivil Asset Forfeiture Order, dispose of by sale and in

Cash, bank accountsand financialinstruments

Motor vehicles,airplanes or boats


accordance with Regulations made under this Act, anymotor vehicle, airplane or boat seized so as to obtain thebest value possible.

(3) The Agency may, with the permission of theHigh Court under a Property Restriction Order andupon the inter-parties application of the owner of themotor vehicle, airplane or boat, permit the owner toretain use of the motor vehicle, airplane or boat duringthe course of the Civil Asset Forfeiture proceedings withthe posting of a bond by the owner guaranteeing thepayment of an amount equivalent to its value at thetime the case was initiated.

55. (1) The Agency may apply to ask the High Courtfor permission in the relevant order for the currentmanager of the business which is the subject of an orderto continue the operations under the control of abusiness manager contracted by the Agency orappointed by the High Court.

(2) The Agency or appointed or contractedmanager under subsection (2) is required to takeimmediate control of bank accounts, accounting systemsand records, important business data, valuable stocksand valuable plant and equipment.

(3) Where a manager is appointed or contractedunder subsection (2), he shall send regular reports onthe performance of the business to the Agency.

(4) Where the business is the subject of an Orderunder this Part is assessed to be of little value, theAgency, shall include the business in the relevant orderbut decide not to undertake the financial risksassociated with the continued operation, and mayinstead close the operations or sell the business andplace the proceeds in the Seized Assets Fund.

56. Where listed assets, subject to a PropertyRestriction Order or Civil Asset Forfeiture Orderdetained or realized under this Act represents only partof the listed assets which are subsequently detained orrealized, a reference to the cost incurred in storing or

Companies

Listed assets


insuring the listed assets as required by Regulationsmade under this Act, includes a reference to storing orinsuring the entire listed assets.

57. Where a Civil Asset Forfeiture Order is made inrespect of property which is perishable or subject towasting or other forms of loss, its value is volatile or thecost of storage or maintenance is likely to exceed itsvalue, the Agency may sell the perishable or rapidlydepreciating asset and place the proceeds in the SeizedAssets Fund.

PART VUNEXPLAINED WEALTH ORDERS

58. (1) Where the Chairman of the Board of InlandRevenue, the Comptroller of Customs and Excise or theCommissioner of Police or such other person delegatedby him not below the rank of Assistant Superintendent(hereinafter referred to as “the applicant”) duringthe course of an investigation for a specified offencereasonably suspects that—

(a) the total wealth of the respondent exceedsthe value of his lawfully obtained wealth;

(b) the total wealth of the respondent is overfive hundred thousand dollars;

(c) the property is owned by the respondent oris under his effective control; and

(d) the property was obtained through thecommission of a specified offence,

he may apply to the High Court in writing for an order(“in this Part hereinafter referred to as a PreliminaryUnexplained Wealth Order”), requiring the respondentto file a declaration and answer questions as required inrelation to his assets.

Application for Orderfor a declaration

Perishable anddepreciating assets


(2) An application under subsection (1) shall beaccompanied by an affidavit stating—

(a) the identity of the respondent;(b) the grounds by which the applicant

reasonably suspects that the total wealth ofthe respondent exceeds the value of hislawfully obtained wealth; and

(c) the grounds by which the applicantreasonably suspects that any property isowned by the respondent or is under hiseffective control.

(3) An application under subsection (1) may bemade ex parte.

59. (1) A declaration under section 58(1) shall be inthe form set out as Form 1 in Schedule 2.

(2) All documents filed in the High Court underSection 58 (1) shall be filed under seal.

60. A person who knowingly and wilfully makes astatement which is false in any material particular onthe declaration form under section 58 commits anoffence and is liable on summary conviction to a fine ofone hundred thousand dollars and to imprisonment oftwenty years.

61. (1) Where the High Court is satisfied that thereare reasonable grounds to suspect that the total wealthof the respondent exceeds the value of his wealth thatwas lawfully obtained, it may make a PreliminaryUnexplained Wealth Order, requiring the respondent tofile a declaration and appear before the High Court toanswer questions relative to his assets for the HighCourt to decide whether to make an UnexplainedWealth Order.

(2) Where a Preliminary Unexplained WealthOrder has been made under this section, a notice of themaking of the order shall be served on the respondentwithin 7 days from the making of the order.

