No. 6 of 2001. The Money Laundering (Prevention) 1 ANTIGUA
(Amendment) Act, 2001. AND
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[ L.S. ]
I Assent,
James B. Carlisle,
Governor- General.
27th April, 200 1.
ANTIGUA AND BARBUDA
No. 6 of 2001
AN ACT to provide for the amendment of the Money Laundering
(Prevention) Act 1996.
[ 27th April, 2001 ]
1. This Act may be cited as the Money Laundering sho,-ttiue.
(Prevention) (Amendment) Act, 2001.
2. The Money Laundering (Prevention) Act, 1996, in this Amendment of
Act referred to as the principal Act, is amended in section 2 section.
as follows -
(a) by inserting the following def~nitions in their proper
alphabetical order -
"authorised officer" means a person authorised by the Su-
pervisory Authority to perform certain acts or functions
under h s Act.
"gift" in relation to property, includes a transfer for a con-
sideration significantly less than the greater of -
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(a) the prevailing market value of the property; or
(b) the consideration paid by the defendant.
"money laundering offence" means -
(i) an offence against:
(a) section 3 of this Act; or
(b) section 18 of this Act; or
(c) section 61 of the Proceeds of Crime Act, 1993; or
(d) sections 4,5,6(3), 7 and 8 of the Misuse of Drugs
Act, Cap. 283; or
(ii) an offence against:
(a) any foreign law specified by regulation under this
Act; or
(b) any foreign law, whether or not it is specified by
regulation under this Act which prescribes dealings
in property which is the proceeds of crime, which,
if it was committed in Antigua and Barbuda, would
be an offence against this Act or any other law of
Antigua and Barbuda.
In deciding whether an offence against any foreign law is
a money laundering offence within the meaning of this
definition, due regard should be given to differences in
the form and usages of foreign laws and the meaning of
any language used in such law should be construed broadly
and not strictly.
"unlawful activity" means - an act or omission that
constitutes an offence against a law in force in Antigua
and Barbuda or against a law in force in a foreign
country that would, if it was committed in Antigua and
Barbuda, be an offence against a law of Antigua and
Barbuda;
(b) by repealing the definitions of "forfeiture", "pre-
scribed offence" and "Competent Authority";
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(c) by repealing the definition of "instrumentality",
"money laundering", "proceeds of crime" and sub-
stituting therefor the following -
"instrumentality" means property that is used in or in
connection with or is intended to be used in any manner in
or in co~lnection with the commission
of -
(i) a money laundering offence; or
(ii) an offence against subsection 18(1) or sub-
section 18(4) of this Act.
"money laundering" means -
(a) engaging directly or indirectly, in a transaction that
involves money, or other property, or
(b) receiving, possessing, managing, investing, con-
cealing, disguising, disposing of or bringing into
Antigua and Barbuda any money, or other prop-
erty,
knowing, or having reasonable grounds to suspect that the
money, or other property, is derived, obtained or realised,
directly or indirectly, from some form of unlawful activity.
"proceeds" in relation to an offence, means any property
that is derived or realised, directly or indirectly by any
person from the commission of the offence.
"proceeds of crime" - means:
(a) proceeds of a criminal offence against the laws of
Antigua and Barbuda; or
(b) &ylproperty that is derived or realised, directly or
indirectly by any person fiom acts or omissions that:
(i) occurred outside Antigua and Barbuda, and
(ii) would, if they had occurred in Antigua and
Barbuda, have constituted an offence against
the laws of Antigua and Barbuda.
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Insertion of 3. The principal Act is amended by inserting after section 2
Sections 2A, 2B, the following -
2C 2D, 2E, 2F.
ZA (1) For the purposes of Part IV of this Act a person is
convicted of an offence if
(i) he is convicted of the offence by a court ei-
ther in Antigua and Barbuda or elsewhere;
(ii) a court, with the consent of the person, takes
the offence, of which the person has not been
found guilty, into account in passing sentence
on the person for another offence;
(iii) a declaration is made by the High Court pur-
suant to section 2B that the person has ab-
sconded in relation to the offence.
(2) In any proceeding related to the operation of this
Act if the conviction of a person of a money
laundering offence is in issue a certified copy or
copy with an official stamp, of a certificate of
conviction or judgement together with any
translation of the said documents into English by a
person fluent in the language used in the country in
which the person was convicted shall be regarded
as conclusive proof of the conviction of the person
of the money laundering offence concerned and
prima facie proof of any facts asserted and relied
upon in the document.
2B (1) For the purposes of Part IV of this Act a person shall
be taken to abscond in connection to a money laun-
dering offence with which he has been charged in
Antigua and Barbuda if:
(a) an information is laid alleging the commission of
the offence by the person;
(6) a warrant for the arrest of the person is issued in
relation to that information; and
(c) one of the following occurs:
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(i) the person dies without the warrant being
executed;
(ii) at the end of the period of 6 months commenc-
ing on the day on which the warrant is issued:
(a) the person cannot be found; or
(b) the person is, for any other reason, not amenable to
justice and, if the person is outside Antigua and
Barbuda, extradition proceedings have not com-
menced;
(iii) at the end of the period of 6 months commenc-
ing on the day on which the warrant is issued:
(a) the person is, by reason of being outside Antigua
and Barbuda, not amenable to justice; and
(b) extradition proceedings have been commenced;
and subsequently those proceedings terminate without an
order for the person's extradition being made.
