Money Laundering (Prevention) (Amendment) Act 1998

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No. 18 of 1998. The Money Laundering (Prevention) 1 ANTIGUA
(Amendment) Act, 1998. AND

BARBUDA

[L.S.]

I Assent,

Dr. R.A. Walwyn, OBE,
Governor-General's Deputy.

28th October, 1998.

ANTIGUA AND BARBUDA

No. 18 of 1998

AN ACT to amend the Money Laundering (Prevention) Act,
1996 (No. 9 of 1996).

[ 12th November, 1998 ]

ENACTED by Parliament of Antigua and Barbuda as follows:

1. This Act may be cited as the Money Laundering (Prevention) short title.
(Amendment) Act, 1998.

2. Section 2, of the Money Laundering (Prevention) Act 1996 (in Amendment of
this Act referred to as the "principal Act") is amended in subsection Act

(1) as follows: No. 9 of 1996.

(a) in the paragraph defining "forfeiture" by repealing the
following:

"or other competent authority";

(b) in the paragraph defining "identification record" by
inserting in paragraph (a) (i) after "incorporation" the
following:

"or equivalent"; and

ANTIGUA
AND

BARBUDA

Amendment of
section 4 of Act
No. 9 of 1996.

Amendment of
section 7 of Act
No. 9 of 1996.

Amendment of
section 8 of Act
No. 9 of 1996.

Amendment of
section 9 of Act
No. 9 of 1996.

Amendment of
section 11 of Act
No. 9 of 1996.

2 The Money Laundering (Prevention) No. 18 of 1998.
(Amendment) Act, 1998.

(c) after the paragraph defining "instrumentality" by in-
serting the following paragraph:

"international financial institution" means an international
trade or business licensed by the International Financial
Sector Authority".

3. Section 4 of the principal Act, is amended by repealing "unless
he adduces evidence to show that the offence was committed without
his knowledge, consent or connivance", and substituting:

"if it is established that the offence was committed with his
knowledge, consent or connivance."

4. Section 7 of the principal Act is amended in subsection (1) by
repealing "is likely to be prejudiced", and substituting:

"may be prejudiced, unless such disclosure is made in good
faith in the performance of his duties under this Act or any
other Act in force in Antigua and Barbuda".

5. Section 8 of the principal Act is amended in subsection (1) by
repealing "is or likely" and substituting:

'%e knows or ought reasonably to know"

6. Section 9 of the principal Act is amended by repealing
"investigated,".

7. Section 11 of the principal Act is amended by repealing
subsection (iii) and substituting the following:

"(iii) or a person authorised by the Supervisory Authority:

(a) in response to a suspicious activity report filed by a
financial institution pursuant to section 13(2), may
enter into the premises of such institution during nor-
mal working hours to inspect the specific account
containing any business transaction record identified in
the suspicious activity report; or

(b) on reasonable grounds that a business transaction record
kept by a financial institution pursuant to section 12 (id

No. 18 of 1998. The Money Laundering (Prevention) 3 ANTIGUA
(Amendment) Act, 1998. AND

BARBUDA
is involved in or relates to a money laundering offence,
may, on presentation of a notice in writing to the
financial institution of the reasonable grounds for the
inspection and the identity of the account to be in-
spected, enter into the premises of such financial insti-
tution during normal worlung hours to inspect such
record and the specific account containing such record;

and ask any questions relevant to such records and accounts and
if the inspection confirms his belief that a money laundering
offence is being, has been or is about to be committed he may
make any notes or make any copies of the whole or any part of
any such records; and

(c) the Supervisory Authority shall send a copy of the
written notice required under (b) to the Executive
Director of the International Financial Sector Authority
established under the International Business Corpora-
tions Act."

8. Section 12 of the principal Act is amended as follows: Amendment of
section 12 of Act
No. 9 of 1996.

(a) by inserting after (i) the following paragraph:

"(ia) comply with any request of, and respond
to any question by, the Supervisory Authority
or a person authorised by the Supervisory
Authority as authorised under section 11 (iii);"
and

(b) by repealing paragraph (iii).

