Proceeds of Crime Act 2002
TITLE 31 – CRIMES AND PUNISHMENTS
CHAPTER 2 - PROCEEDS OF CRIMES
sRepublic of the Marshall Islands
Jepilpilin Ke Ejukaan
PROCEEDS OF CRIME ACT 2002
Arrangement of Sections
Section Page
PART I – PRELIMINARY 5
§201. Short title. .............................................................................................................................. 5
§202. Commencement. ................................................................................................................... 5
§203. Purpose. ................................................................................................................................. 5
§204. Application. ........................................................................................................................... 6
§205. Interpretations. ..................................................................................................................... 6
§206. Charge in relation to a serious offense. ............................................................................. 8
§207. Conviction in relation to a serious offense. ...................................................................... 9
§208. Quashing of convictions. ..................................................................................................... 9
§209. Value of property. ................................................................................................................ 9
§210. Dealing with property. ...................................................................................................... 10
§211. Gift caught by this Act. ...................................................................................................... 10
§212. Deriving benefit. ................................................................................................................. 11
§213. Benefitting from the proceeds of a crime. ....................................................................... 11
§214. Restitution of restrained property. .................................................................................. 12
§215. Damages. ............................................................................................................................. 12
PART II - APPLICATION ORDERS 12
DIVISION 1 – CONFISCATION AND PECUNIARY PENALTY ORDERS 12
§216. Application for confiscation order or pecuniary penalty order. ................................. 12
§217. Notice of application. ......................................................................................................... 13
§218. Amendment of application. .............................................................................................. 14
§219. Procedure on application. ................................................................................................. 15
DIVISION 2 - CONFISCATION ORDER 15
§220. Procedure for in rem confiscation order where person dies or absconds. ................ 15
§221. Confiscation where a person dies or absconds. ............................................................. 16
§222. Confiscation order on conviction. .................................................................................... 16
§223. Effect of confiscation order. .............................................................................................. 17
§224. Voidable transfers. ............................................................................................................. 19
§225. Protection of third parties. ................................................................................................ 19
§226. Discharge of confiscation order on quashing or reversal of conviction. .................... 21
§227. Payment instead of a confiscation order......................................................................... 21
§228. Application of procedure for enforcing fines................................................................. 22
DIVISION 3 - PECUNIARY PENALTY ORDERS 23
§229. Pecuniary penalty order on conviction. .......................................................................... 23
§230. Determination of benefit and assessment of value. ...................................................... 23
§231. Statements relating to benefits from commission of serious offenses. ....................... 25
§232. Amount recovered under pecuniary penalty order. ..................................................... 26
§233. Variation of pecuniary penalty order. ............................................................................. 27
§234. Lifting the corporate veil................................................................................................... 27
§235. Enforcement of pecuniary penalty orders. ..................................................................... 28
§236. Discharge of pecuniary penalty orders. .......................................................................... 28
DIVISION 4 - RESTRAINING ORDERS 29
§237. Application for restraining order. ................................................................................... 29
§238. Restraining orders. ............................................................................................................. 30
§239. Notice of application for restraining order. ................................................................... 31
§240. Service of restraining order. ............................................................................................. 32
§241. Recording of restraining order. ........................................................................................ 32
§242. Violation of restraining order. .......................................................................................... 32
§243. Duration of restraining order. .......................................................................................... 33
§244. Review of restraining orders. ........................................................................................... 33
§245. Extension of restraining orders. ....................................................................................... 34
PART III - REALIZATION OF PROPERTY 34
§246. Realization of covered property. ..................................................................................... 34
§247. Application of proceeds of realization and other sums. .............................................. 35
§248. Exercise of powers of receiver or fiduciary. ................................................................... 36
§249. Supremacy of this Part in bankruptcy or winding up. ................................................. 37
§250. Winding up of corporation, company, or other commercial enterprise or
entity holding covered property. ..................................................................................... 38
PART IV-CONTROL OF PROPERTY 39
§251. Powers to search for and seize tainted property. .......................................................... 39
§252. Search warrants in relation to tainted property. ........................................................... 40
§253. Application for search warrants by telephone or other means of
communication. .................................................................................................................. 42
§254. Searches in emergencies. ................................................................................................... 42
§255. Record of property seized. ................................................................................................ 43
§256. Return of seized property. ................................................................................................ 43
§257. Search for and seizure of tainted property in relation to foreign offenses. ................ 43
PART V- PRODUCTION ORDERS AND OTHER INFORMATION
GATHERING POWERS 44
§258. Production orders. .............................................................................................................. 44
§259. Evidential value of information. ...................................................................................... 45
§260. Failure to comply with a production order. ................................................................... 45
§261. Production orders in relation to foreign offenses. ......................................................... 45
§262. Power to search for and seize documents relevant to locating property. .................. 46
§263. Search warrant for location of documents relevant to locating property. ................. 46
§264. Search warrants in relation to foreign offenses. ............................................................. 47
§265. Monitoring orders. ............................................................................................................. 48
§266. Monitoring orders not to be disclosed. ........................................................................... 49
PART VI- MISCELLANEOUS 50
§267. Immunity where official powers or functions exercised in good faith. ...................... 50
§268. Repeal and saving provisions ........................................................................................... 50
§269. Regulations. ......................................................................................................................... 50
TITLE 31 – CRIMES AND PUNISHMENTS
CHAPTER 2 - PROCEEDS OF CRIMES
sRepublic of the Marshall Islands
Jepilpilin Ke Ejukaan
PROCEEDS OF CRIME ACT 2002
AN ACT
Commencement: November 11, 2002
Source: P.L. 2002-68
Amended By: P.L. 2011-51
PART I – PRELIMINARY
§201. Short title.
This Chapter may be cited as the Proceeds of Crime Act, 2002. [P.L. 2002-68, §1.]
§202. Commencement.
This Chapter shall come into effect on the date of certification in accordance
with Article IV, section 21 of the Constitution. [P.L. 2002-68, §2.]
§203. Purpose.
The purpose of this Chapter is to provide for the forfeiture and confiscation
of the proceeds of crime, property used or intended to be used in the
commission of a serious offense, or property of corresponding value.[P.L. 2002-68, §3.][Amended by P.L. 2011-51]
§204. Application.
The provisions of this Chapter shall extend and apply throughout the
Republic of the Marshall Islands and also applies outside the Republic of the
Marshall Islands. [P.L. 2002-68, §4.]
§205. Interpretations.
(1) In this Chapter, unless the context otherwise requires:
(a) “appeal” includes proceedings by way of discharging or
setting aside a judgment, and an application for a new trial or
for a stay of execution;
(b) “Attorney-General” means the Attorney-General of the
Marshall Islands, and includes the Deputy Attorney-General
or any Assistant Attorney-General to whom the Attorney-
General delegates authority to carry out the duties and
responsibilities of the Attorney-General established by
this Chapter;
(c) “covered property” means:
(i) any property held by a defendant;
(ii) any property in which defendant has an interest; and/or
(iii) any property captured under this Chapter that is held
by a third person.
(d) “defendant” means a person charged or about to be charged
with a serious offense, whether or not he or she has been
convicted of the offense, and includes in the case of
proceedings for a restraining order under section 237, a person
who is about to be charged with a serious offense;
(e) “document” means any material on which data is recorded or
marked and which is capable of being read or understood by a
person, computer system or other device, and any record of
information, and includes;
(i) anything on which there is writing;
(ii) anything on which there are marks, figures, symbols, or
perforations having meaning for persons qualified to
interpret them;
(iii) anything from which sounds, images or writings can be
produced, with or without the aid of anything else;
(iv) a map, plan, drawing, photograph or similar thing;
(f) “gift” includes any transfer of property by a person to another
person directly or indirectly:
(i) after the commission of a serious offense by the first
person;
(ii) for a consideration the value of which is significantly
less than the value of the property transferred; and
(iii) to the extent of the difference between the market value
of the property transferred and the consideration
provided by the transferee;
(g) “High Court” means the High Court of the Republic of the
Marshall Islands;
(h) “interest”, in relation to property, means:
(i) a legal or equitable estate or interest in the property;
(ii) a right, power or privilege in connection with the
property;
(i) “person” means any natural or legal person;
(j) “proceeding” means any procedure conducted by or under
the supervision of a judge or judicial officer however described
in relation to any alleged or proven offense, or property
derived from such offense, and includes an inquiry,
investigation, or preliminary or final determination of facts;
(k) “proceeds of crime” means fruits of a crime, or any property
derived or realized directly or indirectly from a serious offense
and includes, on a proportional basis, property into which any
property derived or realized directly from the offense was
later successively converted, transformed or intermingled, as
well as income, capital or other economic gains derived or
realized from such property at any time since the offense;
(l) “property” means currency and all other real or personal
property of every description, whether situated in the
Republic of the Marshall Islands or elsewhere and whether
tangible or intangible, and includes an interest in any such
property;
(m) “property of or in the possession or control of any person”
includes any gift made by or to that person;
(n) “realizable”, with respect to “covered property” means:
(i) capable of being acquired, obtained, taken, seized,
confiscated, or procured, in cash or capable of being
liquidated and converted into cash; or
(ii) capable of being detected, located, found, discovered,
and converted into cash through payment of the
amount or value of defendant’s interest therein;
(o) “serious offense” means a violation of:
(i) any law of Republic of the Marshall Islands, which is a
criminal offense punishable by imprisonment for a term
of more than one year;
(ii) a law of a foreign country, in relation to acts or
omissions, which had they occurred in Republic of the
Marshall, would have constituted a serious offense;
(p) “tainted property” means:
(i) property used, or intended to be used, in the
commission for a serious offense, or in connection with
the commission of a serious offense;
(ii) proceeds of crime, as defined in paragraph (k) of this
section; or
(iii) property of corresponding value,;
(2) A reference in this Act to the law of:
(a) the Republic of the Marshall Islands; or
(b) any foreign country, include a reference to a written or
unwritten law of, or in force in, any part of the Republic of the
Marshall Islands, or any part of that foreign country, as the
case may be. [P.L. 2002-68, §5][Amended by P.L. 2011-51, §205(1)(c)(iii) and (p)]
§206. Charge in relation to a serious offense.
