ANTI-MONEY LAUNDERING ACT, 2006

ANTI-MONEY LAUNDERING ACT, 2006

Arrangement of Sections

PART 1

PRELIMINARY

1. Short title.

2. Interpretation.

3. Offence of Money Laundering.

PART 2

OBLIGATIONS OF REPORTING ENTITY

4. Application of customer due diligence measures and ongoing monitoring.

5. Requirement to cease transaction.

6. Reporting entity to maintain records.

7. Account to be in true name.

8. Money transmission to accompany originator information.

9. Reporting entity to monitor transactions.

10. Reporting suspicious transaction.

11. Supervisory authority or auditor to report suspicious transaction.

12. Disclosure of information.

13. Protection of identity of persons and information.

14. Protection of person reporting suspicious transaction.

15. Other duties of reporting entities.

PART 3

FINANCIAL INTELLIGENCE UNIT

[Part 3 rep and subs by s 4 of Act 18 of 2008 w.e.f. 25 August 2008.]

16. Establishment of the FIU.

16A. International exchange of information.

16B. Agreements for the international exchange of information.

16C. Power of Director to examine records of reporting entity.

16D. Obligation of officers and employees of a reporting entity.

17. Appointment of Director, Deputy Director and Acting Director of the FIU.

18. Appointment of assets agent and FIU Legal Officer.

19. Anonymity.

20. Prohibition on publication.

21. Offences of assault, intimidation or obstruction of assets agents.

22. Search Warrant.

23. Production Order.

24. Power of arrest of assets agent who is a member of the police.

25. Funding of the FIU.

PART 4

RESTRAINT, SEIZURE AND FORFEITURE OF PROPERTY

[Part 4 rep and subs by s 4 of Act 18 of 2008 w.e.f. 25 August 2008.]

26. Circumstances in which Court may make restraint order.

27. Restraint Order.

28. Notice of restraint order to be given to Registrar General.

29. Appointment of Receiver.

30. Immunity of Receiver.

31. Provisions for restraint order when company is in liquidation.

32. Effects of restraint order.

33. Forfeiture.

34. Search and seizure of cash.

34A. Declaration of cash.

35. Court proceedings for forfeiture of cash seized.

36. Cash seized and detained for more than 14 days to be lodged with interest bearing account.

37. Power of Minister to prescribe.

PART 5

PECUNIARY PENALTY ORDER

[Part 5 rep and subs by s 4 of Act 18 of 2008 w.e.f. 25 August 2008.]

38. Pecuniary penalty order.

39. Procedure for calculating benefit from criminal conduct.

40. Pecuniary penalty order to be confined to realisable property.

41. Making of pecuniary penalty order where new evidence becomes available.

42. Further determination possibly leading to increased pecuniary penalty order.

43. Procedure for statements to assist calculation of amount of defendant's benefit from criminal conduct.

44. Matters to be taken into account in determining amount to be paid by a pecuniary penalty order.

45. Making of pecuniary penalty order where defendant has died or absconded.

45A. Appeals and compensation.

45B. Reduction in amount of pecuniary penalty order when realisable property inadequate.

45C. Increase in amount of pecuniary penalty order when value of realisable property increases.

45D. Enforcement of pecuniary penalty order.

45E. Appointment of receiver for enforcement of pecuniary penalty order.

45F. Interest on unpaid sums.

45G. Disposal of proceeds of pecuniary penalty order.

PART 6

OFFENCES AND PENALTIES

46. Failure to establish identity etc.

47. Failure to maintain records.

48. Failure to maintain account in true name.

49. Failure to report suspicious transactions.

50. Making false or misleading statements.

51. [Repealed].

52. Failure to implement internal rules.

53. Failure to appoint compliance officer or provide training.

54. [Repealed].

55. [Repealed].

56. Opening account in fictitious, false or incorrect name.

57. [Repealed].

PART 7

MISCELLANEOUS

58. Overriding of confidentiality.

59. Account in fictitious, false or incorrect name.

60. Liability of employers and principals.

61. Liabilities of Directors etc.

62. Money laundering an extraditable offence.

63. Regulations.

64. Repeal of Act 8 of 1996.

65. Savings.

66. Repeal of certain provisions of Cap 133.

FIRST SCHEDULE

SECOND SCHEDULE

5 of 2006,

18 of 2008,

24 of 2011.

SI 13 of 2006,

15 of 2010.

AN ACT to repeal and replace the Anti-Money Laundering Act (Cap 9A).

[Date of commencement: 18th May 2006]

PART 1

PRELIMINARY

1. Short title.

This Act may be cited as the Anti-Money Laundering Act, 2006.

