conference on new strategic directions in controlling...

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Conference on New Strategic Directions in

Controlling Corruption:

The Recovery of Stolen Assets

Dusit Thani Hotel Bangkok, Thailand

10 - 12 March 2008

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Seeking Help from NeighbouringJurisdictions: Effective Mutual

Legal Assistance Requests

by

Mathew Joseph

10 March 2008

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Mutual Legal Assistance in Singapore

• 4 distinct phases• 1st Phase – pre-1992• 2nd Phase – 1992 - 31 Mar 2000• 3rd Phase – 1 Apr 2000 – 31 Mar 2006• 4th Phase – 1 Apr 2006 onwards

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1st Phase – pre-1992

• No specific provisions on MLA except s.43 • Of Extradition Act – Minister can authorise

the taking of evidence before a Magistrate.• Provision to all offences.

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MUTUAL LEGAL ASSISTANCE

• The Attorney-General’s Chambers is Singapore’s Central Authority for Mutual Legal Assistance in Criminal Matters. The Criminal Justice Division of the Attorney-General’s Chambers handles and processes all formal requests for assistance in accordance with the provisions of the Mutual Assistance in Criminal Matters Act (Chapter 190A) and any applicable Mutual Legal Assistance Treaty.

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• Singapore may provide mutual legal assistance in respect of criminal matters including the following:

• Taking of evidence; • Obtaining a production order; • Request for the attendance of a person; • Request for custody of persons in transit;

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Types of Assistance

• Enforcement of a foreign confiscation order • Search and seizure; • Identifying or locating persons; and • Service of process.

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• Countries with which Singapore has existing Mutual Legal Assistance Treaties are gazetted as “prescribed foreign countries” under the Act. Such countries may be rendered assistance in accordance with the terms of the relevant Treaty and the Act..

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Non-PFCs

• Countries which are not gazetted as prescribed foreign countries under the Act may also be rendered assistance upon providing an appropriate undertaking of reciprocity in accordance with section 16(2) of the Act -

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Reciprocity Undertaking

• stating that that country will comply with a future request by Singapore to that country for similar assistance in a criminal matter involving an offence that corresponds to the foreign offence for which assistance is sought

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Assistance Request

• Countries that do not have an existing Mutual Legal Assistance Treaty with Singapore may send a request for assistance containing the appropriate undertaking of reciprocity to the Attorney-General’s Chambers. The sample forms for such formal requests may be used eg -

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Request Forms• Request for the taking of evidence; • Request for a production order; • Request for the attendance of a person; • Request for custody of persons in transit; • Request for enforcement of a foreign confiscation

order; • Request for search and seizure; • Request for identifying or locating persons; • Request for service of process.

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• TO: The Central Authority of the Republic of Singapore.

• FROM: The Central Authority of the [Requesting Party]

• REQUEST FOR MUTUAL LEGAL ASSISTANCE

• IN A CRIMINAL MATTER

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Request Form• CERTIFICATE ON BEHALF OF THE [REQUESTING PARTY]• I, [name, appointment/ position of person certifying], on behalf of [name of

Central Authority], who is responsible for [state area of responsibility e.g. criminal prosecutions, investigations] in the [Requesting Party] and who is also authorised to make requests for mutual legal assistance in criminal matters, certify that the Government of the [Requesting Party] respectfully requests the assistance of the Government of the Republic of Singapore in relation to criminal proceedings[1] involving [describe nature of criminal proceedings, e.g. whether a trial or proceedings to determine whether a person should be tried].

•[1] “Criminal proceedings” is defined in section 2 of Singapore’s Mutual Assistance in Criminal Matters Act (Cap 190A) to include the trial of a person for a foreign offence and also any proceeding to determine whether a person should be tried for the offence. An electronic version of this Act is available at http://statutes.agc.gov.sg/.

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• REQUEST• This request is made by the Government of

the [Requesting Party] for assistance to be extended under the Mutual Assistance in Criminal Matters Act (Chapter 190A, Statutes of the Republic of Singapore).

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Request Form

• NATURE OF REQUEST• This request relates to [describe subject of

criminal matter]. The authority having the conduct of the criminal matter is [describe authority concerned with the criminal matter].

