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Trading with the Enemy Act

LAWS OF TONGA

1988 Revised Edition]

CHAPTER 56

TRADING WITH THE ENEMY ACT

Arrangement of Sections

Section
1 Short title.
2 Interpretation.
3 Penalties for trading with the enemy.
4 Definition of enemy.
5 Inspection and supervision of businesses.
6 Power to control and wind up certain businesses.
7 Transfer of debts, claims or negotiable instruments.
8 Transfer and allotment of securities.
9 Purchase of enemy currency.
10 Collection of enemy debts and custody and disposal of enemy property.
11 False statements and obstruction.
12 Saving of rights of Crown.

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TRADING WITH THE ENEMY ACT

Acts Nos 3 of 1942, 9 of 1958, 11 of 1958, 25 of 1988

AN ACT TO IMPOSE PENALTIES FOR TRADING WITH THE ENEMY TO MAKE PROVISION AS RESPECTS THE PROPERTY OF ENEMIES AND ENEMY SUBJECTS AND FOR PURPOSES CONNECTED WITH THE MATTERS AFORESAID

Commencement [3rd September, 1939]

1 Short title.

This Act may be cited as the Trading with the Enemy Act.

2 Interpretation.

(1) In this Act the following expressions have the meanings hereby respectively assigned to them

"enemy subject" means:

(a) an individual who not being a Tongan subject possesses the nationality of a State at war with His Majesty; or (Amended by Act 25 of 1988)

(b) a body of persons constituted or incorporated in or under the laws of any such State;

"enemy territory" means any area which is under the sovereignty of or in the occupation of a power with whom His Majesty is at war not being an area in the occupation of a Power allied with His Majesty and also any area which His Majesty in Council may direct to be treated for the purposes of this Act as enemy territory.

(2) Any power conferred by the provisions of this Act to make an order shall be construed as including a power to vary or revoke the order.

3 Penalties for trading with the enemy.

(1) Any person who trades or attempts to trade with the enemy within the meaning of this Act shall be guilty of an offence of trading with the enemy and shall be liable:

(a) on conviction on indictment to imprisonment for any period not exceeding 7 years or to a fine of $5000 or to both such imprisonment and a fine; or

(b) on summary conviction to imprisonment for any period not exceeding 12 months or to a fine not exceeding $500 or to both such imprisonment and such fine, and the Court may in any case order that any goods or money in respect of which the offence has been committed shall be forfeited. (Amended by Act 25 of 1988.)

(2) For the purposes of this Act a person shall be deemed to have traded with the enemy:

(a) if he has had any commercial financial or other intercourse or dealings with or for the benefit of an enemy; or

(b) if he has done anything which under the following provisions of this Act is to be treated as trading with the enemy:

Provided that a person shall not be deemed to have traded with the enemy by reason only that he has:

(i) done anything under an authority given generally or specially by the Prime Minister; or

(ii) received payment from an enemy of a sum of money due in respect of a transaction under which all obligations on the part of the person receiving payment had been performed before the commencement of the war by reason of which the person from whom the payment was received became an enemy.

(3) Any reference in this section to an enemy shall be construed as including a reference to a person acting on behalf of an enemy.

4 Definition of enemy.

(1) Subject to the provisions of this section the expression "enemy" for the purposes of this Act means-

(a) any State or Sovereign of a State at war with His Majesty;

(b) any individual resident in enemy territory;

(c) any body of persons carrying on business in any place if and so long as the body is controlled by a person who under this section is an enemy;

(d) any body of persons constituted or incorporated in or under the laws of a State at war with His Majesty; and

(e) as respects any business carried on in enemy territory any individual or body of persons carrying on that business, but does not include any individual by reason only that he is an enemy subject.

(2) His Majesty may by Order in Council direct that any person specified in the Order shall for the purposes of this Act be deemed to be while so specified an enemy.

5 Inspection and supervision of businesses.

Appointment of inspector.