2. Interpretation.

In this Act—

"assets agent" means a person appointed as an assets agent to the FIU under section 18;

"benefit from criminal conduct" means any money or property that is derived, obtained or realised, directly or indirectly, by any person from criminal conduct;

"business relationship" means any arrangement made between a person and a reporting entity where the purpose or effect of the arrangement is to facilitate an occasional, frequent, habitual or regular course of dealing between the person and the reporting entity including an arrangement where, the total amount of any payment to be made by any person to any other person in the course of that arrangement is not known or capable of being ascertained at the time the arrangement is made;

"cash" has the meaning set out in section 34(8);

"Commissioner" means the Commissioner of Police;

"country" includes any state or territorial unit as the context may require;

"Court" means the Supreme Court of Seychelles save where the context otherwise requires;

"Court of Appeal" means the Court of Appeal of Seychelles;

"customer", in relation to a transaction or an account, includes—

(a) the person in whose name a transaction or account is arranged, opened or undertaken;

(b) a signatory to a transaction or account;

(c) any person to whom a transaction has been assigned or transferred;

(d) any person who is authorised to conduct a transaction; or

(e) such other person as may be prescribed;

"criminal conduct" shall have the meaning set out in section 3 and includes the financing of terrorism;

"data" means representations in any form of information or concepts;

"Deputy Director" means the person appointed under section 17(2) save where the context otherwise requires;

"Director" means the person appointed under section 17(1) save where the context otherwise requires;

"Director of the Fund" means the person appointed as such under section 28 of the Social Security Act and includes any person to whom functions under that section have been delegated;

"exported" has the meaning set out in section 34(8);

"financing of terrorism" means any of the offences referred to in sections 5, 6, 7, 8, 9, 10, 12, 15, 16 or 19 of the Prevention of Terrorism Act, 2004;

"FIU" means the unit established under section 16;

"FIU Legal Officer" means the person appointed under section 18(2);

"funds" for the purposes of section 10 includes any property that may be received or transferred by a reporting entity to or for any person so as to transfer benefit to that person or any other person and includes cash;

"Inspector of the Fund" means a person appointed as such under section 29 of the Social Security Act;

"law enforcement agency" means the government department under the Commissioner of Police or the Director General of Immigration and includes the Seychelles Revenue Commission;

"legal privilege" means any communication between lawyer and client which comes into existence for the purposes of the obtaining and furnishing of legal advice and/or legal representation in respect of any criminal matter and shall not extend to any conduct of the lawyer or material in the possession or control of the lawyer in the nature of aiding and abetting, assisting, attempting, counselling, conspiring, concealing or procuring the commission of criminal conduct by the client or any other person;

"member of the family", in relation to an individual who is an assets agent of the FIU, means the spouse, parent, grandparent, step-parent, child (including a step-child or an adopted child), grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece of the individual or of the individual's spouse, or any person who is cohabiting or residing with the individual;

"member of the police" means a police officer;

"Minister" means the Minister responsible for Internal Affairs;

"person" includes a body of persons whether it has legal personality or not;

"pecuniary penalty order" means an order under sections 38, 41, 42 or 45;

"prescribed sum" means R50,000 until otherwise prescribed by the Minister under section 37 and thereafter shall be the sum so prescribed from time to time;

"police functions" means any power or duty conferred on any member of the police by or under any Act (including an Act passed after the passing of this Act);

"proceedings" includes any hearing before any court, tribunal, commission or any committee of, or appointed by the Government;

"production order" means an order under section 23;

"property" includes money and all property, real or personal, heritable or movable, including choses in action and other intangible or incorporeal property and references to property shall be construed as including references to any interest in property, and includes property outside the Republic where by virtue of its domestic jurisdiction generally, in rem or in personam or by virtue of an arrangement with any other country or territory, the Court might be in a position to enforce, and/or secure compliance with any order it might make or where it might otherwise exercise jurisdiction in relation to that property to comply with an arrangement or a request from another country or territory;

"regulated business" means a business for which a regulatory licence is required;

[Ins by s 2(a)(i) of Act 24 of 2011 w.e.f. 27 December 2011.]

"regulatory licence" means a licence specified in the First Schedule;

[Ins by s 2(a)(i) of Act 24 of 2011 w.e.f. 27 December 2011.]

"regulated reporting entity" means a reporting entity who holds a regulatory licence;

[Ins by s 2(a)(i) of Act 24 of 2011 w.e.f. 27 December 2011.]

"reporting entity" means a person specified in the Second Schedule;

[Rep and subs by s 2(a)(ii) of Act 24 of 2011 w.e.f. 27 December 2011.]