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Request Form

• CRIMINAL OFFENCES / APPLICABLE LEGISLATION / PENALTIES

• [Set out the offences alleged to have been contravened in relation to the criminal proceedings as well as the maximum penalties for these offences and attach copies of applicable legislative provisions. State identity of suspect / accused person, if known]

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Request Form

• CRIMINAL OFFENCES / APPLICABLE LEGISLATION / PENALTIES

• [Set out the offences alleged to have been contravened in relation to the criminal proceedings as well as the maximum penalties for these offences and attach copies of applicable legislative provisions. State identity of suspect / accused person, if known]

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Request Form

• PURPOSE OF THE REQUEST• By this request it is intended to [state purpose

which is intended to be achieved by the assistance sought, e.g. to secure admissible evidence to be used in the trial of ……………].

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Request Form• ASSISTANCE REQUESTED• The Government of the Republic of Singapore is requested

to take such steps as are necessary to record the evidence from various witnesses and transmit the evidence so recorded to the Central Authority of [the Requesting Party]. The names of the said witnesses, their contact particulars[1] and the questions to be asked of them are as follows:

• [List the relevant information, including the questions to be put to each witness. In the alternative, these questions can be attached as annexes to the Request.

•[1] Where available.

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Request Form

• MANDATORY ASSURANCES & UNDERTAKINGS

• It is confirmed that this request:• (a) does not relate to the prosecution or

punishment of a person for a criminal offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character;

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Request Form• (b) is not made for the purposes of prosecuting, punishing

or otherwise causing prejudice to a person on account of that person’s race, religion, sex, ethnic origin, nationality or political opinions;

• (c) does not relate to the investigation, prosecution or punishment of a person for an offence in a case where the person has been convicted, acquitted or pardoned by a competent court or other authority of the [Requesting Party] or has undergone the punishment provided by the

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Section 21 • Taking of evidence for criminal proceedings

21. —(1) Where a request is made by the appropriate authority of a foreign country that evidence be taken in Singapore for the purposes of any criminal proceedings pending in a court in the foreign country, the Attorney-General may by notice in writing, subject to such conditions as the Attorney-General may specify in the notice, authorise a Magistrate to take the evidence and transmit the evidence to the appropriate authority.

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Section 22

• Production orders for criminal matters22. —(1) Where a request is made by the appropriate authority of a prescribed foreign country that any particular thing or description of thing in Singapore be produced for the purposes of any criminal matter in that country, the Attorney-General or a person duly appointed by him may apply to the court for an order under subsection (3).

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Section 26• Requests for attendance of person in foreign country

26. —(1) The appropriate authority of a prescribed foreign country may request the Attorney-General to assist in arranging the attendance, in that country, of a person in Singapore for the purposes of giving or providing evidence or assistance in relation to a criminal matter in that country.

• (2) Where, on receipt of a request referred to in subsection (1), the Attorney-General is satisfied that —

• (a) the request relates to a criminal matter in the foreign country involving a foreign offence;

• (b) there are reasonable grounds to believe that the person concerned is capable of giving or providing evidence or assistance relevant to the criminal matter;

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Section 29• Requests for enforcement of foreign confiscation order

29. —(1) The appropriate authority of a prescribed foreign country may request the Attorney-General to assist in —

• (a) the enforcement and satisfaction of a foreign confiscation order, made in any judicial proceedings instituted in that country, against property that is reasonably believed to be located in Singapore; or

• (b) where a foreign confiscation order may be made in judicial proceedings which have been or are to be instituted in that country, the restraining of dealing in any property that is reasonably believed to be located in Singapore and against which the order may be enforced or which may be available to satisfy the order.

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ASEAN REGIONAL MLAT 2004

• 8th ASEAN Senior Law Officials Meeting (ASLOM) / 5th ASEAN Law Ministers Meeting (ALAWMM) 2002 in Bangkok

• Malaysia proposed Model Treaty on Mutual Legal Assistance in Criminal Matters under auspices of ASEAN

• Objectives – treaty to operate with existing mutual legal assistance mechanisms and to enhance working relationships between security and enforcement agencies in this region

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The Treaty on Mutual Legal Assistance in Criminal

Matters (among Like-minded ASEAN Countries) 2006

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LEGAL COOPERATION IN

ASEAN

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RECENT INITIATIVES AT LEGAL COOPERATION

•• Recognized that regional effort is Recognized that regional effort is needed to tackle TOCneeded to tackle TOC

