Dangerous Drugs Ordinance (Cap. 101), article 22

22. (1) Any person - (a) who acts in contravention of, or fails to comply with, any provision of this Ordinance; or (b) who acts in contravention of, or fails to comply with, the conditions of any licen ce or permit issued or authority granted under or in pursuance of this Ordinance; or (c) who for the purpose of obtaining, whether for himself or for any other person, the issue, grant or renewal of any such licence, permit or authority as aforesaid, makes any declaration, or st atement which is false in any particular, or knowingly utters, produces or makes use of any such declarat ion or statement or any document containing the same; or (d) who in Malta aids, abets, counsels or procures the commission in any place outs ide Malta of any offence punishable under the provisions of any corresponding law in force in that place, or who with another one or more persons conspires in Malta for the purpose of committing such an offence, or does any act preparatory to, or in furtherance of, any act which if committed in Malta would constitute an offence against this Ordinance; or (e) being a citizen of Malta or a permanent resident in Malta, who in any place outside Malta does any act which if committed in Malta would constitute an offence of selling or dealin g i n a d r u g a g a i n s t t h i s Ordinance or an offen ce under paragraph ( f); or (f) who with another one or more persons in Malta or outside Malta conspires for the purposes of selling or dealing in a drug in these Islands against the provisions of this Ordinance or who promotes, constitutes, organises or finances the conspiracy, shall be guilty of an offe nce against this Ordinance. Cap. 217. For the purposes of paragraph ( e), the expression "permanent resident" means a person in favour of whom a permit of residence has been issued in accordance with the provisions contained in article 7 of the Immigration Act . (1A) The conspiracy referred to in paragraphs ( d) and (f) of the preceding sub-article shall subsist from the moment in which an y mode of action whatso ever is planned or agreed upon between suc h persons. (1B) For the purposes of this Ordinance the word "dealing" (with its grammatical variations and cognate expressions) with reference to dealing in a drug, includes cultivation in such circumstances that the court is s atisfied that such cultivation was not for the exclusive use of the offender, importation in such circumstances that the Court is satisfied that such importation was not for the exclusive use of the offender, manufacture, exporta tion, distribution, production, administration, supply, the offer to do any DANGEROUS DRUGS [CAP. 101. 13 of these acts, and the giving of information intended to lead t o the purchase of such a drug contrary to the provisions of this Ordinance: Cap. 446. Cap. 9. Provided that in the case of cultivation or importation in such circumstances that the Court is satisfied that such cultivation or importation was for the exclusive use of the offender, the provisions of the Probation Act and of article 21 of the Criminal Code shall not apply. (1C) (a) A person shall also be guilty of an offence against this Ordinance who uses, transfers the possession of, sends or delivers to any person or place, acquires, receives, keeps, transports, transmits, alters, disposes of or otherwise deals with, in any manner or by any means, any money, property (whether movable or immovable) or any proceeds of any such money or property with intent to conceal or convert that money or property or those proceeds and knowing or suspecting that all or a part of that money or property, or of those proceeds, was obtained or received, d irectly or indirectly, as a result of - (i)the commission of any of the offences mentioned in sub-article (1) or sub-article (1D)( a) or in sub-article (1E); or (ii) any act of commission or omission in any place outside these Islands which if committed in these Islands would constitute an offence under sub-article (1) or sub-article (1D)( a). (b) In proceedings for an offence under paragraph ( a), where the prosecution pro duces evidence that no reasonable explanation was given by the person charged or accused showing that such money, property or proceeds was not money, property or proceeds described in the said paragr aph, the burden of showing the lawful origin of such money, property or proceeds shall lie with the per son charged or accused. (1D) (a) A person shall also be guilty of an offence against this Ordinance who sells or otherwise deals in a substance mentioned in the Third Schedule hereto knowing or suspecting that the substance is to be used in or for the production of a drug contrary to the provisions of this Ordinance; and the definition of "dealing" in sub- article (1B) shall apply, mutatis mutandis , to this sub- article. (b) The Minister responsible for public health may make rules for controlling the manu facture, sale, possession, distribution, importation and exportation of any of the substances mentioned in the Third Schedule hereto and in particular, but without pr ejudice to the generality of the foregoing, for any of the purposes mentioned in article 9(1)( a) to ( e), in so far as applicable, the reference to drugs in those paragraphs being construed 14 CAP. 101.] DANGEROUS DRUGS as a reference to the said substances. (1E) A person shall also be guilty of an offence against this Ordinance who manufactures, transports or distributes any