"Republic" means the Republic of Seychelles;

"restraint order" means an order referred to in Part 4;

"revenue" shall have the meaning as defined in section 2(1) of the Seychelles Revenue Commission Act, 2007;

"Revenue Commissioner" means the person appointed as Revenue Commissioner under section 4 of the Seychelles Revenue Commission Act, 2007;

"revenue laws" means all and any law or regulation relating to any tax, including the revenue laws as described in the schedule to the Seychelles Revenue Commission Act, 2007;

"serious crime" means any act or omission against any law of the Republic punishable by a term of imprisonment exceeding three years and/or by a fine exceeding R50,000, whether committed in the Republic or elsewhere, and where the conduct occurs outside the Republic, would constitute such an offence if it occurred within the Republic and also constitutes an offence under the law of the country or territorial unit in which it occurs;

"Suspicious Transactions Report" means a report made or to be made by a reporting entity under section 10;

"tax" means any tax, duty, levy or charge under the care and management of the Seychelles Revenue Commission including but not limited to business tax, trades tax*, goods and services tax*, contributions to the Social Security Fund, stamp duty and any other levy by way of taxation.

[S 2 rep and subs by s 3 of Act 18 of 2008 w.e.f. 25 August 2008.]

[*These references pre-date the repeal of the Trade Tax Act (by the Customs Management Act) and the Goods and Services Tax Act (by the Value Added Tax Act).]

3. Offence of Money Laundering.

(1) A person is guilty of money laundering if, knowing or believing that property is or represents the benefit from criminal conduct or being reckless as to whether the property is or represents such benefit, the person, without lawful authority or excuse (the proof of which shall lie on him)—

(a) converts, transfers or handles the property, or removes it from the Republic;

(b) conceals or disguises the true nature, source, location, disposition, movement or ownership of the property or any rights with respect to it; or

(c) acquires, possesses or uses the property.

(2) Removing property from the Republic shall include references to removing it from another country or territory as referred to in subsection (9)(c), and moving property within the Republic or a country or territory in preparation for or for the purpose of removing it from the Republic or the country or territory in question.

(3) Any person who participates in such conduct as described in subsections (1)(a), (1)(b) or (1)(c) of this section including but not limited to, aiding, abetting, assisting, attempting, counselling, conspiring, concealing or procuring the commission of such conduct commits the offence of money laundering as a principal offender and shall be liable to be tried and punished accordingly.

(4) —

(a) a person guilty of money laundering is liable on conviction to a fine not exceeding R5,000,000 or to imprisonment for a term not exceeding 15 years or to both;

(b) a person other than a natural person guilty of money laundering is liable on conviction to a fine not exceeding R10,000,000.

(5) Where a person—

(a) converts, transfers, handles or removes from the Republic any property which is or represents the benefit from criminal conduct;

(b) conceals or disguises the true nature, source, location, disposition, movement or ownership of the property or any rights with respect to it; or

(c) acquires, possesses or uses the property,

in such circumstances that it is reasonable to conclude that the person—

(i) knew or believed that the property was or represented the benefit from criminal conduct; or

(ii) was reckless as to whether it was or represented benefit from criminal conduct,

that person shall be taken to have so known or believed or to have been so reckless, unless the court is satisfied having regard to all the evidence that there is a reasonable doubt as to whether the person so knew or believed or was so reckless.

(6) For the purposes of this Act—

(a) a person is reckless if he disregards a substantial risk that the property in question is or represents the benefit from criminal conduct, and for those purposes "substantial risk" means a risk of such a nature and degree that having regard to the circumstances in which the person became involved with the property and the extent of the information then available to him, the disregard of that risk involves culpability of a high degree;

(b) references to converting, transferring, handling or removing property include references to the provision of any advice or assistance in relation to converting, transferring, handling or removing the property.

(7) This section does not apply to a person in respect of anything done by that person in connection with the enforcement of any law.

(8) This Act shall apply whether the criminal conduct in question occurred before or after the commencement of this Act and whether it was or is attributable to the person first mentioned in subsection (1) or another.

(9) In this Act, "criminal conduct" means conduct which—

(a) constitutes any act or omission against any law of the Republic punishable by imprisonment for life or for a term of imprisonment exceeding three years, and/or by a fine exceeding R50,000 and, without prejudice to the generality of the above, including the financing of terrorism as referred to in the Prevention of Terrorism Act 2004, and for the avoidance of doubt includes the offence of money laundering established by sections 3(1) and 3(3) of this Act and whether committed in the Republic or elsewhere and whether before or after the commencement of the relevant provisions of this Act;

(b) where the conduct occurs outside the Republic, would constitute such an offence if it occurred within the Republic and also constitutes an offence under the law of the country or territorial unit in which it occurs;

(c) shall also include any act or omission against any law of another country or territory punishable by imprisonment for life or for a term of imprisonment exceeding three years, or by a fine exceeding the monetary equivalent of R50,000 whether committed in that other country or territory or elsewhere and whether before or after the commencement of the relevant provisions of this Act, unless the Attorney-General shall certify in writing that it would not be in the public interest to take action in the Republic in relation to an act or omission as defined in this subsection; and

(d) includes participation in such conduct, including but not limited to, aiding, abetting, assisting, attempting, counselling, conspiring, concealing or procuring the commission of such conduct.