Any reference in this Chapter to a person being charged or about to be
charged with a serious offense is a reference to a procedure, however
described, in the Republic of the Marshall Islands or elsewhere, by which
criminal proceedings may be commenced. [P.L. 2002-68, §6]
§207. Conviction in relation to a serious offense.
(1) For the purposes of this Chapter, a person shall be considered to be
convicted of a serious offense if:
(a) the person is convicted, whether upon a plea of guilty or no
contest, or after trial, of the offense;
(b) the person is charged with, and found guilty of, the offense but
is discharged without any conviction being recorded; or
(c) the High Court, with the consent of the convicted person, takes
the offense, of which the person has not been found guilty,
into account in passing sentence on the person for another
serious offense.
(2) For the purposes of subsection (1), judgment or sentence need not
have been imposed. [P.L. 2002-68, §7]
§208. Quashing of convictions.
For the purposes of this Chapter, a person’s conviction for a serious offense
shall be considered to be quashed in any case:
(1) where section 207(1)(a) applies, if the conviction is reversed or set
aside;
(2) where section 207(1)(b) applies, if the finding of guilt is reversed or
set aside;
(3) where section 2077(1)(c) applies, if either:
(a) the person’s conviction for the other offense referred to in that
section, is reversed or set aside; or
(b) the decision of High Court to take the offense into account in
passing sentence for that other offense is reversed or set aside.[P.L. 2002-68, §8]
§209. Value of property.
(1) Subject to subsections (2) and (3), for the purposes of this Chapter the
value of property (other than cash) in relation to any person holding
the property is:
(a) its market value; or
(b) where an innocent third party holds an interest in the
property:
(i) the market value of property, less the interest of the
innocent third party; or
(ii) less the amount required to discharge any valid liens or
encumbrances.
(2) References in this Chapter to the value of a gift, or the value of any
payment or reward, means the value of the gift, payment or reward
to the recipient when it was received, adjusted to account for any
subsequent changes in the value of money. [P.L. 2002-68, §9]
§210. Dealing with property.
For the purposes of this Chapter, dealing with property held by any person
includes, without prejudice to the generality of the expression:
(1) where the property is a debt owed to that person, making a payment
to any person in reduction or full settlement of the amount of the
debt;
(2) making or receiving a gift of the property; or
(3) removing the property from Republic of the Marshall Islands.[P.L. 2002-68, §10]
§211. Gift caught by this Act.
(1) A gift, including a gift made before the effective date of this Chapter,
is caught by this Chapter where:
(a) it was made by a defendant charged with or convicted of a
serious offense, at any time after the commission of the offense
to which the proceedings relate (or where more than one
offense was committed, at any time after commission of the
earliest of the offenses to which the proceedings relate); and,
the High Court considers it appropriate, after consideration of
all of the relevant circumstances, to take the gift into account;
or where
(b) it was made by a defendant charged with or convicted of a
serious offense and was a gift of property:
(i) received by the defendant in connection with the
commission of a serious offense committed by the
defendant or by another person; or
(ii) which (in whole or in part, directly or indirectly)
represented (when in the defendant’s hands) property
received by the defendant in connection with the
commission of a serious offense by the defendant or
another person.
(2) For purposes of this Chapter:
(a) the circumstances in which a defendant must be treated as
making a gift include those where the defendant transfers
property to another person, directly or indirectly, for a
consideration the value of which is significantly less than the
value of the property transferred by the defendant; and
(b) in those circumstances, the court shall apply the provisions of
section 208, taking into account the difference between the
value of the gift and the consideration, if any, provided to the
defendant by the recipient. [P.L. 2002-68, §11]
§212. Deriving benefit.
A reference to a benefit derived or obtained by or otherwise accruing to a
person includes a reference to a benefit derived or obtained by, or accruing
to, a third party at the first person’s request or direction. [P.L. 2002-68, §12]
§213. Benefitting from the proceeds of a crime.
For the purposes of this Chapter:
(1) a person is taken to have benefitted from a crime if that person has at
any time (whether before or after the commencement of this Chapter)
received any payment or other reward in connection with, or derived
any pecuniary advantage from, the commission of a serious offense,
whether committed by that person or someone else;
(2) a person’s proceeds of a crime (whether received or derived before or
after the commencement of this Chapter) are:
(a) any payments or other rewards received by the person at any
time in connection with the offense; and/or
(b) any pecuniary advantage derived by the person at any time
from the commission of the offense;
(3) the value of a person’s proceeds of a serious offense is the aggregate
of the values of all payments, rewards or pecuniary advantages
received by that person in connection with, or derived by the person
from, the commission of the offense. [P.L. 2002-68, §13]
§214. Restitution of restrained property.
Where an investigation has begun against a person for a serious offense,
property was restrained under this Chapter in relation to that offense, and
any of the following occurs:
(1) the person is not charged in the Republic of the Marshall Islands with
the serious offense;
(2) the person is charged with a serious offense in the Republic of the
Marshall Islands, but not convicted of that offense;
(3) a conviction for that serious offense in the Republic of the Marshall
Islands is quashed or reversed and no subsequent complaint is filed
within a reasonable time thereafter, the High Court shall order
restitution of the restrained property together with the interest, if
any, which has actually accrued, if such property is held in a financial
institution. [P.L. 2002-68, §14]
§215. Damages.
Nothing in this Chapter affects the right of a person whose property has
been restrained to seek redress for due process or civil rights violations
pursuant to the laws of the Republic of the Marshall Islands. [P.L. 2002-68, §15]
PART II - APPLICATION ORDERS
DIVISION 1 – CONFISCATION AND PECUNIARY PENALTY ORDERS
§216. Application for confiscation order or pecuniary penalty order.
(1) Where a defendant is convicted of a serious offense, the Attorney-
General may apply to the High Court for one or both of the
following orders:
(a) a confiscation order against property that is tainted property in
respect of the offense;
(b) a pecuniary penalty order against the defendant in respect of
benefits derived by the defendant from the commission of the
offense; provided, however, such application must be made
within 2 years of the date the defendant was convicted of the
serious offense.
(2) An application under subsection (1) may be made in respect of one or
more than one offense.
(3) Where an application under this section is finally determined, no
further application for a confiscation order or a pecuniary penalty
order may be made in respect of the offense for which the defendant
was convicted without the leave of the High Court. The High Court
shall not give such leave unless it is satisfied that:
(a) the property or benefit to which the new application relates,
accrued or was identified after the previous application was
determined;
(b) necessary evidence became available after the previous
application was determined and could not reasonably have
been discovered before such determination; or
(c) it is in the interest of justice that the new application be made.[P.L. 2002-68, §16][Amended by P.L. 2011-51, §216(1)(b)]
§217. Notice of application.
(1) Where the Attorney-General applies for a confiscation order against
property in respect of the defendant’s conviction of a serious offense:
(a) the Attorney-General must give no less than 14 days written
notice of the application to the defendant and to any other
person who the Attorney-General has reason to believe may
have an interest in the property;
(b) the defendant and any other person who claims an interest in
the property may appear and adduce evidence at the hearing
of the application; and
(c) the High Court may, at any time before the final determination
of the application, direct the Attorney-General to:
(i) give notice of the application to any person who, in the
opinion of the High Court, appears to have an interest
in the property; and
(ii) announce on public radio, and publish in a news
journal published and circulating in the Republic of the
Marshall Islands, a notice of the application.
(2) Where the Attorney-General applies for a pecuniary penalty order
against a defendant:
(a) the Attorney-General shall give the defendant no less than 14
days notice of the application; and
(b) the defendant may appear and adduce evidence at the hearing
of the application. [P.L. 2002-68, §17]
§218. Amendment of application.