9. Section 13 of the principal Act is amended as follows: Amendment of
section 13 of Act

(a) in subsection (I), by inserting after "purpose" the
No. 9 of 1996.

following:

"and to relations and transactions with persons,
including business and other financial institu-
tions, from countries that have not adopted com-
prehensive anti-money laundering programmes";
and

(b) in subsection (2) by inserting after "Authority" the
following:

ANTIGUA
AND

BARBUDA

Amendment of
section 16 of Act
No. 9 of 1996.

Amendment of
section 18 of Act
No. 9 of 1996.

4 The Money Laundering (Prevention) No. 18 of 1998.
(Amendment) Act, 1998.

"with a copy of the report to the Executive
Director of the International Financial Sector Au-
thority established under the International Business
Corporations Act";

(c) in subsection (3), by inserting after "Authority" in the
second place it occurs, the following:

"if such notification may prejudice any ongoing
or anticipated investigation."; and

(d) by inserting after subsection (3) a new subsection as
follows:

"(3a) Notwithstanding subsection (3), dis-
semination of information within the financial
institution on a need to know basis that is not
likely to prejudice any ongoing or anticipated
investigation shall not be prohibited.".

10. Section 16 of the principal Act is amended by repealing
subsection (1) and substituting the following subsection:

"(1) A Judge of the High Court may grant a mandatory
injunction against an officer or employee of a financial
institution in such terms as the court deems necessary to
enforce compliance with the above action on being satisfied
that a financial institution has failed without reasonable
excuse to comply in whole or in part with any obligation as
provided under section 12(i), (ii) and (iv) and section 13 (2).".

11. Section 18 of the principal Act is repealed and the following
section is substituted:

"18. (1) A person, other than a banking institution licensed
under the laws of Antigua and Barbuda, who transports or
causes the transportation in cash or bearer negotiable instru-
ments into or out of Antigua and Barbuda in US currency or
equivalent Eastern Caribbean or foreign currency in an amount
exceeding that prescribed under the Regulations issued under
this Act, must report that fact to the Minister of Finance in the
prescribed manner.

(2) A person who fails to report the transportation of
currency or bearer negotiable instruments as required in

No. 18 of 1998. The Money Laundering (Prevention) 5
(Amendment) Act, 1998.

subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding $10,000.

(3) Where a person fails to report the transportation of
currency or bearer negotiable instruments as required in
subsection (I), the Comptroller of Customs may with the
consent of the person so accused compound and assess a
penalty not exceeding 20% of the amount of currency or
bearer negotiable instruments so transported.".

12. Section 19 of the principal Act is a m e n d as follows:

(a) in subsection (I), by repealing "changed with money
laundering offence" and substituting the following:

"criminally charged in any jurisdiction with a
money laundering offence as defined in this
Act7';

(b) by repealing subsection (3) and substituting the follow-
ing subsection:

"(3) The person charged or about to be
charged shall be notified in writing of an order
made under this section within four days of the
issuance of such order."; and

(c) by inserting after subsection (3) the following subsec-
tions:

"(4) An order made under this section shall
cease to have effect at the end of the peiiod of
thuty days following the day the order was made
if the person against whom s ~ ~ c h order was made
has not been charged with a money laundering
offence w i t h that time.

(5) The Supervisory Authority may direct a
financial institution in writing to freeze property
for a period of up to four days while it seeks a
freeze order from the court, if it is satisfied that
such property is derived from or connected or
related to a money laundering offence.".

13. Section 20 of the principal Act is repealed and the following
section is substituted:

ANTIGUA
AND

BARBUDA

Amendment of
section 19 of Act
No. 9 of 1996.

Amendment of
section 20 of Act
No. 9 of 1996.

ANTIGUA 6 The Money Laundering (Prevention) No. 18 of 1998.
AND (Amendment) Act, 1998.

BARBUDA
"20. (1) When a person is convicted of a money

laundering offence under the laws of Antigua and Barbuda,
the court shall order any property, proceeds or instrumentah-
ties derived from, connected with or related to the offence,
wherever they may be, forfeited to the Government of Antigua
and Barbuda.

(2) When a person who is charged with a money laundering
offence under the laws of Antigua and Barbuda has been
notified of the charge by

(a) two consecutive publications of a local newspa-
per circulated in Antigua and Barbuda,

(b) publication in the Gazette; and

( service at his last known address,

and the preliminary inquiry or the trial for such offence has not been
conducted one hundred and eighty days after the notiiication be-
cause of his failure to appear at the prelirrhary inquiry or trial in
Antigua and Barbuda, the court shall order any property, proceeds or
instrumentalities derived from, connected with or related to the
offence, wherever they may be, forfeited to the Government of
Antigua and Barbuda.