(10) For the purposes of this Act—

(a) references to believing that any property is or represents the benefit from criminal conduct include references to thinking that the property was probably, or probably represented, such benefit in whole or in part;

(b) references to any property representing the benefit from criminal conduct include references to the property representing that benefit in whole or in part directly or indirectly, and cognate references shall be construed accordingly;

(c) the standard of proof to be applied in deciding whether property is the benefit from criminal conduct shall be the standard of proof applicable in civil proceedings;

(d) in determining whether property is or represents the benefit from criminal conduct a court shall have account of all the surrounding circumstances of the connection of the defendant and any other relevant person with the property including but not limited to the financial ability of the defendant or that other person to have or possess such property, the explanation (if any) given by the defendant or that other person as to his connection with the property and the conduct of the defendant or that other person in relation to the property.

(11) —

(a) As soon as the Court determines that the evidence adduced in the case gives rise to a reasonable inference that the property is or represents the benefit from criminal conduct the property shall be deemed to be the benefit from criminal conduct unless the defendant by evidence establishes otherwise to the satisfaction of the Court. The burden of proving that the property is not the benefit from criminal conduct shall be upon the defendant;

(b) It shall not be necessary in any event for the prosecution to prove that the property in question is or represents the benefit of any particular criminal conduct or that any person was convicted of criminal conduct in relation to the property.

(c) Where it is necessary in the case of a money laundering offence alleged to have been committed by a body corporate, to establish the state of mind of the body corporate, it shall be sufficient to show that a director, officer, employee or agent of the body corporate, acting in the course of his directorship, office, employment or agency as the case may be, had the required state of mind to satisfy the element of mens rea required to ground a conviction.

(d) Where a body corporate commits an offence of money laundering (whether convicted of that offence or not) and where the offence is committed with the consent, connivance, or in any other way with the assistance or omission to act of any director, secretary, manager, auditor or accountant of the company or any person directing or person controlling such person, he shall be guilty of the offence and capable of being tried and punished as a principal offender.

(12) For the purposes of this Act—

(a) a person handles property if that person, without a claim of right made in good faith—

(i) receives it;

(ii) undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person; or

(iii) arranges to do any of the things specified in subparagraphs (i) or (ii).

(b) —

(i) a document purporting to be signed by a lawyer practicing in the country or territorial unit in which the criminal conduct concerned is alleged to have occurred and stating that such conduct is an offence under the law of that country or territorial unit; and

(ii) a document purporting to be a translation of a document mentioned in subparagraph (i) and certified as correct by a person appearing to be competent to so certify, shall be admissible in any proceedings, without further proof, as evidence of the matters mentioned in those documents, unless the contrary is shown.

(13) Where a person who has failed to comply with directions of the FIU under section 10(4) in relation to property, is subsequently charged with a money laundering offence or another offence under this Act it shall be presumed—

(a) that the property is the benefit from criminal conduct; and

(b) that the defendant knew or believed that the property was or represented benefit from criminal conduct or was reckless as to whether it was or represented such benefit,

until the defendant proves otherwise to the satisfaction of the Court on the civil standard of proof.

[S 3 rep and subs by s 5 of Act 18 of 2008 w.e.f. 25 August 2008; s 3(13) am by s 2(b) of Act 24 of 2011 w.e.f. 27 December 2011.]

PART 2

OBLIGATIONS OF REPORTING ENTITY

4. Application of customer due diligence measures and ongoing monitoring.

A reporting entity shall apply customer due diligence measures in respect of customers, business relationships and transactions, and conduct ongoing monitoring of business relationships in the manner as prescribed in regulations.

[S 4 rep and subs by s 2(c) of Act 24 of 2011 w.e.f. 27 December 2011.]

5. Requirement to cease transaction.

(1) Where in relation to any customer, a reporting entity is unable to apply customer due diligence measures in accordance with the regulations prescribed under this Act, the reporting entity shall—

(a) not carry out a transaction with or for the customer through a bank account;

(b) not establish a business relationship or carry out a one-off transaction with the customer;

(c) terminate any existing business relationship with the customer.

(2) Where a reporting entity is unable to undertake ongoing monitoring with respect to a business relationship, it shall terminate the business relationship.

(3) Where subsections (1) or (2) applies in relation to any customer, the reporting entity shall make a suspicious transaction report under section 10 of this Act or a disclosure under section 34 or 35 of the Prevention of Terrorism Act 2004, as applicable.

(4) Subsections (1) and (2) shall not apply to—

(a) a lawyer in the course of ascertaining the legal position of his client or in defending or representing the client in, or concerning, legal proceedings, including advice on the institution or avoidance of proceedings;

(b) a reporting entity who has made a suspicious transaction report under section 10 of this Act or a disclosure under section 34 or 35 of the Prevention of Terrorism Act 2004, to the extent that the reporting entity is acting—

(i) in the case of a suspicious transaction report, with the consent of the FIU; or

(ii) in the case of a disclosure under section 34 or 35 of the Prevention of Terrorism Act 2004, with the consent of the Commissioner of Police.

