TONGA

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 2000

No. 17 of 2000

I assent,

TUPOUTO'A,
17th November, 2000.

AN ACT

TO ENABLE THE WIDEST RANGE OF INTERNATIONAL COOPERATION TO BE GIVEN AND RECEIVED BY TONGA IN INVESTIGATIONS PROSECUTIONS AND RELATED PROCEEDINGS CONCERNING SERIOUS OFFENCES AGAINST THE LAWS OF TONGA OR OF FOREIGN STATES

[17th November, 2000]

BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:-

PART I - PRELIMINARY

Short title

1. This Act may be cited as the Mutual Assistance in Criminal Matters Act 2000.

Application

2. This Act shall Apply in relation to mutual assistance in criminal matters between Tonga and any foreign State.

Interpretation

3. (1) In this Act, unless the context otherwise requires:-

"appeal" includes proceedings by way of discharging or setting aside a judgment, and an application for a new trial or for a stay of execution;

"authorised officer" means a person or class of persons designated by the Attorney General as an authorised officer;

"data" means representations, in any form, of information;

"document" means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device;

"foreign confiscation order" means an order, made by a court in a foreign State, for the purposes of:

(a) confiscation or forfeiture of property in connection with; or

(b) recovery of the proceeds of;

a serious offence;

"foreign restraining order" means an order made in respect of a serious offence by a court in a foreign State for the purpose of restraining a particular person or all persons from dealing with property;

"foreign state" means:

(a) any country other than Tonga; and

(b) every constituent part of such country, including a territory, dependency or protectorate, which administers its own laws;

"interest," in relation to property, means:

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege in connection with the property, whether present or future and whether vested or contingent;

"place" includes:

(a) any land and any premises; and

(b) the whole or any part of a structure, building, aircraft, vehicle or vessel;

"proceedings" means any procedure conducted by or under the supervision of a judge, magistrate or judicial officer however described in relation to any alleged or proven offence or property derived from such offence and including an inquiry, investigation or preliminary and final determination of facts;

"property" means real or personal property of every description, whether situated in Tonga or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.

"proceeds of crime" means:

(a) property obtained directly or indirectly from a serious offence; or

(b) any of that property that is intermingled with any other property; or

(c) income, capital or other economic gains from that property.

"serious offence" means an offence against a provision of:

(a) any law of Tonga, for which the maximum penalty is imprisonment or other deprivation of liberty for a period of not less than 12 months or more severe penalty;

(b) a law of a foreign State, in relation to acts or omissions which, had they occurred in Tonga, would have constituted an offence for which the maximum penalty is imprisonment or other deprivation of liberty for a period of not less than 12 months, or more severe penalty, including an offence of a purely fiscal character.

(2) A reference in this Act to the law of:

(a) Tonga;

(b) any foreign State,

includes a written or unwritten law of, or in force in, any part of Tonga or the foreign State.

PART II - MUTUAL ASSISTANCE

Authority to make an act on mutual assistance requests

4. (1) The Attorney General may make requests on behalf of Tonga to a foreign State for mutual assistance in any investigation commenced or proceeding instituted in Tonga, relating to any serious offence.

(2) The Attorney General may, in respect of any request from a foreign State for mutual assistance in any investigation commenced or proceeding instituted in that State relating to a serious offence:

(a) grant the request, in whole or in part, on such terms and conditions as he thinks fit;

(b) refuse the request, in whole or in part, on the ground that to grant the request would be likely to prejudice the sovereignty, security of Tonga or would otherwise be against the public interest; or

(c) after consulting with the appropriate authority of the foreign State, postpone the request, in whole or in part on the ground that granting the request immediately would be likely to prejudice the conduct of an investigation or proceeding in Tonga.

(3) Requests on behalf of Tonga to foreign States for assistance shall be made only by or with the authority of the Attorney General.

Saving provision for other requests or assistance in criminal matters

5. Nothing in this Act limits:

(a) the power of the Attorney General, apart from this Act, to make requests to foreign States or act on requests from foreign States for assistance in investigations or proceedings in criminal matters;

(b) the nature or extent of assistance in investigations or proceedings in criminal matters which Tonga may lawfully give to or receive from foreign States.