(2)Upon application being made by the
Supervisory Authority, and upon being satisfied that
the provisions of subsection (1) are satisfied in
respect of a person the High Court shall declare that
the person has absconded and, for the purposes of
Part IV of this Act only, is convicted of any money
laundering offence of which the person has been
charged in Antigua and Barbuda.
(3)For the purposes of Part IV of this Act a person
shall be taken to abscond in connection with a money
laundering offence with which he has been charged
in a country other than Antigua and Barbuda if an
affidavit is filed in the High Court that has been
sworn by an authorised officer which deposes to the
following - that:
(a) a charge has been laid against the person for a
money laundering offence;
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(b) a warrant for the arrest of the person has been is-
sued in relation to that charge; and either
(i) the person has died without the warrant be-
ing executed; or
(ii) at the end of the period of 6 months com-
mencing on the day on which the warrant was
issued the person cannot be found or is, for
any other reason, not amenable to justice and
no extradition proceedings have been com-
menced; or
(iii) at the end of the period of 6 months com-
mencing on the day on which the warrant is
issued the person is, by reason of being out-
side the country concerned, not amenable to
justice; and that extradition proceedings have
taken place which terminated without an or-
der for the person's extradition being made.
(4)Upon application being made by the Super-
visory Authority, and upon being satisfied that the
provisions of subsection (3) are satisfied in respect
of a person the High Court shall declare that the
person has absconded and, for the purposes of Part
IV of this Act only, is convicted of any money laun-
dering offence of which the person has been charged
in any foreign country.
(5)any affidavit filed in support of an applica-
tion made pursuant to subsection (2) or (4) together
with any document exhibited to it shall be accepted
as proof of the contents thereof unless the court has
strong grounds for declining to accept any asser-
tion that is made in the affidavit or any document
exhibited to it.
2C (1) "Property, or an interest in property, may be subject
to the effective control of a person within the
meaning of this Act whether or not the person has:
(a) a legal or equitable estate or interest in the prop-
erty; or
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(b) a right, power or privilege in connection with the
property.
(2)Without limiting the generality of any other
provision in this Act, in determining:
(a) whether or not property, or an interest in property,
is subject to the effective control of a person; or
(b) whether or not there are reasonable grounds to
suspect that property, or an interest in property, is
subject to the effective control of a person;
regard may be had to:
(c) shareholdings in, debentures over or directorships
of a company that has an interest (whether direct or
indirect) in the property;
(d) a trust that has a relationship to the property; and
(e) fanlily, domestic and business relationships between
persons having an interest in the property, or in com-
panies of the kind referred to in paragraph (c) or
trusts of the kind referred to in paragraph (d), and
other persons.
(3)In determining whether property, or an interest
in property is subject to the effective control of a
person the court may lift .the corporate veil of any
company whether it is registered under the laws of
Antigua and Barbuda or elsewhere.
2D For the purpose of an application under this Act,
property in which the defendant has an interest
includes -
(1) any property that is, on .the day when the first
application is made under this Act in respect
of that offence, subject to the effective control
of the defendant; and
(2) any property that was the subject of a gift from
the defendant to another person within the
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period of 6 years before the fwt application
was made under this Act in tespect of that
offence.
2E For the purpose of this Act, two offences are related to
one another if the elements of the. two offences are
substantially the same acts or omissions.
2F A person may be appointed as a trustee for the purposes
of this Act if they are qualified to be appointed as a
receiverlmanager or liquidator of a foreign corporation
pursuant to the Business Corporation Act, Cap. 222
(as amended).
2 6 For the purposes of any application under this Act -
(a) any affidavit or statement of a relevant foreign au-
thority which is relevant to an application under
this Act shall be accepted as proof of the contents
thereof;
(b) any document which is or purports to be a copy of
a business record kept by a person, corporation or
other entity in the ordinary course of business shall
be accepted as proof of the contents thereof unless
the court is satisfied that the contents of the docu-
ment are false;
(c) any affidavit filed in support of an application made
pursuant to this together with any document exhib-
ited to it shall not be objected to or ruled inadmis-
sible solely on the ground that it contains hearsay
evidence;
(d) a court may take into account in determining the
application any material that it thinks fit, including
evidence given in any proceeding relating to the
offence in reliance on the charging or conviction
of which the application is made or any related of-
fence, or other offence arising from the same facts,
and for this purpose, the whole or any part of the
record of evidence of those proceedings is admis-
sible in evidence as if it were a record of evidence
given on the hearing of the application;
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4. Section 10 of the principal Act is repealed and section 10
substituted by the following - repealed and
repeald.
"The Minister shall appoint a person or persons to be
known as the Supervisory Authority to supervise financial
institutions and to carry out the function of the Supervisory
Authority in accordance with this Act."