[S 5 rep and subs by s 2(d) of Act 24 of 2011 w.e.f. 27 December 2011.]

6. Reporting entity to maintain records.

(1) A reporting entity shall maintain records of—

(a) customer due diligence measures prescribed by regulations;

[S 6(1)(a) rep and subs by s 2(e) of Act 24 of 2011 w.e.f.
27 December 2011.]

(b) all transactions carried out by it and correspondence relating to the transactions as is necessary to enable any transaction to be readily reconstructed at any time by the FIU or the Attorney-General, and the records shall contain particulars sufficient to identify—

(i) the nature and date of the transaction;

(ii) the type and amount of currency involved;

(iii) the type and identifying number of any account with the reporting entity involved in the transaction;

(iv) if the transaction involves a negotiable instrument other than currency, the name of the drawer of the instrument, the name of the institution on which it was drawn, the name of the payee (if any), the amount and date of the instrument, the number (if any) of the instrument and details of any endorsements appearing on the instrument;

(v) the name and address of the reporting entity, and of the officer, employee or agent of the reporting entity who prepared the record;

(c) all reports made to the FIU under section 10; and

(d) enquiries relating to money laundering and financing of terrorism made to it by the FIU.

(2) The records mentioned in subsection (1) shall be kept for a minimum period of seven years from the date—

(a) on which evidence of a person's identity is obtained;

(b) of any transaction or correspondence; or

(c) on which the business relationship ceases.

(3) The records established and maintained for purposes of subsection (1)(b) shall be—

(a) sufficient to enable the transaction to be readily reconstructed at any time by the FIU or the Attorney-General to provide, if necessary, evidence for the prosecution of any offence;

(b) maintained in a manner and form that will enable the reporting entity to comply immediately with requests for information from the law enforcement agencies or the FIU.

(4) Where any record is required to be kept under this Act, a copy of it with the appropriate back-up and recovery procedures shall be kept—

(a) in a machine-readable form, if a paper copy can be readily produced from it; or

(b) in an electronic form, if a paper copy can be readily produced from it and in a manner that enables appropriate authentication.

(5) The records maintained under subsection (1) shall be made available upon request to the FIU or the Attorney-General for purposes of ensuring compliance with this Act and an investigation and prosecution of an offence.

7. Account to be in true name.

(1) A reporting entity that maintains accounts shall maintain them in the true names of the account holders.

(2) A reporting entity shall not open, operate or maintain any anonymous account or any account which is in a fictitious, false or incorrect name.

8. Money transmission to accompany originator information.

(1) A person licenced to do business in Seychelles as a financial institution or a money transmission service provider shall include accurate originator information and other related messages on electronic funds transfers and such information shall remain with the transfer.

(2) Subsection (1) shall not apply to a money transfer effected from the use of a credit or debit card as a means of payment that results from a transaction carried out using a credit or debit card, but the credit or debit card number shall be included in the information accompanying such a transfer.

(3) Subsection (1) shall not apply to electronic funds transfers and settlements between financial institutions where the originator and beneficiary of the funds transfer are acting on their own behalf.

9. Reporting entity to monitor transactions.

(1) A reporting entity shall pay special attention to—

(a) any complex, unusual or large transaction;

(b) any unusual pattern of transactions,

with no apparent economic or lawful purpose.

(2) A reporting entity shall pay special attention to—

(a) business relations and transactions with persons in jurisdictions that do not have adequate systems in place to prevent or deter money laundering or financing of terrorism;

(b) electronic funds transfers that do not contain complete originator information.

(3) In relation to subsections (1) and (2), a reporting entity shall—

(a) examine as far as possible the background and purpose of the transactions or business relations and record its findings in writing; and

(b) upon request, make available such findings to the FIU or to the Attorney-General to assist them in any investigation of an offence of money laundering or of financing of terrorism.

(4) A reporting entity shall monitor its business relationships and the transactions undertaken throughout the course of the relationships to ensure that its obligations under section 4 are met and that the transactions conducted are consistent with the information that the reporting entity has of its customer and the profile of the customer's business.

10. Reporting suspicious transaction.

(1) —

(a) Where a reporting entity has—

(i) knowledge or reasonable grounds to suspect that any service, or transaction may be related to the commission of criminal conduct including an offence of money laundering or of financing of terrorism or to money or property that is or represents the benefit of criminal conduct;

(ii) information that may be—

(a) relevant to an act preparatory to an offence or to money or property referred to in paragraph (a)(i) of subsection (1);

(b) relevant to an investigation or prosecution of a person for an offence referred to in paragraph (a)(i) of subsection (1); or

(c) of assistance in the enforcement of this Act or the Proceeds of Crime (Civil Confiscation) Act, 2008,

the reporting entity shall make a suspicious transaction report to the FIU within two working days of ascertaining the knowledge, forming the suspicion or receiving the information.