(1) The High Court hearing the application under section 216(1) may,
before the final determination of the application, and on the
application of the Attorney-General, amend the application to include
any other property or benefit, as the case may be, upon being
satisfied that:
(a) the property or benefit was not reasonably capable of
identification when the application was made;
(b) necessary evidence became available only after the application
was originally made.
(2) Where the Attorney-General applies to amend an application for a
confiscation order and the amendment would have the effect of
including additional property in the application for confiscation, the
Attorney-General must give no less than 14 days written notice of the
application to amend, to any person who the Attorney-General has a
reason to believe may have an interest in the property to be included
in the application for a confiscation order.
(3) Any person who claims an interest in the property to be included in
the application of a confiscation order may appear and adduce
evidence at the hearing of the application to amend.
(4) Where the Attorney-General applies to amend an application for a
pecuniary penalty order against a defendant and the effect of the
amendment would be to include an additional benefit in the
application the Attorney -General must give the defendant no less
than 14 days written notice of the application to amend. [P.L. 2002-68, §18]
§219. Procedure on application.
(1) Where an application is made to the High Court for a confiscation
order or a pecuniary penalty order in respect of a defendant’s
conviction of a serious offense, the High Court may, in determining
the application, have regard to the transcript of any proceedings
against the defendant for the offense.
(2) Where an application is made for a confiscation order or a pecuniary
penalty order to the High Court before which the defendant was
convicted, and the High Court has not, when the application is made,
passed sentence on the defendant for the offense, the High Court
may, if it is satisfied that it is reasonable to do so in all the
circumstances, defer passing sentence until it has determined the
application for the order. [P.L. 2002-68, §19]
DIVISION 2 - CONFISCATION ORDER
§220. Procedure for in rem confiscation order where person dies or
absconds.
(1) Where:
(a) an information or complaint has been filed alleging the
commission of a serious offense by a person; and
(b) a warrant for the arrest of the person has been issued in
relation to that information or complaint;
the Attorney-General may apply to the High Court for a confiscation
order in respect of any tainted property if the defendant has died or
absconded.
(2) For the purposes of subsection (1) and section 221, the person is
deemed to have absconded if reasonable attempts to arrest the person
pursuant to the warrant have been unsuccessful during a period of 6
months commencing on the day the warrant was issued, and the
person shall be deemed to have so absconded on the last day of that
period.
(3) Where the Attorney- General applies under this section for a
confiscation order against any tainted property the High Court shall,
before hearing the application:
(a) require notice of the application to be given to any person
who, in the opinion of the High Court, appears to have an
interest in the property;
(b) direct that notice of the application be announced on public
radio, and published in a newspaper published and circulating
in the Republic of the Marshall Islands, containing such
particulars and for so long as the High Court may require.[P.L. 2002-68, §20]
§221. Confiscation where a person dies or absconds.
(1) Subject to section 220(3), where an application is made to the High
Court under section 220(1) for a confiscation order against any
tainted property by reason of a person having died, or absconded in
connection with a serious offense, and the Court is satisfied that:
(a) any property is tainted property in respect of the offense;
(b) proceedings in respect of a serious offense committed in
relation to that property were commenced; and
(c) the accused charged with the offense referred to in paragraph
(1)(b) has died or absconded;
the High Court may order that the property or such property as is
specified by the High Court in the order be confiscated.
(2) The provisions of subsection 220(2), and sections 222, 223, 224 and
225 shall apply with such modifications as are necessary to give effect
to this section. [P.L. 2002-68, §21]
§222. Confiscation order on conviction.
(1) Where, upon application by the Attorney-General, the High Court is
satisfied that property is tainted property in respect of a serious
offense of which a person has been convicted, the High Court may
order that specified property be confiscated.
(2) In determining whether property is tainted property the High Court
may presume, in the absence of evidence to the contrary:
(a) that the property was used in or in connection with the
commission of the offense if it was in the person’s possession
at the time of, or immediately after the commission of the
offense for which the person was convicted;
(b) that the property was derived, obtained or realized as a result
of the commission of the offense if it was acquired by the
person before, during or within a reasonable time after the
period of the commission of the offense of which the person
was convicted, and the High Court is satisfied that the income
of that person from sources unrelated to criminal activity of
that person cannot reasonably account for the acquisition of
that property.
(3) Where the High Court orders that property, other than money, be
confiscated, the High Court shall specify in the order the amount that
it considers to be the value of the property at the time when the order
is made, taking account of how such value is to be determined under
section 209 of this Chapter.
(4) In considering whether a confiscation order should be made under
subsection (1) the High Court shall have regard to:
(a) the rights and interests, if any, of innocent third parties in the
property;
(b) the gravity of the offense concerned;
(c) any hardship that may reasonably be expected to be caused to
any innocent person by the operation of the order; and
(d) the use that is ordinarily made of the property, or the use to
which the property was intended to be put.
(5) Where the High Court makes a confiscation order, the High Court
may give such directions as are necessary or convenient for giving
effect to the order. [P.L. 2002-68, §22]
§223. Effect of confiscation order.
(1) Subject to subsection (2), where a Court makes a confiscation order
against any property, the property vests absolutely in the Republic of
the Marshall Islands by virtue of the order, except with respect to real
property, where any legislation or customary land practices then in
force prohibits the Republic of the Marshall Islands from taking title
to such real property, in which case a lien shall immediately attach to
the property in favor of the Republic of the Marshall Islands in the
amount of the value of the property less any prior recorded
encumbrances. In the case of such real property the Attorney-General
shall be authorized to make application to the High Court, and the
High Court may grant an order forcing the sale of such property
(unless the sale of such property is prohibited by legislation, or
customary land practices then in force in the Republic), with proceeds
to be paid to the Republic of the Marshall Islands after sale, less prior
recorded encumbrances
(2) Where property ordered to be confiscated is recordable property, and
where not prohibited under the laws of the Republic of the
Marshall Islands:
(a) the property vests in the Republic of the Marshall Islands in
equity but does not vest in the Republic of the Marshall
Islands at law until the applicable recordation requirements
have been complied with;
(b) the Republic of the Marshall Islands is entitled to be recorded
as owner of the property; and
(c) the Attorney-General has power on behalf of the Republic of
the Marshall Islands to do or authorize the doing of anything
necessary or convenient to obtain the recordation of the
Republic of the Marshall Islands as owner, including the
execution of any instrument to be executed by a person
transferring an interest in property of that kind.
(3) Where the High Court makes a confiscation order against property:
(a) the property shall not, except with the leave of the High Court
and in accordance with any directions of the High Court, be
disposed of, or otherwise dealt with, by or on behalf of the
Republic of the Marshall Islands before the relevant appeal
date; and
(b) if, after the relevant appeal date, the order has not been
discharged, the property may be disposed of and the proceeds
applied or otherwise dealt with in accordance with the
direction of the Attorney-General.
(4) In this section:
(a) “Recordable property” means real property the title to which
is passed by recordation in accordance with the provisions of
the law;
(b) “Relevant appeal date” used in relation to a confiscation order
made in consequence of a person’s conviction of a serious
offense means:
(i) the date on which the period allowed by rules of court
for the lodging of an appeal against a person’s
conviction or for the lodging of an appeal against the
making of a confiscation order expires without an
appeal having been lodged, whichever is the later; or
(ii) where an appeal against a person’s conviction or
against the making of a confiscation order is lodged, the
date on which the appeal is finally determined.[P.L. 2002-68, §23]
§224. Voidable transfers.
The High Court may:
(1) before making a confiscation order; and
(2) in the case of property in respect of which a restraining order was
made, where the order was served in accordance with Section 240;
set aside any conveyance or transfer of the property that occurred after the
seizure of the property or the service of the restraining order, unless the
conveyance or transfer was made for valuable consideration to a person
acting in good faith and without notice. [P.L. 2002-68, §24]
§225. Protection of third parties.
(1) Where an application is made for a confiscation order against
property, a person who claims an interest in the property may apply
to the High Court, before the confiscation order is made, for an order
under subsection (2).
(2) If a person applies to the High Court for an order under this section
in respect of property and the High Court is satisfied:
(a) that the person was not in any way involved in the
commission of the offense; and
(b) where the person acquired the interest during or after the
commission of the offense, that he or she acquired the interest:
(i) for sufficient consideration; and
(iii) without knowing, and in circumstances such as not to
arouse a reasonable suspicion, that the property was, at
the time he or she acquired it, tainted property;
the High Court shall make an order declaring the nature,
extent and value (at the time the order is made) of the person’s
interest.
(3) Subject to subsection (4), where a confiscation order has already been
made directing the confiscation of property, a person who claims an
interest in the property may, before the end of the period of 12
months commencing on the day on which the confiscation order is
made, apply to the High Court for an order under subsection (2).
