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Proceeds of Crime Act 2002 [31 MIRC Ch 2]

31 MIRC Ch. 2


MARSHALL ISLANDS REVISED CODE 2004


TITLE 31 -CRIMES AND PUNISHMENTS


CHAPTER 2.


PROCEEDS OF CRIMES


ARRANGEMENT OF SECTIONS


Section


PART I – PRELIMINARY


§201. Short Title.
§202. Commencement.
§203. Purpose.
§204. Application.
§205. Interpretations.
§206. Charge in relation to a serious offense.
§207. Conviction in relation to serious offense.
§208. Quashing of conviction.
§209. Value of property.
§210. Dealing with property.
§211. Gift caught by this Act.
§212. Deriving Benefit.
§213. Benefitting from proceeds of crime.
§214. Restitution of retrained property.
§215. Damages.


PART II – APPLICATION ORDERS PART III-REALIZATION OF PROPERTY


Division 1-Confiscation and Pecuniary Penalty Orders


§217. Notice of Application.
§218. Amendment of Application.
§219. Procedure on Application.


Division 2 – Confiscation Order


§220. Procedure for in rem confiscation order where Person dies or absconds.
§221. Confiscation where a person dies or absconds.
§222. Confiscation Order on Conviction.
§223. Effect of Confiscation Order.
§224. Voidable transfers.
§225. Prosecution of Third Parties.
§226. Discharge of confiscation Order on quashing or reversal of conviction.
§227. Payment instead of a confiscation order.
§228. Application of procedure for enforcing fines.


Division 3- Pecuniary Penalty Orders


§229. Pecuniary Penalty Order on conviction.
§230. Determination of benefit and assessment of value.
§231. Statements relating to benefits from serious Offenses.
§232. Amount recovered under pecuniary penalty order.
§233. Variation of pecuniary penalty Order
§234. Lifting the Corporate Veil
§235. Enforcement of Pecuniary penalty, Orders
§236. Discharge of pecuniary penalty orders


Division 4 – Restraining Orders


§237. Application for restraining Order
§238. Restraining Orders
§239. Notice of Application for restraining Order.
§240. Service of restraining Order
§241. Recording of Restraining Order
§242. Violation of restraining Order
§243. Duration of Restraining Order
§244. Review of restraining order
§245. Extension of Restraining Orders


PART III – REALIZATION OF PROPERTY


§246. Realization of Covered Property
§247. Application of proceeds.
§248. Exercise of powers of receiver/fiduciary
§249. Supremacy of this Part in Bankruptcy or winding up.
§250. Winding up of corporations etc.


PART IV – CONTROL OF PROPERTY


§251. Power to search for and seize tainted.
§252. Search warrants.
§253. Application for search warrants
§254. Searches in emergencies
§255. Record of seized property
§256. Return of seized property
§257. Property related to foreign Offenses


PART V – PRODUCTION ORDERS etc;


§258. Production Orders
§259. Evidential Value of Information
§260. Failure to comply with order.
§261. Orders relating to foreign offenses
§262. Seizure or documents to locate property
§263. Search warrants for documents to locate property.
§264. Search warrants relating to foreign Offenses
§265. Monitoring Orders
§266. Monitoring Orders not to be disclosed
§267. Immunity for exercise in good faith
§268. Repeal and savings
§269. Regulations


-----------------------------------------


An Act to provide measures for identifying, tracing, freezing, and seizure and confiscation of proceeds of serious crime and property used in the commission of a serious offense and, for other purposes. [Section numbering style modified to conform to Code format (Rev.2003)]


Commencement: November 11, 2002
Source P.L. 2002-68


PART I – PRELIMINARY


§201. Short title.


This Act may be cited as the Proceeds of Crime Act, 2002. [P.L. 2002-68, §1.]


§202. Commencement.


This Act shall come into effect on the date of certification in accordance with Article IV, section 21 of the Constitution. [P.L. 2002-68, §2.]


§203. Purpose.


The purpose of this Act is to provide for the forfeiture and confiscation of the proceeds of crime and property used in the commission of serious offenses. [P.L. 2002-68, §3.]


§204. Application.


The provisions of this Act shall extend and apply throughout the Republic of the Marshall Islands and also applies outside the Republic of the Marshall Islands. [P.L. 2002-68, §4.]


§205. Interpretations.


(1) In this Act, unless the context otherwise requires:

(c) 'covered property' means:


(i) any property held by a defendant;

(ii) any property in which defendant has an interest; and/or

(iii) any property held by a person to whom a defendant has directly or indirectly made a gift caught by this Act;


(d) 'defendant' means a person charged or about to be charged with a serious offense, whether or not he or she has been convicted of the offense, and includes in the case of proceedings for a restraining order under section 237, a person who is about to be charged with a serious offense;

(e) 'document' means any material on which data is recorded or marked and which is capable of being read or understood by a person, computer system or other device, and any record of information, and includes;


(f) 'gift' includes any transfer of property by a person to another person directly or indirectly:

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


(ii) for a consideration the value of which is significantly less than the value of the property transferred; and


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


(g) 'High Court' means the High Court of the Republic of the Marshall Islands;

(h) 'interest', in relation to property, means:


(i) 'person' means any natural or legal person;

(j) 'proceeding' means any procedure conducted by or under the supervision of a judge or judicial officer however described in relation to any alleged or proven offense, or property derived from such offense, and includes an inquiry, investigation, or preliminary or final determination of facts;