Mutual legal assistance requests by Tonga

6. The requests which the Attorney General is authorised to make under section 4 are that the foreign State:

(a) have evidence taken, or documents or other articles produced in evidence in the foreign State;

(b) obtain and execute search warrants or other lawful instruments authorising a search for things believed to be located in that foreign State, which may be relevant to investigations or proceedings in Tonga;

(c) seize anything found during a search under paragraph (b);

(d) locate or restrain any property believed to be the proceeds of crime located in the foreign State;

(e) confiscate any property believed to be located in the foreign State, which is the subject of a confiscation order made under the Money Laundering and Proceeds of Crime Act, 2000;

(f) transmit to Tonga any such confiscated property or any proceeds realised therefrom, or any such evidence, documents, articles or things;

(g) transfer in custody to Tonga a person detained in the foreign State who consents to assist Tonga in the relevant investigation or proceedings;

(h) provide any other form of assistance in any investigation commenced or proceeding instituted in Tonga, that involves or is likely to involve the exercise of a coercive power over a person or property believed to be in the foreign State; and

(i) permit the presence of nominated persons during the execution of any request made under this Act.

Contents of requests for assistance

7. (1) A request for mutual assistance shall:

(a) give the name of the authority conducting the investigation or proceeding to which the request relates;

(b) give a description of the nature of the criminal matter and a statement setting-out a summary of the relevant facts and laws;

(c) give a description of the purpose of the request and of the nature of the assistance being sought;

(d) in the case of a request to restrain or confiscate assets believed on reasonable grounds to be located in the requested State, give details of the offence in question, particulars of any investigation or proceeding commenced in respect of the offence, and be accompanied by a copy of any relevant restraining or confiscation order;

(e) give details of any procedure that the requesting State wishes to be followed by the requested State in giving effect to the request, particularly in the case of a request to take evidence;

(f) include a statement setting-out any wishes of the requesting State concerning any confidentiality relating to the request and the reasons for those wishes;

(g) give details of the period within which the requesting State wishes the request to be complied with;

(h) where applicable, give details of the property to be traced, restrained, seized or confiscated, and of the grounds for believing that the property is believed to be in the requested State;

(i) include an agreement on the question of the payment of the damages or costs of fulfilling the request; and

(j) give any other information that may assist in giving effect to the request.

(2) A request for mutual assistance from a foreign State may be considered but shall not be granted by the Attorney General until the request complies with subsection (1).

Foreign requests for an evidence-gathering order or a search warrant

8. (1) Notwithstanding anything contained in any other law for the time being in force, where the Attorney General grants a request by a foreign State to obtain evidence in Tonga, an authorised officer may apply to the Supreme Court for:

(a) a search warrant; or

(b) an evidence-gathering order.

(2) The Supreme Court to which an application is made under subsection (1) shall issue an evidence-gathering order or a search warrant under this subsection, where it is satisfied that there are reasonable grounds to believe that:

(a) a serious offence has been or may have been committed against the law of the foreign State; and

(b) evidence relating to that offence may:

(i) be found in any place in Tonga; or

(ii) be able to be given by a person believed to be in Tonga;

Provided that, in the case of an application for a search warrant, it would not, in all the circumstances, be more appropriate to grant an evidence-gathering order.

(3) For the purposes of subsection (2)(a), a statement contained in the foreign request to the effect that a serious offence has been or may have been committed against the law of the foreign State is prima facie evidence of that fact without proof of the signature or official character of the person appearing to have signed the statement.

(4) An evidence-gathering order:

(a) shall provide for the manner in which the evidence is to be obtained in order to give proper effect to the foreign request, and in particular, may require any person named in the order to:

(i) make a record from data or make a copy of a record;

(ii) attend before a Judge of the Supreme Court to give evidence on oath or otherwise until excused;

(iii) produce to the Supreme Court or to any person designated by the Court, any thing, including any document, or copy of a document; or

(b) may include such terms and conditions as the Supreme Court considers desirable, including those relating to the interests of the person named therein or of third parties.

(5) A person named in an evidence-gathering order may refuse to answer a question or to produce a document or thing where the refusal is authorised by:

(a) a law of Tonga;

(b) a privilege recognised by a law in force in the foreign State that made the request; or

(c) a law currently in force in the foreign State that would render the answering of that question or the production of that document or thing by that person in its own jurisdiction an offence.

(6) Where a person refuses to answer a question or to produce a document or thing pursuant to subsection (5)(b) or (c), the Supreme Court shall adjourn the proceedings and report the matter to the Attorney General who shall notify the foreign State and request the foreign State to provide a written statement on whether the person's refusal was well-founded under the law of the foreign State.

(7) Any written statement received by the Attorney General from the foreign State in response to a request under subsection (6) is admissible in the evidence-gathering proceedings, and for the purposes of this section is conclusive of whether the person's refusal is well-founded under the foreign law.

