“Dirty money” from Drugs - Forfeiture of Property under the Dangerous Drugs (Forfeiture of Property) Act 1988
by Raqib B. Osman ~ 22 April 2024
Raqib B. Osman (Pupil)
Introduction
The usual criminal penalties for drug offences include imprisonment, fines, whipping, and the death penalty. Apart from that, drug offenders as well as their associates, cohabitants, companies and relatives are subject to forfeiture of property[1] proceedings in the criminal courts.
For drug offences, the forfeiture of property (FOP) proceedings are governed by the Dangerous Drugs (Forfeiture of Property) Act 1988 (“the FOP Act”). The aim of the FOP Act is to deprive people of property connected to drug offences.
Two main features of the FOP Act
There are three (two or three?) important features of the Act, namely:
- Section 4 - 6: Creates an offence of dealing with, using, holding, receiving or concealing “illegal property” and sets out the power to forfeit illegal property upon conviction.
- Section 8 - 11: Enables the Public Prosecutor to make an application to forfeit “illegal property”[2] against any “liable persons”.
- Section 32: Forfeiture of seized property where no claim in writing is made by any person.
“Illegal Property”
The first 2 features highlighted above make use of the term “illegal property”. Section 2 of the FOP Act defines “illegal property” as any property derived wholly or partly from “prohibited activity” – as well as any income, earnings or assets derived from illegal property. It also includes any property used to assist or facilitate prohibited activity
“Prohibited activity” includes, among others, the following offences:
- Section 6B Dangerous Drugs Act 1952 (“DDA 1952”): Planting or cultivating certain plants (poppy, cannabis, coca leaves).
- Section 39B DDA 1952: Trafficking in dangerous drugs.
- Section 3 FOP Act: Using certain property to promote, manage, establish, carry on, facilitate, or assist drug offences.[3]
- Section 4 FOP Act: Dealing with, using, holding, receiving or concealing “illegal property”.
(henceforth “Scheduled Offences”)
Thus, any property derived from trafficking, planting, or cultivating drugs is considered “illegal property”.
FOP Proceedings
There are three ways to forfeit property under the FOP Act.
- First, the prosecution may charge any person under s.3 or s.4 of the FOP Act if they are found to be knowingly holding illegal property. If found guilty of the offence, the person shall be punished with a minimum of 5 years imprisonment and a maximum of 20 years, term of imprisonment.
In addition, if a person is found guilty under s.3 or s.4 of the FOP Act, the Court may make an order to forfeit all property which is the subject matter of the offence. - Second, the prosecution may make an application under Part II of the FOP Act against:
- Any person convicted of a Scheduled Offence.
- Any relative and associate of a person convicted of a Scheduled Offence.
- Any subsequent holder of illegal property (except for purchasers in good faith with valuable consideration).
Relatives and associates are defined under Section 2 of the Act. They include, among others:
Relatives: Spouses, siblings, siblings of spouses, spouses of siblings, parents, grandparents, children, grandchildren, uncles, aunts, cousins.
Associates: Cohabitants or former cohabitants, partnerships of which a person is a partner (including other partners of said firm), companies of which a person is a director or >10% shareholder.
(This is not an exhaustive list and only highlights the common categories).
- If property is seized under s.25 of the FOP Act (i.e. property which is supsected to be the subject matter of an offence under the FOP Act, or illegal property) and no claim is made, then the property is forfeited under s.32 of the FOP Act.
FOP under s.32 takes place if property has been seized and no claim on the property has been made within 3 months of the date of seizure.
If a claim is made, the matter will be referred to the Sessions Court.
FOP Applications to the High Court under s.8
FOP Applications under s.8 of the FOP Act can only be done against liable persons and only in respect of illegal property. The Public Prosecutor may make this application supported with affidavits to the High Court, and must identify which property is sought to be forfeited.
If the High Court is satisfied that the application is made in accordance with s.8, the High Court will issue a notice to show cause, and calls call upon the person to attend the High Court within 30 days of the notice. The person must then show cause as to why the properties should not be forfeited.
The person may give evidence to show that:
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- that he is not a liable person;
- that all or any of the properties specified in the Public Prosecutor's application are not illegal properties; or
- that he is not the holder of all or any of such properties specified in the Public Prosecutor's application.[4]
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FOP under s.32 of the FOP Act
Under s.32 of the FOP Act, if property is seized on suspicion that it is illegal property or property which is the subject matter of an offence under the FOP Act, it will be forfeited within three months if there is no prosecution, no application under s.8, and no claim by any person.
The claim must be made in writing and must state that (i) the person is lawfully entitled to such property; and (ii) that it is not liable to forfeiture under the FOP Act.
If you wish to make a claim over property seized for suspicion of being connected with drugs, you may do so by a simple letter to the Public Prosecutor or the Deputy Public Prosecutor[5]. It is then incumbent on the Public Prosecutor to refer the matter to the Sessions Court.
If a person makes such claim under s.32, the burden of proof is on the claimant, not the prosecution, to prove that the property is (a) not the subject of the commission of any offence under the Dangerous Drugs (Forfeiture of Property) Act 1988 or the Dangerous Drugs Act 1952; and (b) are not illegal property. The claimant must also prove that he is lawfully entitled to the property. This must be proven on a balance of probabilities.[6]
In essence, the claimant can show that the properties were obtained from legitimate sources of income. This may include evidence of other sources of income, how they may be spent, and the time the property was obtained being concurrent with the legitimate source of income.
CONCLUSION
Even if you are not charged with drug trafficking, you may still be liable to forfeiture of property if it is found that the property is connected to proceeds of drug trafficking. If such property is seized, or if an application is made to the High Court, it is best to get legal advice and legal representation.