AN ACT to amend the Dangerous Drugs Act, 1991

WHEREAS it is enacted by section 13(1) of the

[Preamble]

Preamble Constitution that an Act of Parliament to which that section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 of the Constitution, and if any Act does so declare it shall have effect accordingly:

And whereas it is provided in subsection (2) of section 13, that an Act of Parliament to which that section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House:

And whereas it is necessary and expedient that this Act shall have effect even though inconsistent with sections 4 and 5 of the Constitution:

[ENACTMENT]

ENACTED by the Parliament of Trinidad and Tobago as follows:—

1. Short title

(1) This Act may be cited as the Dangerous Drugs (Amendment) Act, 1994.

(2) This Act has effect even though inconsistent with sections 4 and 5 of the Constitution.

2. Interpretation No.38 of 1991

In this Act "the Act"

means the Dangerous Drugs Act, 1991.

3. Section 5 amended

Section 5 of the Act is amended by inserting after subsection (9) the following subsection:

"(10) Upon the trial of a person who is charged with an offence under subsection (4), if the court is not satisfied that such person is guilty thereof but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of such latter offence.".

4. Part IIA Inserted

After Part II of the Act the following Part is inserted:

"PART IIA

OFFENCES RELATING TO PRECURSOR CHEMICALS

6A. Every Person who—

(a) Offence

manufactures or is in possession of a substance referred to in the Fourth Schedule; or transports such a substance or supplies it to another person,

[Fourth Schedule]

(b) knowing or having reasonable grounds to suspect that the substance is to be used in or for the unlawful production of a dangerous drug is guilty of an offence and is liable—

(i) upon summary conviction to a fine of fifty thousand dollars and to imprisonment for five years;

(ii) upon conviction on indictment to a fine of one hundred thousand dollars and to imprisonment for ten years.

6B. Order

The Minister may, by Order, add substances to the Fourth Schedule and may delete therefrom any substance, the inclusion or exclusion of which is by him deemed necessary in the public interest.

6C. Regulations

(1) The Minister may make regulations—

(a) for imposing requirements as to the documentation of transactions involving substances referred to in the Fourth Schedule;

(b) requiring the keeping of records and the furnishing of information with respect to such substances;

(c) for the inspection of records kept pursuant to the regulations;

(d) for the labelling of consignments of scheduled substances;

(e) for the transportation of such substances.

(2) Regulations made under subsection (1)(b) may require—

(a) the notification of the proposed exportation of substances specified in the Fourth Schedule to such countries as may be specified in the regulations; and

(b) the production, in such circumstances as may be so specified, of evidence that the required notification has been given.

(3) Regulations made under this section may make different provision in relation to the substances specified in the Fourth Schedule and in relation to different cases or circumstances.

(4) Any person who fails to comply with any requirement imposed by the regulations or, in purported compliance with any such requirement, furnishes information which he knows to be false in a material particular or recklessly furnishes information which is false in a material particular is guilty of an offence and is liable—

(a) on summary conviction to a fine of five thousand dollars and to imprisonment for two years;

(b) on conviction on indictment to a fine of ten thousand dollars and to imprisonment for not less than two years and not more than five years.

(5) No information obtained pursuant to the regulations shall be disclosed except for the purposes of criminal proceedings or of proceedings under the Dangerous Drugs Act, 1991 relating to the confiscation of the

[No.38 of 1991]

proceeds of drug trafficking.

6D. Interpretation

In this Part "Minister" means the Minister to whom responsibility for national security is assigned.".

5. Sections 35A, 35a, 35C and 35D inserted

After section 35 of the Act the following sections are inserted—

35A. "External confiscation and external forfeiture orders

(1) In this section—

Court"

means the Supreme Court of Judicature of Trinidad and Tobago;

designated country"

means a country designated by an Order made by the Minister;

external confiscation order" or "external forfeiture order"

, as the case may be, means an order for confiscation or an order for forfeiture made by a court of a designated country;

Minister"

means the Minister to whom responsibility for legal affairs is assigned.

(2) The Minister may, by Order, declare a country to be a designated country for the purposes of this Act.

(3) The Minister may by Order apply this section to an external confiscation order or an external forfeiture order made by a court of a designated country being an order of a description specified in the Order.

(4) Subject to subsection (5), the Court may, on an application by or on behalf of the government of a designated country register an external confiscation order or an external forfeiture order made there.