(k) 'proceeds of crime' means fruits of a crime, or any property derived or realized directly or indirectly from a serious offense and includes, on a proportional basis, property into which any property derived or realized directly from the offense was later successively converted, transformed or intermingled, as well as income, capital or other economic gains derived or realized from such property at any time since the offense;

(l) 'property' means currency and all other real or personal property of every description, whether situated in the Republic of the Marshall Islands or elsewhere and whether tangible or intangible, and includes an interest in any such property;

(m) 'property of or in the possession or control of any person' includes any gift made by or to that person;

(n) 'realizable', with respect to 'covered property' means:


(o) 'serious offense' means a violation of:


(p) 'tainted property' means:


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

(a) the Republic of the Marshall Islands; or


(b) any foreign country, include a reference to a written or unwritten law of, or in force in, any part of the Republic of the Marshall Islands, or any part of that foreign country, as the case may be.[P.L. 2002-68, §5.]


§206. Charge in relation to a serious offense.


Any reference in this Act to a person being charged or about to be charged with a serious offense is a reference to a procedure, however described, in the Republic of the Marshall Islands or elsewhere, by which criminal proceedings may be commenced.[P.L. 2002-68, §6.]


§207. Conviction in relation to a serious offense.


(1) For the purposes of this Act, a person shall be considered to be convicted of a serious offense if:


(a) the person is convicted, whether upon a plea of guilty or no contest, or after trial, of the offense;


(b) the person is charged with, and found guilty of, the offense but is discharged without any conviction being recorded; or


(2) For the purposes of subsection (1), judgment or sentence need not have been imposed.

[P.L. 2002-68, §7.]


§208. Quashing of convictions.


For the purposes of this Act, a person’s conviction for a serious offense shall be considered to be quashed in any case:


(1) where section 207(1)(a) applies, if the conviction is reversed or set aside;

(2) where section 207(1)(b) applies, if the finding of guilt is reversed or set aside;

(3) where section 2077(1)(c) applies, if either:

§209. Value of property.


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


(a) its market value; or

(b) where an innocent third party holds an interest in the property:

(ii) less the amount required to discharge any valid liens or encumbrances.


(2) References in this Act to the value of a gift, or the value of any payment or reward, means the value of the gift, payment or reward to the recipient when it was received, adjusted to account for any subsequent changes in the value of money. [P.L. 2002-68, §9.]


§210. Dealing with property.


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


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


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

(3) removing the property from Republic of the Marshall Islands.[P.L. 2002-68, §10.]

§211. Gift caught by this Act.


(1) A gift, including a gift made before the effective date of this Act, is caught by this Act where:


(a) it was made by a defendant charged with or convicted of a serious offense, at any time after the commission of the offense to which the proceedings relate (or where more than one offense was committed, at any time after commission of the earliest of the offenses to which the proceedings relate); and, the High Court considers it appropriate, after consideration of all of the relevant circumstances, to take the gift into account; or where


(b) it was made by a defendant charged with or convicted of a serious offense and was a gift of property:


(2) For purposes of this Act:

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


(b) in those circumstances, the court shall apply the provisions of section 208, taking into account the difference between the value of the gift and the consideration, if any, provided to the defendant by the recipient. [P.L. 2002-68, §11.]


§212. Deriving benefit.


A reference to a benefit derived or obtained by or otherwise accruing to a person includes a reference to a benefit derived or obtained by, or accruing to, a third party at the first person’s request or direction.[P.L. 2002-68, §12]


§213. Benefiting from the proceeds of a crime.


For the purposes of this Act:


(1) a person is taken to have benefited from a crime if that person has at any time (whether before or after the commencement of this Act) received any payment or other reward in connection with, or derived any pecuniary advantage from, the commission of a serious offense, whether committed by that person or someone else;

(2) a person’s proceeds of a crime (whether received or derived before or after the commencement of this Act) are:


(3) the value of a person’s proceeds of a serious offense is the aggregate of the values of all payments, rewards or pecuniary advantages received by that person in connection with, or derived by the person from, the commission of the offense.[P.L. 2002-68, §13.]

§214. Restitution of restrained property.


Where an investigation has begun against a person for a serious offense, property was restrained under this Act in relation to that offense, and any of the following occurs:


(1) the person is not charged in the Republic of the Marshall Islands with the serious offense;


(2) the person is charged with a serious offense in the Republic of the Marshall Islands, but not convicted of that offense;

(3) a conviction for that serious offense in the Republic of the Marshall Islands is quashed or reversed and no subsequent complaint is filed within a reasonable time thereafter, the High Court shall order restitution of the restrained property together with the interest, if any, which has actually accrued, if such property is held in a financial institution. [P.L. 2002-68, §14.]

§215. Damages.


Nothing in this Act affects the right of a person whose property has been restrained to seek redress for due process or civil rights violations pursuant to the laws of the Republic of the Marshall Islands. [P.L. 2002-68, §15.]


PART II - APPLICATION ORDERS


Division 1 – Confiscation and Pecuniary Penalty Orders:


§216. Application for confiscation order or pecuniary penalty order.