•• 2002 ASEAN Plan of Action to Combat 2002 ASEAN Plan of Action to Combat Transnational CrimeTransnational Crime

•• National and bilateral efforts to be National and bilateral efforts to be elevated to regional levelelevated to regional level

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SPECIFIC ACTIONS

•• Police liaison officersPolice liaison officers•• Joint tactical exercisesJoint tactical exercises•• Development of training facilitiesDevelopment of training facilities•• Information exchangeInformation exchange•• Establishing national repository of laws Establishing national repository of laws

pertaining to TOCpertaining to TOC•• Recent launch by ASEAN Police Chiefs of Recent launch by ASEAN Police Chiefs of

information database to combat crossinformation database to combat cross--border crimeborder crime

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LEGAL COOPERATION

•• National policies to be National policies to be harmonisedharmonised•• Multilateral and bilateral legal arrangements Multilateral and bilateral legal arrangements

agreements to be developed to agreements to be developed to –– facilitate apprehension, investigation, prosecution facilitate apprehension, investigation, prosecution

and extradition of criminalsand extradition of criminals–– exchange of witnesses, sharing of evidence exchange of witnesses, sharing of evidence –– seizure and forfeiture of the proceeds of crimesseizure and forfeiture of the proceeds of crimes

•• Need for national legislation.Need for national legislation.

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OBSTACLES TO LEGAL COOPERATION IN ASEAN

•• Differences in colonial experiencesDifferences in colonial experiences•• Different legal systemsDifferent legal systems•• Initially little interactions and lack of Initially little interactions and lack of

understanding of laws and legal processesunderstanding of laws and legal processes•• Concerted attempts made to develop greater Concerted attempts made to develop greater

mutual understandingmutual understanding•• Successful work of Successful work of

–– AMMTCAMMTC–– ASEAN Law Ministers and Senior Law Officials ASEAN Law Ministers and Senior Law Officials

Meetings.Meetings.

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REGIONAL MLAT

•• Initiated by Malaysia in 2003Initiated by Malaysia in 2003•• All ASEAN States are signatories All ASEAN States are signatories •• Parties to assist each other in :Parties to assist each other in :

–– taking of evidence / service of documents / tracing and taking of evidence / service of documents / tracing and forfeiture of proceeds of crime / identification of forfeiture of proceeds of crime / identification of witnesses and suspectswitnesses and suspects

•• Central Authorities to be establishedCentral Authorities to be established•• Premised on reciprocityPremised on reciprocity•• Obligations subject to domestic lawsObligations subject to domestic laws•• Affirmation of common will to combat TOC.Affirmation of common will to combat TOC.

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STATUS• 5 Parties – Singapore, Malaysia, Vietnam,

Brunei and Laos.• Enhance cooperation and MLA in ASEAN

if all others also ratify expeditiously.

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IV. CHALLENGES IN MUTUAL LEGAL ASSISTANCE

• THE 5 Cs

• 1. Counsel• 2. Central authorities• 3. Confiscation• 4. Cyber crime• 5. Costs

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OUTLINE

• A. The 5 Cs ….• B. Counsel• C. Central Authorities• D. Confiscation• E. Cybercrime• F. Costs and asset sharing

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What is money laundering?

• Money laundering in simple English is making dirty money clean !

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• Proceeds of crime are run through the financial system to disguise their illegal origins

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A. Counsel

• Prosecutors make many requests• Different systems and procedures• Better communications and

understanding

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B. Central Authorities

• Meeting requirements of domestic law• Different procedures may apply• Need to apply flexible approach

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C. Confiscation

• Tracing, freezing, or restraining and final confiscation

• Different domestic schemes• Criminal forfeiture vs. Civil

forfeiture• Enforcement of foreign

confiscation and restraint orders

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D. Cyber Crime

• New challenges to global law enforcement• Trans-border nature of the Internet• High-tech crime requires speedy assistance• Bilateral or multi-lateral approach• Council Of Europe Cyber-Crime

Convention

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E. Costs And Asset Sharing

• Locating proceeds of crime costly• Sophisticated financial tracing necessary• Small states disadvantaged• How to apportion costs• Asset sharing• But not for grand corruption?

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Conclusion – The Way Forward

• Strategic Alliances• Specialized Units. E.g. Forensic Accounting

Squads• Fast-track procedures• Crime must not pay

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THE END

• Any questions ?