5. Section 1 1 of the principal Act is amended by the addition Section 11
of the following - Amended.
"(xi) shall exercise the powers and functions conferred on
the Supervisory Authority by this Act to trace property
that is the proceeds of offences against the lawmf Antigua
and Barbuda and elsewhere and to make application for
the freezing and forfeiture of such property in accordance
with the provisions of this Act."
Section 13 of the principal Act is amended as follows -
(a) by deleting from subsection (3) thereof the words
"competent authority";
(b) by deleting from subsection (6) thereof the words
"competent authority" and substituting the words
"the relevant authority appointed under the Inter-
national Business Corporation Act." Cap. 222
7. Section 17 of the principal Act is amended as follows - Amendment of
section 17.
(a) by deleting the words "a prfscribed offence" and
substituting therefor the words "an offence for
which a person may be sentenced to a term of im-
prisonment for twelve months or more";
(b) by deleting the words "or of an offence under this Act"
8. Section 18 of the principal Act is repealed and substituted Section 18
by the following - repealed and replaced.
Cumncy reporting. 18 (1)Where:
(a) a person:
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(i) lmsfers currency of Antigua and Bhuda or for-
eign amency out of Antigua and Barbuda., or
(ii) transfers currency of Antigua and Barbuda
or foreign currency into Antigua and
Barbuda; and
(b) the amount of the currency involved in the transfer
is not less than US$10,000 in value;
the person, subject to subsections (2), (3) and (4), commits
an offence against this subsection unless a report in respect
of the transfer has been made in accordance with this
section.
(2) Where:
(a) a person receives currency of Antigua and Barbuda
or foreign currency transferred to the person from
outside Antigua and Barbuda; and
(b) the amount of currency is not less than US$10,000
in value;
the person commits an offence against this subsec-
tion unless:
(i) a report in respect of the transfer of the currency
into Antigua and Barbuda has been made in accor-
dance with subsection (1) before the transfer; or
(ii) a report in respect of the receipt of the currency is
given in accordance with this section before the
peridd of 30 days commencing on the day of the
receipt of the currency.
(3) A person who commits an offence against
subsection (1) or (2) is liable, upon conviction,
to a fine of fifty thousand d o h ($50,000)
or to imprisonment for not more than 2 ypm,
or both.
(4) A rq& ~ d e r this W o n shall:
m ~ p p r o v a d in the npbt iom;
' ',
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(b) contain the reportable details in relation to the matter
being reported;
(c) be signed by the person making the report; and
(d) be given to:
(i) if the transfer is effected by a person taking
the currency out of, or Sringing it into,
Antigua and Barbuda with the person - a
Customs Officer; and
(ii) in any other case - &e Supervisory Author-
ity or a customs officer.
(5) A report under this section, other than
a report mentioned in subsection (2)@)(i) or
(ii), must be given:
(a) if subsection (4)(d)(i) applies - at the time the cur-
rency concerned is brought into, or taken out of,
Antigua and Barbuda; and
(71) in any other case - at any time before the transfer
takes place.
(6)For the purposes of subsection (S), if currency
is taken out of Antigua and Barbuda by a person
who sends or consigns the currency:
(a) through the post to a place outside Antigua and
Barbuda; or
(b) to another person for carriage to a place outside
Antigua and Barbuda by that other person or by a
third person;
the time when the currency is taken out of Antigua and
Barbuda is the time when it is irrevocably committed by
the first mentioned person to the Post Office or to the
other person, as the case may be.
(7) For the purposes of subsection (5)(a), the time
at which currency is brought into Antigua and
Barbuda by a person is:
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(a) if the person:
(i) transfers the currency into Antigua and
Barbuda when a passenger on an aircraft,
vessel or ship; and
(ii) after disembarking, goes through an area set
apart for customs officers to exanline the pass-
ports and personal baggage of, and perfom
other duties in respect of, disembarking pas-
sengers and for such passengers to collect
personal baggage;
as soon as the person reaches the place in that area at which
customs officers examine personal baggage or, if the
person does not go to that place, when the person leaves
that area; or
(b) in any other case - the first opportunity after ar-
rival in Antigua and Barbuda that the person has to
make the report under this section.
(8) For the purposes of subsection (5)(a), the time
at which currency is taken out of Antigua and
Barbuda by a person is:
(a) if the person:
(i) transfers the currency out of Antigua and
Barbuda when a passenger on an aircraft,
vessel or ship; and
(ii) before embarking, goes through an area set
apart for the examination of the passports and
baggage of embarking passengers;
when the person is at the place in that area in which pass-
ports are examined; or
(b) in any other case - as soon as the person reaches
the person who is to examine the person's passport
in relation to the person leaving Antigua and
Barbuda or, if there is no such examination, the last
opportunity before leaving Antigua and Barbuda
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that the person has to make the report under this
section.
(9) Where a report under this section is made,
the person to whom it is made shall, after receipt of
the report, forward the report to the Supervisory
Authority within 48 hours.
