Attorney-General v Liquidators of oCap Management: Restraint Order & International Assistance in Criminal Matters
The Attorney-General applied for a restraint order under the Mutual Assistance in Criminal Matters Act 2000 to prevent oCap Management Pte Ltd (in liquidation) and Citibank NA from dealing with funds in bank accounts, to assist German criminal proceedings against Wirecard AG. The liquidators of oCap Management did not oppose the order but sought exceptions to allow them to deal with a portion of the funds for liquidation expenses. The High Court of Singapore allowed the application in principle, finding that the statutory requirements were met, but directed further submissions on the amount the liquidators should be allowed to deal with, balancing the interests of international assistance and domestic insolvency proceedings.
1. Case Overview
1.1 Court
General Division of the High Court1.2 Outcome
Application allowed in principle, subject to further submissions on the amount the Liquidators should be allowed to deal with.
1.3 Case Type
Insolvency
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court considers granting a restraint order on assets of a company in liquidation to assist German criminal proceedings against Wirecard AG.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Applicant | Government Agency | Application Allowed in Part | Partial | Andrea Gan Yingtian of Attorney-General’s Chambers Goh Sue Jean of Attorney-General’s Chambers |
| Liquidators of oCap Management Pte Ltd (in liquidation) | Non-parties | Other | Neutral | Neutral |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Aedit Abdullah | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Andrea Gan Yingtian | Attorney-General’s Chambers |
| Goh Sue Jean | Attorney-General’s Chambers |
| Nee Hoong Yi Adriel | BlackOak LLC |
| Balakrishnan Ashok Kumar | BlackOak LLC |
| Teo Zhiwei Derrick Maximillian | BlackOak LLC |
| Shu Kit | BlackOak LLC |
4. Facts
- The Attorney-General seeks a Restraint Order against oCap Management Pte Ltd and Citibank NA.
- The order aims to prevent dealing with monies in two bank accounts up to €210m.
- The funds are believed to be proceeds of criminal offences involving Wirecard AG and its subsidiaries.
- oCap Management Pte Ltd is in liquidation.
- The German authorities instituted criminal proceedings against Oliver Bellenhaus, Dr Markus Braun, and Stephan Egilmar Hartmann Freiherr von Erffa.
- The German authorities are seeking an order for confiscation against the Company for the value of the proceeds of crime obtained by the Company amounting to €210m.
5. Formal Citations
- Re oCap Management Pte Ltd (in liquidation), Originating Application No 390 of 2023, [2023] SGHC 316
6. Timeline
| Date | Event |
|---|---|
| Mutual Assistance in Criminal Matters Act 2000 enacted. | |
| Local Court of Munich ordered provisional seizure of oCap Management Pte Ltd’s assets up to €100m. | |
| German authorities requested assistance from Singapore to restrain dealings in the Bank Accounts up to €100m. | |
| German authorities issued a certificate confirming criminal proceedings against Bellenhaus, Braun, and von Erffa. | |
| Originating application filed on a without notice basis. | |
| Application heard on a with notice basis. | |
| Judgment reserved. |
7. Legal Issues
- Restraint Order
- Outcome: The court was satisfied that the statutory requirements for the granting of the Restraint Order have been met.
- Category: Substantive
- Winding Up
- Outcome: The court determined the proper interpretation of paragraph 14(2) of the Third Schedule, balancing the interests of international assistance and domestic insolvency proceedings.
- Category: Substantive
8. Remedies Sought
- Restraint Order
9. Cause of Actions
- Application for Restraint Order under s 29(2)(b) of the Mutual Assistance in Criminal Matters Act 2000
10. Practice Areas
- International Criminal Law
- Insolvency Litigation
11. Industries
- Financial Services
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Steep Rise Ltd v Attorney General | Court of Appeal | Yes | [2020] 1 SLR 872 | Singapore | Cited for the legal requirements for the grant of a restraint order under the Third Schedule of the MACMA. |
| In re Stanford International Bank Ltd and another | English Court of Appeal | Yes | [2010] 3 WLR 941 | England and Wales | Discussed in relation to the interpretation of provisions materially similar to paragraphs 7 and 14 of the Third Schedule of the MACMA, but ultimately not followed. |
| Tan Cheng Bock v Attorney-General | N/A | Yes | [2017] 2 SLR 850 | Singapore | Cited for the three-step framework for interpreting a statutory provision. |
| Carlos Manuel De São Vincente v Public Prosecutor | General Division of the High Court | Yes | [2023] SGHC 143 | Singapore | Cited for the interpretation of 'incurred' in the context of domestic restraint orders, but distinguished in the present case. |
| Sun Electric Power Pte Ltd v RCMA Asia Pte Ltd (formerly known as Tong Teik Pte Ltd) | Court of Appeal | Yes | [2021] 2 SLR 478 | Singapore | Cited as an example of the court engaging in exercises of estimation in proceedings. |
| Cova Group Holdings Ltd v Advanced Submarine Networks Pte Ltd and another | General Division of the High Court | Yes | [2023] SGHC 178 | Singapore | Cited as an example of the court engaging in some degree of projection when deciding on the quantum of security for costs. |
| Re Econ Corp Ltd (in provisional liquidation) | High Court | Yes | [2004] 2 SLR(R) 264 | Singapore | Cited for factors to consider when deciding whether claimed expenses are appropriate. |
| Kao Chai-Chau Linda v Fong Wai Lyn Carolyn and others | High Court | Yes | [2016] 1 SLR 21 | Singapore | Cited for the test of whether claimed remuneration is proper. |
| Lim Siew Soo v Sembawang Engineers and Constructors Pte Ltd (in compulsory liquidation) (Metax Eco Solutions Pte Ltd, intervener) | General Division | Yes | [2021] 4 SLR 556 | Singapore | Cited to show that assets of a company are not distributed directly to the creditors but are instead pooled and liquidated so that the proceeds can be distributed. |
| Re Medforce Healthcare Services Ltd (In Liquidation) (No 2) | N/A | Yes | [2001] 3 NZLR 158 | New Zealand | Cited for the proposition that the court retains a supervisory function to confirm or vary the amount that is to be paid to a liquidator. |
13. Applicable Rules
| Rule Name |
|---|
| Order 53 Rule 11 of the Rules of Court 2021 |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Section 29(2)(b) of the Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Third Schedule to the Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Paragraph 6 of the Third Schedule to the Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Paragraph 14(2) of the Third Schedule to the Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Paragraph 14(5) of the Third Schedule to the Mutual Assistance in Criminal Matters Act 2000 | Singapore |
| Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Section 144(1)(f) of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Section 144(2) of the Insolvency, Restructuring and Dissolution Act 2018 | Singapore |
| Sections 139(3)(a) and 139(3)(b) of the Insolvency, Restructuring and Dissolution Act | Singapore |
| Sections 139(5) and 139(6) of the Insolvency, Restructuring and Dissolution Act | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Restraint Order
- Liquidation
- Mutual Assistance in Criminal Matters Act 2000
- Wirecard
- German Confiscation Proceedings
- Realisable Property
15.2 Keywords
- restraint order
- liquidation
- international assistance
- criminal matters
- insolvency
- MACMA
- Wirecard
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Insolvency Law | 95 |
| Winding Up | 95 |
| Mutual Assistance in Criminal Matters | 85 |
| Bankruptcy | 75 |
| Restraint Order | 70 |
| International Law | 60 |
| Criminal Law | 50 |
| Civil Procedure | 40 |
16. Subjects
- Insolvency
- International Criminal Law
- Restraint Orders