(4) A person who:
(a) had knowledge of the application for the confiscation order
before the order was made; or
(b) appeared at the hearing of that application, shall not be
permitted to make an application under subsection (3), except
with leave of the High Court.
(5) A person who makes an application under subsections (1) or (3) must
give no less than 14 days written notice of the making of the
application to the Attorney-General, who shall be a party to any
proceedings in the application.
(6) An applicant or the Attorney-General may, in accordance with the
rules of court, appeal the Court’s order made under subsection (2).
(7) Any person appointed by the High Court under section 248 shall, on
application by any person who has obtained an order under
subsection (2), and where the period allowed by the rules of court
with respect to the making of a claim has expired and any appeal
from that order has been determined:
(a) direct that the property or part thereof to which the interest of
the applicant relates, be returned to the applicant; or
(b) direct that an amount equal to the value of the interest of the
applicant, as declared in the order, be paid to the applicant.[P.L. 2002-68, §25]
§226. Discharge of confiscation order on quashing or reversal of
conviction.
(1) Where the High Court makes a confiscation order against property in
reliance on a person’s conviction of a serious offense and the
conviction is subsequently reversed by a court of final jurisdiction,
the reversal of the conviction discharges the order. However, upon
notice of intent by the Attorney-General to recharge the matter, the
court may order continued detention of the property pursuant to
section 222 of this Chapter.
(2) Where a confiscation order against property is discharged as
provided for in subsection
(1) or by the Court hearing an appeal against the making of the
confiscation order, any person who claims to have had an interest in
the property immediately before the making of the confiscation order
may apply to the court in writing for the transfer of the interest to
the person.
(3) On receipt of an application under subsection (2) the court shall
conduct a hearing to determine, by a preponderance of the evidence,
ownership of the property, and if satisfied that the applicant is
lawfully entitled, and has no complicity with respect to the
offense, shall:
(a) if the interest is vested in the Republic of the Marshall Islands
give directions that the property or part thereof to which the
interest of the applicant relates be transferred to the person; or
(b) in any other case, direct that there be payable to the person an
amount equal to the value of the interest as at the time the
order is made. [P.L. 2002-68, §26]
§227. Payment instead of a confiscation order.
Where the High Court is satisfied that a confiscation order should be made
in respect of the property of a person convicted of a serious offense, but that
the property or any part thereof or interest therein cannot be made subject to
such an order and, in particular:
(1) cannot, on the exercise of due diligence be located;
(2) has been transferred to a third party in circumstances which do not
give rise to a reasonable inference that the title or interest was
transferred for the purpose of avoiding the confiscation of
the property;
(3) is located outside the Republic of the Marshall Islands;
(4) has been substantially diminished in value or rendered worthless; or
(5) has been commingled with other property that cannot be divided
without difficulty;
the High Court may, instead of ordering the property or part thereof or
interest therein to be confiscated, order the person to pay to the Republic of
the Marshall Islands an amount equal to the value of the property, part or
interest, taking account of section 209 of this Chapter. [P.L. 2002-68, §27]
§228. Application of procedure for enforcing fines.
Where the High Court orders a person to pay an amount under section 227,
that amount shall be treated as if it were a fine imposed upon him or her in
respect of a conviction for a serious offense, and the High Court shall:
(1) notwithstanding anything contained in any other Act, or law, impose
for contumacious default of the payment of that amount, a term of
imprisonment:
(a) of not more than 30 days, where the amount does not
exceed $1,000;
(b) of not more than one year, where the amount does not
exceed $5,000;
(c) of not more than five years, where the amount does not exceed
$50,000 dollars;
(d) of not more than ten years, where the amount exceeds $50,000;
(2) direct that the term of imprisonment imposed pursuant to
subsection (1) be served consecutively to any other form of
imprisonment imposed on that person, or that the person is
then serving;
(3) direct that other provisions of the Marshall Islands Revised Code
regarding the disposition of offenders serving a term of
imprisonment shall not apply in relation to a term of imprisonment
imposed on a person pursuant to subsection (1). [P.L. 2002-68, §28]
DIVISION 3 - PECUNIARY PENALTY ORDERS
§229. Pecuniary penalty order on conviction.
(1) Subject to this section, where the Attorney-General applies to the
High Court for a pecuniary penalty order against a defendant in
respect of the defendant’s conviction for a serious offense, the Court
shall, if it is satisfied that the defendant has benefitted from that
offense, order the defendant to pay to the Republic of the Marshall
Islands an amount equal to the value of the defendant’s benefit from
the offense or such lesser amount as the Court determines in
accordance with section 232 to be the amount that might be recovered
at the time the pecuniary penalty order is made.
(2) The High Court shall assess the value of the benefits derived by a
person from the commission of an offense in accordance with sections
230, 231, 232 and 233.
(3) The High Court shall not make a pecuniary penalty order under
this section:
(a) until the period allowed by the rules of court for the lodging of
an appeal against the conviction has expired without such
appeal having been lodged; or
(b) where an appeal against the conviction has been lodged, until
the appeal is dismissed in accordance with the rules of court or
is finally determined, whichever is the later date. [P.L. 2002-68, §29]
§230. Determination of benefit and assessment of value.
(1) Where a defendant obtains property as the result of, or in connection
with the commission of a serious offense, the defendant’s benefit is
the value of the property so obtained.
Value means fair market value at the time the property was obtained
or at the time of conviction, at whichever time the value is greater.
(2) Where a defendant derived an advantage as a result of or in
connection with the commission of a serious offense, the defendant’s
advantage shall be deemed to be a sum of money equal to the value
of the advantage so derived.
(3) The High Court, in determining whether a person has benefitted
from the commission of a serious offense or from that offense taken
together with other serious offenses shall, unless the contrary is
proved by the defendant beyond a reasonable doubt, presume:
(a) all property appearing to the High Court to be:
(i) held by the person on the day on which the application
is made; and
(ii) all property appearing to the High Court to be held by
the person at any time:
(aa) within the period between the day the serious
offense, or the earliest serious offense, was
committed and the day on which the application
is made; or
(bb) within the period of 6 years immediately before
the day on which the application is made,
whichever is the longer;
to be property that came into the possession or under the
control of the person by reason of the commission of that
serious offense or those serious offenses for which the
defendant was convicted;
(b) any expenditure by the defendant since the commission of the
offense to be expenditure met out of payments received by the
defendant as a result of, or in connection with, the commission
of that serious offense or those serious offenses; and
(c) any property received or deemed to have been received by the
defendant at any time as a result of, or in connection with the
commission by the defendant of that serious offense, or those
serious offenses, to be property received by the defendant free
of any interest therein.
(4) Where a pecuniary penalty order has been previously made against a
defendant, in assessing the value of any benefit derived by the
defendant from the commission of the serious offense, the High
Court shall leave out of account any benefits that are shown to the
High Court to have been taken into account in determining the
amount to be recovered under that order.
(5) If evidence is given at the hearing of the application that the value of
the defendant’s property at any time after the commission of the
serious offense exceeded the value of the defendant’s property before
the commission of the offense, then the High Court shall, subject to
subsection (6) treat the value of the benefit as being not less than the
amount of that excess.
(6) Subsection (5) shall not apply to the excess or part of the defendant’s
property if, after evidence of the kind referred to in that subsection is
given, the defendant satisfies the High Court beyond a reasonable
doubt that the whole or part of the excess was due to causes
unrelated to the commission of the serious offense. [P.L. 2002-68, §30]
§231. Statements relating to benefits from commission of serious offenses.
(1) Where:
(a) a defendant has been convicted of a serious offense and the
Attorney- General tenders to the High Court a statement as to
any matters relevant to:
(i) determining whether the defendant has benefitted from
the offense or from any other serious offense of which
defendant is convicted in the same proceedings or
which is taken into account in determining his or her
sentence; or
(ii) an assessment of the value of the defendant’s benefit
from the offense or any other serious offense of which
defendant is convicted in the same proceedings or
which is taken into account; and
(b) the defendant admits to any extent, an allegation in the
statement, the High Court may, for the purposes of so
determining or making that assessment, treat the defendant’s
admission as conclusive of the matters to which it relates.
(2) Where:
(a) a statement is tendered under subsection (1)(a); and
(b) the Court is satisfied that a copy of that statement has been
served on the defendant;
the High Court may require the defendant to indicate to what extent
the defendant admits each allegation in the statement and, so far as
the defendant does not admit any allegation, to indicate any matters
the defendant proposes to deny or reply on.
(3) Where the defendant fails in any respect to comply with a
requirement under subsection (2) , the defendant may be treated for
the purposes of this section as having admitted every allegation in
the statement, except for any allegation in respect of which the
defendant complied with the requirements of subsection (2).
(4) Where:
(a) the defendant tenders to the High Court a statement as to any
matters relevant to determining the amount that might be
recovered at the time the pecuniary penalty order is made; and
(b) the Attorney- General admits to any extent any allegation in
the statement;
the High Court may, for the purposes of that determination, treat the
admission of the Attorney-General as conclusive of the matters to
which it relates.