equipment or materials knowing that they are to be used in or f or the cultivation, production or ma nufacture of any drug contrary to the provisions of this Ordinan ce and any such conduct as is prohibited under this sub-article shall be deemed for the purpo ses of this Ordinance as constituting an offence of selling or deal ing in a drug against this Ordinance. (1F) Any person who lands in Malta and is in possession of a drug against the provisions of this Ordinance shall be exempt f rom any criminal liability if the conditions mentioned in sub-artic le (1G) are satisfied. (1G) The conditions to which reference is made in sub-article (1F) are the following: (a) the person in possession of the drug is not ordinarily resident in Malta and has come from a place outside Malta; (b) at the first opportunity a fter landing in Malta that person surrenders the said drug to a Police officer or to a customs officer and declar es that the same drug was for his exclusive personal use; and (c) the said drug is in such a quantity and is in possession of that person under such circumstances as to reasonably lead to the infe rence that the same drug was destined for the exclusive personal use of that person. (2) Every person charged with an offence against this Ordinance shall be tried in the Criminal Court or before the Co urt of Magistrates (Malta) or the Court of Magistrates (Gozo), as t he Attorney General may direct, and if he is found guilty shall, i n respect of each offence, be liable - (a) on conviction by th e Criminal Court - (i) where the offence is one under article 4 or under article 8( c) except in such circumstances that the Court is satisfied that such cultivation was for the exclusive use of the offender, or consists in selling or dealing in a drug contrary to the provisions of this Ordinance or in an offence under sub-article (1)( f), or of the offence of possession of a drug, contrary to the provisions of this Ordinance, under such circumstances that the court is satisfied that such possession was not for the exclusive use of the offender, or of the offences mentioned in sub-articles (1C) or (1D) or (1E), to imprisonment for life: Provided that: (aa) where the court is of the opinion that, when it takes into account the age of DANGEROUS DRUGS [CAP. 101. 15 the offender, the previous conduct of the offender, the quantity of the drug and the nature and quantity of the equipment or materials, if any, involved in the offence and all other circumstances of the offence, the punishment of imprisonment for life would not be appropriate; or (bb) where the verdict of the jury is not unanimous, then the Court may sentence the person convicted to the punishment of imprisonment for a term of not less than four years but not exceeding thirty years and to a fine ( multa ) of not less than two thousand and three hundred and twenty-nine euro a nd thirty-seven cents (2,329.37) but not ex ceeding one hundred and s i x t e e n t h o u s a n d a n d f o u r h u n d r e d a n d s i x t y - eight euro and sixty-seven cents (116,468.67); and (ii) for any other offence to imprisonment for a term of not less than twelve months but not exceeding ten years and to a fine (multa) of not less than four hundred and sixty-five euro and eighty- seven cents (465.87) but not exceeding twenty- three thousand and two hundred and ninety-three euro and seventy-three cents (23,293.73); or (b) on conviction by the Court of Magistrates (Malta) or the Court of Magis trates (Gozo) - (i) where the offence is one under article 4 or under article 8( c) except in such circumstances that the Court is satisfied that such cultivation was for the exclusive use of the offender,or consists in selling or dealing in a drug contrary to the provisions of this Ordinance or in an offence under sub-article (1)( f), or of the offence of possession of a drug, contrary to the provisions of this Ordinance, under such circumstances that the court is satisfied that such possession was not for the exclusive use of the offender, or of the offences mentioned in sub-articles (1C) or (1D) or (1E), to imprisonment for a term of not less than six months but not exceeding ten years and to a fine (multa ) of not less than four hundred and sixty- five euro and eighty-seven cents (465.87) but not exceeding eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87); and (ii) for any other offence to imprisonment for a term of not less than three months but not exceeding twelve months or to a fine ( multa ) of not less than four hundred and sixty-five euro and 16 CAP. 101.] DANGEROUS DRUGS eighty-seven cents (465.87) but not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (2,329.37) or to both such imprisonment and fine, and in every case of convicti on for an offence against this Ordinance, all articles in respect of which the offence was c o m m i t t e d s h a l l b e f o r f e i t e d t o t h e G o v e r n m e n t , a n d a n y s u c h forfeited article shall, if the court so orders, be destroyed o r otherwise disposed of as may be provided in the order: Provided that, for the purposes of this sub-article, when the person charged has not attained the age of sixteen years and un less he is charged jointly with any other person who has attained th e age of sixteen years, any reference to the Court of Magistrates (Ma lta) or to the Court of Magistrates ( Gozo) shall be construed as a reference to the Juvenile Court: Provided further that where a person is convicted as provided in