Form of declaration

Schedule 2

False declaration

Grant of aPreliminaryUnexplained WealthOrder


62. (1) Where the High Court makes a PreliminaryUnexplained Wealth Order under section 61, therespondent may, within twenty-eight days of notice ofthe order under section 61(2), apply to the High Courtfor the order to be set aside or discharged.

(2) Where an application is made under thissection, the High Court shall order an inter parteshearing date within fourteen days.

(3) Where an application is made under thissection, the respondent under subsection (1) shallprovide the Chairman of the Board of Inland Revenue,the Comptroller of Customs and Excise or theCommissioner of Police or such other person delegatedby him not below the rank of Assistant Superintendentwho made the application under section 58(1) with—

(a) written notice of the application; and(b) a copy of any documents supporting the

application.

(4) Where an application is made under thissection, the respondent under subsection (1) may appearand adduce evidence.

(5) The applicant under section 58(1) may appearand adduce evidence at the hearing of any applicationmade under this section and shall give the respondent acopy of any document or material it proposes to rely onopposing the application.

(6) The notice and copies of any evidence orpleadings under this section shall be given no later thanseven days before the hearing of the application.

63. Where an application has been made to revoke aPreliminary Unexplained Wealth Order, the High Courtshall revoke the order if it is satisfied that there are nogrounds on which the order could be maintained.

Application to revokea PreliminaryUnexplained WealthOrder

Revocation ofPreliminaryUnexplained WealthOrder


64. (1) The applicant may apply to the High Court foran Unexplained Wealth Order.

(2) An application under subsection (1) shall beaccompanied by—

(a) an affidavit setting out the reasons why anUnexplained Wealth Order should bemade; and

(b) documents in support of the application.

65. (1) Where the High Court has made a PreliminaryUnexplained Wealth Order, which has not beenrevoked, in relation to a respondent and on the basisof the affidavit and documents submitted and evidenceprovided, is satisfied that—

(a) on a balance of probabilities that any partof the wealth of the respondent was notlawfully obtained or held;

(b) the total wealth of the respondent is overfive hundred thousand dollars; or

(c) particular property is held by, and subjectto the effective control of the respondents,

it may make an Unexplained Wealth Order.(2) It does not matter for the purposes of

subsection (1)(b)—(a) whether or not there are other persons who

also hold the property; or(b) whether the property was obtained by the

respondent before or after the coming intoforce of this Act.

(3) Where the High Court makes an order underthis section, the order shall specify that the respondentis liable to pay into the Seized Assets Fund an amountbeing the “unexplained wealth amount” of therespondent, equal to the amount that the High Court issatisfied does not represent the lawfully acquiredproperty of the respondent.

Application for anUnexplained WealthOrder

Grant of anUnexplained WealthOrder


(4) In proceedings under this section, the burdenof proving the wealth of the respondent is lawfullyacquired lies on the respondent.

(5) When considering the issues under sub-section (1), the High Court may have regardto information and any evidence provided subsequentlynot included in the Preliminary Unexplained WealthOrder.

(6) An order under subsection (1) may be enforcedagainst the property as if the property were theproperty of the respondent.

(7) An order that restricts the right of therespondent or any named person to deal with theproperty identified in this section may be made, uponapplication of the applicant under section 58(1), if theHigh Court is satisfied that the property would not beavailable to the Chairman of the Board of InlandRevenue, the Comptroller of Customs and Excise or theCommissioner of Police or such other person delegatedby him not below the rank of Assistant Superintendentunder section 58(1) without such restriction.

(8) When considering the amount of anUnexplained Wealth Order, the High Court shall deductan amount equal to the value, at the time of the makingof the order, of any property the respondent forfeitedunder a Property Restriction Order under section 34, aCivil Asset Forfeiture Order under section 45, or aConfiscation Order or Forfeiture Order under theProceeds of Crime Act.

(9) The Chairman of the Board of Inland Revenue,the Comptroller of Customs and Excise or theCommissioner of Police or such other person delegatedby him not below the rank of Assistant Superintendentunder section 58(1) shall not, unless the High Courtgives leave, apply for an Unexplained Wealth Orderagainst any person if—

(a) an application has previously been made


for an Unexplained Wealth Order inrelation to that person; and

(b) the application has been finally determinedon the merits.

(10) Leave shall not be granted under sub-section

Act No. 8 of 2019 · unexplained wealth orders and matters incidental thereto [Assented to 23rd...

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Transcript of Act No. 8 of 2019 · unexplained wealth orders and matters incidental thereto [Assented to 23rd...