(5) An allegation may be admitted, or denied, or a matter indicated for
the purposes of this section, either:
(a) orally before the High Court; or
(b) in writing, in accordance with the rules of court.
(6) An admission by a defendant under this section that the defendant
received any benefits from the commission of a serious offense is
admissible in any proceedings for any offense. [P.L. 2002-68, §31]
§232. Amount recovered under pecuniary penalty order.
(1) The amount to be recovered from the defendant under a pecuniary
penalty order shall be the amount that the High Court assesses to be
the value of the defendant’s benefit from the serious offense, or if
more than one offense, the aggregate benefit of all the offenses.
(2) Where the amount of the benefit derived by the defendant from the
serious offense(s) greatly exceeds the amount which might be
recovered from the defendant at the time the pecuniary penalty order
is made, the High Court may make a pecuniary penalty order in such
amount as the court finds is realizable at the time of issuance of the
order, but shall be required to issue findings of fact justifying such
lesser amount. [P.L. 2002-68, §32]
§233. Variation of pecuniary penalty order.
Where:
(1) the High Court makes a pecuniary penalty order against a defendant
in relation to a serious offense;
(2) in calculating the amount of the pecuniary penalty order, the Court
took into account a confiscation order of property or a proposed
confiscation order in respect of property; and
(3) an appeal against confiscation or a confiscation order is allowed, or
the proceedings from the proposed confiscation order terminate
without the proposed confiscation order being made, the Attorney
General may apply to the High Court for a variation of the pecuniary
penalty order to increase the amount of the order by the value of the
property not so confiscated and the High Court may, if it considers it
appropriate to do so, vary the order accordingly. [P.L. 2002-68, §33]
§234. Lifting the corporate veil.
(1) In assessing the value of benefits derived by a defendant from the
commission of a serious offense, the High Court may treat as
property of the defendant any property that, in the opinion of the
High Court, is subject to the effective control of the defendant,
whether or not the defendant has:
(a) any legal or equitable interest in the property; or
(b) any right, power or privilege in connection with the property.
(2) Without prejudice to the generality of subsection (1), the High Court
may take into consideration:
(a) shareholdings in, debentures over or directorships in any
company, corporation or commercial enterprise that has an
interest, whether direct or indirect, in the property, and for this
purpose the High Court may order the investigation and
inspection of the books and records of any named company,
corporation or commercial enterprise;
(b) any trust that has any relationship to the property; and
(c) any relationship whatsoever between the persons having an
interest in the property or in companies of the kind referred to
in subsection (2)(a) or trust of the kind referred to in
subsection (2)(b), and any other persons.
(3) Where the Court, for the purposes of making a pecuniary penalty
order against a defendant, treats particular property as the
defendant’s property pursuant to subsection (1), the High Court may,
on application by the Attorney General, make an order declaring that
the property is available to satisfy the order.
(4) Where the High Court declares that property is available to satisfy a
pecuniary penalty order:
(a) the order may be enforced against the property as if the
property were the property of the defendant against whom the
order is made; and
(b) a restraining order may be made in respect of the property as
if the property were property of the defendant against whom
the order is made.
(5) Where the Attorney-General makes an application for an order under
subsection (3) that property is available to satisfy a pecuniary penalty
order against a defendant:
(a) the Attorney- General shall give written notice of the
application to the defendant and to any person who the
Attorney-General has reason to believe may have an interest in
the property; and
(b) the defendant and any person who claims an interest in the
property may appear and adduce evidence at the hearing.[P.L. 2002-68, §34]
§235. Enforcement of pecuniary penalty orders.
Where the High Court orders a defendant to pay an amount under a
pecuniary penalty order, the provisions of section 228 shall apply with such
modifications as the High Court may determine for the purpose of
empowering the High Court to impose a term of imprisonment on a
defendant in contumacious default of compliance by the defendant with a
pecuniary penalty order. [P.L. 2002-68, §35]
§236. Discharge of pecuniary penalty orders.
A pecuniary penalty order is discharged:
(1) if the conviction of the serious offense or offenses in reliance on
which the order was made is reversed and no conviction for the
offense or offenses is substituted;
(2) if the order is rescinded; or
(3) on the satisfaction of the order by payment of the amount due under
the order. [P.L. 2002-68, §36]
DIVISION 4 - RESTRAINING ORDERS
§237. Application for restraining order.
(1) The Attorney-General may apply to the High Court for a restraining
order against any covered property whether held by a defendant or
held by a person other than a defendant.
(2) An application for a restraining order may be made ex parte and shall
be in writing and be accompanied by an affidavit stating:
(a) where a defendant has been convicted of a serious offense, the
serious offense for which the defendant was convicted, the
date of the conviction, the court before which the conviction
was obtained and whether an appeal has been lodged against
the conviction;
(b) where a defendant has not been convicted of a serious offense,
the serious offense with which the defendant is charged or
about to be charged and the grounds for believing that the
defendant committed the offense;
(c) a description of the property sought to be restrained;
(d) the name and address of the person who is believed to be in
possession of the property;
(e) the grounds for the belief that the property is tainted property
in relation to the offense;
(f) the grounds for the belief that the defendant derived a benefit
directly or indirectly from the commission of the offense;
(g) where the application seeks a restraining order against
property of a person other than the defendant, the grounds for
the belief that the property is tainted property in relation to the
offense and is subject to the effective control of the
defendant; and
(h) the grounds for the belief that a confiscation order or a
pecuniary penalty order may be or is likely to be made under
this chapter in respect of the property. [P.L. 2002-68, §37]
§238. Restraining orders.
(1) Subject to this section, where the Attorney-General applies to the
High Court for a restraining order against property and the High
Court is satisfied that:
(a) the defendant has been convicted of a serious offense, or has
been charged or is about to be charged with a serious offense,
or is under investigation for a serious offense.
(b) where the defendant has not been convicted of a serious
offense, there are reasonable grounds for believing that the
defendant committed the offense; or
(c) there is reasonable cause to believe that the property is tainted
property in relation to an offense, or that the defendant
derived a benefit directly or indirectly from the commission of
the offense; or
(d) where the application seeks a restraining order against
property of a person other than the defendant, there are
reasonable grounds for believing that the property is tainted
property in relation to an offense, and that the property is
subject to the effective control of the defendant; and
(e) there are reasonable grounds for believing that a confiscation
order or a pecuniary penalty order is likely to be made under
this Division in respect of the property; the High Court may
make an order;
(f) prohibiting the defendant or any person from disposing of, or
otherwise dealing with, the property or such part thereof or
interest therein as is specified in the order, except in such
manner as may be specified in the order; and
(g) at the request of the Attorney-General or upon its own motion,
where the High Court is satisfied that the circumstances so
require the court may:
(i) appoint a receiver or fiduciary to take custody of the
property or such part thereof as is specified in the order
and to manage or otherwise deal with all or any part of
the property in accordance with the directions of the
High Court; and
(ii) require any person having possession of the property to
give possession thereof to the receiver or fiduciary.
(2) In extreme cases, where undue hardship to innocent parties would
otherwise occur, an order under subsection (1) may be made subject
to such conditions as the High Court thinks fit providing for meeting
out of the property or a specified part of the property the reasonable
living expenses of defendant’s immediate family.
(3) In determining whether there are reasonable grounds for believing
property is subject to the effective control of the defendant, the Court
may take into account the matters referred to in section 234.
(4) Where the court appointed receiver or fiduciary is given a direction
in relation to any property, he or she may apply to the High Court for
directions or any question respecting the management or
preservation of the property under his or her control.
(5) An application under section 237 shall be served on all persons
interested in the application or such of them as the Court thinks
expedient and all such persons shall have the right to appear at the
hearing and be heard.
(6) When the application is made under section 237 on the basis that a
person is about to be charged, any order made by the High Court
shall lapse if the person is not charged:
(a) where the offense is an offense against the law of the Republic
of the Marshall Islands, within five working days; and
(b) where the offense is an offense against the law of a foreign
State, within 150 working days. [P.L. 2002-68, §38][Amended byP.L. 2011-51, §238(1)(a)]
§239. Notice of application for restraining order.
Before entering a restraining order the High Court may require notice to be
given to, and may hear, any person who, in the opinion of the High Court,
appears to have an interest in the property, unless the Court is of the
opinion that giving such notice before making the order would result in the
disappearance, dissipation or reduction in value of the property.[P.L. 2002-68, §39]
§240. Service of restraining order.
A copy of a restraining order shall be served on a person affected by the
order in such manner as the High Court directs or as may be prescribed by
rules of court. [P.L. 2002-68, §40]
§241. Recording of restraining order.
(1) A copy of a restraining order which affects land in the Republic of the
Marshall Islands shall be recorded with the land registration
authority.
(2) A restraining order is of no effect with respect to recorded land
unless it is recorded as an encumbrance under the applicable land
registration law.