(1) Where a defendant is convicted of a serious offense, the Attorney-General may apply to the High Court for one or both of the following orders:


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


(b) a pecuniary penalty order against the defendant in respect of benefits derived by the defendant from the commission of the offense; provided, however, such application must be made within 1 year of the date the defendant was convicted for the serious offense.


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

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

(c) it is in the interest of justice that the new application be made.[P.L. 2002-68, §16.]


§217. Notice of application.


(1) Where the Attorney-General applies for a confiscation order against property in respect of the defendant’s conviction of a serious offense:


(a) the Attorney-General must give no less than 14 days written notice of the application to the defendant and to any other person who the Attorney-General has reason to believe may have an interest in the property;

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

(c) the High Court may, at any time before the final determination of the application, direct the Attorney-General to:


(2) Where the Attorney-General applies for a pecuniary penalty order against a defendant:

(b) the defendant may appear and adduce evidence at the hearing of the application.
[P.L. 2002-68, §17.]


§218. Amendment of application.


(1) The High Court hearing the application under section 216(1) may, before the final determination of the application, and on the application of the Attorney-General, amend the application to include any other property or benefit, as the case may be, upon being satisfied that:


(2) Where the Attorney-General applies to amend an application for a confiscation order and the amendment would have the effect of including additional property in the application for confiscation, the Attorney-General must give no less than 14 days written notice of the application to amend, to any person who the Attorney-General has a reason to believe may have an interest in the property to be included in the application for a confiscation order.

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

(4) Where the Attorney-General applies to amend an application for a pecuniary penalty order against a defendant and the effect of the amendment would be to include an additional benefit in the application the Attorney -General must give the defendant no less than 14 days written notice of the application to amend. [P.L. 2002-68, §18.]

§219. Procedure on application.


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


(2) Where an application is made for a confiscation order or a pecuniary penalty order to the High Court before which the defendant was convicted, and the High Court has not, when the application is made, passed sentence on the defendant for the offense, the High Court may, if it is satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the order. [P.L. 2002-68, §19.]


Division 2. Confiscation Order:


§220. Procedure for in rem confiscation order where person dies or absconds.


(1) Where:



(2) For the purposes of subsection (1) and section 221, the person is deemed to have absconded if reasonable attempts to arrest the person pursuant to the warrant have been unsuccessful during a period of 6 months commencing on the day the warrant was issued, and the person shall be deemed to have so absconded on the last day of that period.

(3) Where the Attorney- General applies under this section for a confiscation order against any tainted property the High Court shall, before hearing the application:

§221. Confiscation where a person dies or absconds.


(1) Subject to section 220(3), where an application is made to the High Court under section 220(1) for a confiscation order against any tainted property by reason of a person having died, or absconded in connection with a serious offense, and the Court is satisfied that:


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


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


(c) the accused charged with the offense referred to in paragraph (1)(b) has died or absconded; the High Court may order that the property or such property as is specified by the High Court in the order be confiscated.


(2) The provisions of subsection 220(2), and sections 222, 223, 224 and 225 shall apply with such modifications as are necessary to give effect to this section. [P.L. 2002-68, §21.]


§222. Confiscation order on conviction.


(1) Where, upon application by the Attorney-General, the High Court is satisfied that property is tainted property in respect of a serious offense of which a person has been convicted, the High Court may order that specified property be confiscated.

(2) In determining whether property is tainted property the High Court may presume, in the absence of evidence to the contrary:


(3) Where the High Court orders that property, other than money, be confiscated, the High Court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made, taking account of how such value is to be determined under section 209 of this Act.

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


(5) Where the High Court makes a confiscation order, the High Court may give such directions as are necessary or convenient for giving effect to the order. [P.L. 2002-68, §22.]

§223. Effect of confiscation order.


(1) Subject to subsection (2), where a Court makes a confiscation order against any property, the property vests absolutely in the Republic of the Marshall Islands by virtue of the order, except with respect to real property, where any legislation or customary land practices then in force prohibits the Republic of the Marshall Islands from taking title to such real property, in which case a lien shall immediately attach to the property in favor of the Republic of the Marshall Islands in the amount of the value of the property less any prior recorded encumbrances. In the case of such real property the Attorney-General shall be authorized to make application to the High Court, and the High Court may grant an order forcing the sale of such property (unless the sale of such property is prohibited by legislation, or customary land practices then in force in the Republic), with proceeds to be paid to the Republic of the Marshall Islands after sale, less prior recorded encumbrances.

(2) Where property ordered to be confiscated is recordable property, and where not prohibited under the laws of the Republic of the Marshall Islands:


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


(4) In this section:

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


(ii) where an appeal against a person’s conviction or against the making of a confiscation order is lodged, the date on which the appeal is finally determined. [P.L. 2002-68, §23.]


§224. Voidable transfers.


The High Court may:


(1) before making a confiscation order; and


(2) in the case of property in respect of which a restraining order was made, where the order was served in accordance with Section 240; set aside any conveyance or transfer of the property that occurred after the seizure of the property or the service of the restraining order, unless the conveyance or transfer was made for valuable consideration to a person acting in good faith and without notice. [P.L. 2002-68, §24.]


§225. Protection of third parties.


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

(2) If a person applies to the High Court for an order under this section in respect of property and the High Court is satisfied:

(i) for sufficient consideration; and


(iii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time he or she acquired it, tainted property; the High Court shall make an order declaring the nature, extent and value (at the time the order is made) of the person’s interest.