(b) The FIU shall acknowledge receipt of the suspicious transaction report within 24 hours of receipt.

(c) Where a suspicious transaction report relates to a service or transaction in respect of property in the possession or control of a reporting entity, the reporting entity shall not provide the service nor proceed with the transaction within a period of 10 working days from the date of the suspicious transaction report without the written consent of the FIU.

(d) If no such consent is received within a period of 10 working days from the date of the suspicious transaction report, the reporting entity may provide the service or carry out the transaction, and section 3(2) shall not apply unless the FIU issues a direction under subsection (4) and the reporting entity complies with the direction.

(e) For the purpose of paragraph (c), the FIU may consent to a service being provided or the transaction to proceed in whole or in part.

(f) Paragraph (c) shall not apply to inward transfers in a bank account or to any service or transaction that will increase the value of the property.

(2) —

(a) A report under this section shall—

(i) be in writing and may be given by way of telephone to be followed up in writing, mail, fax or electronic mail or such other manner as may be prescribed;

(ii) be in such form and contain such details as may be prescribed;

(iii) contain a statement of the grounds on which the reporting entity has the knowledge, holds the suspicion or receives the information; and

(iv) be signed or otherwise authenticated by the reporting entity.

(b) A person shall not commit an offence under this section or under section 3 of this Act if the person complies with the directions of the FIU or order of the Court where—

(i) a suspicious transaction report is made in relation to property, or

(ii) the person is informed by the FIU in writing or verbally and confirmed in writing within 24 hours, that property in his or her possession or control is suspected to be the benefit from criminal conduct.

(3) A reporting entity that has made a suspicious transaction report shall give the FIU or the law enforcement agency that is carrying out an investigation arising from, or relating to, the information contained in the report, any further information that it has about the transaction or about the parties to the transaction if requested to do so by the FIU or the law enforcement agency.

(4) The Director, the Deputy Director or an assets agent of the FIU duly authorised by the Director or the Deputy Director may, by notice in writing, direct a reporting entity not to carry out any specified service or transaction during the period specified in the direction, not exceeding 180 days, if—

(a) a suspicious transaction report has been made to the FIU in relation to the service or transaction within the preceding 30 days; or

(b) the FIU has obtained or received information, whether or not in a suspicious transaction report, in relation to the service or transaction; and

(c) such a direction is reasonably necessary to enable the FIU to investigate whether or not there are reasonable grounds to suspect that the property represents the proceeds of or benefit from criminal conduct including an offence of money laundering and financing of terrorism.

(5) A reporting entity in receipt of a direction shall not without the consent of the FIU or by order of a Court under this section carry out any service or transaction specified in the direction.

(6) The FIU shall, as soon as practicable after giving a direction under subsection (4), take all reasonable steps to notify in writing any person whom the FIU is aware is affected by the direction except where—

(a) it is not reasonably practicable to ascertain the whereabouts of the person; or

(b) there are reasonable grounds for believing that notice to the person will prejudice—

(i) the investigation in respect of which the direction or order is given;

(ii) any other investigation by a law enforcement agency in any jurisdiction;

(iii) a restraint order, pecuniary penalty order or forfeiture order made or to be made under this Act; or

(iv) an order made or to be made under the Proceeds of Crime (Civil Confiscation) Act, 2008.

(7) —

(a) A Court may, on an ex-parte application, extend a direction issued under subsection (4) on such terms and conditions where the Court is satisfied on oath that—

(i) there are reasonable grounds to suspect that the property represents the proceeds of criminal conduct including an offence of money laundering or of financing of terrorism, or may be related to money or property that is or represents the benefit from criminal conduct;

(ii) there are reasonable grounds to suspect that service or transaction will constitute or assist in the commission of criminal conduct including an offence of money laundering or of financing of terrorism;

(iii) an investigation by the FIU or by another law enforcement agency is taking place.

(b) The direction issued under subsection (4) may be further extended for periods not exceeding 180 days.

(8) —

(a) The FIU may, to expedite its investigations while a direction is in force require from a person reasonably appearing to have relevant knowledge, information, documents or materials in his or her possession or control to furnish such information, materials or documents in the manner and within the required time.

(b) Any information, materials or documents furnished by a person pursuant to paragraph (a) shall not be used as evidence in any criminal prosecution of that person except for the prosecution of the offence under subsection (11)(d).

(c) In this subsection "person" means—

(i) in the case of a bank account, the beneficial owner of the account, any person having signing authority on the account and any servant or agent of any other person reasonably appearing to the FIU to have the relevant knowledge, including any shareholders, or directors, secretary or other officers of a corporate body and any trustee or beneficiary of a trust;

(ii) in the case of property other than a bank account, the registered owner of the property or any servant or agent of the registered owner;

(9) —

(a) Any person who is aggrieved by a direction given under subsection (4) may apply to Court for revocation.