(8) A search warrant shall be in the usual form in which a search warrant is issued in Tonga, varied to the extent necessary to suit the case.

(9) The Attorney General shall not order any document or thing seized to be sent to a foreign State until he is satisfied that the foreign State has agreed to comply with any terms or conditions imposed in respect of the sending abroad of the document or thing.

Foreign requests for consensual transfer of detained persons

9. (1) Where the Attorney General approves a request of a foreign State to have a person, who is detained in custody in Tonga by virtue of a sentence or order of a court, transferred to a foreign State to give evidence or assist in an investigation or proceeding in that State relating to a serious offence, an authorised officer may apply to the Supreme Court for a transfer order.

(2) The Supreme Court may make a transfer order under this subsection where it is satisfied, having considered any documents filed or information given in support of the application, and having heard the detained person, that the detained person consents to the transfer.

(3) A transfer order made under subsection (2):

(a) shall set out the name of the detained person and his current place of confinement;

(b) shall order the person who has custody of the detained person to deliver him into the custody of a person who is designated in the order or who is a member of the class of persons so designated;

(c) shall order the person receiving him into custody to take him to the foreign State and, on return of the detained person to Tonga, to return the detained person to a place of confinement in Tonga specified in the order;

(d) shall state the reasons for the transfer; and

(e) shall fix the time at or before the expiration of which the detained person must be returned, unless varied by the Attorney General.

(4) The time spent in custody by a person pursuant to a transfer order shall count toward any sentence required to be served by that person, so long as the person remains in such custody.

Persons in Tonga in response to a request

10. (1) The Attorney General may by written notice authorise:

(a) the temporary detention in Tonga of a person in detention in a foreign State who is to be transferred from that State to Tonga pursuant to a request under section 6(g), for such period as shall be specified in the notice; and

(b) the return of the person to the foreign State when his presence is no longer required in Tonga.

(2) A person in respect of whom a notice is issued under subsection (1) shall so long as the notice is in force:

(a) be permitted to enter and remain in Tonga for the purposes of the request, and be required to leave Tonga when no longer required for those purposes, notwithstanding any law to the contrary; and

(b) while in custody in Tonga for the purposes of the request, be deemed to be in lawful custody.

(3) The Attorney General may at any time vary a notice issued under subsection (1), and where the foreign State requests the release of the person from custody, either immediately or on a specified date, the Attorney General shall direct that the person be released from custody accordingly.

(4) Any person who escapes from lawful custody while in Tonga pursuant to a request under section 6(g) may be arrested without warrant by any authorised officer and returned to the custody authorised under subsection (1)(a).

(5) Where a foreign State has requested that a person be detained in Tonga in the course of transit between the foreign State and a third country and the Attorney General grants the request, the provisions of this section shall apply mutatis mutandis in relation to that person.

Safe conduct guarantee

11. (1) Where a person, whether or not a detained person, is in Tonga in response to a request by the Attorney General under this Act to assist in an investigation or proceedings, the person shall not, while in Tonga, be:

(a) detained, prosecuted or punished; or

(b) subjected to civil process,

in respect of any act or omission that occurred before the person's departure from the foreign State pursuant to the request.

(2) Subsection (1) ceases to apply to the person when the person leaves Tonga, or has had the opportunity to leave, but remains in Tonga for 14 days after the Attorney General has notified the person in writing of the effect of subsection (1) and that he is no longer required for the purposes of the request.

Foreign requests for Tongan restraining orders

12. (1) Where a foreign State requests the Attorney General to obtain the issue of a restraining order against property some or all of which is believed to be located in Tonga and 

(a) criminal proceedings have begun in the foreign State in respect of a serious offence;

(b) the person against whom the order is sought has been convicted; or 

(c) there are reasonable grounds to believe that the property is located in Tonga,

then the Attorney General may apply to the Supreme Court for a restraining order under subsection (2).

(2) Where the Attorney General makes application to the Supreme Court under subsection (1), the Court may make a restraining order in respect of the property, and the Money Laundering and Proceeds of Crime Act 2000 shall apply in relation to the application and to any restraining order made as a result, as if the serious offence the subject of the order had been committed in Tonga.

Requests for Enforcement of foreign confiscation or restraining orders

13. (1) Where a foreign State requests the Attorney General to make arrangements for the enforcement of:

(a) foreign restraining order; or

(b) a foreign confiscation order,

the Attorney General may apply to the Supreme Court for registration of the order.

(2) The Supreme Court shall, on application by the Attorney General, register a foreign restraining order if the Court is satisfied that at the time, of registration, the order is in force in the foreign State.

