Suggest a correction

Confiscation of benefits of offence under section 4(6)

Residential Property Act 1976

What needs fixing?

Wrong or mistyped textWrong structure or numberingWrong title or detailsDuplicated content

Proposed text

—(1) Where a defendant is convicted of any offence under section 4(6), the court is to, on the application of the Public Prosecutor, make a confiscation order against the defendant in respect of benefits derived by the defendant from the commission of the offence, if the court is satisfied that such benefits have been so derived.(2) Where the court is satisfied that benefits have been derived by the defendant from the commission of any offence under section 4(6), the court is to, before sentencing or otherwise dealing with the defendant in respect of the offence concerned, determine in accordance with subsections (4) to (8) the amount to be recovered in the defendant’s case by virtue of this section.(3) Subject to subsection (7), the benefits derived by a defendant from the commission of any offence under section 4(6) are —(a)any estate or interest in the development (including any income accruing from that estate or interest) held by the defendant in contravention of section 4(6); or(b)where that estate or interest is disposed of before conviction, the difference between —(i)the sale price or market value of that estate or interest, whichever is the higher; and(ii)the price paid by the defendant for the purchase or acquisition of that estate or interest.(4) The amount to be recovered from the defendant under a confiscation order under this section is the amount the court assesses to be the value of the benefits derived by the defendant from the commission of any offence under section 4(6).(5) For the purposes of this section —(a)the value of the benefits derived by a defendant from the commission of any offence under section 4(6) is the aggregate of the properties, estates and interests referred to in subsection (3)(a) or (b) (as the case may be) relating to that defendant;(b)the value of the estate or interest in the development mentioned in subsection (3)(a) is the market value of the estate or interest at the date of the conviction or the date of the commission of the offence, whichever is the higher;(c)the market value of the estate or interest in the development mentioned in subsection (3)(b)(i) is the market value of the estate or interest at the date of disposal; and(d)in calculating the value of benefits derived by a defendant from the commission of any offence under section 4(6), any expenses or outgoings of the defendant in connection with the commission of the offence must be disregarded.(6) Any question of fact to be decided by a court in proceedings under this section is to be decided on a balance of probabilities.(7) A benefit derived by a defendant convicted of any offence under section 4(6) must not be taken into account if —(a)a confiscation order against the defendant has been made in respect of that benefit under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992;(b)a confiscation order against the defendant has previously been made under this section and that benefit is shown to the court to have been taken into account in determining the amount to be recovered under that order; or(c)a confiscation order against any other defendant has previously been made under this section in relation to an offence committed in the same transaction as the offence by the firstmentioned defendant and that benefit (being an estate or interest mentioned in subsection (3)(a)) is shown to the court to have been taken into account in determining the amount to be recovered under the order against that other defendant.(8) Any relevant evidence admitted in the proceedings against the defendant for any offence under section 4(6) must, if the court thinks fit, be taken into account in determining the amount to be recovered under subsection (2).(9) Subject to subsection (1), where a court orders the defendant to pay any amount under a confiscation order made under this section —(a)section 319 of the Criminal Procedure Code 2010 has effect as if that amount were a fine imposed on the defendant by the court; and(b)for the purposes of section 319(1)(b)(iv) of the Criminal Procedure Code 2010, the term for which the court may direct the defendant to be imprisoned in default of payment of any amount under the confiscation order shall be as follows:(i)if the amount does not exceed $2 million — imprisonment for a term not exceeding 5 years; and(ii)if the amount exceeds $2 million — imprisonment for a term not exceeding 10 years.(10) Where —(a)a warrant to commit the defendant to prison is issued for a default in payment of an amount ordered to be paid under a confiscation order in respect of any offence under section 4(6); and(b)at the time the warrant is issued, the defendant is liable to serve any term of imprisonment in respect of the offence,the term of imprisonment to be served in default of payment of the amount does not begin to run until after the term mentioned in paragraph (b).(11) This section does not apply in respect of any offence committed before 17 January 2011.

What's the problem? (required)

Source link (optional)

Open the official source PDF to compare

Describe the problem (and edit the text or pick an issue type) to submit.

Suggestions are submitted anonymously — no account or personal information is required or sent.