(1) The Prime Minister, if he thinks it expedient for securing compliance with section 3 of this Act so to do, may by written order authorize a specified person (hereafter in this section referred to as "an inspector:) to inspect any books or documents belonging to or under the control of a person named in the order and to require that person and any other person to give such information in his possession with respect to any business carried on by the named person as the inspector may demand and for the purposes aforesaid to enter on any premises used for the purposes of that business. (Amended by Act 9 of 1958.)

Appointment of supervisor.

(2) If on a report made by an inspector as respects any business it appears to the Prime Minister that it is expedient for securing compliance with section 3 of this Act that the business should be subject to supervision, the Prime Minister may appoint a person (hereafter in this section referred to as "a supervisor") to supervise the business with such powers as the Prime Minister may determine. (Amended by Act 9 of 1958.)

(3) If any person without reasonable cause fails to produce for inspection or furnish to an inspector or a supervisor any document or information which he is duly requested by the inspector or supervisor so to produce or furnish that person shall be liable on summary conviction to a fine not exceeding $500 or to imprisonment for any period not exceeding 6 months or to both such fine and such imprisonment. (Amended by Act 25 of 1988.)

(4) If any person with intent to evade the provisions of this section, destroys, mutilates or defaces any book or other document which an inspector or a supervisor is or may be authorized under this section to inspect that person shall be liable:

(a) on conviction on indictment to imprisonment for any period not exceeding 5 years or to a fine of $2000 or to both such imprisonment and a fine; or

(b) on summary conviction to imprisonment for any period not exceeding 12 months or to a fine not exceeding $500 or to both such imprisonment and such fine. (Amended by Act 25 of 1988.)

6 Power to control and wind up certain businesses.

(1) Where any business is being carried on in the Kingdom by or on behalf of or under the direction of persons all or any of whom are enemies or enemy subjects or appear to the Prime Minister to be associated with enemies the Prime Minister may if he thinks it expedient so to do make:

(a) an order (hereafter in this section referred to as a "restriction order") prohibiting the carrying on of the business either absolutely or except for such purposes and subject to such conditions as may be specified in the order; or

(b) an order (hereafter in this section referred to as a "winding up order") requiring the business to be wound up, and the making of a restriction order as respects any business shall not prejudice the power of the Prime Minister if he thinks it expedient so to do at any subsequent date to make a winding up order as respects that business.

(2) Where an order under subsection (1) of this section is made as respects any business the Prime Minister may by that or a subsequent order appoint a controller to control and supervise the carrying out of the order and, in the case of a winding up order, to conduct the winding up of the business, and may by the order confer on the controller such powers as the Prime Minister thinks necessary or convenient for the purpose of giving full effect to the order.

(3) If any person contravenes or fails to comply with the provisions of any order made under subsection (1) of this section he shall be guilty of an offence of trading with the enemy.

(4) Where any order is made under this section appointing a controller for any business, any remuneration of, and any costs charges and expenses incurred by, the controller and any other costs charges and expenses incurred in connection with the control and supervision of the carrying out of the order, shall to such an amount as may be certified by the Prime Minister be defrayed out of the assets of the business and as from the date of the certificate be charged on those assets in priority to any other charges thereon.

7 Transfer of debts, claims or negotiable instruments.

No transfer of a debt or claim made by or on behalf of an enemy shall except with the sanction of the Prime Minister be effective so as to confer on any person any rights or remedies in respect of the debt or claim; and neither a transfer of a negotiable instrument by or on behalf of an enemy nor any subsequent transfer thereof shall, except with the sanction of the Prime Minister, be effective so as to confer any rights or remedies against any party to the instrument.