(3) The Supreme Court shall, on application by the Attorney General, register a foreign confiscation order if the Court is satisfied that:

(a) at the time of registration, the order is in force in the foreign State and is not subject to appeal; and

(b) where the person the subject of the order did not appear in the confiscation proceedings in the foreign State,

that:

(i) the person was given notice of the proceedings in sufficient time to enable him to defend them; or

(ii) the person had absconded or died before such notice could be given.

(4) For the purposes of subsections (2) and (3), a statement contained in the foreign request to the effect that:

(a) the foreign restraining order is in force in the foreign State;

(b) the foreign confiscation order is in force in the foreign State and is not subject to appeal and

where the person the subject of the foreign confiscation order did not appear in the proceedings in the foreign state, that he was given notice of the proceedings in sufficient time to enable him to defend them or the person had absconded or died before such notice could be given; is prima facie evidence of those facts, without proof of the signature or official character of the person appearing to have signed the foreign request.

(5) Where a foreign restraining order or foreign confiscation order is registered in accordance with this section, a copy of any amendments made to the order in the foreign State (whether before or after registration), may be registered in the same way as the order but shall not have effect for the purposes of the Money Laundering and Proceeds of Crime Act 2000 until they are so registered.

(6) The Supreme Court shall, on application by the Attorney General, cancel the registration of:

(a) a foreign restraining order, if it appears to the Court that the order has ceased to have effect;

(b) a foreign confiscation order, if it appears to the Court that the order has been satisfied or has ceased to have effect.

(7) Where a foreign restraining order against property is registered under this section, the Court may, upon application by a person claiming an interest in the property, order the Attorney General, give an undertaking with respect the payment of damages or costs in relation to the registration to operation of the order.

(8) Subject to subsection (9), where the foreign restraining order or foreign confiscation order comprises a facsimile copy of a duly authenticated foreign order, or amendment made to such an order, the facsimile shall be regarded for the purposes of this Act as the same as the duly authenticated foreign order.

(9) Registration effected by means of a facsimile message ceases to have effect at the end of the period of 21 days commencing on the date of registration, unless a duly authenticated original of the order has been registered by that time.

(10) Where a foreign restraining order or a foreign confiscation order has been registered pursuant to this section, the Money Laundering and Proceeds of Crime Act 2000 applies in relation to the order as if the serious offence the subject of the order had been committed in Tonga, and the order had been made pursuant to that Act.

Foreign requests for the location of proceeds of crime

14. Where a foreign State requests the Attorney General to assist in locating property believed to be the proceeds of a serious crime committed in that State, the Attorney-General may authorise the making of any application under section 71, 76 or 78 of the Money Laundering and Proceeds of Crime Act 2000, for the purpose of acquiring the information sought by the foreign State.

Sharing confiscated property with foreign States

15. The Attorney General may enter into an arrangement with the competent authority of a foreign State for the reciprocal sharing with that State of such part of any property realised:

(a) in the foreign State, as a result of action taken by the Attorney General pursuant to section 6(d); or

(b) in Tonga, as a result of action taken in Tonga pursuant to section 13(1),

as the Attorney General thinks fit.

PART III - MISCELLANEOUS

Privilege for foreign documents

16. (1) A Document sent to the Attorney General by a foreign State in accordance with a request is confidential and no person shall disclose to anyone the document, or its purport, or the contents of the document or any part thereof, before the document, in compliance with the conditions on which it was so sent, is made public or disclosed in the course of and for the purpose of any proceedings.

(2) No person in possession of a document referred to in subsection (1), or a copy thereof, or who has knowledge of any information contained in the document, shall be required, in connection with any, legal proceedings to produce the document or copy or to give evidence relating to any information that is contained therein.

(3) Except to the extent required under this Act to execute a request by a foreign State for mutual assistance in criminal matters, no person shall disclose:

(a) the fact that the request has been received; or

(b) the contents of the request.

(4) Any person who makes a disclosure under subsection (3) commits an offence and shall be liable on conviction, in the case of a natural person, to imprisonment for a period not exceeding 12 months or a fine not exceeding $10,000 or both, and where the offence is committed by a corporation, to a fine not exceeding $50,000.

Restriction on use of evidence and materials obtained by mutual assistance

17. No information, document, article or other thing obtained from a foreign State pursuant to a request made under this Act shall be used in any investigation or proceeding other than the investigation or proceeding disclosed in the request, unless the Attorney General consents after consulting with the foreign State.

Passed by the Legislative Assembly this 4th day of September, 2000.

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