HER MAJESTY'S ADVOCATE v. YAI KAIN CHEUNG [2013] ScotSC 88 (20 September 2013)

HER MAJESTY'S ADVOCATE v. YAI KAIN CHEUNG [2013] ScotSC 88 (20 September 2013)

The sheriff has no power to grant further time to pay a confiscation order beyond the statutory maximum of 12 months from the date of the order, and continuation of the enquiry for negotiation or payment is incompetent; the only available enforcement options are imprisonment or civil diligence.

Citation
[2013] ScotSC 88
Parties
Prosecutor: Her Majesty's Advocate; Accused: Yai Kain Cheung
Jurisdiction
Scotland
Judgment Date
20 September 2013
Procedural Posture
Criminal Enforcement of Confiscation Order / Enquiry Into Failure to Pay Confiscation Order; Sentencing for Default
Outcome
Imprisonment imposed for default on confiscation order.
Legal Topics
Confiscation Orders, Enforcement of Financial Penalties, Default Imprisonment, Time to Pay, Interest on Confiscation Orders
Criminal Law Proceeds of Crime Enforcement Confiscation Orders Enforcement of Financial Penalties Default Imprisonment Time to Pay Interest on Confiscation Orders

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Parties

Her Majesty's Advocate

Prosecutor

Yai Kain Cheung

Accused

Procedural Posture

Criminal Enforcement of Confiscation Order / Enquiry Into Failure to Pay Confiscation Order; Sentencing for Default

Legal Issues

  1. 1 Whether the sheriff has power to grant further time to pay a confiscation order beyond statutory limits
  2. 2 Whether continuation of the enquiry is competent under the Proceeds of Crime Act 2002 and Criminal Procedure (Scotland) Act 1995
  3. 3 What enforcement options are available for non-payment of a confiscation order

Ratio Decidendi

The sheriff has no power to grant further time to pay a confiscation order beyond the statutory maximum of 12 months from the date of the order, and continuation of the enquiry for negotiation or payment is incompetent; the only available enforcement options are imprisonment or civil diligence.

Court Disposition

Imprisonment imposed for default on confiscation order.

Orders

  • Accused sentenced to 12 months' imprisonment, to be served consecutively to existing sentence.
  • Interest to be applied to outstanding amount in terms of s117 of the Proceeds of Crime Act 2002.