(5) The Court shall not register an external confiscation order or an external forfeiture order unless—

(a) the Court is satisfied that at the time of registration the order is in force in the designated country and is not subject to appeal in that country;

(b) the Court is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) the Court is of the opinion that enforcing the order in Trinidad and Tobago would not be contrary to the interests of justice.

(6) In subsection (5), "appeal" includes any proceedings by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution.

(7) The Court shall cancel the registration of an external confiscation order or an external forfeiture order if it appears to the court that the order has been satisfied whether by payment of the amount due under the order, by the person against whom the order is made serving imprisonment in default or otherwise.

(8) In relation to an external confiscation order or external forfeiture order registered under this section, Part VI shall have effect subject to such modifications as may be specified in an Order made by the Minister under this section as it has effect in relation to a confiscation order or a forfeiture order as the case may be.

(9) An Order made by the Minister under this section may include such provision—

(a) as to evidence or proof of any matter for the purpose of this section;

(b) as to the circumstances in which proceedings are to be treated for those purposes as instituted or concluded in a designated country, as the Minister considers expedient.

(10) An Order made by the Minister under this section varying or revoking a previous Order made by the Minister under this section may contain such incidental, consequential and transitional provisions as the Minister considers expedient.

(11) In any case where the Court is satisfied, on an application by or on behalf of the government of a designated country, that proceedings which might result in an external confiscation order or an external forfeiture order being made against a person have been instituted in the designated country and have not been

concluded, Part VI shall have effect in relation to those proceedings as they would have effect in relation to proceedings instituted in Trinidad and Tobago against that person for a drug trafficking offence which has not been concluded.

35B. Interest on sums to be paid under confiscation orders

(1) If any sum required to be paid by a person under a confiscation order is not paid when it is required to be paid that person shall be liable to pay interest on that sum for the period for which it remains unpaid and the amount of the interest shall for the purposes of enforcement be treated as part of the amount to be recovered from him under the confiscation order.

(2) Where a person fails to pay interest owing under subsection (1) the High Court may, on the application of the Director of Public Prosecutions, and in accordance with section 35, increase the term of imprisonment fixed in respect of the default in payment of the amount to be recovered under a confiscation order.

35C. Increase in realisable property

(1) Where, under section 33(3) the amount which a person is ordered to pay by a confiscation order is the amount assessed to be the value of his proceeds of drug trafficking the Director of Public Prosecutions or a receiver appointed under this Act may make an application for a certificate under subsection (2).

(2) Where, on an application made in accordance with subsection (1), the High Court is satisfied that the amount that might be realised in the case of a person referred to in subsection (1) is

greater than the amount taken into account in making the confiscation order, whether it was greater than was thought when the order was made or has subsequently increased, the Court shall issue a certificate to that effect giving the Court's reasons.

(3) Where a certificate has been issued under subsection (2) the Director of Public Prosecutions may apply to the Court for an increase in the amount to be recovered under the confiscation order and on that application the Court may—

(a) substitute for that amount such amount, not exceeding the amount assessed as the value referred to in subsection (1), as appears to the Court to be appropriate having regard to the amount now shown to be realisable; and

(b) increase the term of imprisonment or detention fixed in respect of the confiscation order.

35D. Seizure and detention

(1) The senior customs officer on duty at the port, at the time or a police officer of the rank of sergeant or higher may seize and, in accordance with this section, detain any cash which is being imported into or exported from Trinidad and Tobago if its amount is not less than the prescribed sum if he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than ninety-six hours unless its continued detention is authorised

by an order made by a magistrate and no such order shall be made unless the magistrate is satisfied—

(a) that there are reasonable grounds for the suspicion mentioned in subsection (1); and

(b) that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution, whether in Trinidad and Tobago or elsewhere, of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order and a magistrate, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

(a) no period of detention specified in such an order shall exceed three months beginning with the date of the order; and

(b) the total period of detention shall not exceed two years from the date of the order under subsection (2).

(4) Any application for an order under subsection (2) or (3) shall be made by the Comptroller of Customs and Excise or a police officer or a magistrate.

(5) Any cash subject to continued detention under subsection (3) shall, immediately upon an order for such detention being made, be delivered into the care of the Comptroller of Accounts who shall forthwith deposit it into an interest bearing account.

