GUIDELINES ON MONEY LAUNDERING AND THE FINANCING OF TERRORISM
I. PURPOSE
1. The present guidelines aim to materialize the requirements for the compliance with the preventive duties to combat the money laundering and the financing of terrorism offences and to systemize the procedure for its compliance, having into consideration the specific nature of the activities developed by the notaries and the registrars.
2. With this in mind, the Legal Affairs Bureau (DSAJ), according with the paragraph 5 of article 6 of the Law 2/2006 on the prevention and repression of the crime of money laundering and with article 11 of the Law 3/2006 on the prevention and repression of the crimes of terrorism, and making use of its supervision powers foreseen in the paragraph 1(5) and in the paragraph 2 of the article 2 of the Administrative Regulation 7/2006 on the preventive nature measures against the crimes of money laundering and financing of terrorism, determines the following:
II. SUBJECTIVE SCOPE OF APPLICATION
The present guidelines are applicable to the notaries and the registrars because they are included in the subjective scope of the legal preventive duties of the crimes of money laundering and financing of terrorism and because the supervision of the compliance with these duties have been attributed to the Legal Affairs Bureau (DSAJ).
III. OBJECTIVE SCOPE OF APPLICATION
The present guidelines are applicable to the notary and registration acts of the following operations:
1. Buying and selling of real property;
2. Formation of legal persons;
3. Buying and selling of companies.
IV. DUTY OF IDENTIFICATION
1. Appropriate registration must be done, sequentially numbered, with the elements enunciated below, whenever the operations mentioned in Section III reveal indicia of the commitment of the crimes of money laundering or financing the terrorism, or whenever the value of the operations, isolated or jointly, exceeds MOP $500,000,00 (five hundred thousand patacas), or the equivalent value in foreign currency:
1) Reference of the notary or registration act;
2) Date of the notary or registration act;
3) Identification of the contracting parties, their civil or legal representatives (including the name, type and number of the identification document); the identification document of the contracting parties, their civil and legal representatives must contain a photograph and must be personally verified;
4) Identification of the legal transaction subjacent to the notary or registration act, namely its object (identification of the property or legal person), amount (price, company capital) and methods of payment employed (check, bank transfer, bank loan, cash in patacas or in foreign currency, etc.);
5) Whenever possible, any other elements that allow a better identification of the contracting parties, their civil and legal representatives in the notary or registration act (including nationality, address, date and place of birth, profession, employer or business) and of the legal transaction carried through by them (including the origin of the funds).
2. For the purpose of knowing if a legal transaction exceeds, jointly with others, the value mentioned in the previous paragraph, it should be taken into account the other notary and registration acts carried out by the same contracting party, or civil or legal representative, even though through different parties, civil or legal representatives, within the previous 30 days to the date of the notary or registration act.
3. The notary or registration act must be refused whenever the contracting parties, their civil or legal representatives refuse to supply the necessary elements to comply with the obligation of their identification and the identification of the legal transaction subjacent to the notary or registration act, except the elements foreseen in paragraph 1(5) of the current Section.
4. When the contracting parties or one of them are individuals, their close family members or associates, or companies clearly related with them, who are or have been entrusted with prominent public functions in a jurisdiction outside Macao, such as, for example, heads of state or of government, senior politicians, senior government, judicial or military officials, senior executives of state-owned corporations, important political party officials, there must be an enhanced and constant diligence of all the notary and registration acts in order to determine the source of the wealth, funds or assets.
5. When the identification of the contracting parties is, according to the law, obtained by declaration of witnesses, the witnesses’ identification must also be obtained, in the terms referred in the paragraph 1(3) of the current Section, and the witnesses must provide the relevant identification of the contracting parties. In such cases, as well as in the cases where the identification of the contracting parties, their civil or legal representatives, results from the personal knowledge, according to the law, it is not mandatory to show the identification document.
6. The registration mentioned in the current Section must be kept for at least 5 years, counted from the date of the registration, and must be available for the purpose of supervision of the compliance with the preventive duties, by the Legal Affairs Bureau (DSAJ). If, by any reason, the activity ceases or is suspended, the registrations must be sent to the Legal Affairs Bureau (DSAJ) for conservation, with all the collected documents.
V. DUTY TO REPORT SUSPICIOUS TRANSACTIONS
1. All the notary or registration acts whose subjacent legal transactions may provide indicia of the commitment of a money laundering or financing of terrorism offence, under any form of participation, by the contracting parties and their civil or legal representatives, must be reported to the Office of Financial Intelligence (GIF), within the period of two working days counting from the date of transaction.
2. If the refusal to provide the identification elements mentioned in the paragraph 1(5) of the Section IV provides indicia of the commitment of a crime of money laundering or financing of terrorism, having into consideration the non-habitual occurrence of the notary or registration act, the report mentioned in the previous paragraph must be made.
3. It cannot be disclosed to the contracting parties, their civil or legal representatives, and to third parties, that the legal transaction subjacent to the notary or registration act was considered as revealing indicia of the commitment of a crime of money laundering or financing of terrorism, nor that, in consequence, it was reported to the GIF.
4. The form for reporting suspicious operations is included in Annex I of the present guidelines. A copy of all the documents collected for the purpose of compliance with the preventive duties and a copy of all the documents that entitle the notary or registration act, must be attached to the report of suspicious operation.
VI. DUTY OF COOPERATION
1. Every information and documents requested by the authorities with competence to prevent and suppress the crimes of money laundering and financing of terrorism, namely the Courts, the Public Prosecution Office, the Judiciary Police, the Legal Affairs Bureau and the GIF, must be provided and presented.
2. The cooperation mentioned in the previous paragraph cannot be disclosed to the parties on the notary or registration acts related with the information or documents request, nor to its civil or legal representatives, nor to third parties.
VII. SANCTIONS
Without prejudice to the criminal and/or disciplinary liability that may exist, it is considered an administrative infraction, according to paragraph 1 of Article 9 of the Administrative Regulation 7/2006, the fraudulent or negligent non-compliance with the preventive duties.
VIII. ENTRY INTO FORCE
The current guidelines shall enter into force on 12 November 2006.
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2006.07.25