(10) For the purpose of this section, lf a person:
(a) arranges to leave Antigua and Barbuda on an aircraft,
vessel or ship; and
(b) for the purpose of leaving Antigua and Barbuda, goes
towards an aircraft, vessel or ship through an area
described in subsection (8)(a)(ii); and
(c) either:
(i) takes currency into that area; or
(ii) has currency in his or her personal baggage;
and
(d) does not give a report about the currency when at
the place described in that subsection;
the person is taken to have transferred the currency
out of Antigua and Barbuda.
9. 18A (1)A Customs Officer, Police Officer or officer in Seizure and
the Coast Guard may seize and detain any currency Detention of
if he or she has reason to suspect that it is an instru- suspected
mentality of an offence against subsection 18(1) or currency.
18(2) of this Act or is the proceeds of crime.
(2) Currency seized by virtue of this section shall
not be detained for more than 7 days unless
an order is made for its continued detention
pursuant to subsection (3).
(3) An application may be made to a magistrate
for an order authorising the continued
detention of the seized currency for additional
periods, not exceeding 6 months on each
occasion, providing that the magistrate is
satisfied that:
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(a) there are reasonable grounds for the suspicion
referred to in subsection (1); and
(b) that continued detention of the currency is justified
while its origin or derivation is further investigated
or consideration is given to the institution, whether
in Antigua and Barbuda or elsewhere, of criminal
proceedings against any person for an offence with
which the currency is connected and provided that,
in total, the currency is not detained for a period in
excess of two years from the date of seizure, save
that where a criminal proceeding against any person
for an offence with which the currency is connected
has commenced, the continuing detention of the
currency may be ordered until the proceeding is
completed.
(4)An application pursuant to subsection (3) may
be made to a magistrate by the Supervisory
Authority.
(5) Any currency subject to continued detention
under subsection (3) shall, unless required as
evidence of an offence, be delivered forthwith into
the care of the Supervisory Authority who shall
deposit it into a separate interest bearing account.
(6)An order made under subsection (3) shall
remain in force until:
(a) the expiration of the order;
(b) the order is vacated by order of a court.
(7)Currency which is detained pursuant to an
order made under subsection (3) may be released in
whole or in part upon the order of a magistrate
provided that the magistrate is satisfied that:
(a) the grounds under which the currency was
originally seized or continued to be detained no
longer exist; or
(b) the continued detention of the currency is no longer
justified.
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(8)An application under subsection (7) may be
made by:
(a) the person from whom the currency was seized; or
(b) a person who, to the satisfaction of the magistrate,
has an interest in .the currency; or
(c) the person, or one of the persons upon whose appli-
cation the currency was detained; or
(d) the Supervisory Authority.
(9)An order under subsection (7) may not be made
while:
(a) a criminal prosecution, whether in Antigua and
Barbuda or elsewhere, including any appeal against
a conviction arising from such a prosecution, to
which the seizure of the currency is related is pend-
ing, or
(b) an application for forfeiture of the currency pursu-
ant to section 18B of this Act, including any appeal
therefrom, is pending.
10. 18B (1) An application for the forfeiture of anycurrency Application to
seized pursuant to section 18A(1) may be made Magisbate to
forfeit seized to the Magistrates' Court upon the application of
the Supervisory Authority.
(2) Notice of an application pursuant to subsection
(1) should be servedupon the person from whom
the currency was seized or any person that the
applicant believes may have an interest in the
currency by any one of the following means:
(a) personal service upon the person;
(b) service at the business address of counsel (if any)
acting on behalf of the person;
(c) service at the last known address, or place of business
within the jurisdiction of the person;
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(d) in the case of a body corporate by service upon the
registered or principal office of the body corporate;
(e) publication in the Gazette in Antigua and Barbuda;
or
(&I publication in two consecutive issues of a local
newspaper circulating in Antigua and Barbuda
(3) Any person notified under subsection (2) and
any other person who claims to have an
interest in the seized currency are entitled to
appear and to give evidence at the hearing of
the application, but the absence of a person
does not prevent the court from making a
forfeiture order.
(4) Upon hearing an application pursuant to
subsection (1) and upon being satisfied that
the seized currency is:
(a) the proceeds of some fornl of unlawful activity; or
(b) an instrumentality of any offence (whether or not a
person has been convicted of any offence);
the Court may, subject to subsection (5) order that all or
part of the currency be forfeited to the Government of
Antigua and Barbuda.
(5)In considering whether to make an order under
subsection (4) in respect of all or part of the seized
currency, the court may have regard to -
(i) the use ordinarily made, or intended to be
made of the currency; and
(ii) the claim of any third party to an interest in
the currency who shows to the satisfaction of
the court that they were not involved or aware
of any unlawful use or purpose with which
the currency may have been associated.
(6) Any party to an application for
forfeiture under subsection (1) may appeal to
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the High Court by way of rehearing within
30 days of any order pursuant to subsection
(4) being made.
11. 18C In sections 18, 18A and 18B: Reportable details
and currency.
"reportable details" in relation to a matter being reported,
means the details of the matter that are required to be
reported that are prescribed in the regulations.
means cash or bearer negotiable financial
instruments.
12. Section 19 of the principal Act is repealed and replaced Section 19 repealed
by the following: and repealced.