(6) At any time while cash is detained under this section—

(a) a magistrate may direct its release if satisfied—

(i) on application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2); or

(ii) on an application made by any other person, that detention of the cash is not for that or any other reason justified; and

(b) the Comptroller of Accounts, may release the cash together with any interest that may have accrued, if satisfied that its detention is no longer justified but shall first notify the justice of the peace or magistrate under whose order it is being detained.

(7) If at a time when any cash is being detained under this section—

(a) an application for its forfeiture is made under this Act; or

(b) proceedings are instituted, whether in Trinidad and Tobago or elsewhere, against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

(8) In this section "the prescribed sum" means such sum in Trinidad and Tobago currency as may be prescribed for the purposes of this section by an Order made by the Minister to whom responsibility for National Security is assigned and in determining under this section whether an amount of currency other than Trinidad and Tobago currency is not less than the prescribed sum that amount shall be converted at the prevailing rate of exchange.

(9) An Order made under subsection (8) shall be subject to negative resolution of Parliament.".

6. Section 36 amended

Section 36 of the Act is amended by adding after subsection (4) the following subsection:

7. Section 38 amended

Section 38 of this Act is amended by inserting Section 38 amended after subsection (8) the following subsection:

(9) An application for the discharge or variation of a charging order may be made by any person affected by it.".

8. Section 48 amended

Section 46 of the Act is amended—

(a) by inserting after, the word "applicant" at the end of subsection (1) the words "if having regard to all the circumstances, it considers it appropriate to make such an order.";

(b)

(i) by adding at the end of subsection (2) (b) the word "or"; and

(ii) by adding after subsection (2)(b) the following paragraph:

" (c) that the proceedings would have been instituted or continued if the serious default had not occurred."

9. Section 47 repealed

Section 47 of the Act is repealed and the following section is substituted—

47. " Offences relating to the proceeds of drug trafficking

(1) A person is guilty of an offence if he—

(a) conceals or disguises any property which is, or which, in whole or in trafficking part directly or indirectly represents, his proceeds of drug ; or

(b) converts, transfers or disposes of that property or removes it from the jurisdiction,

for the purpose of avoiding prosecution for a drug trafficking offence or the making or enforcement in his case of a confiscation order or a forfeiture order.

(2) A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking, he—

(a) conceals or disguises that property; or

(b) converts, transfers or disposes of that property or removes it from the jurisdiction,

for the purpose of assisting any person to avoid prosecution for a drug trafficking offence or the making or enforcement of a confiscation order or a forfeiture order.

(3) A person is guilty of an offence who conceals, disposes, disguises, transfers, brings into Trinidad and Tobago or removes from Trinidad and Tobago any money or other property knowing or having reasonable grounds to suspect that the money or other property is derived, obtained or realised, directly or indirectly from drug trafficking.

(4) A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any money or other property is, or in whole or in part directly or indirectly represents another person's proceeds of drug trafficking, he receives, possesses or converts that money or other property.

(5) It is a defence to a charge of committing an offence under subsection (4) that the person charged acquired the property for adequate consideration.

(6) The provision for any person of services or goods which are of assistance to him in drug trafficking shall not be treated as consideration for the purposes of subsection (5).

(7) Where a person discloses to a police officer a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking, or discloses to a police officer any matter on which such a suspicion or belief is based the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by any enactment, regulation, rule of conduct or other provision.

(8) Where a person who has made a disclosure under subsection (7) does any act in relation to the property in contravention of subsection (3) or (4) he does not commit an offence under this section if—

(a) the disclosure is made before he does the act concerned and the act is done with the consent of the police officer; or

(b) the disclosure is made after he does the act, but on his initiative and as soon as it is reason-able for him to make it.

(9) For the purposes of subsection (7), having possession of any property shall be taken to be doing an act in relation to it.

(10) In proceedings against a person for an offence under this section, it is a defence to prove that—

(a) he intended to disclose to a police officer such a suspicion, belief or matter as is mentioned in subsection (7); and

(b) there is reasonable excuse for his failure to make the disclosure in accordance with subsection (7)(b).

(11) In the case of a person who was in employment at the relevant time, subsections (7) and (9) shall have effect in relation to disclosures and intended disclosures to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a police officer.

(12) No police officer or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any written law relating to drug trafficking or the proceeds of such trafficking, if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it.

