Case Summaries

Steep Rise Limited v Attorney-General [2020] SGCA 20


24 March 2020

Case summary

Steep Rise Limited v Attorney-General [2020] SGCA 20
Civil Appeal No 30 of 2019


Decision of the Court of Appeal (delivered by Judge of Appeal Tay Yong Kwang):

Outcome: CoA dismisses appeal against the High Court’s decision to uphold a restraint order under the Mutual Assistance in Criminal Matters Act (“MACMA”), prohibiting dealings with the funds in the appellant’s bank account.

Pertinent and significant points of the judgment

· The AG has a duty of full and frank disclosure when making ex parte applications to the court under MACMA.

· The precise scope of the AG’s duty is not the same as that which applies in ex parte applications in civil matters generally. In the context of MACMA, the duty is limited to requiring the AG to disclose all material facts relating to the application that are within the AG’s actual knowledge.

· Unlike in a Mareva injunction, in an application for a MACMA restraint order in support of a potential foreign confiscation order, the AG does not need to prove that there is a risk of dissipation of the relevant asset.

1 This was an appeal against the decision of the High Court Judge (“the Judge”) declining to discharge an order which restrained any dealings with the funds deposited in the appellant’s bank account with the Bank of Singapore (“the BOS Account”). The restraint order was made under the MACMA pursuant to a request received by the AG for mutual legal assistance in French criminal investigations.

Background facts

2 The appellant is a company incorporated in the British Virgin Islands and is beneficially owned by Mr Fabrice Touil, a French citizen.

3 Pursuant to investigations into Value Added Tax (“VAT”) fraud and money-laundering in France, the French authorities detected suspicious transfers of money into bank accounts located in Singapore. One of those bank accounts was the BOS Account owned by the appellant. The French authorities sent official letters of request to the AG in 2014 and 2015 for assistance in obtaining documentation on and freezing those accounts.

4 In August 2017, the AG filed an application to the High Court to restrain the appellant, Mr Touil and the Bank of Singapore from dealing with the funds in the BOS Account. The application was made under the MACMA, which empowers the court to restrain property in Singapore that may be the subject of confiscation orders in foreign criminal proceedings. The application was made ex parte (without notice to the appellant). The Judge allowed the application and granted the restraint order sought.

5 In July 2018, the appellant applied to the High Court to vary the restraint order to allow Mr Touil to withdraw funds from the BOS Account to pay for legal representation. Mr Touil deposed in his affidavit that the BOS Account had been seized by the Singapore police in the context of domestic criminal investigations since August 2016, one year before the restraint order was applied for.

6 Subsequently, the appellant applied to discharge the restraint order. The appellant argued that the AG did not give full and frank disclosure of material facts in obtaining the restraint order from the Judge, and that the legal requirements for obtaining the restraint order under the MACMA were not met. In particular, the appellant relied on two matters. First, it argued that the French authorities were seeking the restraint orders not to support a potential confiscation order but to secure potential fines meted out by the French court. Second, the appellant also argued that the BOS Account was already subject to the domestic seizure order at the time of the AG’s application and the funds were at no risk of being dissipated.

7 The Judge dismissed the application to discharge the restraint order, finding that there was no material non-disclosure by the AG. The Judge also held that a risk of dissipation need not be shown before a restraint order may be granted, on the basis that such a requirement was not stated in the MACMA.

The decision on appeal

8 The Court of Appeal dismissed the appellant’s arguments on appeal and upheld the Judge’s decision to continue the restraint order. In so doing, the Court of Appeal took the opportunity to clarify the principles on which applications in aid of foreign criminal proceedings may be made under the MACMA.

AG’s duty of full and frank disclosure in MACMA applications

9 The Court of Appeal held that there is a duty of full and frank disclosure on the part of the AG when he makes an ex parte application under the MACMA. However, the Court noted that the precise scope of the AG’s duty in a MACMA application should not be the same as that which applies in ex parte applications in civil matters generally: at [24].

10 In civil matters, the applicant must disclose not only material facts known to him but also such facts as he would have discovered after making reasonable inquiries. In a MACMA application, however, the AG is constrained by the information he receives from the foreign country requesting Singapore’s assistance. Where the information provided meets the requirements under MACMA, the AG has a duty to make the application to the court. Failure to do so could cause Singapore to be in breach of its international obligations to the requesting country: at [25] and [26].

11 The Court therefore limited the AG’s duty of full and frank disclosure in MACMA applications to a duty to disclose all material facts relating to the application that are within the AG’s actual knowledge. The AG does not have a positive duty to investigate further into the facts provided by the foreign authority if the information provided is otherwise sufficient to satisfy the MACMA requirements: at [27].

12 On the facts, the AG did not breach his duty of full and frank disclosure. The letters of request sent by the French authorities in 2014 and 2015 did reveal that the restraint order was sought for both a potential confiscation order and the securing of payment for a fine. However, by the time of the AG’s application, the French authorities had confirmed that the sole purpose for the order was to confiscate the proceeds of fraud and of money-laundering. The AG was therefore under no duty to inform the Judge that the initial requests suggested an additional purpose for seeking the restraint order: at [31], [32] and [33].

No requirement to show risk of dissipation in MACMA restraint orders

13 Turning to the issue of whether a risk of dissipation must be shown before a restraint order is granted, the Court of Appeal held that there was no basis for imposing this requirement. First, a risk of dissipation was nowhere stated as a requirement under the MACMA nor did it feature in the United Nations Convention against Transnational Organized Crime (2000), which was the impetus for Singapore’s enactment of the MACMA: at [37].

14 Second, a closer examination of the structure of the MACMA revealed that Parliament intended to leave any assessment of the need for or importance of the order to the AG alone. The fact that a restraint order is strictly unnecessary due to the absence of a risk of dissipation is not a ground on which the court can refuse to grant the order once the AG makes the application to the court: at [39] and [40].

15 The Court of Appeal declined to follow English authorities which had accepted that a risk of dissipation must be shown to obtain a restraint order in both domestic criminal cases and in requests for mutual legal assistance. It was more consonant with the legislative scheme of the MACMA in Singapore to hold that a risk of dissipation was not a requirement for obtaining a restraint order. Accordingly, there was no reason to discharge the MACMA restraint order for failure to demonstrate a risk of dissipation: at [41], [44] and [45].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.