Case Details
- Title: STEEP RISE LIMITED v ATTORNEY-GENERAL
- Citation: [2020] SGCA 20
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 24 March 2020
- Case Type: Civil Appeal (appeal from High Court decision on an application under MACMA)
- Civil Appeal No: 30 of 2019
- Originating Summons No: 898 of 2017
- Summons No (High Court): 4614 of 2018
- Parties: Steep Rise Limited (Appellant/Respondent in CA); Attorney-General (Respondent/Applicant in CA)
- Judges: Tay Yong Kwang JA, Steven Chong JA and Woo Bih Li J
- Legal Area(s): Criminal procedure and sentencing; mutual legal assistance; enforcement of foreign confiscation orders
- Statutes Referenced: Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) (“MACMA”)
- Key MACMA Provisions: Section 29; paragraph 7(1) of the Third Schedule
- Procedural Reference: Order 89B Rule 11 of the Rules of Court (Cap 322, R5, 2014 Rev Ed)
- Bank/Account: Bank of Singapore Limited, 63 Market Street, #22-00 Bank of Singapore Centre, Singapore 048942 (“BOS”); BOS Account in the name of Steep Rise Limited
- Beneficial Owner/Director: Fabrice Touil (sole director; beneficial owner)
- Underlying Foreign Matter: French VAT fraud and money-laundering investigations; potential confiscation in France
- High Court Decision: Application to discharge restraint order dismissed; no order as to costs
- Court of Appeal Disposition: Appeal dismissed; costs of appeal fixed at $40,000 (inclusive of disbursements) to the AG
- Judgment Length: 23 pages; 6,309 words
- Cases Cited (as provided): [2020] SGCA 20 (self-citation in metadata); Re Section 22 of the Mutual Assistance in Criminal Matters Act [2009] 1 SLR(R) 283
Summary
Steep Rise Limited v Attorney-General [2020] SGCA 20 concerned Singapore’s mutual assistance framework for enforcing foreign confiscation outcomes. The Attorney-General (“AG”) obtained an ex parte restraint order under s 29 of the Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) (“MACMA”) restraining dealings with funds in a Singapore bank account held by Steep Rise Limited. The restraint was sought to preserve assets that might be the subject of a confiscation order in pending French criminal proceedings relating to VAT fraud and money-laundering.
The company later applied to discharge the restraint order. Its primary argument was that the AG breached the duty of full and frank disclosure applicable to ex parte MACMA applications. It also argued that the restraint order was defective and ultra vires, and that the AG failed to show a risk of dissipation because the funds were already seized under Singapore’s Criminal Procedure Code (“CPC”). The High Court dismissed the application, and the Court of Appeal upheld that decision.
The Court of Appeal affirmed that, once the statutory requirements for a restraint order under MACMA are satisfied, the court is required to grant the order; it is not a discretionary exercise dependent on demonstrating a risk of dissipation. On disclosure, the Court of Appeal accepted that the duty of full and frank disclosure is real and important in ex parte proceedings, but it concluded that the appellant had not established material non-disclosure that would justify setting aside the restraint order.
What Were the Facts of This Case?
Steep Rise Limited is a company incorporated in the British Virgin Islands. It was beneficially owned by Fabrice Touil, who was also the company’s sole director. The case arose from French investigations into VAT fraud and money-laundering connected to the French carbon emission allowance market. The French authorities identified a scheme involving a company called B Concept, which allegedly purchased tax-free carbon emission allowances and then sold them to French companies with VAT included. The VAT collected from buyers was not remitted to the French Treasury; instead, it was retained by B Concept and laundered through various offshore entities and bank accounts.
As part of the laundering process, funds were transferred into bank accounts owned beneficially by Mr Touil, his siblings, and other related persons. The French authorities estimated that the scheme caused the French government approximately €68.5 million in lost tax revenue. During the investigations, the French Ministry of Justice sent an International Request for Legal Assistance in Criminal Matters to Singapore on 17 September 2014 (“the First Request”). The First Request sought, principally, banking documents relating to an account in Singapore owned by Axcel Inc, and it also requested freezing of that account.
Using information obtained pursuant to the First Request, the French authorities discovered that funds in the Axcel Inc account had been transferred into a Singapore bank account held by Steep Rise Limited (the “BOS Account”). Accordingly, on 28 October 2015, the French Ministry of Justice sent a second International Request (“the Second Request”). The Second Request again sought banking documents relating to the BOS Account and requested freezing of the BOS Account.