8 Transfer and allotment of securities.

If any annuities, stock, shares, bonds, debentures or debenture stock registered or inscribed in any register, branch register, or other book kept in the Kingdom, are transferred by or on behalf of an enemy, or are allotted or transferred to or for .the benefit of an enemy subject, without the consent of the Prime Minister then except with the sanction of the Prime Minister the transferee or allottee shall not by virtue of the transfer or allotment have any rights or remedies in respect of the securities; and no body -corporate by whom the securities were issued or are managed shall take any cognizance of, or otherwise act upon, any such transfer except under the authority of the Prime Minister.

9 Purchase of enemy currency.

(1) Purchasing enemy currency shall be treated as trading with the enemy.

(2) In this section the expression "enemy currency" means any such notes or coins as circulate as currency in any area under the sovereignty of a Power with whom His Majesty is at war, not being an area in the occupation of a Power allied with His Majesty, or any such other notes or coins as are for the time being declared by an order of His Majesty in Council to be enemy currency.

10 Collection of enemy debts and custody and disposal of enemy property.

(1) With a view to preventing the payment- of money to enemies and of preserving enemy property in contemplation of arrangements to be made at the conclusion of peace the Prime Minister may appoint custodians of enemy property and may by order:

(a) require the payment to the prescribed custodian of money which would but for the existence of a state of war be payable to or for the benefit of a person who is an enemy or which would but for the provisions of section 7 or section 8 of this Act be payable to any other person (Amended by Act 9 of 1958);

(b) vest in the prescribed custodian such enemy property as may be prescribed or provide for and regulate the vesting in that custodian of such enemy property as may be prescribed;

(c) vest in the prescribed custodian the right to transfer such other enemy property as may be prescribed being enemy property which has not been and is not required by the order to be vested in the custodian;

(d) confer and impose on the custodians and on any other person such rights powers duties and liabilities as may be prescribed as respects

(i) property which has been or is required to be vested in a custodian by or under the order;

(ii) property of which the right of transfer has been or is required to be so vested;

(iii) any other enemy property which has not been and is not required to be so vested; or

(iv) money which has been or is by the order required to be paid to a custodian;

(e) require the payment of the prescribed fees to the custodians in respect of such matters as may be prescribed and regulate the collection of and accounting for such fees;

(f) require any person to furnish to the custodian such returns, accounts and other information and to produce such documents as the custodian considers necessary for the discharge of his functions under the order;

and any such order may contain such incidental and supplementary provisions as appears to the Prime Minister to be necessary for the purposes of the order.

(2) If any person pays any debt or deals with any property to which any order under this section applies otherwise than in accordance with the provisions of the order he shall be liable on summary conviction to imprisonment for any period not exceeding 6 months or to a fine not exceeding $500 or to both such imprisonment and such fine; and the payment or dealing shall be void. (Amended by Act 25 of 1988.)

(3) If any person without reasonable cause fails to produce or furnish in accordance with the requirements of an order under this section any document or information which he is required under the order to produce or furnish he shall be liable on summary conviction to a fine of $50 for every day on which the default continues. (Amended by Act 25 of 1988.)

(4) All fees received by any custodian by virtue of an order under this section shall be paid into general revenue.

(5) His Majesty the King may by Order in Council direct the disposal in any manner which he may think fit of all enemy property which on the ninth day of October 1958* was under the control of a custodian. (Act 9 of 1958.)

* Date of publication of Act No. 9 of 1958 in the Gazette.

11 False statements and obstruction.

(1) If any person, for the purpose of obtaining any authority or sanction under this Act, or in giving any information for the purposes of this Act or of any order made thereunder, knowingly or recklessly makes a statement which is false in a material particular he shall be liable on summary conviction to imprisonment for any period not exceeding 6 months or to a fine not exceeding $500 or to both such imprisonment and such fine. (Amended by Act 25 of 1988)

(2) Every person who wilfully obstructs any person in the exercise of any powers conferred on him by or under this Act shall be liable on summary conviction to a fine not exceeding $500. (Amended by Act 25 of 1988)

12 Saving of rights of Crown.

This Act shall be without prejudice to the exercise of any fight of prerogative of the Crown.

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