the mind set4
TRANSCRIPT
Asset Recovery the Law Enforcer’s Viewpoint
Gavin Shiu
Head of Asset Recovery
Senior Assistant DPP
Attitude
Repay victims Organised and Serious Crimes
Ordinance, Cap 455 (OSCO) Drug Trafficking (Recovery of
Proceeds) Ordinance, Cap (DTROP) Restraint and Confiscation
Crime should not Pay
“The heart of an effective anti money laundering regime is the ability to :
seize restrain confiscate
proceeds and instrumentalities of money laundering and other predicate offencesin order to remove them from the financial system”.
APG-2005
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Purpose of Crime Asset Recovery
Deny fruits of crime
Disincentive if family unsupported Disincentive if on release there are no
assets to enjoy Prevents use of property by organised
crime to further objectives of crime groups
Proceeds of Crime
Only money or property that directly or indirectly represents proceeds
NO See s 2(6) OSCO Proceeds is not the ordinary man’s
understanding of the term It has a special meaning under OSCO
Proceeds of Crime
Property includes payments or other awards received at any time in connection with an offence (s2(6)(a)(i))
a payment before the commission of the offence
Award has a broad meaning
Proceeds of an offence
Pecuniary advantage connected to an offence (s2(6(a)(iii))
Wide and flexible meaning May include being able to use a
position to make a gain, even if gain itself is not illegal if there is the connection to the offence
Proceeds of Crime
Examples: A fraud facilitates a transaction and
professional fees are generated relating to the transaction not the fraud
Money is utilised to facilitate a fraud
What can be restrained?
Tracing of defrauded or stolen or laundered money/assets – Why?
Money / assets is it the proceeds of a crime or the benefit (proceeds) gained by a defendant?
Section 8(4) OSCO
Confiscation: the actual proceeds of crime? No
Court shall determine whether the person has benefited from the specified offence
And if he has whether his proceeds of that offence total at least $100,000
Section 8(6) OSCO
If court determines he has benefited to an amount of at least $100,000
THEN in accordance with Section 11, the court shall determine the amount to be recovered and
A confiscation order shall then be made for that amount
Section 11 OSCO
The amount to be recovered by the confiscation order
Shall be what the court assesses to be the value of the defendant’s proceeds of the specified offence(s) of which he was convicted
Value Based
Therefore, the confiscation order is for the value of what the court assesses is the benefit (proceeds) derived by a convicted person from his specified offence
The order is not asset based and not based on actual stolen or defrauded monies
White money or Black money?
This is why for criminal asset recovery there is no difference in white or black
The confiscation order should be looked on as a determination by the court of what a criminal owes Hong Kong – he is obliged to pay us from whatever sources
Examples of realisable property
Property acquired through inheritance Property acquired through a legitimate
business Property acquired through savings
from earlier legitimate employment Property acquired through share
trading or other market investments
Change the mind set
In every case of specified offences is there a benefit? Should we not deny him of it?
Tracing of Black money some value Prove offence and if easily confiscated
should be a target of restraint and confiscation
Joint Enterprises
If 2 or more benefited should the benefit be split? (divided between Ds)
Not necessarily, depends on evidence Can be joint and several (ie one
accused owes all of a joint benefit) Can be split if reasonable evidence of
a division
Questions to ask in every case
What is his benefit from the crime? (not what was stolen or defrauded or laundered, necessarily)
How large is it? That is, what would be the value?
What assets does he have? Which are the easiest to restrain and
confiscate?
More questions to ask
Have other defendants benefited that may not be obvious at first glance?
Should restraint of assets be done before the case goes overt or simultaneously? Risk of dissipation.
Are there assets overseas? Are there victims?
Why do this?
Emphasise denying the fruits of crime It is not a revenue raising exercise It is part of the penalty (purpose of
appeal deemed to be part of a sentence, Section 8(8A))
It is punishment, deterrence and prevention of serious crime
Powerful Tool
OSCO and DTROP are powerful Underused, but why? Mind set, includes training to
prosecute core offences Troublesome- bank docs, account recs Hard work Need to increase awareness and use