(b) An application under paragraph (a) shall be heard inter-partes.

(c) A Court may revoke the direction under subsection (4) in whole or in part if the Court is satisfied that the—

(i) applicant has established a legitimate source of the funds or property as the case may be;

(ii) revocation will not prejudice the investigation in respect of the direction given or a restraint order, pecuniary penalty order or forfeiture order or order made or to be made under this Act or under the Proceeds of Crime (Civil Confiscation) Act, 2008, as applicable.

(d) A Court shall not revoke a direction issued under subsection (4) if the applicant failed to furnish the information requested by the FIU under subsection (8)(a).

(10) The FIU shall not be obliged to furnish any details of any information held in its possession or the grounds of any suspicion if the FIU reasonably believes that the disclosure will prejudice—

(a) the investigation in respect of which the direction is given;

(b) any other investigation by a law enforcement agency in any jurisdiction;

(c) a restraint order, pecuniary penalty order or forfeiture order made or to be made under this Act; or

(d) an order made or to be made under the Proceeds of Crime (Civil Confiscation) Act, 2008.

(11) Any person who—

(a) fails or refuses to comply with a request by the FIU under subsection (8)(a);

(b) knowingly, directly or indirectly furnishes false or misleading information, documents or material to a reporting entity relating to a service, transaction or property;

(c) fails to comply with a direction or order under this section;

(d) directly or indirectly furnishes false or misleading information, documents or materials to the FIU or to the Court in support of an application under subsection (9),

commits an offence and is liable on conviction to a fine not exceeding SCR3,000,000 or a term of imprisonment not exceeding five years or to both such fine and term of imprisonment.

(12) In this section "transaction" means a transaction or a proposed transaction.

[S 10 rep and subs by s 2(f) of Act 24 of 2011 w.e.f. 27 December 2011.]

11. Supervisory authority or auditor to report suspicious transaction.

Where a supervisory authority or an auditor of a reporting entity has reasonable grounds to suspect that information that it has concerning any transaction or attempted transaction may be—

(a) related to the commission of criminal conduct;

[S 11(a) am by s 9(c)(i) of Act 18 of 2008 w.e.f. 25 August 2008.]

(b) of assistance in the enforcement of this Act;

(c) relevant to an act preparatory to criminal conduct, the supervisory authority or the auditor of the reporting entity shall report the transaction or attempted transaction to the FIU.

[S 11(c) am by s 9(c)(ii) of Act 18 of 2008 w.e.f. 25 August 2008.]

12. Disclosure of information.

(1) A person (and without prejudice to the generality of the foregoing a reporting entity, its officers, employees or agents) who, knowing or suspecting that—

(a) a suspicious transaction report or a direction of the FIU under section 10(4) has been or may be made or that further information has been given under section 10;

[S 12(1)(a) am by s 2(g) of Act 24 of 2011 w.e.f. 27 December 2011.]

(b) a reporting entity has formed a suspicion in relation to a transaction for the purpose of section 10;

(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that a suspicion has been formed or that a suspicious transaction report has been or may be made;

(d) a search warrant is to be issued or has been issued;

(e) an application is to be made, or has been made, under this Act for a production order; or

(f) an investigation has commenced concerning the circumstances that give rise to the suspicious transaction report, the warrant or the production order, makes any disclosure which could or may or be likely to prejudice the implementation of the warrant, the making available of the material in accordance with the production order, or the investigation, commits an offence.

[S 12(1) rep and subs by s 9(d) of Act 18 of 2008 w.e.f. 25 August 2008.]

(1A) In proceedings against a person for an offence under this section it shall be a defence to prove that the person had lawful authority or reasonable excuse for making the disclosure.

[S 12(1A) ins by s 9(d) of Act 18 of 2008 w.e.f. 25 August 2008.]

(2) Subsection (1) shall not apply to disclosures made to—

(a) an officer or employee or agent of the reporting entity for any purpose connected with the performance of that person's duties;

(b) a legal practitioner, attorney or legal advisor for the purpose of obtaining legal advice or representation in relation to the matter;

(c) the supervisory authority of the reporting entity for the purpose of carrying out the supervisory authority's functions.

(3) No person referred to in subsection (2)(b) to whom disclosure of any information to which that subsection applies has been made shall disclose that information except to another person of the kind referred to in that subsection, for the purpose of—

(a) the performance of the first-mentioned person's duties; or

(b) obtaining legal advice or representation in relation to the matter.

(4) No person referred to in subsection (2)(c) to whom disclosure of any information to which that subsection applies has been made shall disclose that information except to a person referred to in that subsection for the purpose of giving legal advice or making representations in relation to the matter.

(5) Subject to this Act, nothing in any of subsections (1) to (4) shall prevent a court, on the application of the Attorney-General and on proof to the satisfaction of the court that the information is required for the purpose of any inquiry or trial into or relating to an offence from ordering a person to disclose any information to which subsection (1) applies and such person shall comply with the order.

