The Mind Set4
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The Mind Set4

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The Mind Set4 The Mind Set4 Presentation Transcript

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