On 8 August 2017, the AG filed an ex parte Originating Summons (OS 898 of 2017) seeking a restraint order under s 29 of MACMA. The restraint order was directed at preventing dealings with funds in the BOS Account. The affidavit supporting OS 898 stated that the statutory requirements for a restraint order were satisfied, including that judicial proceedings within the meaning of MACMA would be instituted in France and that there were reasonable grounds for believing a confiscation order may be made in those proceedings over the funds in the BOS Account. The affidavit relied on two key documents: a certificate issued by the Tribunal de Grande Instance de Paris dated 22 June 2017 (the “1st Certificate”) and an email dated 26 July 2017 confirming that judicial proceedings would commence in August 2017.
Notably, the affidavit did not expressly mention the First and Second Requests. On 22 August 2017, the High Court granted the Restraint Order. Subsequently, on 31 August 2017, French criminal proceedings were commenced against Mr Touil in the High Court of Paris, and a second certificate confirming that fact was issued. The AG adduced this second certificate in OS 898 by way of a supplementary affidavit on 11 December 2017.
After the Restraint Order, the appellant sought to vary it. On 18 July 2018, it applied to allow withdrawal of a sum from the BOS Account to pay for legal advice and representation. In support, Mr Touil exhibited letters from the Singapore police showing that the BOS Account had already been seized under s 35 of the CPC (the “CPC seizure order”). The seizure had occurred one year before the AG’s application for the Restraint Order. A report on the seizure was made to the Magistrate in the State Courts on 22 August 2017, the same day the High Court heard and granted OS 898.
On 3 October 2018, the appellant applied to discharge the Restraint Order. It argued that the AG had breached the duty of full and frank disclosure by failing to disclose (i) that the French authorities’ stated purpose for seeking the restraint was to “guarantee the effectiveness of a fine” rather than to support a confiscation order, and (ii) that any payment received in connection with the VAT fraud and money-laundering offences was approximately €3 million at most. The appellant further argued that the restraint order was defective and ultra vires because it was allegedly aimed at securing a potential fine and restrained more than the alleged €3 million, given that the BOS Account contained more than US$8.8 million. Finally, it contended that the AG failed to show a risk of dissipation because the funds were already subject to the CPC seizure order at the time the restraint order was sought.
What Were the Key Legal Issues?
The Court of Appeal had to determine, first, the scope and content of the AG’s duty of full and frank disclosure in ex parte applications under MACMA. The appellant’s case focused on alleged omissions in the affidavit supporting OS 898: specifically, whether the AG’s failure to mention the First and Second Requests, and the French authorities’ “fine effectiveness” language, amounted to material non-disclosure. The appellant also argued that the AG failed to disclose the limited amount allegedly received in connection with the offences, which it said would have affected the proper scope of the restraint.
Second, the Court of Appeal had to consider whether MACMA requires the AG to demonstrate a risk of dissipation of assets for a restraint order to be granted. The appellant argued that because the BOS Account was already seized under the CPC, there was no risk that the funds would be dissipated, and therefore the restraint order should not have been made (or should be discharged).
Third, the Court of Appeal addressed whether the restraint order was defective or ultra vires on the basis that it was allegedly intended to secure a fine rather than a confiscation order, and whether the restraint exceeded the amount that could properly be the subject of foreign confiscation proceedings.
How Did the Court Analyse the Issues?
The Court of Appeal began by reaffirming the statutory architecture of MACMA. Section 29 empowers the court to restrain dealing with property in Singapore that may be the subject of a foreign confiscation order. The Third Schedule provides the conditions that must be satisfied for such relief. The Court’s analysis therefore turned on whether the statutory requirements were met on the evidence before the High Court when OS 898 was heard, and whether any alleged disclosure failures were sufficiently material to undermine the basis for granting the restraint order.
On the duty of full and frank disclosure, the Court of Appeal treated the duty as a serious obligation in ex parte proceedings. Ex parte applications necessarily proceed without the benefit of adversarial testing, and the court relies on the applicant’s candour to assess whether the statutory threshold is met. However, the Court also emphasised that not every omission will justify discharge. The question is whether the non-disclosure is material—meaning it would likely have affected the court’s decision to grant the order.
Applying that approach, the Court of Appeal considered the appellant’s criticisms of the AG’s affidavit. The appellant argued that the French authorities’ requests were framed as seeking to “guarantee the effectiveness of a fine” rather than to support confiscation. The Court examined the evidence relied upon in OS 898, including the certificates and the email confirming that judicial proceedings would be commenced. It also considered that the affidavit had deposed to reasonable grounds for believing that a confiscation order may be made in the French proceedings. In that context, the Court found no basis to conclude that the AG had misled the High Court about the nature of the foreign proceedings or the availability of confiscation relief under French law.