(3) Where particulars of a restraining order are recorded under the
applicable land registration law, a person who subsequently deals
with the property shall, for the purposes of section 263, be deemed to
have notice of the order at the time of the dealing. [P.L. 2002-68, §41]
§242. Violation of restraining order.
(1) A person who knowingly violates a restraining order by disposing of
or otherwise dealing with property that is subject to the restraining
order commits an offense, punishable upon conviction by
imprisonment for a maximum of five years or a maximum fine of
$50,000, or both, provided, however, in the case of a corporation,
company, commercial enterprise, commercial entity or other legal
person, the maximum fine shall be increased to $250,000.
(2) Where a restraining order is entered against property and the
property is disposed of, or otherwise dealt with, in violation of the
restraining order, and the disposition or dealing was not for sufficient
consideration or not in favor of a person who acted in good faith and
without notice, the Attorney-General may apply to the High Court
that entered the restraining order for an order that the disposition or
dealing be set aside.
(3) Where the Attorney -General makes an application under subsection
(2) in relation to a disposition or dealing, the High Court may:
(a) set aside the disposition or dealing as from the day on which
the disposition or dealing took place; or
(b) set aside the disposition or dealing as from the day of the
order under this section and declare the respective rights of
any persons who acquired interests in the property on, or after
the day on which the disposition or dealing took place, and
before the day of the order under this section. [P.L. 2002-68, §42]
§243. Duration of restraining order.
A restraining order issued under this Chapter remains in force until:
(1) it is discharged, revoked or modified;
(2) the period of 2 years from the date on which it is made or such later
time as the High Court may determine; or
(3) a confiscation order or a pecuniary penalty order, as the case may be,
is made in respect of property which is the subject of the order.[P.L. 2002-68, §43][Amended by P.L. 2011-51, §243(2)]
§244. Review of restraining orders.
(1) A person, other than the defendant, who has an interest in property
in respect of which a restraining order was issued may, at any time,
apply to the High Court for an order under subsection (4).
(2) An application made under subsection (1) shall not be heard by the
High Court unless the applicant has given the Attorney -General at
least 5 working days notice in writing of the application.
(3) The High Court may require notice of the application to be given to,
and may hear, any person who in the opinion of the High Court
appears to have an interest in the property.
(4) On an application under subsection (1) the High Court may revoke or
modify the order or make the order subject to such conditions as the
High Court thinks fit. For the purposes of this subsection the High
Court may:
(a) impose conditions on the applicant;
(b) modify the order to permit the payment of reasonable living
expenses of the applicant, including his or her dependents, if
any, and reasonable legal or business expenses of the
applicant.
(5) An order under subsection (4) may only be made if the Court is
satisfied that the:
(a) applicant is the lawful owner of the property or is entitled to
lawful possession thereof, and appears to be innocent of any
complicity in the commission of a serious offense or of any
collusion in relation to such offense; and
(b) that the property will no longer be required for the purposes
of any investigation or as evidence in any proceedings.[P.L. 2002-68, §44]
§245. Extension of restraining orders.
(1) The Attorney General may apply to the High Court that entered a
restraining order for an extension of the period of the operation of the
order.
(2) Where the Attorney-General makes an application under subsection
(1), the High Court may extend the operation of a restraining order
for a specified period, if it is satisfied that a confiscation order may be
made in respect of the property or part thereof or that a pecuniary
penalty order may be made against the person. [P.L. 2002-68, §45][Amended byP.L. 2011-51, §245(1)]
PART III - REALIZATION OF PROPERTY
§246. Realization of covered property.
(1) Where:
(a) a pecuniary penalty order is made;
(b) all conditions of the order have been met; and
(c) the order is not discharged, the High Court may on an
application by the Attorney General, exercise the powers
conferred upon the High Court by this section with respect to
covered property.
(2) The High Court may appoint a receiver in respect of the covered
property, to take possession of the property subject to such
conditions or exceptions as may be specified by the High Court.
(3) The High Court may order any person having possession of covered
property to give possession of it to any such receiver.
(4) The High Court may empower any such receiver to realize (liquidate
and convert into cash and/or obtain payment of the value of
defendant’s interest) any covered property in such manner as the
High Court may direct.
(5) The High Court may order any person holding an interest in covered
property to make such payment to the receiver in respect of any
interest held by the defendant or, as the case may be, the recipient of
a gift caught by this Act as the High Court may direct, and the High
Court may, on the payment being made, by order transfer, grant or
extinguish any interest in the property.
(6) The High Court shall not, in respect of any property, exercise the
powers conferred by subsections (2), (3), (4) or (5), unless a
reasonable opportunity has been given for persons holding any
interest in the property to make representations to the High Court.[P.L. 2002-68, §46][Amended by 2011-51, §246(1)]
§247. Application of proceeds of realization and other sums.
(1) Subject to subsection (2), the following property in the hands of a
receiver appointed under this Chapter, being:
(a) the proceeds of the realization of any property under section
246; and;
(b) any other sums, being property held by the defendant, shall,
after such payments, if any, as the High Court may direct have
been made out of those sums, be payable to the Clerk of the
High Court and be applied on the defendant’s behalf towards
the satisfaction of the pecuniary penalty order in the manner
provided by subsection (3).
(2) If, after the amount payable under a confiscation order has been fully
paid, any such sums remain in the hands of such a receiver, the
receiver shall distribute those sums:
(a) among such of those innocent third persons who held covered
property which has been recovered under this Division (either
through seizure and liquidation or by payment of defendant’s
interest therein by the holder) who have come forward and
made application to the Court for return of the property; and
(b) in such proportions, as the High Court may direct, after giving
a reasonable opportunity for those persons to make
representations to the High Court.
(3) Property received by the Clerk of the High Court on account of an
amount payable under a confiscation order shall be applied
as follows:
(a) if received by the Clerk from a receiver under subsection (1), it
shall first be applied in payment of the receiver’s remuneration
and expenses; and
(b) the balance shall be paid or, as the case may be, transferred, to
the Republic of the Marshall Islands General Fund.[P.L. 2002-68, §47]
§248. Exercise of powers of receiver or fiduciary.
(1) The provisions of this section shall apply to the powers conferred on
the High Court by sections 238, 244, 245, and 246, or to a receiver or
fiduciary appointed under paragraph 238(1)(g) or section 246.
(2) The position of receiver or fiduciary shall be one of confidence and
trust, and the powers of a receiver or fiduciary shall be exercised by
him or her with the highest degree of competence, honesty, good
faith and fair dealing.
(3) Subject to the following provisions of this section, the powers of a
receiver or fiduciary shall be exercised so as to satisfy any pecuniary
penalty order, which order shall be satisfied first from the present
value of covered property of the defendant.
(4) In the case of covered property held by a person to whom the
defendant has directly or indirectly made a gift caught by this
Chapter, the receiver or fiduciary shall endeavor to realize the
present value of the gift.
(5) The powers shall be exercised with a view to allowing any innocent
person or the innocent recipient of any such gift to retain or recover
the value of any property held by him or her.
(6) An order may be made or other action taken in respect of costs
arising from the case.
(7) In exercising the powers granted under this section, no account shall
be taken of any obligations of the defendant or of the recipient of any
such gift which conflict with the obligation to satisfy the pecuniary
penalty order or any confiscation order issued in the case.[P.L. 2002-68, §48]
§249. Supremacy of this Part in bankruptcy or winding up.
(1) Where a person who holds covered property is adjudged bankrupt in
any proceeding wherever held, the Republic of the Marshall Islands
shall stand as first lien-holder to the extent of any amount owed by
the bankrupt person in the Republic of the Marshall Islands as a
pecuniary penalty or under a confiscation order; and:
(a) property located in the Republic of the Marshall Islands which
is subject to a restraining order made before the order
adjudging the person bankrupt; and
(b) any proceeds of property confiscated under this Chapter, or
recovered by virtue of subsection 246(5) or 246 (6), and held by
a person appointed under paragraph 238 (1)(g) or
subsection 246(2);
shall not be considered as property of the bankrupt person or the
estate for the purposes of the applicable Bankruptcy Act or any civil
attachment proceedings.
(2) Subject to subsection (1), where a person has been adjudged
bankrupt, the powers conferred on the High Court by sections 259
and 267 or on a person appointed under paragraph 238 (1) (g) or
subsection 246(2) shall not be exercised in relation to property
comprised as property of the bankrupt person for the purposes of the
applicable Bankruptcy Act.
(3) Where a receiver stands appointed under an applicable Bankruptcy
Act, and property of the debtor is subject to a restraining order under
or for the purposes of the bankruptcy act, the powers conferred on
the receiver by virtue of the Bankruptcy Act do not apply to tainted
property or proceeds of crime which are subject to forfeiture or
confiscation under this Chapter until such time as the period of time
for bringing an action for forfeiture or confiscation under this
Chapter is exhausted.