Power to restrain 19 (1) Where a person (referred to in
property this Part as "the defendant") -
(a) has been convicted of a money laundering offence;
or
(b) has been, or is about to be charged with a money
laundering offence.
the Supervisory Authority may apply to the High Court
for an order freezing property in which there is a
reasonable suspicion that the defendant has an interest.
(2)Subject to subsection (3) an application.
referred to in subsection (1) may be made against
one or more of the following:
(a) specified property of the defendant;
(b) all the property of or in the name of the defendant
(including property acquired after the making of
the order);
(c) all the property of or in the name of the defendant
(including property acquired after the making of
the order) other than specified property;
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(d) specified property of a person other .than the de-
fendant.
(3) Where:
(a) the money laundering offence of which the defen-
dant has been convicted or charged falls within the
definition of subparagraph (i) of the definition of
money laundering offence the property in respect
of which an application for a freezing order may
be made pursuant to subsection (2) may be located
in Antigua and Barbuda or anywhere else in the
world;
(b) the money laundering offence of which the defen-
dant has been convicted or charged falls within the
definition of subparagraph (ii) of the definition of
money laundering offence the property in respect
of which an application for a freezing order may
be made pursuant to subsection (2) may only be
located in Antigua and Barbuda.
(4) Where the Supervisory Authority applies
to the High Court for an order under this section,
the High Court may, subject to section 19A, by
order:
(a) direct that the property, or such part of the prop-
erty as is specified in the order, is not to be dis-
posed of, or otherwise dealt with, by any person,
except in such manner and in such circumstances
(if any) as are specified in the order; and
(b) if the High Court is satisfied that the circumstances
so require - direct a trustee to take custody and
control of the property, or of such part of the prop-
erty as is specified in the order.
(5)The High Court may, without limiting the
generality of its power under this section to impose
such conditions upon a freeze order as it sees fit,
make provision for meeting, out of property or a
specified part of the property, all or any of the fol-
lowing:
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(a) the defendant's reasonable living expenses (includ-
ing the reasonable living expenses of the defendant's
dependants (if any) and reasonable business ex-
penses;
(b) the defendant's reasonable expenses in defending
a proceeding under this Act or the criminal charge
to which this proceeding relates.
(6)The following restrictions apply to orders
making provision for the payment of expenses of
the defendant or dependants of the defendant
pursuant to subsection (5):
(a) no provision is to be made for expenses except
to the extent (if any) that the High Court is satis-
fied that the defendant cannot meet the expenses
concerned out of the defendant's unfrozen prop-
erty;
(b) no provision is to be made in relation to any par-
ticular interest in frozen property if a reasonable
suspicion exists that the interest is unlawfully ac-
quired property;
(c) no provision is to be made unless a statement pur-
suant to section 19B(l)(e) has been filed in the High
Court;
(d) no provision is to be made unless the High Court is
satisfied .that the defendant has taken all reasonable
steps to bring all of his or her interests in property
within the jurisdiction of the Court;
(e) any provision for the payment of expenses must
specify the particular interest in property out of
which the expenses concerned may be met.
(7) For the purpose of this section a defendant's
unfrozen property is any interest in property of the
defendant:
(a) that is not subject to a freeze order under this Act;
or
ANTIGUA 20 The Money Laundering (Prevention) No. 6 of 2001.
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(b) that the High Court is satisfied is not within the
Court's jurisdiction (whether or not it is subject to
a freeze order under this Act).
(8)Where a trustee is given a direction under
subsection (4)(b) in relation to property, the trustee
may do anything that is reasonably necessary for
the purpose of preserving the property including,
without limiting the generality of this:
(a) becoming a party to a civil proceeding affecting
the property;
(b) ensuring that the property is insured;
(c) if the property consists, wholly or partly, of securi-
ties or investments - realising or otherwise dealing
with the securities or investments; and
(d) if the property consists wholly or partly of a busi-
ness:
(i) enlploying, or terminating the employment
of, persons in the business; and
(ii) doing any other thing that is necessary or
convenient for carrying on the business on a
sound commercial basis.
(c) if the property consists wholly or partly of shares
the trustee may exercise the rights attaching to the
shares as if he or she were the registered holder of
the shares to the exclusion of any rights held by the
registered holder.
Conditions for 13.19A (1) If the defendant has not been convicted of the
making freezing money laundering offence the High Court shall not make a freeze
order. order unless:
(a) the application for the order is supported by an
affidavit of an authorised officer stating that he
suspects that the defendant committed the of-
fence; and
No. 6 of 2001. The Money Laundering (Prevention) 21 ANTIGUA
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(b) the court is satisfied, having regard to the matters
contained in the affidavit, that there are reasonable
grounds for holding that suspicion.
(2)where the application is made in reliance on
the proposed charging of the defendant with the
offence concerned, the court shall not make a freeze
order unless it is satisfied that the defendant will be
charged with the offence or a related dffence within
30 days.
