Section 44: Investigations

44. Investigations (1) Where the Chief Executive has reasonable cause to believe that a licensee— (a) has committed, is committing or is likely to commit a breach of— (i) any of the relevant Acts; (ii) any condition of his licence, authorisation or registration; or (iii) any direction issued by the Commission under a relevant Act; (b) has carried out, is carrying or is likely to carry out any activity which may cause prejudice to the soundness and stability of the financial system of Mauritius or to the reputation of Mauritius or which may threaten the integrity of the system; [Issue 1] F10 – 26 Revised Laws of Mauritius (c) has failed or is failing to take such measures as are required pursuant to the Financial Intelligence and Anti-Money Laundering Act, the Chief Executive may order that an investigation be conducted into the business or any part of the business of the licensee or its associate. (2) For the purposes of this section, a person duly authorised in writing by the Chief Executive as an investigator shall have all the powers of the Chief Executive under section 43 and may direct the licensee, or any of its officers, its employees, and its associates or any witness to— (a) produce to the investigator, at a reasonable time and place specified in the direction, any specified document or other thing that may afford such evidence and that is in his possession or under his control; (b) give explanations or further information about any documents or things produced; or (c) attend before the investigator at a reasonable time and place and answer under oath questions relating to the investigation. (3) For the purposes of an investigation, the investigator may— (a) enter any premises used or apparently used by the licensee for business purposes, at any reasonable time; (b) search for any document or other thing that he considers may be relevant to the investigation; (c) administer an oath, an affirmation or a declaration; (d) seize any document, article, object or any electronically stored information which the investigator deems necessary; and (e) summon any licensee, or any of its officers, employees and associates, or any witness necessary for the conduct of the investigation. (4) An investigator duly authorised by the Chief Executive to conduct an investigation shall show his authorisation to the person being investigated. (5) The investigator shall, as soon as practicable, after completion of his investigation submit his report to the Chief Executive who shall transmit the report to the Board together with his observations, comments and recommendations. (6) Subject to section 124 of the Income Tax Act and the Financial Intelligence and Anti-Money Laundering Act, any investigation, inspection or filing of documents or request for information which any public sector agency in Mauritius may be empowered to carry out, to require or to do under any other enactment shall, in respect of a corporation holding a global business licence or of an applicant for a global business licence, be carried out, required, or done by the Commission or any person or body designated by the Commission. F10 – 27 [Issue 1] Financial Services Act (7) For the purposes of this section— “associate” means— (a) in relation to an individual— (i) his spouse, a person living en concubinage under the common law with him, his child or step child or any relative residing under the same roof as that person; (ii) a succession in which he has an interest; (iii) his partn licant for a global business licence, be carried out, required, or done by the Commission or any person or body designated by the Commission. F10 – 27 [Issue 1] Financial Services Act (7) For the purposes of this section— “associate” means— (a) in relation to an individual— (i) his spouse, a person living en concubinage under the common law with him, his child or step child or any relative residing under the same roof as that person; (ii) a succession in which he has an interest; (iii) his partner; (b) in relation to any person— (i) any company in which he directly or indirectly holds 10 per cent of the voting rights or an unlimited right to participate in earnings and in the assets upon winding up; (ii) any controller of that person; (iii) any trust in which he has a substantial ownership interest or in which he fulfils the functions of a trustee or similar function; (iv) any company which is a related company; “licensee” includes— (a) any person who has been a licensee; (b) any person who is a present or past officer, partner or controller of the licensee; (c) any person who ought to have been licensed under this Act; (d) an SRO. (8) (a) Any person who in relation to a question put to him by the investigator in the performance of his duties under this section— (i) says anything that the person— (A) knows to be false or misleading in a material particular; or (B) is reckless as to whether it is false or misleading in a material particular; or (ii) refuses, without reasonable excuse, to answer, shall commit an offence. (b) Any person who intentionally obstructs an investigator, when acting in the execution of his powers under this section, shall commit an offence and shall, on conviction, be liable to a fine not exceeding 500,000 rupees and to imprisonment for a term not exceeding 5 years. (9) Where the Commission finds that there was reasonable cause for the investigation and the Commission determines that the licensee concerned [Issue 1] F10 – 28 Revised Laws of Mauritius ought, for that reason, to pay all or any specified part of the expenses of or incidental to the investigation, the licensee shall be liable to make payment accordingly, and those expenses, or the specified part thereof, may be recovered by the Commission.