In re oCap Management Pte Ltd (in Liquidation)

The Attorney-General applied in Originating Application No 390 of 2023 under s 29(2)(b) of the Mutual Assistance in Criminal Matters Act 2000 (MACMA), at the request of the German authorities, for an order restraining oCap Management Pte Ltd and Citibank NA from dealing with money in two Citibank accounts held by the company, up to €210m. In August 2020 a Munich court had provisionally seized the company's assets up to €100m, there being reasons to believe it had obtained proceeds from alleged offences involving the Wirecard group. In March 2022 German prosecutors charged three individuals, including Dr Markus Braun, with alleged offences involving the group; Braun was charged with embezzlement through loans of €210m to the company in relation to business lines that, according to the German authorities, did not exist. The prosecutors sought confiscation from the company of €210m.

The company was already in liquidation. Its liquidators did not oppose a restraint order, but asked that they be allowed to deal with no less than S$2,705,000 so that the order would not inhibit them from carrying out their functions or prevent payment of winding-up expenses. The parties agreed the statutory requirements were met but disagreed on how far para 14(2) of the Third Schedule to the MACMA protects a liquidation, so the court ruled first on the governing principles.

1. Whether the statutory requirements for a restraint order under the MACMA were satisfied
2. Whether para 14(2)(a) of the Third Schedule protects the liquidation only when a distribution to creditors is imminent, or on a first-in-time basis
3. Whether para 14(2)(b) covers only winding-up expenses already incurred, or also future expenses

Germany is not a prescribed foreign country, but the German authorities had given the required undertaking of reciprocity, the proceedings were continuing, there were reasonable grounds to believe a confiscation order may be made, and nothing suggested the order would be contrary to the public interest.

On para 14(2)(a), the court rejected both sides' readings. A first-in-time rule, drawn from English obiter remarks, added a gloss unsupported by the text and could prompt races between insolvency practitioners and prosecutors. The Attorney-General's reading, limiting protection to an imminent distribution, ignored the words 'for the purpose of' and would let the MACMA regime dominate until a liquidation was almost over. The provision therefore protects the liquidator's other functions that serve the end of distribution, so the liquidation continues despite a restraint order. Courts can estimate needs for the foreseeable future and vary the order later.

On para 14(2)(b), the purpose is to reimburse and remunerate liquidators, so it covers expenses that were or will be properly incurred in winding up the property. A decision on the Criminal Procedure Code concerned a different context. Future expenses may be assessed by reference to the necessary remaining work, access to third-party funding, and the reasonableness of past expenses; past expenses must be fair, reasonable and proportionate. Taxation is not mandatory, and creditor approval under the insolvency statute is not conclusive: the court remains the final arbiter.

Aedit Abdullah J allowed the application in principle, holding that the restraint order should be granted, but directed further submissions on the amount the liquidators should be free to deal with, which would fall outside the order. No order was made as to costs.