(3) Subject to subsection (4), where a confiscation order has already been made directing the confiscation of property, a person who claims an interest in the property may, before the end of the period of 12 months commencing on the day on which the confiscation order is made, apply to the High Court for an order under subsection (2).

(4) A person who:


(5) A person who makes an application under subsections (1) or (3) must give no less than 14 days written notice of the making of the application to the Attorney-General, who shall be a party to any proceedings in the application.

(6) An applicant or the Attorney-General may, in accordance with the rules of court, appeal the Court’s order made under subsection (2).

(7) Any person appointed by the High Court under section 248 shall, on application by any person who has obtained an order under subsection (2), and where the period allowed by the rules of court with respect to the making of a claim has expired and any appeal from that order has been determined:

§226. Discharge of confiscation order on quashing or reversal of conviction.


(1) Where the High Court makes a confiscation order against property in reliance on a person’s conviction of a serious offense and the conviction is subsequently reversed by a court of final jurisdiction, the reversal of the conviction discharges the order. However, upon notice of intent by the Attorney-General to recharge the matter, the court may order continued detention of the property pursuant to section 222 of this Act.

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

(3) On receipt of an application under subsection (2) the court shall conduct a hearing to determine, by a preponderance of the evidence, ownership of the property, and if satisfied that the applicant is lawfully entitled, and has no complicity with respect to the offense, shall:

§227. Payment instead of a confiscation order.


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


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


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

(3) is located outside the Republic of the Marshall Islands;

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

(5) has been commingled with other property that cannot be divided without difficulty; the High Court may, instead of ordering the property or part thereof or interest therein to be confiscated, order the person to pay to the Republic of the Marshall Islands an amount equal to the value of the property, part or interest, taking account of section 209 of this Act. [P.L. 2002-68, §27.]

§228. Application of procedure for enforcing fines.


Where the High Court orders a person to pay an amount under section 227, that amount shall be treated as if it were a fine imposed upon him or her in respect of a conviction for a serious offense, and the High Court shall:


(1) notwithstanding anything contained in any other Act, or law, impose for contumacious default of the payment of that amount, a term of imprisonment:


(2) direct that the term of imprisonment imposed pursuant to subsection (1) be served consecutively to any other form of imprisonment imposed on that person, or that the person is then serving;

(3) direct that other provisions of the Marshall Islands Revised Code regarding the disposition of offenders serving a term of imprisonment shall not apply in relation to a term of imprisonment imposed on a person pursuant to subsection (1). [P.L. 2002-68, §28.]

Division 3 - Pecuniary Penalty Orders:


§229. Pecuniary penalty order on conviction.


(1) Subject to this section, where the Attorney-General applies to the High Court for a pecuniary penalty order against a defendant in respect of the defendant’s conviction for a serious offense, the Court shall, if it is satisfied that the defendant has benefited from that offense, order the defendant to pay to the Republic of the Marshall Islands an amount equal to the value of the defendant’s benefit from the offense or such lesser amount as the Court determines in accordance with section 232 to be the amount that might be recovered at the time the pecuniary penalty order is made.

(2) The High Court shall assess the value of the benefits derived by a person from the commission of an offense in accordance with sections 230, 231, 232 and 233.

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

§230. Determination of benefit and assessment of value.


(1) Where a defendant obtains property as the result of, or in connection with the commission of a serious offense, the defendant’s benefit is the value of the property so obtained. Value means fair market value at the time the property was obtained or at the time of conviction, at whichever time the value is greater.

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

(3) The High Court, in determining whether a person has benefited from the commission of a serious offense or from that offense taken together with other serious offenses shall, unless the contrary is proved by the defendant beyond a reasonable doubt, presume:

(a) all property appearing to the High Court to be:


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


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


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


(bb) within the period of 6 years immediately before the day on which the application is made, whichever is the longer; to be property that came into the possession or under the control of the person by reason of the commission of that serious offense or those serious offenses for which the defendant was convicted;


(b) any expenditure by the defendant since the commission of the offense to be expenditure met out of payments received by the defendant as a result of, or in connection with, the commission of that serious offense or those serious offenses; and

(c) any property received or deemed to have been received by the defendant at any time as a result of, or in connection with the commission by the defendant of that serious offense, or those serious offenses, to be property received by the defendant free of any interest therein.

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

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

(6) Subsection (5) shall not apply to the excess or part of the defendant’s property if, after evidence of the kind referred to in that subsection is given, the defendant satisfies the High Court beyond a reasonable doubt that the whole or part of the excess was due to causes unrelated to the commission of the serious offense. [P.L. 2002-68, §30.]

§231. Statements relating to benefits from commission of serious offenses.


(1) Where:

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


(iii) an assessment of the value of the defendant’s benefit from the offense or any other serious offense of which defendant is convicted in the same proceedings or which is taken into account; and


(b) the defendant admits to any extent, an allegation in the statement, the High Court may, for the purposes of so determining or making that assessment, treat the defendant’s admission as conclusive of the matters to which it relates.


(2) Where:


(a) a statement is tendered under subsection (1)(a); and

(b) the Court is satisfied that a copy of that statement has been served on the defendant; the High Court may require the defendant to indicate to what extent the defendant admits each allegation in the statement and, so far as the defendant does not admit any allegation, to indicate any matters the defendant proposes to deny or reply on.

