Cap. 31 Art. 120AOffences under article 40A.

(1) Any person -

(a) who acts in contravention of, or fails to comply with any provision of any regulation made under article

40A; or

(b) who acts in contravention of, or fails to comply with the conditions of any licence or permit or authority granted under the provisions of any regulation made under article 40A; 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 statement which is false in any particular, or knowingly utters, produces or makes use of any such declaration or statement or any document containing the same; or

(d) who in Malta aids, abets, counsels, or procures the commission in any place outside 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, does any act preparatory to, or in furtherance of, any act which if committed in Malta would constitute an offence against any such regulations; 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

*See article 16 of Act V of 1985. offence of selling or dealing in a drug against this article or an offence 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 Malta against the provisions of this article or who promotes, constitutes, organises or finances the conspiracy, shall be guilty of an offence against this article. 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 sub-article (1)(d) and (f) shall subsist from the moment in which any mode of action whatsoever is planned or agreed upon between such persons.

(1B) For the purposes of this article the word "dealing" (with its grammatical variations and cognate expressions) with reference to dealing in a drug, includes cultivation, importation in such circumstances that the Court is satisfied that such importation was not for the exclusive use of the offender, manufacture, exportation, distribution, production, administration, supply, the offer to do any of these acts, and the giving of information intended to lead to the purchase of such a drug contrary to the provisions of this Ordinance:

Provided that in the case of importation in such circumstances that the Court is satisfied that such 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 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 for the production or manufacture of any drug contrary to the provisions of this Ordinance and any such conduct as is prohibited under this sub-article shall be deemed for the purposes of this Ordinance as constituting an offence of selling or dealing in a drug against this Ordinance.

(1D) (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, directly or indirectly, as a result of -

(i) the commission of any of the offences mentioned in sub-articles (1) and (1C); 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-articles (1) or (1C).

(b) In proceedings for an offence under paragraph (a), where the prosecution produces 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 paragraph, the burden of showing the lawful origin of such money, property or proceeds shall lie with the person charged or accused.

(1E) 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 to the Dangerous Drugs Ordinance knowing or suspecting that the substance is to be used in or for the production of a drug listed under Part A of the Third Schedule contrary to the provisions of this Ordinance; and the definition of "dealing" in sub-article (1B) shall apply, mutatis mutandis, to this sub-article.

(1F) Any person who lands in Malta and is in possession of a drug against the provisions of this Ordinance shall be exempt from any criminal liability if the conditions mentioned in sub-article

(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 after landing in Malta that person surrenders the said drug to a Police officer or to a customs officer and declares 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 inference 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 Court of Magistrates (Malta) or the Court of Magistrates (Gozo), as the Attorney General may direct, and if he is found guilty shall, in respect of each offence be liable -

(a) on conviction by the Criminal Court -

(i) where the offence consists in selling or dealing in a drug listed under Part A of the Third Schedule contrary to the provisions of this article, 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 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 and thirty-seven cents (2,329.37) but not exceeding one hundred and sixteen thousand and four hundred and sixty-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 Magistrates (Gozo) -

(i) where the offence consists in selling or dealing in a drug listed under Part A of the Third Schedule to this Ordinance contrary to the provisions of this article, 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 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 conviction for an offence against this Ordinance, all articles in respect of which the offence was committed shall be forfeited to the Government, and any such forfeited article shall, if the court so orders, be destroyed or 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 unless he is charged jointly with any other person who has attained the age of sixteen years, any reference to the Court of Magistrates (Malta) 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 one hundred metres of the perimeter of, a school, 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 any of these acts, to a minor, to a woman with child or to a person who is following a programme for cure or rehabilitation from drug dependence, the punishment shall be increased by one degree.

(2A) Where a person is charged under the provisions of this article with selling or dealing in a drug listed under Part A of the Third Schedule, or with promoting, constituting organising or financing a conspiracy under sub-article (1)(f) in respect of such drug, or with 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 with the offences mentioned in sub-articles (1C) or (1D), the provisions of articles 22A, 22B, 22E, 27 and 30 of the Dangerous Drugs Ordinance shall apply. (2A bis) Where a person is charged under the provisions of this article with an offence mentioned in sub-article (2A) and that person is a person as is referred to in sub-article (5) or is a person in possession of a licence, permit or authority issued to him by a competent authority in or in connection with the exercise of any art, trade, calling or other occupation and the offence is committed in a place licensed under this Ordinance, under the Dangerous Drugs Ordinance or under any other law, the Court may, without prejudice to any other order that it may make under the provisions of this article, at the request of the prosecution make an order, hereinafter referred to as a ''suspension order'', suspending such licence, permit or authority and the provisions of article 22B bis (2) and (3) of the Dangerous Drugs Ordinance shall apply. mutatis mutandis

(2B) Where an offence against this article in respect of which a person has been found guilty consists in an offence mentioned in sub-article (2A) the provisions of article 22(3A), (3B) and (7) and the provisions of articles 22C, 22D, 28 and 29 of the Dangerous

Drugs Ordinance shall apply.

