Revised Laws of Saint Lucia (2021)

3.   Definition of certain terms

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   (1)   In this Act—

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      (a)     “a benefit” includes any property, service or advantage, whether direct or indirect;

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      (b)     “to benefit” has a corresponding meaning;

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      (c)     a reference to a benefit derived or obtained by, or otherwise accruing to, a person (“A”) includes a reference to a benefit derived or obtained by , or otherwise accruing to, another person at A's request of direction.

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   (2)   For the purposes of this Act, a person is to be taken to be convicted of a criminal conduct if— (Amended by Act 4 of 2010)

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      (a)     he or she is convicted, whether summarily or on indictment, of the offence;

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      (b)     he or she is charged with the offence and is found guilty but is discharged without conviction; or

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      (c)     a court with his or her consent takes the criminal conduct, of which he or she has not been found guilty, into account in sentencing him or her for another offence. (Amended by Act 4 of 2010)

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   (3)   In this Act, “realisable property” means, subject to subsection (4)—

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      (a)     any property held by a person who has been convicted of, or charged with, a criminal conduct; and (Amended by Act 4 of 2010)

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      (b)     any property held by a person to whom a person so convicted or charged has directly or indirectly made a gift caught by this Act.

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   (4)   Property is not realisable property if—

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      (a)     there is in force in respect of that property, a forfeiture order under this Act or under any other enactment;

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      (b)     a forfeiture order is proposed to be made against that property under this Act or any other enactment.

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   (5)   For the purposes of sections 19 and 20 the amount that might be realised at the time a confiscation order is made against a person is the total of the values at that time of all the realisable property held by the person, less the total amounts payable under an obligation, where there is an obligation having priority at that time, together with the total of the values at that time of all gifts caught by this Act.

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   (6)   For the purposes of subsection (5), an obligation has priority at any time if it is an obligation of the person to—

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      (a)     pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence where the fine was imposed or the order was made before the confiscation order;

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      (b)     pay an amount due in respect of any tax, rate, duty, cess or other impost payable under any enactment in force; or

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      (c)     pay any other civil obligation as may be determined by the Court.

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   (7)   Subject to subsections (8) and (9), for the purposes of this Act, the value of property (other than cash) in relation to a person holding the property—

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      (a)     where any other person holds an interest in the property, is—

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         (i)     the market value of the first-mentioned person's beneficial interest in the property, less,

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         (ii)     the amount required to discharge any encumbrance on that interest; and

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      (b)     in any other case, its market value.

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   (8)   References in this Act to the value at any time (“the material time”) of the transfer of any property are references to—

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      (a)     the value of the property to the recipient when he or she receives it adjusted to take account of subsequent changes in the value of money; or

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      (b)     where subsection (9) applies, the value there mentioned, whichever is the greater.

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   (9)   Where at the material time the recipient holds—

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      (a)     the property which he or she received (not being cash); or

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      (b)     property which, in whole or in part, directly or indirectly represents in his or her hands the property which he or she received, the value referred to in subsection (7)(b) is the value to him or her at the material time of the property mentioned in paragraph (a) or, as the case may be, of the property mentioned in paragraph (b), so far as it represents the property which he or she received.

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   (10)   Subject to subsection (14), a reference to the value at any time (“the material time”) of a gift is a reference to—

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      (a)     the value of the gift to the recipient when he or she received it adjusted to take account of subsequent changes in the value of money; or

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      (b)     the value there mentioned, where subsection (11) applies;

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   whichever is the greater.

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   (11)   Subject to subsection (14), where at the material time a person holds—

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      (a)     property which he or she received, not being cash; or

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      (b)     property which, in whole or in part, directly or indirectly represents in his or her hands the property which he or she received, the value referred to in subsection (10) is the value to him or her at the material time of the property mentioned in paragraph (a) or the value of the property mentioned in paragraph (b) so far as it so represents the property which he or she received.

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   (12)   A gift, including a gift made before the commencement of this Act, is caught by this Act where—

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      (a)     it was made by the person convicted or charged at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings relate; and the Court considers it appropriate in all the circumstances to take the gift into account;

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      (b)     it was made by the person convicted or charged at any time and was a gift or property—

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         (i)     received by the person in connection with the commission of a schedule offence committed by him or her or another, or

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         (ii)     which in whole or in part directly or indirectly represented in the person's hands property received by him or her in that connection.

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   (13)   The reference in subsection (12) to “an offence to which the proceedings relate” includes where the proceedings have resulted in the conviction of the person, a reference to any offence which the Court takes into consideration when determining sentence.

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   (14)   For the purposes of this Act—

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      (a)     the circumstances in which a person is to be treated as making a gift include those where the person transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the person; and

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      (b)     in those circumstances, the preceding provisions of this section shall apply as if the person had made a gift of such share in the property as bears to the whole property the same proposition as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the person.