13. Protection of identity of persons and information.

(1) A person shall not disclose any information that will identify or is likely to identify—

(a) any person who has handled a transaction in respect of which a suspicious transaction report has been made;

(b) any person who has prepared a suspicious transaction report;

(c) any person who has made a suspicious transaction report; or

(d) any information contained in a suspicious transaction report or information provided pursuant to section 10,

except for the following purposes—

(i) the investigation or prosecution of a person or persons for an offence under this Act or any other law; or

(ii) the enforcement of this Act.

(2) Nothing in this section prohibits the disclosure of any information for the purpose of the prosecution of any offence against any of the provisions of section 12.

14. Protection of person reporting suspicious transaction.

(1) No civil, criminal or disciplinary proceedings shall be taken against—

(a) a reporting entity, an auditor or supervisory authority of a reporting entity; or

(b) an officer, employee or agent of a reporting entity or an auditor or supervisory authority of a reporting entity acting in the course of that person's employment or agency,

in relation to any action by the reporting entity, the auditor or the supervisory authority or their officer, employee or agent taken under sections 9, 10 or 11 in good faith or in compliance with directions given by the FIU pursuant to section 24* of this Act.

[*The cross-reference to section 24 appears to be a typographical error.]

(2) Subsection (1) shall not apply in respect of proceedings for an offence against section 12.

15. Other duties of reporting entities.

(1) A reporting entity shall—

(a) appoint a compliance and reporting officer who shall be responsible for ensuring the reporting entity's compliance with the provisions of this Act;

(b) the compliance and reporting officer appointed pursuant to this section shall—

(i) be a senior officer with the necessary qualifications and experience and able to respond adequately to enquiries relating to the reporting entity and the conduct of its business;

(ii) be responsible for establishing and maintaining such a manual of compliance procedures in relation to its business as the supervising authority or the FIU may from time to time require;

(iii) be responsible for ensuring that the staff of the reporting entity comply with the provisions of this Act and any other law relating to money laundering or financing of terrorism and the provisions of any manual of compliance procedures established pursuant to this section; and

(iv) act as the liaison officer between the reporting entity and the supervising authority and the FIU in matters relating to compliance with the provisions of this Act and any other law with respect to money laundering or financing of terrorism+;

(c) establish and maintain procedures and systems to—

(i) implement the customer identification requirements under section 4;

(ii) implement record keeping and retention requirements under sections 6 and 7;

(iii) implement the reporting requirements under section 10;

(iv) make its officers and employees aware of the laws relating to money laundering and financing of terrorism;

(v) make its officers and employees aware of the procedures, policies and audit systems adopted by it to deter money laundering and financing of terrorism;

(vi) screen persons before recruiting them as employees; and

(d) train its officers, employees and agents to recognise suspicious transactions, trends in money laundering and financing of terrorism activities and money laundering and financing of terrorism risks within the reporting entity's products, services and operations;

(e) establish an audit function to test its anti-money laundering and financing of terrorism procedures and systems.

(2) Subsection (1) does not apply to an individual who, in the course of carrying on his or her business, does not employ or act in association with any other person.

PART 3

FINANCIAL INTELLIGENCE UNIT

[Part 3 rep and subs by s 6 of Act 18 of 2008 w.e.f. 25 August 2008.]

16. Establishment of the FIU.

(1) A financial intelligence and assets recovery unit to be known as the FIU is hereby established.

(2) The FIU shall be a body corporate with perpetual succession, a common seal, power to sue and be sued in its corporate name, to acquire, hold and dispose of land or an interest in land and to acquire, hold and dispose of any other property.

(3) Subject to the provisions of this Act, the objectives of the FIU shall be—

(a) the monitoring, training and enforcing compliance by reporting entities with the obligations imposed on them by Part 2 of the Act and to exercise the powers and duties set out the Schedule to this Part;

(b) the identification of the assets, wherever situated, of persons which derive or are suspected to derive, directly or indirectly, from criminal conduct as defined in section 2;

(c) the taking of appropriate action under the law to deprive or to deny those persons of the assets or the benefit of such assets, in whole or in part, as may be appropriate, including but not limited to all appropriate actions prior to, during and after court proceedings in relation to the making or the enforcement of a restraint order, a forfeiture order or a pecuniary penalty order within the meaning of Part 4 or Part 5 or the making or enforcement of a court order under the Proceeds of Crime (Civil Confiscation) Act, 2008;

(d) the pursuit of any investigation or the doing of any other preparatory work in relation to any proceedings or other action arising from the objectives mentioned in paragraphs (a), (b) and (c);

(e) the investigation of any criminal conduct; and

(f) the taking of any other action to deprive persons of the benefit of their criminal conduct and to secure that such benefit and any abandoned goods or property be ascertained and transferred to the Republic.

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