TNAG-1430-FCO40-1913-Hong-Kong-Independent-Commission-Against-Corruption-(ICAC)-1985 — Page 52

E.R.

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18. It is obvious that drug traffickers may seek to protect their illegal gains by placing their assets in the hands of others. Accordingly, as in the case of interim restraint orders, it is proposed that any assets which have been transferred by the

defendant to third parties other than for full value should be taken into account in fixing the confiscatory fine, provided either that such assets are the proceeds of drug trafficking by the defendant, or that the transfer took place within a period of five years prior to the commencement of criminal proceedings.

Once a

19. Although the amount of the confiscatory fine will be based on

the proceeds of his trafficking, any of the offender's assets will be subject to immediate confiscation and disposal to secure payment of the fine in full. This means that if an offender has spent the proceeds of his drug trafficking activities or salted them away outside the jurisdiction, and retained in this country only legitimate assets, the courts will have power to deprive the

offender of those assets in order to satisfy the fine. confiscatory fine has been imposed, the prosecution will be able to apply to the High Court for the appointment of a receiver to realise any relevant assets to the extent necessary to secure payment of the confiscatory fine. Relevant assets include not only any assets belonging to the offender, but also assets transferred to third

parties in respect of which the High Court is satisfied that the conditions set out in paragraph 14 above are satisfied. The High

Court will have power, after hearing any representations from the offender and any interested third parties, to make orders requiring the offender and anyone else who has received such assets to transfer them or their value to the receiver, in whole or in part.

20. Although there is therefore no question of leaving payment of the confiscatory fine to the initiative of the offender, there may still

be cases where many of the offender's assets are beyond the reach of the courts. Unless there were some strong motivation he would be unlikely to make those funds available for payment of his fine. Accordingly it is proposed that the present maximum periods of

imprisonment in default of payment of a fine should be raised substantially in the case of a confiscatory fine imposed for drug