(13) A person guilty of an offence under this section is liable—

(a) on summary conviction to a fine of fifty thousand dollars and to imprisonment for five years;

(b) on conviction on indictment to a fine of one hundred thousand dollars or the value of the proceeds of the drug trafficking whichever is greater and to imprisonment for ten years.".

10. Section 53 amended

Section 53 of the Act is amended by inserting after subsection (2) the following subsection:

(3) Where, upon application made by the Director of Public Prosecutions, the Court determines that property identified in the application constitutes the proceeds of drug trafficking and is satisfied that the property—

(a) forms part of or represents the estate of a deceased person; or

(b) has been abandoned, the Court may make an order for forfeiture of that property under this section.

(4) In making its determination—

(a) under subsection (3)(a) the Court shall consider any representations made by a personal representative, beneficiary, or other relevant party regarding the estate of the deceased person;

(b) under subsection (3)(b) the Court shall do so one month after notice of the application made by the Director of Public Prosecutions has been advertised in a daily newspaper".

11. Part VIIIA inserted

After Part VIII of the Act the following Part is inserted:

"PART VIIIA

OFFENCES ON THE HIGH SEAS

53A. Offences on Trinidad and Tobago ships

(1) In this Part—

ship" includes every description of vessel used in navigation;

Trinidad and Tobago ship" means a ship registered in Trinidad and Tobago.

(2) Anything which would constitute a drug trafficking offence if done on land in any part of Trinidad and Tobago shall constitute that offence if done on a Trinidad and Tobago ship.

53B. Ships used for illicit trading

(1) This section applies to a Trinidad and Tobago ship, a ship registered in any other state and a ship not registered in any country or territory.

(2) A person guilty of an offence if on a ship to which this section applies, wherever it may be, he—

(a) has a dangerous drug in his possession; or

(b) is in any way knowingly concerned in the carrying or concealing of a dangerous drug on the ship,

knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to section 5 of the Act or the law of any state other than Trinidad and Tobago.

(3) A certificate purporting to be issued by or on behalf of the government of any state to the effect that the importation or exportation of a dangerous drug is prohibited by the law of that state shall be evidence of the matters stated.

(4) A person guilty of an offence under this section is liable—

(a) upon summary conviction—

(i) to a fine of fifty thousand dollars or, where there is evidence of the street value of the dangerous drug, three times the street value of the dangerous drug, whichever is greater; and

(ii) to imprisonment for a term which shall not exceed ten years but which shall not be less than five years; or

(b) Upon conviction on indictment to imprisonment for life.

53C. Enforcement powers Fifth Schedule

(1) The powers conferred on an enforcement officer by the powers shall be exercisable in relation to any ship to which section Fifth 53A or 53B applies for the purpose of detecting and the taking of Schedule appropriate action in respect of the offences mentioned in those sections.

(2) The powers referred to in subsection (1) shall not be exercised outside the landward limits of the territorial sea of Trinidad and Tobago in relation to a ship registered in a Convention state except with the authority of the Minister to whom

responsibility for foreign affairs is assigned (hereinafter in this Part referred to as "the Minister"), and he shall not give his authority unless that state has in relation to that ship—

(a) requested the assistance of Trinidad and Tobago for the purpose mentioned in subsection (1); or

(b) authorised Trinidad and Tobago to act for that purpose.

(3) In giving his authority pursuant to a request or authorisation from a Convention state the Minister shall impose such conditions or limitations on the exercise of the powers as may be necessary to give effect to any conditions or limitations imposed by that state.

(4) The Minister may, either of his own motion or in response to a request from a Convention state, authorise a Convention state to exercise, in relation to a Trinidad and Tobago ship, powers corresponding to those conferred on enforcement officers by the Fifth Schedule but subject to such conditions or limitations, if any, as he may impose.

(5) Subsection (4) is without prejudice to any agreement made, or which may be made, on behalf of Trinidad and Tobago whereby Trinidad and Tobago undertakes not to object to the exercise by any other state in relation to a Trinidad and Tobago ship of powers corresponding to those conferred by the Fifth Schedule.

(6) The powers conferred by the Fifth Schedule shall not be exercised in the territorial sea of any state other than Trinidad and Tobago without the authority of the Minister and he shall not give his authority unless that state has consented to the exercise of those powers.