(3) When, as a result of any act or omission of the person
convicted or who has failed to appear for trial any of the
property, proceeds or instrumentalities described in the pre-
ceding subsections cannot be forfeited, the court shall order
the forfeiture of any other property of equivalent value of the
person convicted or who has failed to appear for trial, or shall
order the person convicted or who has failed to appear for trial
to pay a fine of such value.

(4) When a person is charged in any jurisdiction other than
Antigua and Barbuda with a money laundering offence as
defined in this Act, upon application of the Supervisory
Authority or other competent authority, the court shall order
any property, proceeds or instrumentalities derived from,
connected with or related to such offence, which are located
in Antigua and Barbuda, to be frozen, and the person shall be
notified of the order within forty-eight hours, and

(a) if the charged person does not respond within one
hundred and eighty days of the notice of the fiewe, the

No. 18 of 1998. The Money Laundering (Prevention) 7 ANTIGUA
(Amendment) Act, 1998. AND

BARBUDA
court shall order the frozen property, proceeds and
instnunentalities forfeited to the Government of
Antigua and Barbuda,

(b) if the charged person provides evidence to the court
within one huncL-ed and eighty days of the notice of the
fieme establishing that the charges were filed for political
purposes, or otherwise in bad faith, or m unfounded, the
court shall immediately vacate its &,

(c) if the charged person provides evidence to the court
within one hundred and eighty days of the notice of the
freeze that he is challenging the charges, the frozen
property, proceeds and instrumentalities shall remain
frozen pending the outcome of the proceedings in the
foreign jurisdiction;

(d) if the charged person is convicted of the money laun-
dering charge, the frozen property, proceeds and instru-
mentalities shall upon h s conviction becoming final be
forfeited to the Government of Antigua and Barbuda;

(e) if the charged person provides proof to the court that
hewas acquitted of the money laundering charge or that
it was dismissed or otherwise disposed of without a
finding of guilt, the court shall immediately vacate its
order.

(5) In determining whether or not any property is derived from or
connected or related to a money laundering offence the court shall
apply the standard of proof required in civil proceedings.

(6) In making a forfeiture order the Court may give directions for
the purpose of determining any dispute as to the ownership of the
property or any part thereof."

14 .The principal Act is amended by inserting after section 20 the Insertion of section
following section: 20 A of Act No. 9

of 1996.

"Forfeiture 20A (1) A fund known as the Forfeiture Fund
Fund. shall be established under the administration and

control of the International Financial Sector Au-
thority as established under the International
Business Corporations Act, and all fund? and the
proceeds from the sale of all other property

ANTIGUA
AND

BARBUDA

Amendment of
section 21 of Act
No. 9 of 1996.

Amendment of
section 22 of Act
No. 9 of 1996.

Amendment of
section 23 of Act
No. 9 of 1996.

8 The Money Laundering (Prevention) No. 18 of 1998.
(Amendment) Act, 1998.

forfeited under the Act shall be deposited in such
Fund.

(2) An administrative fee of 20% shall be
deducted from the funds and proceeds of all
property forfeited under the Act which shall
be allocated to the Supervisory Authority for
the purpose of anti-money laundering activi-
ties.

(3) The funds and proceeds from the sale of all
other property forfeited under the Act deposited
to the Forfeiture Fund in accordance with sub
section (1) that are attributable to activities in, of,
or by an international financial institution shall
be allocated to the general income of the Interna-
tional Financial Sector Authority for use in ac-
cordance with the International Business Corpo-
rations Act.

(4) The funds and proceeds other than those
listed in subsections (2) and (3) shall be paid
forthwith into the Consolidated Fund.".

15. Section 21 of the principal Act is amended in subsection (4)
by inserting after "shall" the following:

"after the deduction of the administrative fee established in
section 20A,".

16. Section 22 of the principal Act is repealed and the following
section is substituted:

"22. The provisions of sections 19 and 20 shall apply to all
property possessed by, or under the control of aperson after
the coming into force of this Act.".

