GETTING THROUGH THE DEAL Anti-Money Laundering Anti-Money Laundering Anti-Money Contributing editors Lamia R Matta and Ann Sultan 2017 2017 © Law Business Research 2017 Anti-Money Laundering 2017 Contributing editors Lamia R Matta and Ann Sultan Miller & Chevalier Chartered Publisher Law The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. 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Printed and distributed by First published 2012 Encompass Print Solutions Dan White Sixth edition Tel: 0844 2480 112 [email protected] ISSN 2050-747X © Law Business Research 2017 CONTENTS Global overview 5 Luxembourg 63 Lamia R Matta and Ann Sultan Laurent Lenert, Nathalie Steffen Miller & Chevalier Chartered Kayser, Lenert and Becker, Avocats à la Cour Argentina 7 Mexico 69 Pedro H Serrano Espelta and Francisco Abeal Juan Carlos Partida Poblador and Alejandro Montes Jacob Marval, O’Farrell & Mairal Rubio Villegas y Asociados, SC Brazil 13 Nigeria 74 Rafael Mendes Loureiro, Marcela Grezes, Luís Carlos Torres and Babajide O Ogundipe and Chukwuma Ezediaro Andrea Vainer Sofunde, Osakwe, Ogundipe & Belgore Hogan Lovells and Torres Falavigna Advogados Peru 78 Cayman Islands 18 Doris Alvaro Rob Jackson and Sandra Edun-Watler Barrios & Fuentes/Universidad Peruana de Ciencias Aplicadas Walkers Russia 82 France 22 Vasily Torkanovskiy Arut Kannan, Jean-Baptiste Poulle and Rudolf Efremov Ivanyan & Partners Spitz & Poulle AARPI Singapore 89 Germany 27 Eric Chan and Agnes Lim Simone Weber Shook Lin & Bok LLP Knierim & Krug Rechtsanwälte Switzerland 95 Greece 34 Flavio Romerio and Katrin Ivell Ilias G Anagnostopoulos and Jerina (Gerasimoula) Zapanti Homburger Anagnostopoulos Criminal Law & Litigation United Arab Emirates 101 India 39 Ibtissem Lassoued Aditya Bhat, Rhea Mathew and Pankhuri Govil Al Tamimi & Co AZB & Partners United Kingdom 106 Italy 49 Barry Vitou, Anne-Marie Ottaway, Michael Ruck and Elena Elia Roberto Pisano, Valeria Acca and Chiara Cimino Pinsent Masons LLP Studio Legale Pisano United States 113 Japan 58 Lamia R Matta and Ann Sultan Yoshihiro Kai Miller & Chevalier Chartered Anderson Mōri & Tomotsune 2 Getting the Deal Through – Anti-Money Laundering 2017 © Law Business Research 2017 SINGAPORE Shook Lin & Bok LLP Singapore Eric Chan and Agnes Lim Shook Lin & Bok LLP Domestic legislation 4 The offence of money laundering 1 Domestic law What constitutes money laundering? Identify your jurisdiction’s money laundering and anti-money The term ‘money laundering’ is not used as such within the CDSA. laundering (AML) laws and regulations. Describe the main Part VI of the CDSA criminalises the laundering of proceeds gener- elements of these laws. ated by criminal conduct and drug trafficking via the following offences: • The assistance of another person in retaining, controlling or using Singapore’s legal framework for combating money laundering is con- the benefits of drug dealing or criminal conduct under an arrange- tained in a patchwork of legal instruments, the main elements of ment (whether by concealment, removal from jurisdiction, transfer which are: to nominees or otherwise) (section 43(1)/44(1)). • The Corruption, Drug Trafficking and Other Serious Crimes • The concealment, conversion, transfer or removal from the juris- (Confiscation of Benefits) Act (CDSA). This statute criminalises diction, or the acquisition, possession or use of benefits of drug money laundering and imposes the requirement for persons to file dealing or criminal conduct (section 46(1)/47(1)). suspicious transaction reports (STRs) and make a disclosure when- • The concealment, conversion, transfer or removal from the juris- ever physical currency or goods exceeding S$20,000 are carried diction of another person’s benefits of drug dealing or criminal con- into or out of Singapore. duct (section 46(2)/47(2)). • The Organised Crime Act 2015 (OCA). This statute criminalises • The acquirement, possession or use of another person’s benefits of the commission by organised criminal groups of serious offences, drug dealing or criminal conduct (section 46(3)/47(3)). including money laundering, and deprives persons involved in such organised crime activity of any benefits derived from it. Mens rea • The Mutual Assistance in Criminal Matters Act (MACMA). This Strict liability is imposed for offences under sections 46(1) and 47(1) statute sets out the framework for mutual legal assistance in crimi- on the basis that the defendant is the author of the underlying predi- nal matters (see question 27). cate offence. • Legal instruments issued by regulatory agencies (such as the In relation to the other money laundering offences, a person will Monetary Authority of Singapore (MAS), in relation to financial be liable if he or she performed the act knowing or having reasonable institutions (FIs)) imposing requirements to conduct customer due grounds to believe in the existence of the relevant facts or that the prop- diligence (CDD). erty represents another person’s proceeds of crime. The meaning of the phrases ‘reasonable grounds to believe’ and Money laundering ‘reason to believe’ has been considered by the Singapore courts. In Ang 2 Criminal enforcement Jeanette v PP [2011] 4 SLR 1, the High Court, in considering an offence under section 44(1)(a) CDSA, agreed with an earlier High Court deci- Which government entities enforce your jurisdiction’s money sion in Ow Yew Beng v PP [2003] 1 SLR(R) 536 that having ‘reason to laundering laws? believe’ involved a ‘lesser degree of conviction than certainty but a The Commercial Affairs Department (CAD) is a department within the higher one than speculation’. Singapore Police Force (SPF) that has the principal responsibility for Accordingly, the test to determine whether a person had ‘reason to investigating and taking enforcement action in respect of money laun- believe’ is part objective and part subjective. In applying the test, the dering and other white-collar crimes. court assumes the position of the individual involved (ie, including his The CAD enforces the AML regime through detection of money or her knowledge and experience), but must reason (ie, infer from the laundering activities, the investigation and prosecution of money facts known to such individual) from that position like an objective, rea- laundering offences and the seizure and confiscation of illegal pro- sonable person (Koh Hak Boon v PP [1993] 2 SLR(R) 733; PP v Wang Ziyi ceeds. Singapore’s Financial Intelligence Unit (FIU) is the Suspicious Able [2008] 2 SLR(R) 61). Transaction Reporting Office (STRO), which is a unit within the CAD. Where the defendant is a legal person, criminal liability for money The CAD works closely with other SPF units and law enforcement laundering may be established by proof that a director, employee or agencies, such as the Central Narcotics Bureau (CNB) and the Corrupt agent had committed, directed or consented to the act within the Practices Investigation Bureau (CPIB). Officers of both the CPIB and scope of his or her actual or apparent authority (section 52 CDSA). If CNB are authorised under the CDSA to investigate money launder- a legal person or corporate body is found guilty, and the offence had ing offences. been committed with the consent or connivance of, or is attributable to the neglect of, its key officer, both the officer and the legal person or 3 Defendants corporate body shall be guilty of that offence (section 59 CDSA). Legal persons subject to criminal liability for money laundering may face Can both natural and legal persons be prosecuted for money parallel criminal, civil and administrative proceedings and actions (see laundering? questions 8 and 20). Yes. 88 Getting the Deal Through – Anti-Money Laundering 2017 © Law Business Research 2017 Shook Lin & Bok LLP SINGAPORE 5 Qualifying assets and transactions 8 Resolutions and sanctions Is there any limitation on the types of assets or transactions What is the range of outcomes in criminal money laundering that can form the basis of a money laundering offence? cases? There are no limitations. Money laundering offences under the CDSA The outcome of a money laundering case depends on the specific are defined in relation to ‘property’, which is a term that includes money offence under which the prosecution has filed charges. Upon conviction and all other forms of property, whether moveable or immovable, and for a money laundering offence under Part VI of the CDSA, natural per- including things in action and other intangible or incorporeal prop- sons are liable to a maximum fine of S$500,000 and/or imprisonment erty, whether situated in Singapore or elsewhere (sections 2(1) and 3(5) for a term of up to 10 years, while legal persons are liable to a maximum CDSA). There is no value threshold imposed. fine of S$1 million. In addition to any criminal liability, a confiscation, restraint or 6 Predicate offences charging order may also be made by the court in respect of realisable Generally, what constitute predicate offences? property (see question 9). The term ‘realisable property’ includes any property held by the defendant, as well as any property gifted directly or Singapore has adopted a list approach when defining predicate offences. indirectly by the defendant to a person and that is caught by the CDSA Only offences that are listed in the First and Second Schedules of the (section 2 CDSA).