(3)Where the application seeks a freeze order
against the specified property of a person other than
the defendant the court shall not make a freeze order
against the property unless:
(a) the application is supported by an affidavit of an
authorised officer stating that
(i) the officer suspects that the property is an in-
strument of the offence; or
(ii) the officer suspects that defendant has an in-
terest in the property; and
(b) the court is satisfied, having regard to the matters
contained in the affidavit, that there are reasonable
grounds for holding that suspicion.
(4)The High Court may make a freeze order in
respect of property whether or not there is any risk
of the property being disposed of, or otherwise dealt
with, in such manner as would defeat the operation
of this Act.
(5)The defendant or any person who is believed
by the Supervisory Authority to have an interest in
property the subject of an order under subsection
19(4) shall be notified by the Supervisory Author-
ity of an order made pursuant to section 19(4) by
one or more of the following methods:
(a) personal service upon him;
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(b) service at the business address of counsel (if any)
acting on his behalf;
(c) service at his last known address, or place of busi-
ness within the jurisdiction;
(d) in the case of a body corporate by service upon the
registered or principal office of the body corporate;
(e) publication in the Gazette in Antigua and Barbuda;
or
Cf) publication in two consecutive issues of a local
newspaper circulating in Antigua and Barbuda; or
(g) without limiting the generality ofparagraph (a), by
effecting service upon him in a foreign jurisdiction
by or through a foreign authority.
within 14 days of the order, or such further time that is allowed
at the discretion of the High Court.
High court to 14. 19B (1) Where the High Court makes a freeze order, .the
make ancillary Court may, at any time when it makes the freeze
orders. order or at any later time, make any ancillary
orders that the Court considers appropriate and,
without limiting the generality of the Court's
power, the Court may make any one or more of
the following orders:
(a) an order varying the property to which the freeze
order relates;
(b) an order varying a condition to which the freeze
order is subject;
(c) an order for the examination on oath before the
Court of any person, including:
(i) a person whose property is the subject of the
restraining order (in this section called the
"owner"); or
(ii) a person who is the defendant within the
meaning o&$&tion 19 in relation to the of-
No. 6 of 2001. The Money Laundering (Prevention) 23 ANTIGUA
(Amendment) Act, 2001. AND
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fence to which the freeze order relates (in this
subsection called the "defendant");
about the affairs (including the nature and location of any
property) of:
(iii) anyone else who is either the owner or the
defendant or both; and
(iv) if the person to be examined is either the
owner or the defendant or both - that person;
(d) an order directing
(i) the owner; or
(ii) if the owner is not the defendant - the defen-
dant; or
(iii) if the owner or the defendant is a body cor-
I porate - a director of the body corporate speci-
fied by the court:
to give to:
(iv) where the freeze order is, or includes, an or-
der made under section 19(4)(b) - the trustee;
and
(v) in any other case - the applicant for the an-
cillary order or such other person as the court
directs;
within a period specified in the ancillary order, a statement
sworn on oath setting out such particulars of the property,
or dealings with the property, of the owner or the defen-
dant, as the case may be, and as the court thinks proper;
(e) where the fieeze order directed a trustee to take
custody and control of property:
(i) an order regulating the manner in which the
trustee may exercise his or her powers or per-
form duties under the fieeze order;
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(ii) an order determining any question relating
to the property to which the freeze order re-
lates, including any question relating to:
(a) the liabilities of the owner; or
(b) the exercise of the powers, or the performance of
the duties, of the trustee with respect to the prop-
erty to which the restraining order relates;
(2)An order under subsection (1) may be made
on application by:
(a) the Supervisory Authority;
(b) the owner;
(c) where the freeze order directed a trustee to
take custody and control of property - the
trustee; or
(d) with the leave of the court - any other per-
son.
(3)An ancillary order made in relation to a freeze
order does not cease to have effect merely because
the freeze order, or part of it, ceases to be in force.
(4) Where:
(a) a person (in this subsection called the "defendant")
has been convicted of, or has been charged or is
about to be charged with, a money laundering of-
fence;
(b) the High Court, in reliance on the conviction, charg-
ing or proposed charging makes a freeze order
against property; and
(c) a person having an interest in the property applies
to the court for a variation of the order to exclude
the person's interest from the order;
the High Court shall grant the application if:
No. 6 of 2001. The Money Laundering (Prevention) 25 ANTIGUA
(Amendment) Act, 2001. AND
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(d) where the applicant is not the defendant and the
freeze order was not made by virtue of section
19A(3) - the\High Coud is satisfied that:
(i) the applicant was not, in any way, involved
directly or indirectly in the commission of the
offence; and
(ii) the applicant had no knowledge of the com-
mission of the offence or of any illegal use to
which instrumentalities the subject of the ap-
plication may have been put (providing that
this lack of knowledge was not the result of
wilful blindness); and
(iii) the applicant's interest in the property was not
acquired by means of a gift from the defen-
dant or any person or entity under the effec-
tive control of the defendant; and
(iv) where the applicant acquired the interest at
the time or after the commission, or alleged
commission, of the offence - the applicant
acquired the interest without knowing, or in
circumstances such as not to arouse a reason-
able suspicion, that the property was an in-
strumentality of the offence;
(e) where the applicant is not the defendant and the
freeze order was made by virtue of section 19A(3)
- the High Court is satisfied that:
(i) the applicant was not, in any way, involved
in the commission of the offence; and
(ii) the applicant's interest in the property is not
subject to the effective control of the defen-
dant; and
(iii) the applicant had no knowledge of the com-
mission of the offence or of any illegal use to
which instrumentalities the subject of the ap-
plication may have been put (providing that
this lack of knowledge was not the result of
wilful blindness); and
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AND (Amendment) Act, 2001.