Similarly, the Court addressed the alleged failure to disclose that the payment received in connection with the offences was approximately €3 million at most. The Court’s reasoning focused on the scope of confiscation under French law as described in the evidence. The High Court had held that French law permitted confiscation in value of the payment received in connection with the fraud. On that basis, the Court of Appeal agreed that there was no material non-disclosure that would require discharge, because the entire BOS Account would still be susceptible to confiscation in the French proceedings even if the payment figure was limited as asserted by the appellant.
Turning to the risk of dissipation argument, the Court of Appeal relied on its earlier decision in Re Section 22 of the Mutual Assistance in Criminal Matters Act [2009] 1 SLR(R) 283. In Re Section 22, the court had clarified that the MACMA restraint regime is not structured as a discretionary equitable remedy dependent on showing risk. Instead, where the statutory requirements are satisfied, the court must make the order sought. The Court of Appeal in Steep Rise therefore held that there was no requirement under MACMA for the AG to demonstrate a risk of dissipation as an additional condition.
Although the appellant pointed to the CPC seizure order as evidence that dissipation was unlikely, the Court treated that as legally irrelevant to the MACMA threshold. The existence of a separate domestic seizure regime does not negate the statutory purpose of MACMA restraint, which is to preserve property in Singapore pending foreign confiscation proceedings. The Court’s approach reflects the cooperative nature of mutual legal assistance: Singapore’s role is to ensure that assets potentially subject to foreign confiscation are not dealt with in a way that would frustrate the foreign process.
Finally, on the alleged ultra vires defect, the Court of Appeal examined whether the restraint order was beyond the scope of MACMA because it was allegedly aimed at securing a fine rather than confiscation. The Court’s analysis again centred on the statutory language and the evidence supporting the reasonable grounds for confiscation. Given that the foreign proceedings were criminal proceedings in which confiscation could be made, and that the evidence before the High Court supported that conclusion, the Court found no defect in the High Court’s decision to grant the restraint order.
What Was the Outcome?
The Court of Appeal dismissed the appellant’s appeal and upheld the High Court’s decision to refuse discharge of the Restraint Order. The Court ordered Steep Rise Limited to pay costs of the appeal fixed at $40,000 (inclusive of disbursements) to the AG.
Practically, the decision meant that the restraint remained in place, continuing to prevent dealings with the funds in the BOS Account pending the foreign confiscation process. The appellant’s attempt to unwind the restraint on disclosure and risk-of-dissipation grounds failed.
Why Does This Case Matter?
Steep Rise Limited v Attorney-General is significant for practitioners because it clarifies two recurring issues in MACMA ex parte applications: the scope of the AG’s duty of full and frank disclosure and the extent to which risk of dissipation is relevant. While the duty of candour remains important, the Court of Appeal signalled that discharge will not follow from every alleged omission. Instead, the omission must be material in the sense that it would likely have affected the court’s decision to grant the restraint order.
On the second issue, the case reinforces that MACMA restraint is governed by statutory conditions rather than discretionary considerations. The Court’s reliance on Re Section 22 confirms that, once the statutory requirements are met, the court must grant the restraint order. This has practical implications for both the AG and respondents: respondents cannot expect discharge merely by pointing to domestic seizure measures or arguing that dissipation is unlikely, unless the statutory prerequisites for restraint are not satisfied.
For lawyers advising companies or beneficial owners facing MACMA restraint, the decision underscores the importance of challenging the statutory basis at the right level—namely, whether the foreign proceedings and the possibility of confiscation are properly evidenced, and whether any alleged non-disclosure is truly material. For the AG, the case serves as a reminder that ex parte affidavits must be carefully prepared and that omissions can be scrutinised, even if not every omission will justify discharge.
Legislation Referenced
- Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) — s 29
- Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) — Third Schedule, para 7(1)
- Rules of Court (Cap 322, R5, 2014 Rev Ed) — Order 89B Rule 11
- Criminal Procedure Code (Cap 68, 2012 Rev Ed) — s 35 (CPC seizure order) (referenced in the facts)
Cases Cited
- Re Section 22 of the Mutual Assistance in Criminal Matters Act [2009] 1 SLR(R) 283
- Steep Rise Limited v Attorney-General [2020] SGCA 20
Source Documents
This article analyses [2020] SGCA 20 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.