(3) Where the defendant fails in any respect to comply with a requirement under subsection (2), the defendant may be treated for the purposes of this section as having admitted every allegation in the statement, except for any allegation in respect of which the defendant complied with the requirements of subsection (2).

(4) Where:


(5) An allegation may be admitted, or denied, or a matter indicated for the purposes of this section, either:

(6) An admission by a defendant under this section that the defendant received any benefits from the commission of a serious offense is admissible in any proceedings for any offense.[P.L. 200268, §31.]


§232. Amount recovered under pecuniary penalty order.


(1) The amount to be recovered from the defendant under a pecuniary penalty order shall be the amount that the High Court assesses to be the value of the defendant’s benefit from the serious offense, or if more than one offense, the aggregate benefit of all the offenses.

(2) Where the amount of the benefit derived by the defendant from the serious offense(s) greatly exceeds the amount which might be recovered from the defendant at the time the pecuniary penalty order is made, the High Court may make a pecuniary penalty order in such amount as the court finds is realizable at the time of issuance of the order, but shall be required to issue findings of fact justifying such lesser amount. [P.L. 2002-68, §32.]

§233. Variation of pecuniary penalty order.


Where:


(1) the High Court makes a pecuniary penalty order against a defendant in relation to a serious offense;

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

(3) an appeal against confiscation or a confiscation order is allowed, or the proceedings from the proposed confiscation order terminate without the proposed confiscation order being made, the Attorney General may apply to the High Court for a variation of the pecuniary penalty order to increase the amount of the order by the value of the property not so confiscated and the High Court may, if it considers it appropriate to do so, vary the order accordingly. [P.L. 2002-68, §33.]

§234. Lifting the corporate veil.


(1) In assessing the value of benefits derived by a defendant from the commission of a serious offense, the High Court may treat as property of the defendant any property that, in the opinion of the High Court, is subject to the effective control of the defendant, whether or not the defendant has:


(2) Without prejudice to the generality of subsection (1), the High Court may take into consideration:


(3) Where the Court, for the purposes of making a pecuniary penalty order against a defendant, treats particular property as the defendant’s property pursuant to subsection (1), the High Court may, on application by the Attorney General, make an order declaring that the property is available to satisfy the order.

(4) Where the High Court declares that property is available to satisfy a pecuniary penalty order:


(5) Where the Attorney-General makes an application for an order under subsection (3) that property is available to satisfy a pecuniary penalty order against a defendant:

§235. Enforcement of pecuniary penalty orders.


Where the High Court orders a defendant to pay an amount under a pecuniary penalty order, the provisions of section 228 shall apply with such modifications as the High Court may determine for the purpose of empowering the High Court to impose a term of imprisonment on a defendant in contumacious default of compliance by the defendant with a pecuniary penalty order. [P.L. 2002-68, §35.]


§236. Discharge of pecuniary penalty orders.


A pecuniary penalty order is discharged:


(1) if the conviction of the serious offense or offenses in reliance on which the order was made is reversed and no conviction for the offense or offenses is substituted;


(2) if the order is rescinded; or

(3) on the satisfaction of the order by payment of the amount due under the order.[P.L. 200268, §36.]

Division 4 - Restraining Orders:


§237. Application for restraining order.


(1) The Attorney-General may apply to the High Court for a restraining order against any covered property whether held by a defendant or held by a person other than a defendant.

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

§238. Restraining orders.


(1) Subject to this section, where the Attorney-General applies to the High Court for a restraining order against property and the High Court is satisfied that:


(2) In extreme cases, where undue hardship to innocent parties would otherwise occur, an order under subsection (1) may be made subject to such conditions as the High Court thinks fit providing for meeting out of the property or a specified part of the property the reasonable living expenses of defendant’s immediate family.

(3) In determining whether there are reasonable grounds for believing property is subject to the effective control of the defendant, the Court may take into account the matters referred to in section 234.

(4) Where the court appointed receiver or fiduciary is given a direction in relation to any property, he or she may apply to the High Court for directions or any question respecting the management or preservation of the property under his or her control.

(5) An application under section 237 shall be served on all persons interested in the application or such of them as the Court thinks expedient and all such persons shall have the right to appear at the hearing and be heard.

(6) When the application is made under section 237 on the basis that a person is about to be charged, any order made by the High Court shall lapse if the person is not charged:

§239. Notice of application for restraining order.


Before entering a restraining order the High Court may require notice to be given to, and may hear, any person who, in the opinion of the High Court, appears to have an interest in the property, unless the Court is of the opinion that giving such notice before making the order would result in the disappearance, dissipation or reduction in value of the property. [P.L. 2002-68, §39.]


§240. Service of restraining order.


A copy of a restraining order shall be served on a person affected by the order in such manner as the High Court directs or as may be prescribed by rules of court. [P.L. 2002-68, §40]


§241. Recording of restraining order.


(1) A copy of a restraining order which affects land in the Republic of the Marshall Islands shall be recorded with the land registration authority.

(2) A restraining order is of no effect with respect to recorded land unless it is recorded as an encumbrance under the applicable land registration law.

(3) Where particulars of a restraining order are recorded under the applicable land registration law, a person who subsequently deals with the property shall, for the purposes of section 263, be deemed to have notice of the order at the time of the dealing. [P.L. 2002-68, §41.]

§242. Violation of restraining order.


