Organized and Serious Crimes Ordinance

by Legislative Council of Hong Kong

Layout 2

ORGANIZED AND SERIOUS CRIMES ORDINANCE

CONTENTS

Section

Page

PART I Preliminary
1.	Short title and commencement ............................................................................................................................................................................................................................................................................................................	A1104
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	A1104
PART II Powers of Investigation
3.	Requirement to furnish information or produce material ............................................................................................................................................................................................................................................................................................................	A1114
4.	Order to make material available ............................................................................................................................................................................................................................................................................................................	A1122
5.	Authority for search ............................................................................................................................................................................................................................................................................................................	A1128
6.	Disclosure of information obtained under section 3, 4 or 5 ............................................................................................................................................................................................................................................................................................................	A1132
7.	Offence of prejudicing investigation ............................................................................................................................................................................................................................................................................................................	A1132
PART III Confiscation of Proceeds of Crime
8.	Confiscation orders ............................................................................................................................................................................................................................................................................................................	A1134
9.	Assessing the proceeds of crime ............................................................................................................................................................................................................................................................................................................	A1136
10.	Statements, etc. relevant to making confiscation order ............................................................................................................................................................................................................................................................................................................	A1138
11.	Amount to be recovered under confiscation order ............................................................................................................................................................................................................................................................................................................	A1140
12.	Definition of principal terms used ............................................................................................................................................................................................................................................................................................................	A1142
PART IV Enforcement, etc. of Confiscation Orders
13.	Application of procedure for enforcing fines ............................................................................................................................................................................................................................................................................................................	A1146
14.	Cases in which restraint orders and charging orders may be made ............................................................................................................................................................................................................................................................................................................	A1148
15.	Restraint orders ............................................................................................................................................................................................................................................................................................................	A1150
16.	Charging orders in respect of land, securities, etc. ............................................................................................................................................................................................................................................................................................................	A1152
17.	Realisation of property ............................................................................................................................................................................................................................................................................................................	A1154
18.	Application of proceeds of realisation and other sums ............................................................................................................................................................................................................................................................................................................	A1156
19.	Exercise of powers by High Court or receiver ............................................................................................................................................................................................................................................................................................................	A1158
20.	Variation of confiscation orders ............................................................................................................................................................................................................................................................................................................	A1160
21.	Bankruptcy of defendant, etc. ............................................................................................................................................................................................................................................................................................................	A1160
22.	Winding up of company holding realisable property ............................................................................................................................................................................................................................................................................................................	A1162
23.	Insolvency officers dealing with property subject to restraint order ............................................................................................................................................................................................................................................................................................................	A1164
24.	Receivers: supplementary provisions ............................................................................................................................................................................................................................................................................................................	A1166
PART V Miscellaneous
25.	Assisting a person to retain proceeds of indictable offence ............................................................................................................................................................................................................................................................................................................	A1168
26.	Restriction on revealing disclosure under section 25 ............................................................................................................................................................................................................................................................................................................	A1170
27.	Sentencing in respect of specified offences ............................................................................................................................................................................................................................................................................................................	A1172
28.	Disclosure of information held by public bodies ............................................................................................................................................................................................................................................................................................................	A1176
29.	Compensation ............................................................................................................................................................................................................................................................................................................	A1180
30.	Rules of court ............................................................................................................................................................................................................................................................................................................	A1182
31.	Amendment of amount in section 8(4) and Schedules ............................................................................................................................................................................................................................................................................................................	A1182
32.	Savings ............................................................................................................................................................................................................................................................................................................	A1182
Consequential Amendments
Money Lenders Ordinance
33.	Prohibition of excessive interest rates ............................................................................................................................................................................................................................................................................................................	A1184
34.	Time limitation for instituting certain proceedings ............................................................................................................................................................................................................................................................................................................	A1184
Customs and Excise Service Ordinance
35.	Ordinances referred to in sections 17 and 17A ............................................................................................................................................................................................................................................................................................................	A1184
Drug Trafficking (Recovery of Proceeds) Ordinance
36.	Assessing the proceeds of drug trafficking ............................................................................................................................................................................................................................................................................................................	A1184