BARBUDA
(iv) the applicant's interest in the property was
not acquired by means of a gift from the de-
fendant or any person or entity under the ef-
fective control of the defendant; and
(v) where the applicant acquired the interest at
the time or after the commission, or alleged
commission, of the offence - the applicant
acquired the interest without knowing, and
in circumstances such as not to arouse a rea-
sonable suspicion, that the property was an
instrumentality of the offence.
(5) Where:
(a) a person (in this subsection called the "defendant")
has been convicted of, or has been charged with or
is about to be charged with, a money laundering
offence;
(b) the High Court, in reliance on the conviction, the
charging or proposed charging, makes a freeze or-
der against the property;
(c) the defendant has an interest in the property;
(d) the defendant applies to the High Court for an or-
der under this subsection in relation to the interest;
and
(e) the court is satisfied that:
(i) the property was not used in, or in connec-
tion with, any unlawful activity and was not
derived, directly or indirectly, by any person
from any unlawful activity; and
(ii) the property was not related in any way, di-
rectly or indirectly, to any unlawful activity
including (and without limiting the general-
ity of the foregoing) any money laundering
scheme established in Antigua and Barbuda
or elsewhere.
No. 6 of 2001. The Money Laundering (Prevention) 27 ANTIGUA
(Amendment) Act, 2001. AND
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the High Court may order that the freeze order, to the extent
to which it relates to the interest in property the subject of
the application, be discharged.
(6) The onus of proof in an application
made pursuant to subsections (4) or (5) lies
upon the person seeking relief under those
subsections.
(7) Where a person is examined before the
High Court pursuant to an order under
paragraph (l)(c), the person is not excused
from answering a question when required to
do so by the court on the ground that the
answer to the question might tend to
incriminate the person or make the person
liable to forfeiture or a penalty.
(8) Where a person is examined before the
High Court pursuant to an order under
paragraph (l)(c), a statement or disclosure
made by the person in answer to a question
put in the course of the examination, and any
information, document or thing obtained as a
direct or indirect consequence of the statement
or disclosure, is not admissible against the
person in any criminal proceedings except a
proceeding for giving false testimony in the
course of the examination.
(9) A person whom an order under
subsection (l)(d) directs to give a statement is
not excused from giving the statement, or from
setting out particulars in the statement, on the
ground that the statement or particulars, as the
case may be, might tend to incriminate the
person or nmke the person liable to a forfeiture
or penalty.
(10) Where a person gives a statement
under an order made under paragraph (l)(d),
neither the statement, nor any information,
document or thing obtained as a direct or
indirect consequence of the statement is ad-
ANTIGUA 28 The Money Laundering (Prevention) No. 6 of 2001.
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BARBUDA
missible against the person in any criminal
proceedings except a proceeding in respect of
the falsity of the statement.
Section 20 15. Section 20 of the principal Act is repealed and substituted
repealed and by the following -
replaced.
20(1) If:
(a) a person (in this section called the "defendant") is
convicted of a money laundering offence;
(b) a freeze order is or was granted in respect of prop-
erty (whether property of the defendant or of some
other person) in reliance on:
(i) the defendant's conviction of that offence; or
(ii) the charging or proposed charging of the de-
fendant with that offence or a related offence;
(c) the freeze order, to the extent to which it relates to
the property, is not the subject of a discharging or-
der under section 19B(5);
subject to subsection (2) the frozen property is forfeited
to the Crown upon the expiry of 90 days after
(i) the making of the freeze order; or
(ii) the conviction of the defendant,
whichever is later.
(2) If, within the period of 90 days
referred to in subsection (I), an application
has been made for an order under section
19B(5) in respect of frozen property, the
property is forfeited to the Crown -
(a) if the application is refused or dismissed, at the end
of the period during which the person may appeal
against the refusal or dismissal or, if such an appeal
is lodged, when the appeal is abandoned or finally
determined without the order having been made;
No. 6 of 2001. The Money Laundering (Prevention) 29 ANTIGUA
(Amendment) Act, 2001. AND
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(b) if the application is withdrawn or struck out, on that
withdrawal or striking out.
16. Sections 21 of the principal Act is repealed and substituted section 21
by the following - repealed and
replaced.
21 (1) If property is forfeited to the Crown under section 20,
a person (other than the defendant) who.claims to have
had an interest in the property immediately before it
was forfeited may, subject to subsections (2) and (4),
apply to the High Court for an order under section 22.
(2) The application must, subject to subsection (3), be made
before the end of the period of 50 days when the
property is forfeited to the Crown.