(1) A person who knowingly violates a restraining order by disposing of or otherwise dealing with property that is subject to the restraining order commits an offense, punishable upon conviction by imprisonment for a maximum of five years or a maximum fine of $50,000, or both, provided, however, in the case of a corporation, company, commercial enterprise, commercial entity or other legal person, the maximum fine shall be increased to $250,000.

(2) Where a restraining order is entered against property and the property is disposed of, or otherwise dealt with, in violation of the restraining order, and the disposition or dealing was not for sufficient consideration or not in favor of a person who acted in good faith and without notice, the Attorney-General may apply to the High Court that entered the restraining order for an order that the disposition or dealing be set aside.

(3) Where the Attorney -General makes an application under subsection (2) in relation to a disposition or dealing, the High Court may:

§243. Duration of restraining order.


A restraining order issued under this Act remains in force until:


(1) it is discharged, revoked or modified;


(2) the period of 6 months from the date on which it is made or such later time as the High Court may determine; or

(3) a confiscation order or a pecuniary penalty order, as the case may be, is made in respect of property which is the subject of the order. [P.L. 2002-68, §43.]

§244. Review of restraining orders.


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

(2) An application made under subsection (1) shall not be heard by the High Court unless the applicant has given the Attorney -General at least 5 working days notice in writing of the application.

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

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

(a) impose conditions on the applicant;


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

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

§245. Extension of restraining orders.


(1) The Attorney General may apply to the judge of the High Court that entered a restraining order for an extension of the period of the operation of the order.

(2) Where the Attorney-General makes an application under subsection (1), the High Court may extend the operation of a restraining order for a specified period, if it is satisfied that a confiscation order may be made in respect of the property or part thereof or that a pecuniary penalty order may be made against the person. [P.L. 2002-68, §45]

PART III - REALIZATION OF PROPERTY


§246. Realization of covered property.


(1) Where:


(a) a pecuniary penalty order is made;

(b) all conditions of the order have been met; and


(2) The High Court may appoint a receiver in respect of the covered property, to take possession of the property subject to such conditions or exceptions as may be specified by the High Court.

(3) The High Court may order any person having possession of covered property to give possession of it to any such receiver.

(4) The High Court may empower any such receiver to realize (liquidate and convert into cash and/or obtain payment of the value of defendant’s interest) any covered property in such manner as the High Court may direct.

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

(6) The High Court shall not, in respect of any property, exercise the powers conferred by subsections (2), (3), (4) or (5), unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the High Court. [P.L. 2002-68, §46.]

§247. Application of proceeds of realization and other sums.


(1) Subject to subsection (2), the following property in the hands of a receiver appointed under this Act, being:


(a) the proceeds of the realization of any property under section 246; and;

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

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


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

§248. Exercise of powers of receiver or fiduciary.


(1) The provisions of this section shall apply to the powers conferred on the High Court by sections 238, 244, 245, and 246, or to a receiver or fiduciary appointed under paragraph 238(1)(g) or section 246.

(2) The position of receiver or fiduciary shall be one of confidence and trust, and the powers of a receiver or fiduciary shall be exercised by him or her with the highest degree of competence, honesty, good faith and fair dealing.

(3) Subject to the following provisions of this section, the powers of a receiver or fiduciary shall be exercised so as to satisfy any pecuniary penalty order, which order shall be satisfied first from the present value of covered property of the defendant.

(4) In the case of covered property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act, the receiver or fiduciary shall endeavor to realize the present value of the gift.

(5) The powers shall be exercised with a view to allowing any innocent person or the innocent recipient of any such gift to retain or recover the value of any property held by him or her.


(6) An order may be made or other action taken in respect of costs arising from the case.


(7) In exercising the powers granted under this section, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the pecuniary penalty order or any confiscation order issued in the case. [P.L. 2002-68, §48.]

§249. Supremacy of this Part in bankruptcy or winding up.


(1) Where a person who holds covered property is adjudged bankrupt in any proceeding wherever held, the Republic of the Marshall Islands shall stand as first lien-holder to the extent of any amount owed by the bankrupt person in the Republic of the Marshall Islands as a pecuniary penalty or under a confiscation order; and,


(a) property located in the Republic of the Marshall Islands which is subject to a restraining order made before the order adjudging the person bankrupt; and

(b) any proceeds of property confiscated under this Act, or recovered by virtue of subsection 246(5) or 246 (6), and held by a person appointed under paragraph 238 (1)(g) or subsection 246(2);

shall not be considered as property of the bankrupt person or the estate for the purposes of the applicable Bankruptcy Act or any civil attachment proceedings.


(2) Subject to subsection (1), where a person has been adjudged bankrupt, the powers conferred on the High Court by sections 259 and 267 or on a person appointed under paragraph 238 (1)(g) or subsection 246(2) shall not be exercised in relation to property comprised as property of the bankrupt person for the purposes of the applicable Bankruptcy Act.

(3) Where a receiver stands appointed under an applicable Bankruptcy Act, and property of the debtor is subject to a restraining order under or for the purposes of the bankruptcy act, the powers conferred on the receiver by virtue of the Bankruptcy Act do not apply to tainted property or proceeds of crime which are subject to forfeiture or confiscation under this Act until such time as the period of time for bringing an action for forfeiture or confiscation under this Act is exhausted.