Schedule 1	Offences relevant to definitions of “organized crime” and “specified offence” ............................................................................................................................................................................................................................................................................................................	A1184
Schedule 2	Other specified offences ............................................................................................................................................................................................................................................................................................................	A1190
Schedule 3	Assets on which a charging order may be imposed ............................................................................................................................................................................................................................................................................................................	A1192
Schedule 4	............................................................................................................................................................................................................................................................................................................	A1194

HONG KONG

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Ordiance No. 82 of 1994

I assent.

Christopher PATTEN,
Governor
20 October 1994

L.S.

An Ordinance to create new powers of investigation into organized crimes and certain other offences and into the proceeds of crime of certain offenders; provide for the confiscation of proceeds of crime; make provision in respect of the sentencing of certain offenders; create an offence of assisting a person to retain proceeds of crime; and for ancillary and connected matters.

Enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof.

PART I
Preliminary

1. Short title and commencement

(1) This Ordinance may be cited as the Organized and Serious Crimes Ordinance.

(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Security by notice in the Gazette, and different days may be so appointed for different provisions.

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires—

“authorized officer” (獲授權人) means—

(a) any police officer;

(b) any member of the Customs and Excise Service established by section 3 of the Customs and Excise Service Ordinance (Cap. 342); and

(c) any other person authorized in writing by the Attorney General for the purposes of this Ordinance;

“confiscation order” (沒收令) means an order made under section 8(7);

“defendant” (被告人) means a person against whom proceedings have been instituted for a specified offence (whether or not he has been convicted of that offence);

“insolvency officer” (債務處理人) means―

(a) the Official Receiver; or

(b) any person acting as―

(i) a receiver, interim receiver, special manager or trustee appointed under the Bankruptcy Ordinance (Cap. 6); or

(ii) a liquidator, provisional liquidator or special manager appointed under the Companies Ordinance (Cap. 32);

“interest” (權益), in relation to property, includes right;

“items subject to legal privilege” (享有法律特權的品目) means―

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and

(c) items enclosed with or referred to in such communications and made―

(i) in connection with the giving of legal advice; or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when they are in the possession of a person who is entitled to possession of them,

but excludes any such communications or items held with the intention of furthering a criminal purpose;

“material” (物料) includes any book, document or other record in any form whatsoever, and any article or substance;

“organized crime” (有組織罪行) means a Schedule I offence that―

(a) is connected with the activities of a particular triad society;

(b) is related to the activities of 2 or more persons associated together solely or partly for the purpose of committing 2 or more acts, each of which is a Schedule 1 offence and involves substantial planning and organization; or

(c) is committed by 2 or more persons, involves substantial planning and organization and involves―

(i) loss of the life of any person, or a substantial risk of such a loss;

(ii) serious bodily or psychological harm to any person, or a substantial risk of such harm; or

(iii) serious loss of liberty of any person;

“premises” (處所) includes any place and, in particular, includes― ：(a) any vehicle, vessel, aircraft, hovercraft or offshore structure; and ：(b) any tent or movable structure;

“property” (財產) includes both movable and immovable property within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap. 1);

“Registrar” (司法常務官) means the Registrar of the Supreme Court;

“reward” (酬賞) includes a pecuniary advantage;

“Schedule 1 offence” (附表1所列罪行) means

(a) any of the offences specified in Schedule 1;

(b) conspiracy to commit any of those offences;

(c) inciting another to commit any of those offences;

(d) attempting to commit any of those offences;

(e) aiding, abetting, counselling or procuring the commission of any of those offences;

“society” (社團) has the same meaning as in section 2(1) of the Societies Ordinance (Cap. 151);

“specified offence” (指明的罪行) means―

(a) any of the offences specified in Schedule 1 or Schedule 2;

(b) conspiracy to commit any of those offences;

(c) inciting another to commit any of those offences;

(d) attempting to commit any of those offences;

(e) aiding, abetting, counselling or procuring the commission of any of those offences;

“triad society” (三合會) includes any society which—

(a) uses any ritual commonly used by triad societies, any ritual closely resembling any such ritual or any part of any such ritual; or

(b) adopts or makes use of any triad title or nomenclature.

