Drug Trafficking (Recovery of Proceeds) Act

trafficking a controlled drug, where the trafficking contravences section 3 of the Misuse of Drugs

possession of a controlled drug, for the purpose of trafficking, where possession for that purpose contravenes section 3A of that Act or a corresponding law;

manufacturing a controlled drug where the manufacture of the drug contravenes section 4 of that Act or a corresponding law;

importing or exporting a controlled drug where the importation or exportation is prohibited by section 5 of that Act or a corresponding law;

the cultivation of any plant of the genus cannabis, or any plant of the species papaver somniferum or any plant of the genus erythroxylon, where the cultivation contravenes section 8 of that Act or a corresponding law, and includes a person doing the following, whether in

the retention or control by or on behalf of another person of the other person’s proceeds of drug trafficking is facilitated;

the proceeds of drug trafficking by another person are used to secure funds that are placed at the other person’s disposal or are used for the other person’s benefit;

an offence under sections 3, 3A, 4, 5 or 11 of the

an offence under section 126 of the Customs Act

an offence under sections 20 or 22 of this Act;

an offence under section 120A of the Penal Code

an offence of attempting to commit any of those offences;

an offence at common law of inciting another to commit any of those offences;

abetting the commission of any of those offences;

any property held by the defendant; and

any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act:

the total of the values at that time of all the realisable property held by the defendant; less

where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations, together with the total of the values at that time of all gifts caught by this Act.

where any other person holds an interest in the property is —

the market value of the first mentioned person’s beneficial interest in the property; less

the amount required to discharge any incumbrance

in any other case, is its market value.

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

where subsection (5) applies, the value there mentioned, whichever is the greater.

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

property which, in whole or in part, directly or indirectly represents in his hands the property which he received, the value referred to in paragraph (b) of subsection (4) is the value to him at the material time of the property mentioned in paragraph (a)

an amount due in respect of a fine or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or

any sum which, if the defendant had been adjudged bankrupt or was being wound up, would be among the preferential debts, which expression —

in relation to bankruptcy, means the debts to be paid in priority under section 38 of the Bankruptcy Act

in relation to winding up, means the preferential debts referred to in subsection (1) of section 250 of the

it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings for a drug trafficking offence were instituted against him or, where no such proceedings have been instituted, when an application under section 3

it was made by the defendant at any time and was a gift of property —

received by the defendant in connection with drug trafficking carried on by him or another; or

which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

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

in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referredto in paragraph (a) bears to the value of the consideration provided by the defendant.

property is held by any person if he holds any interest in it;

a reference to an interest in property held by a person beneficially includes, where the property is vested in his trustee in bankruptcy or in a liquidator, a reference to an interest which would be held by him beneficially if the property were not so vested;

property is transferred by one person to another if the first person transfers or grants to the other any interest in it;

proceedings in Brunei Darussalam for a drug trafficking offence are instituted —

when a summons or warrant of arrest has been issued in respect of the offence; or

when a person is charged with the offence after being taken into custody without a warrant, and where the application of this paragraph would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times;

proceedings in Brunei Darussalam for a drug trafficking offence are concluded —

when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of a confiscation order being made in the proceedings; or

on the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default);

order him to pay that amount;

take account of the order before —

imposing any fine on him;

making any order involving any payment by him; or

making any order under section 25 of the Misuse of

subject to paragraph (b), leave the order out of account in determining the appropriate sentence or other manner of dealing with the defendant.

in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated, the court shall take into account the extent to which any property held by him may be distributed among creditors; and

the court may disregard any inadequacy in the realisable property which appears to it to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.

any payment or other reward received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another is his proceeds of drug trafficking; and

the value of his proceeds of drug trafficking is the aggregate of the values of the payment or other rewards.

any property appearing to the court —

to have been held by him at any time since his conviction; or

to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;

any expenditure of his since the begining of that period was met out of payments received by him in connection with drug trafficking carried on by him; and

for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.

there is tendered to the court by the prosecution a statement as to any matter relevant to the determination whether the defendant has benefited from drug trafficking or to the assessment of the value of his proceeds of drug trafficking; and

the defendant accepts to any extent any allegation in the statement, the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates.

a statement is tendered under paragraph (a) of subsection

the court is satisfied that a copy of that statement has been served on the defendant, the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matter he proposes to rely on.

any allegation in respect of which he has complied with the requirement; and

any allegation that he has benefited from drug trafficking or that any payment or other reward was received by him in connection with drug trafficking carried on by him or another.

there is tendered to the court by the defendant a statement as to any matter relevant to determining the amount that might be realised at the time the confiscation order is made; and

the prosecution accepts to any extent any allegation in the statement, the court may, for the purpose of that determination, treat the acceptance by the prosecution as conclusive of the matters to which it relates.

orally before the court; or

in writing in accordance with any rule of court.

that he was not in any way involved in the defendant’s drug trafficking; and

that he acquired the interest —

for sufficient consideration; and

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 involved in drug trafficking, the court shall make an order declaring the nature, extent and value (as at the time the order is made) of his interest.

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

appeared at the hearing of that application,

a warrant of commitment has been issued for a default in payment of an amount so ordered to be paid in respect of an offence or offences; and

at the time the warrant was issued, the defendant is liable to serve a term of imprisonment in respect of the offence or offences, the term of imprisonment to be served in default of payment of the amount shall not begin to run until after the term mentioned in paragraph (b)

consecutive terms and terms which are wholly or partly concurrent shall be treated as single term; and

there shall be disregarded any term of imprisonment fixed under section 254 of the Criminal Procedure Code (Chapter 7) for which a warrant of commitment has not been issued at that time.

proceedings have been instituted, whether in Brunei

the proceedings have not been concluded; and

the court is satisfied that there is reasonable cause to believe that the defendant has benefited from drug trafficking.

investigation for a drug trafficking offence has been commenced against any person who is within the jurisdiction; or

investigation for a drug trafficking offence having been commenced against a person, he has died, cannot be found or is outside the jurisdiction, and that there is reasonable cause to believe that he has benefited from drug trafficking.

a reference in this Act to the defendant shall be construed as a reference to the person referred to in subsection (2);

a reference in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to subsection (2) for a drug trafficking offence.

to all realisable property held by specified person, whether the property is described in the order or not; and

to realisable property held by a specified person, being property transferred to him after the making of the order.

may be made only on an application by the prosecution;

may be made on an ex parte application to a Judge in chambers; and

shall provide for notice to be given to persons affected by the order.

may be discharged or varied in relation to any property; and

shall be discharged when proceedings for the offences are concluded.

to take possession of any realisable property; and

in accordance with the court's directions, to manage or otherwise deal with any property in respect of which he is appointed,

where a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and

removing the property from Brunei Darussalam.

where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; and

in any other case, of an amount not exceeding the amount payable under the confiscation order.

may be made only on an application by the prosecution;

may be made on an ex parte application to a Judge in chambers;

shall provide for notice to be given to persons affected by the order; and

may be made subject to such conditions as the court thinks fit and, without prejudice to the generality of this paragraph, to such

an interest in realisable property, being an interest held beneficially by the defendant or by a person to whom he has directly or indirectly made a gift caught by this Act —

in an asset of a kind mentioned in subsection (4); or

under any trust; or

an interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) be imposed by a charging order on the whole beneficial interest under the first-mentioned trust.

land in Brunei Darussalam; or

stock or shares in any limited company or other body registered under the Companies Act (Chapter 39).