paragraph ( a)(i) or paragraph ( b)(i) and the offence has taken place in, or within 100 metr es of the perimeter of, a sch ool, youth club or centre, or such other place where young people habitually meet, or the offence consists in the sale, supply, administration or offer to do a ny of these acts, to a minor, to a woman with child or to a person who is following a programme fo r cure or rehabilitation from drug dependence, the punishment sha ll be increased by one degree. (2A) (a) In giving a direction in acco rdance with sub-article (2) the Attorney General shall give due consideration to the guidelines included in the Fourth Schedule to this Ordinance; (b) Where the Attorney General has directed that the person accused be tried in the Criminal Court in accordance with sub-article ( 2), upon the termination of the inquiry, if the Court of Magistrates, as a Court of Criminal Inquiry, decides that there are sufficient grounds for committing th e accused for trial on indictment, the accused may, b y application to be filed i n t h e C r i m i n a l C o u r t w i t h i n s e v e n d a y s f r o m t h e conclusion of the inquiry or within seven days from the date on which the accused is served with the bill of indictment, demand the said court to order that he be tried in the Court of Magistrates and the Criminal Court shall, after order ing the service of the application upon the Attorn ey General and granting him at least seven days to reply and after having heard oral submissions from the accused and the Attorney General, if it considers this necessary, decide upon the court in which the accused is to be tried and the accused shall be tried in accordance with the decision of the Criminal Court: Provided that an application in terms of this paragraph may only be filed once in the c ourse of any proceedings: DANGEROUS DRUGS [CAP. 101. 17 Provided further that persons who, on the date of the coming into force of this sub-article, are awaiting trial in th e Criminal Court further to a direction given in terms of sub-art icle (2) may, notwithstanding the other provisions of this paragraph , file an application in the said court in terms of this paragraph by not later than the 30th April 2015: Cap. 9. For the purposes of this sub-article the words "the conclusion of the inquiry" include any conclusion of an inquiry referred to in article 407 of the Criminal Code . Cap. 446. (2B) Where, upon conviction by the Criminal Court as provided in sub-article (2)( a), after considering all the circumstances of the case including the amount and nature of the drug involved, the character of the person concerned, the number and nature of any previous convictions, including convictions in respect of which an order was made under the Probation Act and the provisions of the Fourth Schedule, the court is of the opinion that the punishmen t provided for in sub-article (2)( a) would be disproportionate it may, giving reasons, apply the punishment provided in sub-article (2 )(b). Cap. 9. (2C) Where it is established that an offence under this Ordinance was committed by an officer of a body corporate as is referred to in article 121D of the Criminal Code or by a person having a power of representation or having such authority as is referred to in that article and the offence was committed for t he benefit, in part or in whole, of that body corporate, the said person shall for the purposes of this Ordinance be deemed to be vested with the legal representation of the same body corporate which shall be liable to a fine ( multa ) not exceeding two million and five hundred thousand euro (€2,500,000): Provided that where legal representation no longer vests in the said person, for purposes of this article, legal representa tion shall vest in the person occupying the office in his stead or i n such person as is referred to in that article. (3) Where an offence against this Ordinance in respect of which a person has been found guilty consists in or refers to t he cultivation of a plant in a field, garden or similar tenement, the court shall, in addition to any other punishment order the forf eiture in favour of the Government of the entire immovable property in which the offence took place as described in the bill of indict ment or in the charge: Provided that where none of the persons found guilty as aforesaid is an absolute owner o r co-owner or bare owner of the immovable property, and the offender holds it on any other titl e, whether real or otherwise, the court shall order the forfeiture of such title in favour of the Government. (3A) Where an offence against this Ordinance in respect of which a person has been found guilty consists in any of the offences referred to in article 24A(1) the court shall, in addi tion to any other punishment, in its sentence or at any time thereafter , at the request of the prosecution - (a) where any immovable property, in Malta or in any 18 CAP. 101.] DANGEROUS DRUGS place outside Malta, has been used for the keeping or storing, or for the selling or dealing in such drug, as described in the bill of indictment or in the charge, order the forfeiture in favour of the Government of any real title which the offender holds on such immovable property; (b) where the offender is not the absolute owner but holds any other real title on the immovable property, or has a title, other than a real title , in virtue of which he has the control of or a right of access to such property, the court shall order the offender to