(4) Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by this Act:

(a) no order shall be made under the applicable Bankruptcy Act relating to such gift where:


(i) the bankrupt person has been charged with a serious offense and the proceedings have not been concluded, either by the acquittal of the defendant or final dismissal of the proceedings; or where

(ii) property of the person to whom the gift was made is subject to a restraining order or confiscation order under this Act; and

(b) any order made under the applicable Bankruptcy Act, shall take into account any realization under this Act of property held by the person to whom the gift was made. [P.L. 2002-68, §49.]

§250. Winding up of corporation, company, or other commercial enterprise or entity holding covered property.


(1) Where covered property is held by a corporation, company, or other commercial enterprise or entity and an order for the winding up has been made or a resolution has been passed by the corporation, company, or other commercial enterprise or entity for its voluntary winding up, the functions of the liquidator or receiver appointed for the winding up shall not be exercisable in relation to:


(a) property subject to a restraining order or confiscation order made before such winding up, or

(b) any proceeds of property confiscated under this Act, or recovered by virtue of subsection 246(5) or 246 (6), and held by a person appointed under paragraph 238 (1)(g) or subsection 246(2),

but there shall be payable out of such property any expenses (including the remuneration of the liquidator or receiver) properly incurred in the winding up of the corporation, company, or other commercial enterprise or entity.


(2) Where, in the case of a corporation, company, or other commercial enterprise or entity, an order for winding up has been made or a resolution for winding up has been passed, the powers conferred on the High Court by section 238 or 246 shall not be exercised in relation to any covered property held by the corporation, company, or other commercial enterprise or entity:


(3) Subsection (2) does not affect the enforcement of a restraining order or confiscation order made before the order or resolution for winding up.

(4) Nothing in any other law of the Republic of the Marshall Islands relating to corporations, companies, or other commercial enterprises or entities shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the High Court by section 238 or 246, and in case of conflict, this Act shall take precedence. [P.L. 2002-68, §50.]

PART IV-CONTROL OF PROPERTY


§251. Powers to search for and seize tainted property.


(1) In addition to his powers under any other law, a police officer may:


(a) search a person for tainted property;


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

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


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


(e) under a warrant issued under section 252; or

(f) under section 254.

(2) Where a police officer may search a person under this Act, the officer may also search:


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

(b) any property in, or apparently in, the person’s immediate control. [P.L. 2002-68, §51.]

§252. Search warrants in relation to tainted property.


(1) Where a police officer has probable cause to believe that there is, or may be within the next 72 hours, tainted property of a particular kind:


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


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

(4) A judge shall not issue a warrant under subsection (2), where information or complaint has not been filed in respect of the relevant offense at the time when the application for the warrant is made, unless the judge is satisfied that there is probable cause to believe a crime has been or is about to be committed and that tainted property or evidence of such crime is located at the place or on the person or thing to be searched.

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


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

the police officer may seize that property or thing and the warrant shall be deemed to authorize such seizure. [P.L. 2002-68, §52]


§253. Application for search warrants by telephone or other means of communication.


(1) Where by reason of urgency a police officer considers it necessary to do so, the officer may make application for a search warrant under section 252 by telephone, radio communication, facsimile or other means of communication by which identity of the requesting officer can be identified.

(2) A judge, to whom an application for the issuance of a warrant is made by telephone or other means of communication, may sign a warrant if the judge is satisfied that it is necessary to do so, and shall inform the police officer of the terms of the warrant so signed.

(3) The police officer executing the warrant shall inform any person subject to and present at the time of the search of the terms of the warrant.

(4) The police officer to whom a warrant is granted by telephone or other means of communication shall, not later than three working days following issuance of the warrant, provide the judge with a duly sworn application for a warrant completed by the officer, together with the officer’s sworn affidavit in support of the warrant. [P.L. 2002-68, §53.]

§254. Searches in emergencies.


(1) Where a police officer has probable cause to believe that:


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

[P.L. 2002-68, §54.]


§255. Record of property seized.


A police officer who seizes property under section 252 or section 254 shall retain the property seized, make a written record thereof, and take reasonable care to ensure that the property is preserved. [P.L. 2002-68, §55.]


§256. Return of seized property.


(1) Where property has been seized under section 252 or section 254 (otherwise than because it may afford evidence of the commission of an offense), a person who claims an interest in the property may apply to the High Court for an order that the property be returned to the person.

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

§257. Search for and seizure of tainted property in relation to foreign offenses.


Where a foreign country requests assistance with the location or seizure of property suspected to be tainted property in respect of an offense within its jurisdiction, the provisions of sections 252, 253, and 254 apply, with the necessary changes in points of detail, provided that the Attorney-General has, under section 408 of the Mutual Assistance In Criminal Matters Act, 2002, authorized the giving of assistance to the foreign country. [P.L. 2002-68, §57.]


PART V - PRODUCTION ORDERS and
OTHER INFORMATION GATHERING POWERS


§258. Production orders.


(1) Where a defendant has been charged with or convicted of a serious offense and a police officer has probable cause to believe that any person has possession or control of:


(a) a document relevant to identifying, locating or quantifying property of the defendant, or to identifying or locating a document necessary for the transfer of property of the defendant; or

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

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


(2) The judge may, if he or she considers there is probable cause for so doing, make an order under this Act, that the person produce to a police officer, at a time and place specified in the order, any documents of the kind referred to in subsection (1).