53D. Jurisdiction and prosecution

(1) Proceedings under this Part of this Act or the Fifth Schedule in respect of an offence on a ship may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in Trinidad and Tobago.

(2) No such proceedings shall be instituted in Trinidad and Tobago except by or with the consent of the Director of Public Prosecutions.

(3) Without prejudice to subsection (2) no proceedings for an offence under section 53B alleged to have been committed outside the landward limits of the territorial sea of Trinidad and Tobago on a ship registered in a Convention state shall be instituted except in pursuance of the exercise, with the authority of the Minister, of the powers conferred by the Fifth Schedule.".

12. Act amended

The Act is amended by inserting after section 56 the following section:

56A. "Amendments Sixth Schedule

The enactments specified in the Sixth first column of the Schedule are amended in the manner specified in the second column thereof.".

13. Act amended

The Act is amended by inserting after section 59 the following new sections:

59A. "Annual report

The Minister shall cause to be laid in both Houses of Parliament, annually, a report on the Administration of this Act. -

59B. Joint Parliamentary Commitee

(1) There shall be established for purposes of this Act, a Joint Parliamentary Committee of Parliament to be known as "The Joint Parliamentary Committee on Dangerous Drugs".

(2) The Joint Parliamentary Committee on Dangerous Drugs shall be responsible for monitoring the operations of this Act and the review of the report referred to in section 59A.".

14. Schedules inserted

The Act is amended by inserting after the Third Schedule the following Schedules:

(Section 6A)

(1) In this Schedule "an enforcement officer" means—

(a) a police officer;

(b) Chap. 78:01

an officer of the Coast Guard;

(c) an officer commissioned by the Comptroller of Customs and Excise under the Customs Act; and

(d) any other person of a description specified in an Order made for the purposes of this Schedule by the Minister to whom responsibility for national security is assigned.

(2) In this Schedule "the ship" means the ship in relation to which the powers conferred by this Schedule are exercised.

2. Power to stop, board, divert and detain

(1) An enforcement officer may stop the ship, board it and, if he thinks it necessary for the exercise of his functions, require it to be taken to a port in Trinidad and Tobago and detain it there.

(2) Where an enforcement officer is exercising his powers with the authority of the Minister given under section 53C(2) of this Act the officer may require the ship to be taken to a port in the Convention state in question or, if that state has so requested, in any other country or territory willing to receive it.

(3) For any of the purposes referred to in subclauses (1) and (2) an enforcement officer may require the master or any member of the crew to take such action as may be necessary.

(4) Where an enforcement officer detains a vessel he shall serve on the master a notice in writing stating that it is to be detained until the notice is withdrawn by the service on him of a Further notice in writing signed by an enforcement officer.

3. Power to search and obtain information

(1) An enforcement officer may search the ship, anyone on it and anything on it including its cargo.

(2) An enforcement officer may require any person on the ship to give information concerning himself or anything on the ship.

(3) Without prejudice to the generality of the powers referred to in subclauses (1) and (2) an enforcement officer may—

(a) open any containers;

(b) make tests and take samples of anything on the ship;

(c) require the production of documents, books or records relating to the ship or anything on it;

(d) make photographs or copies of anything whose production he has power to require.

4. Powers in respect of suspected offence

If an enforcement officer has reasonable grounds to suspect that an offence mentioned in section 53A or 53B of this Act has been committed on a ship to which that section applies he may—

(a) arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence; and

(b) seize and detain anything found on the ship which appears to him to be evidence of the offence.

5. Assistants

(1) An enforcement officer may take with him, to assist him in exercising his powers—

(a) any persons; and

(b) any equipment or materials.

(2) A person whom an enforcement officer takes with him to assist him may perform any of the officer's functions but only under the officer's supervision.

6. Use of reasonable force

An enforcement officer may use reasonable force, if necessary, in the performance of his functions.

7. Evidence of authority

An enforcement officer shall, if required, produce evidence of authority.

8. Protection of officers

9. Offences

(1) A person is guilty of an offence if he—

(a) intentionally obstructs an enforcement officer in the performance of any of his functions under this Schedule;

(b) fails without reasonable excuse to comply with a requirement made by an enforcement officer in the performance of those functions; or

(c) in purporting to give information required by an officer for the performance of those functions—

(i) makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular; or

(ii) intentionally fails to disclose any material particular.

(2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.

(Section 56A)

AMENDMENTS