(4) Where a person is adjudged bankrupt and has directly or indirectly
made a gift caught by this Chapter:
(a) no order shall be made under the applicable Bankruptcy Act
relating to such gift where:
(i) the bankrupt person has been charged with a serious
offense and the proceedings have not been concluded,
either by the acquittal of the defendant or final
dismissal of the proceedings; or where
(ii) property of the person to whom the gift was made is
subject to a restraining order or confiscation order
under this Chapter; and
(b) any order made under the applicable Bankruptcy Act, shall
take into account any realization under this Chapter of
property held by the person to whom the gift was made.[P.L. 2002-68, §49]
§250. Winding up of corporation, company, or other commercial
enterprise or entity holding covered property.
(1) Where covered property is held by a corporation, company, or other
commercial enterprise or entity and an order for the winding up has
been made or a resolution has been passed by the corporation,
company, or other commercial enterprise or entity for its voluntary
winding up, the functions of the liquidator or receiver appointed for
the winding up shall not be exercisable in relation to:
(a) property subject to a restraining order or confiscation order
made before such winding up, or
(b) any proceeds of property confiscated under this Chapter, or
recovered by virtue of subsection 246(5) or 246 (6), and held by
a person appointed under paragraph 238 (1)(g) or subsection
246(2), but there shall be payable out of such property any
expenses (including the remuneration of the liquidator or
receiver) properly incurred in the winding up of the
corporation, company, or other commercial enterprise or
entity.
(2) Where, in the case of a corporation, company, or other commercial
enterprise or entity, an order for winding up has been made or a
resolution for winding up has been passed, the powers conferred on
the High Court by section 238 or 246 shall not be exercised in relation
to any covered property held by the corporation, company, or other
commercial enterprise or entity:
(a) which will unfairly inhibit the liquidator or receiver from
exercising his or her proper functions for the purpose of
distributing any property held by the company to the
company’s legitimate creditors; or
(b) which will prevent the payment out of any property the
corporation, company, or other commercial enterprise or
entity, of expenses (including the remuneration of the
liquidator or receiver) properly incurred in the winding up.
(3) Subsection (2) does not affect the enforcement of a restraining order
or confiscation order made before the order or resolution for
winding up.
(4) Nothing in any other law of the Republic of the Marshall Islands
relating to corporations, companies, or other commercial enterprises
or entities shall be taken as restricting, or enabling the restriction of,
the exercise of the powers conferred on the High Court by section 238
or 246, and in case of conflict, this Chapter shall take precedence.[P.L. 2002-68, §50]
PART IV-CONTROL OF PROPERTY
§251. Powers to search for and seize tainted property.
(1) In addition to his powers under any other law, a police officer may:
(a) search a person for tainted property;
(b) enter upon land or upon or into premises and search the land
or premises for tainted property; and
(c) in either case, seize any property found in the course of the
search that the police officer believes, on reasonable grounds
to be tainted property, provided that the search or seizure is
made:
(d) with the consent of the person or the occupier of the land or
premises as the case may be;
(e) under a warrant issued under section 252; or
(f) under section 254.
(2) Where a police officer may search a person under this Chapter, the
officer may also search:
(a) the clothing that is being worn by the person; and
(b) any property in, or apparently in, the person’s immediate
control. [P.L. 2002-68, §51]
§252. Search warrants in relation to tainted property.
(1) Where a police officer has probable cause to believe that there is, or
may be within the next 72 hours, tainted property of a
particular kind:
(a) on a person;
(b) in the clothing that is being worn by a person;
(c) otherwise in a person’s immediate control;
(d) upon land or upon or in any premises, the police officer may
lay before a judge, a sworn affidavit setting out those grounds
and apply for the issuance of a warrant under this section, to
search the person, the land or the premises of the person as the
case may be, for tainted property of that kind.
(2) Where an application is made under subsection (1) for a warrant to
search a person, land or premises, the judge may, subject to
subsection (4) issue a warrant authorizing a police officer (whether or
not named in the warrant) with such assistance and by such force as
is necessary and reasonable:
(a) to search the person for tainted property of that kind;
(b) to enter upon the land or in or upon any premises and to
search the land or premises for tainted property of that
kind; and
(c) to seize property found in the course of the search that the
police officer has probable cause to believe to be tainted
property of that kind.
(3) A warrant may be issued under subsection (2) in relation to tainted
property, whether or not an information or complaint has been filed
in respect of the relevant offense.
(4) A judge shall not issue a warrant under subsection (2), where
information or complaint has not been filed in respect of the relevant
offense at the time when the application for the warrant is made,
unless the judge is satisfied that there is probable cause to believe a
crime has been or is about to be committed and that tainted property
or evidence of such crime is located at the place or on the person or
thing to be searched.
(5) A warrant issued under this section shall state:
(a) the purpose for which it is issued, including a reference to the
nature of the relevant offense;
(b) a description of the kind of property authorized to be seized;
(c) a time at which the warrant ceases to be in force; and
(d) whether entry is authorized to be made at any time of the day
or night or during specified hours.
(6) If during the course of searching under a warrant issued under this
section, a police officer finds:
(a) property that the police officer has probable cause to believe to
be tainted property either of a type not specified in the warrant
or tainted property in relation to another serious offense; or
(b) any thing the police officer has probable cause to believe will
afford evidence of the commission of a serious offense
(whether or not such offense is the same as that described in
the warrant);
the police officer may seize that property or thing and the warrant
shall be deemed to authorize such seizure. [P.L. 2002-68, §52]
§253. Application for search warrants by telephone or other means of
communication.
(1) Where by reason of urgency a police officer considers it necessary to
do so, the officer may make application for a search warrant under
section 252 by telephone, radio communication, facsimile or other
means of communication by which identity of the requesting officer
can be identified.
(2) A judge, to whom an application for the issuance of a warrant is
made by telephone or other means of communication, may sign a
warrant if the judge is satisfied that it is necessary to do so, and shall
inform the police officer of the terms of the warrant so signed.
(3) The police officer executing the warrant shall inform any person
subject to and present at the time of the search of the terms of the
warrant.
(4) The police officer to whom a warrant is granted by telephone or other
means of communication shall, not later than three working days
following issuance of the warrant, provide the judge with a duly
sworn application for a warrant completed by the officer, together
with the officer’s sworn affidavit in support of the warrant.[P.L. 2002-68, §53]
§254. Searches in emergencies.
(1) Where a police officer has probable cause to believe that:
(a) particular property is tainted property;
(b) it is necessary to exercise the power of search and seizure in
order to prevent the concealment, loss or destruction of the
property; and
(c) the circumstances are so urgent that they require immediate
exercise of the power without the authority of a warrant or the
order of a court, the police officer may:
(i) search a person;
(ii) enter upon land, or upon or into premises and search
for the property; and
(iii) if property is found, seize the property.
(2) If during the course of a search conducted under this section, a police
officer finds:
(a) property that the police officer has probable cause to believe to
be tainted property; or
(b) any thing the police officer has probable cause to believe will
afford evidence as to the commission of a serious offense, the
police officer may seize that property or thing. [P.L. 2002-68, §54]
§255. Record of property seized.
A police officer who seizes property under section 252 or section 254 shall
retain the property seized, make a written record thereof, and take
reasonable care to ensure that the property is preserved. [P.L. 2002-68, §55]
§256. Return of seized property.
(1) Where property has been seized under section 252 or section 254
(otherwise than because it may afford evidence of the commission of
an offense), a person who claims an interest in the property may
apply to the High Court for an order that the property be returned to
the person.
(2) Where a person makes an application under subsection (1) and the
High Court is satisfied that:
(a) the person making the application is entitled to possession of
the property;
(b) the property is not tainted property; and
(c) the defendant has no interest in the property, the High Court
shall order the return of the property to the person making the
application. [P.L. 2002-68, §56]
§257. Search for and seizure of tainted property in relation to foreign
offenses.
Where a foreign country requests assistance with the location or seizure of
property suspected to be tainted property in respect of an offense within its
jurisdiction, the provisions of sections 252, 253, and 254 apply, with the
necessary changes in points of detail, provided that the Attorney-General
has, under section 408 of the Mutual Assistance In Criminal Matters Act,
2002, authorized the giving of assistance to the foreign country. [P.L. 2002-68, §57]
PART V- PRODUCTION ORDERS AND OTHER INFORMATION
GATHERING POWERS
§258. Production orders.
(1) Where an individual has been charged, or is about to be charged
with, or convicted of a serious offense, and a police officer has
probable cause to believe that any person has possession or
control of:
(a) a document relevant to identifying, locating or quantifying
property of the defendant, or to identifying or locating a
document necessary for the transfer of property of the
defendant; or
(b) a document relevant to identifying, locating or quantifying
tainted property in relation to the offense, or to identifying or
locating a document necessary for the transfer of tainted
property in relation to the offense, the police officer may apply
ex parte and in writing to a judge for an order against the
person suspected of having possession or control of a
document of the kind referred. The application shall be
supported by an affidavit.