(2) For the purpose of the definition of “organized crime” (有組織罪行) in subsection (1)—

(a) a conspiracy to commit a Schedule 1 offence involves a matter referred to in paragraph (c)(i) to (iii) of that definition if the pursuit of the agreed course of conduct would at some stage involve that matter;

(b) an attempt or incitement to commit a Schedule 1 offence involves a matter referred to in paragraph (c)(i) to (iii) of that definition if what the person attempting or inciting the commission had in view would involve that matter.

(3) The expressions listed in the left-hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Ordinance listed in the right-hand column in relation to those expressions.

Expression

Relevant provision

	Charging order (押記令) ............................................................................................................................................................................................................................................................................................................	Section 16(2)
	Dealing with property (處理財產) ............................................................................................................................................................................................................................................................................................................	Section 15(8)
	Gift caught by this Ordinance (受本條例囿制的饋贈) ............................................................................................................................................................................................................................................................................................................	Section 12(9)
	Making a gift (作出饋贈) ............................................................................................................................................................................................................................................................................................................	Section 12(10)
	Realisable property(可變現財產) ............................................................................................................................................................................................................................................................................................................	Section 12(1)
	Restraint order (限制令) ............................................................................................................................................................................................................................................................................................................	Section 15(1)
	Value of gift, payment or reward (饋贈、付款或酬賞的價值) ............................................................................................................................................................................................................................................................................................................	Section 12
	Value of property(財產的價值) ............................................................................................................................................................................................................................................................................................................	Section 12(4)

(4) This Ordinance applies to property whether it is situated in Hong Kong or elsewhere.

(5) References in this Ordinance (except in section 25) to offences or organized crimes include a reference to offences or organized crimes committed before the commencement of this Ordinance; but nothing in this Ordinance imposes any duty or confers any power on any court in or in connection with proceedings against a person for an offence instituted before the commencement of this Ordinance.

(6) For the purposes of this Ordinance—

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Ordinance) in connection with the commission of an offence are his proceeds of that offence; and

(b) the value of his proceeds of that offence is the aggregate of the values of those payments or other rewards.

(7) For the purposes of this Ordinance—

(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Ordinance) in connection with the commission of one or more organized crimes are his proceeds of organized crime; and

(b) the value of his proceeds or organized crime is the aggregate of the values of those payments or other rewards.

(8) For the purposes of this Ordinance, a person who has at any time (whether before or after the commencement of this Ordinance) received any payment or other reward in connection with the commission of an offence or an organized crime has benefited from that offence or organized crime, as the case may be.

(9) References in this Ordinance to property received in connection wit the commission of an offence or organized crime include a reference to property received both in that connection and in some other connection.

(10) Subsections (11) to (17) shall have effect for the interpretation of this Ordinance.

(11) Property is held by any person if he holds any interest in it.

(12) References to property held by a person include a reference to property vested in his trustee in bankruptcy or in a liquidator.

(13) References to an interest held by a person beneficially in property include, where the property is vested in his trustee in bankruptcy or in a liquidator, a reference to an interest which would be held by him beneficially if the property were not so vested.

(14) Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.

(15) Proceedings for an offence are instituted—

(a) when a magistrate issues a warrant or summons under section 72 of the Magistrates Ordinance (Cap. 227) in respect of the offence;

(b) when a person is charged with the offence after being taken into custody without a warrant; or

(c) when an indictment is preferred by the direction or with the consent of a judge under section 24A(1)(b) of the Criminal Procedure Ordinance (Cap. 221),

and where the application of this subsection would result in there being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times.