17. Section 23 of the principal Act is repealed and the following
section is substituted:

"23. (1) The Court shall cooperate with the court of
another State taking the appropriate measures to provide
assistance in matters concerning money laundering
offences, as defined under this Act, in accordance with all

No. 18 of 1998. The Money Laundering (Prevention) 9 ANTIGUA
(Amendment) Act, 1998. AND

BARBUDA
laws of Antigua and Barbuda, including those respecting
confidentiality.

(2) The competent authority shall cooperate with the
court or other competent authority of another State taking
the appropriate measures to provide assistance in matters
concerning money laundering offences, as-defined under
this Act, in accordance with all laws of Antigua andBarbuda,
including those respecting confidentiality.

(3) The competent authority may comply with arequest
from the court or other competent authority of another
State to identify, trace, freeze, seize or forfeit the property,
proceeds, or instrumentalities connected to money
laundering offences, as defined under this Act, and such
assistance shall be rendered in accordance with all laws of
Antigua and Barbuda, including those respecting
confidentiality.

(4) A final judicial order of judgment that provides for
the forfeiture of property, proceeds or instrumentalities
connected to money laundering offences, as defined under
this Act, issued by a court or other competent authority of
another State, may be recognised as evidence that the
property. proceeds or instrumentalities referred to by such
order or judgment may be subject to forfeiture anddisposed
of in accordance with section 20A of this Act.

(5) Under no circumstances shall information pertaining
to an account maintained in an international bank, trust or
insurance corporation be made available to another State
without an order issued by the court.

(6) Under no circumstances shall information pertaining
to an account maintained in an international bank, trust or
insurance corporation be made available to another State
for use in any investigation, prosecution or other proceeding
relating to the imposition, assessment or collection of taxes
of any kind.

(7) The competent authority may share forfeited assets
with foreign authorities or governments in a manner

ANTIGUA 10 The Money Laundering (Prevention) No. 18 of 1998.
AND (Amendment) Act, 1998.

BARBUDA
determined to be equitable by the competent authority,
after the deduction of the administrative fee established in
section 20A of this Act.

(8) Assistance referred in this section shall be that which
is agreed in a bilateral or multilateral mutual assistance
treaty of which Antigua and Barbuda is a party and all such
assistance shall be granted subject to the terms of such
treaties.".

Amendment of 18. Section 26 of the principal Act is amended as follows:
section 26 of Act
NO. 9 of 1996. (a) by inserting before "It" the following "(1); and

(b) by inserting after subsection (1) the following subsec-
tions:

"(2) It shall be unlawful for any person to
disclose any information relating to the business
affairs of a customer of a financial institution that
he has acquired as an officer, employee, agent,
auditor, or attorney of the financial institution, or
otherwise in the performance of his duties of the
exercise of his functions, except in the perfor-
mance or exercise of those duties or functions, in
compliance with a requirement of this Act or any
other statute, in response to a request from a
competent authority, or pursuant to an order of a
court of competent jurisdiction in Antigua and
Barbuda.

(3) It shall be unlawful for any person to
disclose any information relating to the business
affairs of a financial institution or a customer of
a financial institution that he has acquired as an
official, employee, agent, auditor or attorney of
the Government of Antigua and Barbuda or
otherwise in the performance of his duties or the
exercise of his official functions, except in the
performance or exercise of those duties or func-
tions, in compliance with a requirement of this
Act or any other statute, in response to a request
fmm a competent authority, or pursuant to an
order of a court of competent jurisdiction in
Antigua and Barbuda.

No. 18 of 1998. The Money Laundering (Prevention) 1 1 ANTIGUA
(Amendment) Act, 1998. AND

BARBUDA
(4) Any person gull@ of an offence under

subsections (2) or (3) is liable on conviction to a
fine of up to one hundred thousand dollars, and
to imprisonment for up to three years.".

Passed the House of Representatives Passed the Senate this 15th day
this 6th day of October, 1998. of October, 1998.

B. Harris,
Speaker.

G. Nicholas,
Deputy Clerk to the House of

Representatives.

M. Percival,
President.

G. Nicholas,
Deputy Clerk to the Senate.

Printed at the Government H Printin Office, Antigua and Barbuda,
by Donovan Southwell, Acting Government Printer

-By Authority, 1998.
800-10.98 [ Price $4.70 1

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