(2C) Notwithstanding that the Attorney General has directed in accordance with the provisions of sub-article (2), that a person be tried in the Criminal Court, he may, at any time before the filing of the bill of indictment, or at any time after filing the bill of indictment before the jury is empanelled, and with the consent of the accused, direct that that person be tried before the Court of Magistrates, and upon such direction the Court of Magistrates as a court of criminal judicature shall become competent to try that person as if no previous direction had been given. Where the Attorney General has given such new direction after the filing of the bill of indictment, the registrar of the Criminal Court shall cause the record to be transmitted to the Court of Magistrates, and shall cause a copy of the Attorney General’s direction to be served on the Commissioner of Police.

(2D) Notwithstanding the provisions of article 370 of the Criminal Code and without prejudice to the provisions of sub-article (2C), the Court of Magistrates shall be competent to try all offences against this article as directed by the Attorney General in accordance with the provisions of sub-article (2).

(2E) (a) In giving a direction in accordance 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 is to 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 the accused for trial on indictment, the accused may by application to be filed in the Criminal Court within seven days from the conclusion of the inquiry or within seven days from the date on which the accused is served with the bill of indictment, demand of the said court to order that he be tried in the Court of Magistrates and the Criminal Court shall, after ordering the service of the application upon the Attorney 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 course of any proceedings: Provided further that persons, who on the date of the coming into force of this sub-article, are awaiting trial in the Criminal Court further to a direction given in terms of sub-article (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: 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.

(2F) 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 punishment provided for in sub-article (2)(a) would be disproportionate it may, giving reasons, apply the punishment provided in sub-article (2)(b).

(2G) 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 the 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 representation shall vest in the person occupying the office in his stead or in such person as is referred to in that article.

(3) No person shall, on conviction for any offence of contravening or failing to comply with any regulation under article 40A relating to the keeping of books or the issuing or dispensing of prescriptions containing psychotropic drugs to which that article applies, be sentenced to imprisonment without the option of "a fine or to pay a fine exceeding one hundred and sixteen euro and forty-seven cents (116.47), if the court dealing with the case is satisfied that the offence was committed through inadvertence and was not preparatory to or committed in the course of or in connection with the commission or intended commission of any other offence against this article.

(4) If any person attempts to commit an offence against this article, 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 had committed an offence under this article.

(5) Where the offence in respect of which a person is found guilty under this article consists in the importation, manufacture, selling or otherwise dealing in a psychotropic drug, and such person is either licensed under this Ordinance or under the Dangerous Drugs Ordinance, or is in possession of a warrant issued under this Ordinance to practise a profession, or a calling or a trade, or the offence is committed in a place licensed under this Ordinance or the Ordinance aforesaid, the court shall, at the request of the prosecution and in addition to any other punishment, order the revocation of such licence or warrant and upon such order being made any such licence or warrant shall cease to have effect for all purposes of law and in particular for the purposes of this Ordinance and of the Ordinance aforesaid.

(6) Where it results to the court that the offender, other than an offender convicted of an offence as is referred to in sub-article (2)(a)(i) or (b)(i), is in need of care and assistance for his rehabilitation from dependence on any drug listed in the Third Schedule to this Ordinance the court may, instead of applying any of the punishments provided for in the foregoing sub-articles, place the offender on probation in accordance 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 with the requirements thereof as provided in article 7 of that Act.

(7) 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 of an offence as is referred to in sub-article (2)(a)(i) or (b)(i): Provided that where, in respect of any offence mentioned in this sub-article, 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, 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 for 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 this sub-article: Provided further that an offender may only benefit once from the provisions of the above proviso.

(8) Where, in the case of a person convicted of an offence referred to in sub-article (7), the court is satisfied that such person is in need of treatment for his rehabilitation from dependence on any drug listed in the Third Schedule, the provisions of article 22(10) to (14) of the Dangerous Drugs Ordinance shall be applicable in the same manner and to the same extent as if that person were a person convicted of an offence referred to in the said article 22(10).

(9) 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 120C(1) 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, the provisions of articles 121D and 248E(4) of the Criminal Code shall apply mutatis mutandis.