(3) The High Court may grant a person leave to apply after
the end of the period referred to in subsection (2) if it is
satisfied that the delay in making the application is not
due to neglect on the part of the applicant.
(4) An application for an order under section 22 in relation
to an interest in property niust not be made by a person
who was given notice of -
(a) proceedings on the application for the relevant freeze
order; or
(b) the making of the relevant freeze order -
except with the leave of the court.
(5)The High Court may grant a person leave
under subsection (4) to make an application if the
court is satisfied that the person's failure to seek to
have the property excluded from the relevant freeze
order was not due to neglect on the part of the
applicant.
(6) An applicant must give written notice of
the application, and of the grounds on which it is
made --
(a) to the Supervisory Authority; and
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AND (Amendment) Act, 2001.
BARBUDA
(b) to any person whom the applicant has reason to
believe had an interest in the property immediately
before it was forfeited.
(7)Any person notified under subsection (6) is
entitled to appear and give evidence at the hearing
of the application but the absence of that person does
not prevent the court from making an order under
section 22.
Section 2 2 17. Section 22 of the principal Act is repealed and substituted
repealed and by the following -
replaced.
( I ) On an application made under section 21, the High Court
may make an order excluding property in which the applicant
claims an interest from the operation of section 20 if the court
is satisfied that -
(a) the applicant was not, in any way, involved in .the
commission of the offence: and
(b) the applicant's interest in the property is not subject
to the effective control of the defendant; and
(c) the applicant had no knowledge of the
commission of the offence or of any illegal use
to which instrumentalities the subject of the
application may have been put (providing that
this lack of knowledge was not the result of wilful
blindness); and
(d) the applicant's interest in the property was not
acquired by means of a gift from the defendant or
any person or entity under the effective control of
the defendant; and
(e) where the applicant acquired the interest at the time
or after the commission, or alleged commission, of
the offence - the applicant acquired the interest
without knowing, and in circumstances such as not
to arouse a reasonable suspicion, that the property
was an instrumentality of the offence.
Amendment of 18. Section 23 of the principal Act is amended by deleting
section 23. the words "competent authority" in subsections (I), (2), (4), ( 5 )
No. 6 of 2001. The Money Laundering (Prevention) 3 1 ANTIGUA
(Amendment) Act, 2001. AND
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and (5a) and the substitution therefor the words "Supervisory
Authority in consultation with the central authority for Antigua
and Barbuda under any mutual legal assistance treaty".
19. Section 27 of the principal Act is amended by deleting Amendment of
the words "competent authority" in subsection (1) and section 27.
substituting therefor the words "Supervisory Authority".
20. Section 28 of the principal Act is amended by inserting Amendment of
after section 28 the following- section 28.
"Determination of 28A Any question of fact to be decided
questions of fact. by a court on an application under this Act
is to be decided on the balance of prob-
abilities.".
Proceeding on 28B (1)Proceedings on an application
application to be under this Act are civil in nature, except as
treated as civil. otherwise provided in this Act.
(2)The fact that criminal proceedings
may have been instituted or commenced is
not a ground on which a court may stay
proceedings under this Act.
Award of cost. 28C (1) Costs may only be awarded in
accordance with this section.
(a) a person brings, or appears at, proceedings under
this Act before a court in order to have property of
the person excluded from
(i) a freezing order; or
(ii) a detention order; or
(iii) a forfeiture order pursuant to section 18B(4);
or
(iv) the operation of section 20; and
(b) the person is successful in those proceedings; and
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(c) the Court is satisfied that the person was not in-
volved in any way in the commission of the of-
fence in respect of which the freezing, detention or
forfeiture order was made or in respect of which
section 20 operated-
the Court may order the applicant for the forfeiture order
or freezing order to pay the legal costs incurred by the
person in connection with the proceedings or any part of
those costs that is determined by the Court.
Section 30 21. Section 30 of the principal Act is repealed and the
repealed and following substituted:
replaced.
(1) Subject to subsection (2), the aniendments to Part IV do
not apply to a person's conviction of a money laundering offence
if the person was convicted of the offence before the commence-
ment of this Act;
(2) Subject to subsection (1), the amendments to Part IV apply
to an offence committed or suspected to have been committed
at any time (whether before or after the commencement of this
Act);
(3) The anlendrnents to Part I11 apply from the commencement
of this Act.
Amendment of 22. The First Schedule to the principal Act is amended by
First Schedule. adding the following paragraphs after paragraph 15:
16. Casinos
17. Internet gambling
18. Sports betting
Repeal of Second 23. The Second Schedule to the principal Act is repealed.
Schedule.
No. 6 of 2001. The Money Laundering (Prevention) 33 ANTIGUA
(Amendmeno Act, 2001. AND
BARBUDA
Passed the House of Representatives Passed the Senate this 26th day
this 1 lth day of April, 2001. of April, 200 1.
B. Harris M. Percival
Speaker. President.
S. Walker S. Walket
Clerk to the House of Representatives. Clerk to the Senate.
Printed at the Government Printing Office, Antigua and Barbuda,
by Donovan Southwell, Government Printer
- By Authority, 200 1.
800-4.01 [ Price $12.40 ]