pay a fine ( multa ) of not less than eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87) but not exceeding sixty-nine t housand and eight hundred and eighty-one euro and twenty cents (69,881.20) as the court shall determine after taking into account the value of the immovable property and the value of the real title thereon, if any, forfeited as aforesaid; Cap. 9. Cap. 37. (c) saving the provisions of the Criminal Code and of the Customs Ordinance , make an order whereby the provisions of paragraphs ( a) and ( b) shall be applied mutatis mutandis to or in respect of any vessel or vehicle, in Malta or in any place outside Malta, used for the keeping or storing, or for the selling or dealing in such drug; and (d) order the forfeiture in favour of the Government of all moneys or other movable property, and of the entire immovable property of the person so found guilty even if the immovable property has since the offender was charged passed into the hands of third parties, and even if the said monies, movable property or immovable property are situ ated in any place outside Malta. Cap. 12. (3B) Where the proceeds of the o ffence have been dissipated or for any other reason whatsoever it is not possible to identify and forfeit those proceeds or to order the forf eiture of such prope rty the value of which corres ponds to the value of those proceeds the c ourt shall sentence the person convicted or the body corporate, or t he person convicted and the body corporate in solidum , as the case may be, to the payment of a fine ( multa ) which is the equivalent of the amount of the proceeds of the offence. The said fine may be recovered as a civil debt and for this purpose the sentence of the court shall constitute an executive title for all intents and p urposes of the Code of Organization and Civil Procedure . (3BA) Title IV of Part III of Book Second of the Criminal Code shall mutatis mutandis apply to proceedings for offences under this Ordinance. (4) No person shall, on conviction for any offence of contravening or failing to comply with any rule under this Ordinance relating to the kee ping of books or the issuing or dispensing of prescriptions containing drugs to which this DANGEROUS DRUGS [CAP. 101. 19 Ordinance applies, be sentenced to imprisonment without the option of a fine or to pay a fi ne exceeding one hundred and six teen euro and forty-seven cents (116. 47), if the court dealing with the case is satisfied that the of fence was committed through inadvertence and was not preparato ry to or committed in the cou rse of or in connection with the commission or intended commission of any other offence against this Ordinance. (5) If any person attempts to c ommit an offence against this Ordinance, or solicits or incites another person to commit such an offence, he shall, without prejudice to any other liability, be liable on conviction to the same punishment and forfeiture as if he ha d committed an offence under this Ordinance. Cap. 31. (6) Where the offence in respect of which a person is found guilty under this Ordinance consists in the production, selling or otherwise dealing in a drug mentioned in this Ordinance, and su ch person is either licensed unde r this Ordinance or under the Medical and Kindred Professions Ordinance , or is in possession of a warrant issued under that Ordinance to p ractise a profession, or a call ing or a trade, or the offence is committed in a place licensed under this Ordinance or the Ordinance afores aid, the court shall, at the r equest of the prosecution and in addition to any other punishment, ord er the revocation of such licence or warrant, and upon such order being made any such licence or w arrant shall cease to have effe ct for all purposes of law and in particular for the purpose of th is Ordinance and of the Ordinance aforesaid. Cap. 12. (7) Any decision as is mentioned in sub-articles (3) and (3A) ordering the forfeiture of immovable property or of any title t o such property shall be deemed to be and shall be enforceable as a ci vil judgment transferring that title in favour of the Government, a nd the Attorney General shall, for the purposes of article 239 of the Code of Organization and Civil Procedure , be considered as the interested party that may obtain the registration of such trans fer. Cap. 446. (8) Where it results to the court that the offender, other than an offender convicted of an offence as is referred to in paragraph (a)(i) or sub-article (2)( b)(i), is in need of care and assistance for his rehabilitation from dependence on any dangerous drug (as define d in article 12), the court may, instead of applying any of the punishments provided for in the foregoing sub-articles, place t he offender on probation in accord ance with the provisions of the Probation Act, sohowever that such probation order may be made notwithstanding that the offender, who has attained the age of fourteen years, has not expressed his willingness to comply wit h the requirements thereof as provi ded in article 7 of that Act. Cap. 9. Cap. 446. (9) The provisions of articles 21 and 28A of the Criminal Code and the provisions of the Probation Act shall not be applicable in respect of any person convicted o f an offence as is referred to in sub-article (2)( a)(i) or sub- article (2)( b)(i): 20 CAP. 101.] DANGEROUS DRUGS Cap. 446. Provided that where, in respect of any offence mentioned in this sub-article, after considering all the circumstances of th e case including the amount and