(2) The judge may, if he or she considers there is probable cause for so
doing, make an order under this Chapter, that the person produce to
a police officer, at a time and place specified in the order, any
documents of the kind referred to in subsection (1).
(3) A police officer to whom documents are produced may:
(a) inspect the documents;
(b) make copies of the documents; or
(c) retain the documents for so long as is reasonably necessary for
the purposes of this Chapter.
(4) Where a police officer retains the documents produced, the officer
shall make a copy of the documents available to the person who
produced them.
(5) A person is not entitled to refuse to produce documents ordered to be
produced under this section on the ground that the document might
tend to incriminate that person or make such person liable to a
penalty. [P.L. 2002-68, §58][Amended by P.L. 2011-51, §258(1)(a)(b)]
§259. Evidential value of information.
(1) Where a person produces a document pursuant to an order issued
under this Chapter, the production of the document, or any
information, document, or thing obtained as a direct or indirect
consequence of the production of the document, is not admissible
against that person in any criminal proceedings except proceedings
under section 260.
(2) For the purposes of subsection (1), proceedings on an application for
a restraining order, a confiscation order or a pecuniary penalty order
are not criminal proceedings. [P.L. 2002-68, §59]
§260. Failure to comply with a production order.
Where a person is required by a production order issued under this
Chapter, to produce a document to a police officer, and the person
knowingly:
(1) violates the order without reasonable cause; or
(2) in purported compliance with the order, produces or makes available
a document known to the person to be false or misleading in a
material way, and does not so indicate to the police officer and
provide to the police officer any correct information of which the
person is in possession, the person is guilty of an offense punishable
by imprisonment for a maximum of five years or a maximum fine of
$50,000, or both, provided, however, in the case of a corporation,
company, commercial enterprise, commercial entity or other legal
person, the maximum fine shall be increased to $250,000. [P.L. 2002-68, §60]
§261. Production orders in relation to foreign offenses.
Where a foreign country requests assistance to locate or seize property
suspected to be tainted property in respect of an offense within its
jurisdiction, and the Attorney General has, under section 408 of the Mutual
Assistance In Criminal Matters Act, 2002, authorized the giving of assistance
to the foreign country, the provisions of section 258 shall apply to the
request, with necessary changes in points of detail. [P.L. 2002-68, §61]
§262. Power to search for and seize documents relevant to locating
property.
A police officer may:
(1) enter upon land or upon or into premises;
(2) search the land or premises for any document of the type described in
subsection 258(1); and
(3) seize any document found in the course of that search that the police
officer has probable cause to believe to be a relevant document in
relation to a serious offense, provided that the entry, search and
seizure is made:
(4) with the consent of the occupier of the land or the premises; or
(5) under a warrant issued under section 263 or 252 of this Chapter.[P.L. 2002-68, §62]
§263. Search warrant for location of documents relevant to locating
property.
(1) Where:
(a) an individual has been charged, or is about to be charged, with
or convicted of a serious offense; or
(b) the police officer has probable cause to believe that there is, or
may be within the next 72 hours, upon any land or upon or in
any premises, a document of the type described in subsection
258(1) in relation of the offense; the police officer may make
application ex parte supported by sworn affidavit to a judge
for a search warrant in respect of that land or those premises.
(2) Where an application is made under subsection (1) for a warrant to
search land or premises, the judge may, subject to subsection (4) issue
a warrant authorizing a police officer (whether or not named in the
warrant), with such assistance and by such force as is necessary and
reasonable:
(a) to enter upon the land or in or upon any premises and to
search the land or premises for property of that kind; and
(b) to seize property found in the course of the search that the
police officer has probable cause to believe to be property of
that kind.
(3) A judge shall not issue a warrant under subsection (2) unless the
judge is satisfied that:
(a) a production order has been issued in respect of the document
and has not been complied with;
(b) a production order in respect of the document would be
unlikely to be effective;
(c) the investigation for the purposes of which the search warrant
is being sought might be seriously prejudiced if the police
officer does not gain immediate access to the document
without any notice to any person; or
(d) the document involved cannot be identified or described with
sufficient particularity to enable a production order to be
obtained.
(4) A warrant issued under this section shall state:
(a) the purpose for which it is issued, including a reference to the
nature of the relevant offense;
(b) a description of the kind of documents authorized to be seized;
(c) a time at which the warrant ceases to be in force; and
(e) whether entry is authorized to be made at any time of the day
or night or during specified hours.
(5) If during the course of searching under a warrant issued under this
section, a police officer finds:
(a) a document of the type described in section 258(1) that the
police officer believes on probable cause, to relate to the
relevant offense, or to another serious office; or
(b) any thing the police officer believes on probable cause will
afford evidence as to the commission of a serious offense;
the police officer may seize that property or thing and the warrant
shall be deemed to authorize such seizure. [P.L. 2002-68, §63][Amended byP.L. 2011-51, §263(1)(a)(b)]
§264. Search warrants in relation to foreign offenses.
Where a foreign country requests assistance to locate or seize documents of
a type described in subsection 258(1) relating to an offense within its
jurisdiction, and the Attorney-General has, under section 408 of the Mutual
Assistance In Criminal Matters Act, 2002, authorized the giving of assistance
to the foreign country, the provisions of section 63 shall apply to the request,
with necessary changes in points of detail. [P.L. 2002-68, §64]
§265. Monitoring orders.
(1) A police officer may apply, ex parte and in writing to a judge for a
monitoring order directing a financial institution to give information
to a police officer. An application under this section shall be
supported by an affidavit.
(2) A monitoring order:
(a) may direct the financial institution to disclose information
obtained by the institution about transactions conducted
through an account held by a particular person with the
institution;
(b) shall not have retrospective effect; and
(c) shall only apply for a period of a maximum of 3 months from
the date of making.
(3) A judge shall not issue a monitoring order unless the judge is
satisfied that there is probable cause to believe that the person in
respect of whose account the order is sought:
(a) has committed or was involved in the commission, or is about
to commit or be involved in the commission of a serious
offense; or
(b) has benefitted directly or indirectly, or is about to benefit
directly or indirectly from the commission of a serious offense.
(4) A monitoring order shall specify:
(a) the name or names in which the account is believed to be
held; and
(b) the type of information that the institution is required to give.
(5) Where a financial institution, which has been given notice of a
monitoring order, knowingly:
(a) violates the order; or
(b) provides false or misleading information in purported
compliance with the order;
the institution commits an offense, punishable by a maximum of up
to $250,000. [P.L. 2002-68, §65]
§266. Monitoring orders not to be disclosed.
(1) A financial institution that is, or has been subject to a monitoring
order shall not knowingly disclose the existence or operation of the
order to any person except:
(a) an officer or agent of the institution for the purpose of
ensuring compliance with the order;
(b) a legal adviser for the purpose of obtaining legal advice or
representation in respect of the order; or
(c) a police officer authorized in writing to receive the
information.
(2) A person described in paragraphs (1)(a), (b) or (c) shall not disclose
the existence or operation of a monitoring order except to another
such person, for the purposes of the performance of the person’s
duties or functions.
(3) A person who contravenes subsection (1) or (2) commits an offense
and is liable upon conviction, to
(a) if the person is a natural person, a fine not exceeding $50,000
or imprisonment for a term not five years, or both; or
(b) if the person is a corporation, company, commercial enterprise,
commercial entity or other legal person, the maximum fine
shall be increased to $250,000.
(4) Nothing in this section shall prevent the disclosure of information
concerning a monitoring order for the purposes of, or in connection
with legal proceedings; or in the course of proceedings before a court,
and nothing in this section shall be construed as compelling a police
officer to disclose to any court the existence or operation of a
monitoring order. [P.L. 2002-68, §66]
PART VI- MISCELLANEOUS
§267. Immunity where official powers or functions exercised in good
faith.
No suit, prosecution or other legal proceedings shall lie against the
government of the Republic of the Marshall Islands, or any officer or other
person in respect of anything done by or on behalf of that person, with due
diligence and in good faith, in the exercise of any power or the performance
of any function under this Chapter or any regulation or order made
pursuant to this Chapter.[P.L. 2002-68, §67]
§268. Repeal and saving provisions
(1) Subject to subsection (2), any Act, rules, regulations or provisions of
any Act, rules or regulations on identifying, freezing, seizing and
confiscating proceeds of crime in the RMI which contravenes the
provisions of this Chapter is hereby repealed to the extent of its
inconsistencies;
(2) Nothing in this Chapter shall be construed as to affect the rights,
duties and responsibilities of the RMI under the Compact of Free
Association with the United States of America; or under any other
law. [P.L. 2002-68, §68]
§269. Regulations.
The Minister of Justice may prescribe such rules and regulations he may
deem necessary to carry out the provisions of this Chapter. [P.L. 2002-68, §69]