(16) Proceedings for an offence are concluded on the occurrence of one of the following events—

(a) the discontinuance of the proceedings whether by entry of a nolle prosequi or otherwise;

(b) an order or verdict acquitting the defendant, not being an order or verdict which is subject to appeal or review within the meaning of subsection (17);

(c) the quashing of his conviction for the offence except where, under section 83E of the Criminal Procedure Ordinance (Cap. 221), an order is made that he be retried;

(d) the grant of Her Majesty's pardon in respect of his conviction for the offence;

(e) the court or magistrate sentencing or otherwise dealing with him in respect of his conviction for the offence where the Attorney General either does not apply for a confiscation order, or applies for a confiscation order and the order is not made; or

(f) the satisfaction of a confiscation order made in the proceedings (whether by payment of the amount due under the order or by the defendant serving imprisonment in default).

(17) An order or verdict (including an order or verdict of acquittal) is subject to appeal or review so long as an appeal, further appeal or review is pending against the order or verdict; and for this purpose an appeal, further appeal or review shall be treated as pending (where one is competent but has not been instituted) until—

(a) in the case of an appeal to the Privy Council, the expiration of 28 days after the date of the judgment from which leave to appeal may be sought; or

(b) in any other case, the expiration of the time prescribed for instituting the appeal, further appeal or review.

[cf. 1986 c. 32 s. 38 U.K.]

PART II
Powers of Investigation

3. Requirement to furnish information or produce material

(1) The Attorney General may, for the purpose of an investigation into an organized crime, make an ex parte application to the High Court for an order under subsection (2) in relation to a particular person or to persons of a particular description.

(2) The High Court may, if on such an application it is satisfied that the conditions in subsection (4)(a), (b) and (d) or subsection (4)(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person, or persons of the particular description, to whom the application relates.

(3) An order under subsection (2) shall—

(a) give particulars of the organized crime under investigation;

(b) identify the particular person, or state the particular description of persons, in respect of whom the order is made;

(c) authorize the Attorney General to require the person or persons in respect of whom the order is made—

(i) to answer questions or otherwise furnish information with respect to any matter that reasonably appears to an authorized officer to be relevant to the investigation; or

(ii) to produce any material that reasonably appears to the Attorney General to relate to any matter relevant to the investigation, or any material of a class that reasonably appears to him so to relate,

or both; and

(d) contain such other terms (if any) as the High Court considers appropriate in the public interest, but nothing in this paragraph shall be construed as authorizing the court to order the detention of any person in custody without that person’s consent.

(4) The conditions referred to in subsection (2) are—

(a) that there are reasonable grounds for suspecting that the organized crime under investigation has been committed;

(b) where the application relates to a particular person, that there are reasonable grounds for suspecting that the person has information, or is in possession of material, likely to be relevant to the investigation;

(c) where the application relates to persons of a particular description, that—

(i) there are reasonable grounds for suspecting that some or all persons of that description have such information or are in possession of such material; and

(ii) the organized crime could not effectively be investigated if the application was required to relate to a particular person, whether because of the urgency of the investigation, the need to keep the investigation confidential or the difficulty in identifying a particular person who has relevant information or meterial;

(d) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the seriousness of the organized crime under investigation;

(ii) to whether or not the organized crime could be effectively investigated if an order under subsection (2) is not made;

(iii) to the benefit likely to accrue to the investigation if the information is disclosed or the material obtained; and

(iv) to the circumstances under which the person or persons may have acquired, or may hold, the information or material (including any obligation of confidentiality in respect of the information or material and any family relationship with a person to whom the information or material relates),

that an order under subsection (2) should be made in respect of that person or those persons.