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


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

(5) A person is not entitled to refuse to produce documents ordered to be produced under this section on the ground that the document might tend to incriminate that person or make such person liable to a penalty. [P.L. 2002-68, §58.]

§259. Evidential value of information.


(1) Where a person produces a document pursuant to an order issued under this Act, the production of the document, or any information, document, or thing obtained as a direct or indirect consequence of the production of the document, is not admissible against that person in any criminal proceedings except proceedings under section 260.

(2) For the purposes of subsection (1), proceedings on an application for a restraining order, a confiscation order or a pecuniary penalty order are not criminal proceedings. [P.L. 2002-68, §59.]

§260. Failure to comply with a production order.


Where a person is required by a production order issued under this Act, to produce a document to a police officer, and the person knowingly:


(1) violates the order without reasonable cause; or


(2) in purported compliance with the order, produces or makes available a document known to the person to be false or misleading in a material way, and does not so indicate to the police officer and provide to the police officer any correct information of which the person is in possession, the person is guilty of an offense punishable by imprisonment for a maximum of five years or a maximum fine of $50,000, or both, provided, however, in the case of a corporation, company, commercial enterprise, commercial entity or other legal person, the maximum fine shall be increased to $250,000. [P.L. 2002-68, §60.]


§261. Production orders in relation to foreign offenses.


Where a foreign country requests assistance to locate or seize property suspected to be tainted property in respect of an offense within its jurisdiction, and the Attorney General has, under section 408 of the Mutual Assistance In Criminal Matters Act, 2002, authorized the giving of assistance to the foreign country, the provisions of section 258 shall apply to the request, with necessary changes in points of detail. [P.L. 2002-68, §61.]


§262. Power to search for and seize documents relevant to locating property.


A police officer may:


(1) enter upon land or upon or into premises;


(2) search the land or premises for any document of the type described in subsection 258(1); and



§263. Search warrant for location of documents relevant to locating property.


(1) Where:


(a) a defendant has been charged or convicted of a serious offense; or


(b) the police officer has probable cause to believe that there is, or may be within the next 72 hours, upon any land or upon or in any premises, a document of the type described in subsection 258(1) in relation to the offense;

the police officer may make application supported by sworn affidavit to a judge for a search warrant in respect of that land or those premises.


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


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

(b) to seize property found in the course of the search that the police officer has probable cause to believe to be property of that kind.

(3) A judge shall not issue a warrant under subsection (2) unless the judge is satisfied that:


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

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


(a) a document of the type described in section 258(1) that the police officer believes on probable cause, to relate to the relevant offense, or to another serious office; or


(b) any thing the police officer believes on probable cause will afford evidence as to the commission of a serious offense; the police officer may seize that property or thing and the warrant shall be deemed to authorize such seizure. [P.L. 2002-68, §63.]


§264. Search warrants in relation to foreign offenses.


Where a foreign country requests assistance to locate or seize documents of a type described in subsection 258(1) relating to an offense within its jurisdiction, and the Attorney-General has, under section 408 of the Mutual Assistance In Criminal Matters Act, 2002, authorized the giving of assistance to the foreign country, the provisions of section 63 shall apply to the request, with necessary changes in points of detail. [P.L. 2002-68, §64.]


§265. Monitoring orders.


(1) A police officer may apply, ex parte and in writing to a judge for a monitoring order directing a financial institution to give information to a police officer. An application under this section shall be supported by an affidavit.

(2) A monitoring order:


(3) A judge shall not issue a monitoring order unless the judge is satisfied that there is probable cause to believe that the person in respect of whose account the order is sought:


(4) A monitoring order shall specify:


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

§266. Monitoring orders not to be disclosed.


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


(2) A person described in paragraphs (1)(a), (b) or (c) shall not disclose the existence or operation of a monitoring order except to another such person, for the purposes of the performance of the person’s duties or functions.

(3) A person who contravenes subsection (1) or (2) commits an offense and is liable upon conviction, to:


(4) Nothing in this section shall prevent the disclosure of information concerning a monitoring order for the purposes of, or in connection with legal proceedings; or in the course of proceedings before a court, and nothing in this section shall be construed as compelling a police officer to disclose to any court the existence or operation of a monitoring order. [P.L. 2002-68, §66.]

PART VI- MISCELLANEOUS


§267. Immunity where official powers or functions exercised in good faith.


No suit, prosecution or other legal proceedings shall lie against the government of the Republic of the Marshall Islands, or any officer or other person in respect of anything done by or on behalf of that person, with due diligence and in good faith, in the exercise of any power or the performance of any function under this Act or any regulation or order made pursuant to this Act. [P.L. 2002-68, §67.]


§268. Repeal and saving provisions.


(1) Subject to subsection (2), any Act, rules, regulations or provisions of any Act, rules or regulations on identifying, freezing, seizing and confiscating proceeds of crime in the RMI which contravenes the provisions of this Act is hereby repealed to the extent of its inconsistencies.

(2) Nothing in this Act shall be construed as to affect the rights, duties and responsibilities of the RMI under the Compact of Free Association with the United States of America; or under any other law.[P.L. 2002-68, §68.]

§269. Regulations.


The Minister of Justice may prescribe such rules and regulations he may deem necessary to carry out the provisions of this Act. [P.L. 2002-68, §69.]


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