nature of the drug involved, the chara cter of the person concerned, the numb er and nature of any previous convictions, including convictions in respect of which an order was made under the Probation Act , the court is of the opinion that the offender intended to consume the drug on the spot with others, or procured a small quantity of drugs to be consumed on the spot f or and upon the request of persons in his company at a single event at no profit, the court may decide not to apply the provisions of thi s sub- article: Provided further that an offender may only benefit once from the provisions of the above proviso. Cap. 31. Cap. 446. (9a) Notwithstanding the provisions of sub-article (9) or of an y other law, when the Court, whilst finding guilt of a person cha rged or accused under the provisions of this Ordinance or under the Medical and Kindred Professions Ordinance , is of the opinion that in the circumstances if it were to impos e a punishment of imprisonment on such person that punishment shall not exceed two (2) years imprisonment, the Court may instead of giving such punishment p lace the person found guilty under an order as provided for in the Probation Act: Provided that the provisions of this sub-article shall only be applied for reasons which the Court shall declare in its judgme nt and depending on the particular circum stances of the case, includin g the rehabilitation of the person found guilty and the change in the way of life and behaviour of the person found guilty and taking into consideration the nature of the substance involved, the amount of the substance and the purity of the substance: Provided further that the Court shall only apply the provisions of this sub-article if the punishment of not more th an two (2) years imprisonment is in any case within the parameters of the law and is appropriate in the circum stances irrespective of the pro visions of this sub-article: Provided further that the provisions of this sub-article shall only apply in regard of the first conviction of a person for an offe nce against this Ordinance. (10) Where, in the case of a person convicted of an offence referred to in sub-article (9), the court is satisfied that suc h person is in need of treatment for his rehabilitation from dependence on any dangerous drug (as defi ned in article 12) and - (a) the Minister responsible for public health certifies in writing that such treatment may be given in prison, and (b) the person so convicted agrees to submit to that treatment, the court may, in passing sentence order that he be given such treatment in prison (hereinafter referred to as an "order for DANGEROUS DRUGS [CAP. 101. 21 treatment") and for such period of time (hereinafter referred t o as the "treatment period") as may b e specified in the order (being not more than the period of time, as reduced in accordance with thi s sub-article, which the person co nvicted is to serve in prison) and the punishment of imprisonment which would, but for the provisions of this sub-article, h ave been awarded (hereinafter referred to as the "original punishment"), and which shall be expressly mentioned in the sentence, shall be reduced by the co urt by not more than one third. (11) If during the treatment period, the court which made the order for treatment is satisfied, on an application by the Atto rney General that the person to whom the order refers has, without v alid reason (the proof whereof shall lie on such person), refused th e treatment or has conducted himself in a manner as to make his treatment, or that of other prisoners, difficult or ineffective , it shall revoke such order and shall direct that the original punishment be served. (12) The court which made the order for treatment shall, on an application made at any time during the treatment period by the person to whom the order refers requesting the revocation of th at order, revoke such order and shall direct that the original punishment be served. (13) The court which made the order for treatment may, on an application made at any time during the treatment period by the person to whom the order refer s or by the Attorney General, discharge such order if it is satisfied that the treatment is n o longer appropriate. (14) For the purposes of s ub-articles (10) to (13) - (a) any decision of the court which revokes an order for treatment and directs that the original punishment be served shall not be subject to appeal; (b) where an order for treatment is confirmed or varied by the Court of Criminal Appeal, the order shall be deemed to have been made by the said court; (c) an order for treatment shall, unless it has been revoked or discharged or has ceased to have effect earlier, cease to have effect upon the expiration or remission of the punishment of imprisonment for the offence in respect of which th e order was made. Cap. 9. (15) Where an offence against this Ordinance in respect of which a person has been found guilty consists in any of the offences referred to in article 24A(1) or the offence of posses sion of a drug contrary to the provisions of this Ordinance, under s uch circumstances that the court is satisfied that such possession was not for the exclusive use of the offender, the provisions of ar ticles 121D and 248E(4) of the Criminal Code shall apply mutatis mutandis . 22 CAP. 101.] DANGEROUS DRUGS Freezing of property of person accused. Added by: VIII.1986.3. Amended by: VI. 2000.3; L.N. 409 of 2007; XXXI. 2007.36; IV . 2014.31; XXXI.2019.13.