(5) Where an order under subsection (2) authorizes the Attorney General to require a person to answer questions or otherwise furnish information with respect to any matter that reasonably appears to an authorized officer to be relevant to an investigation, the Attorney General may by one, or more than one, notice in writing served on that person require him to attend before an authorized officer at a specified time and place, or at specified times and places, and answer questions or otherwise furnish information with respect to any matter that reasonably appears to the authorized officer to be relevant to the investigation.

(6) Where an order under subsection (2) authorizes the Attorney General to require a person to produce any material that reasonably appears to the Attorney General to relate to any matter relevant to an investigation, or any material of a class that reasonably appears to him so to relate, the Attorney General may by one, or more than one, notice in writing served on that person require him to produce at a specified time and place, or at specified times and places, any specified material that reasonably appears to him so to relate or any material of a specified class that reasonably appears to him so to relate.

(7) A notice in writing imposing a requirement on a person under subsection (5) or (6) shall—

(a) state that a court order has been made under this section and include—

(i) the date of the order;

(ii) the particulars of the organized crime under investigation;

(iii) where the order is made in respect of that particular person, a statement to that effect;

(iv) where the order is made in respect of persons of a particular description and that person is of that particular description, a statement to that effect;

(v) a statement of the authorization given to the Attorney General by the order; and

(vi) a statement of any other terms of the order relevant to that person;

(b) have annexed to it a copy of the order made under this section, but there may be excluded from such copy—

(i) any reference in the order to a particular person other than that person, or to persons of a particular description not including that person; and

(ii) any details in the order that relate only to such particular person or persons of a particular description; and

(c) be substantially in the form specified in Schedule 4 in relation to such notice and in addition shall set out or have annexed to it subsections (8) to (10) and section 7.

(8) An authorized officer may photograph or make copies of any material produced in compliance with a requirement under this section.

(9) A person shall not under this section be required to furnish any information or produce any material relating to items subject to legal privilege, except that a lawyer may be required to furnish the name and address of his client.

(10) An order under subsection (2), and a notice in writing imposing a requirement under subsection (5) or (6), may be made in relation to information held by, and material in the possession of, a public body as defined in section 28.

(11) A person is not excused from furnishing information or producing any material required under this section on the ground that to do so—

(a) might tend to incriminate him; or

(b) would breach an obligation as to secrecy or another restriction upon the disclosure of information or material imposed by statute or otherwise.

(12) A statement by a person in response to a requirement imposed by virtue of this section may not be used against him in criminal proceedings against him except as follows—

(a) in evidence in proceedings under subsection (14) or section 36 of the Crimes Ordinance (Cap. 200); or

(b) for the purpose of impeaching his credibility in proceedings in respect of any offence where in giving evidence he makes a statement inconsistent with it.

(13) Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year.

(14) Any person who, in purported compliance with a requirement under this section—

(a) makes a statement that he knows to be false or misleading in a material particular; or

(b) recklessly makes a statement that is false or misleading in a material particular,

commits an offence and is liable—

(i) on conviction upon indictment to a fine of $500,000 and to imprisonment for 3 years; or

(ii) on summary conviction to a fine at level 6 and to imprisonment for 1 year.

(15) Where an order under subsection (2) has been made the Attorney General, or a person authorized in writing by the Attorney General for the purpose of this subsection, may, after satisfying any conditions that may be prescribed by rules of court in this respect, obtain a copy of the order; but subject to the foregoing part of this subsection and to subsection (7)(b), no person is entitled to obtain a copy of the order or any part of the order.

(16) Where a requirement imposed on a person under this section relates to material which consists of information recorded otherwise than in legible form—

(a) the requirement shall have effect as a requirement to produce the material in a form in which it can be taken away;

(b) an authorized officer may by notice in writing served on the person require the person to produce at a specified time and place, or at specified times and places, the material in a form in which it is visible and legible and can be taken away, and may by like notice release the person from any obligation under the requirement to produce the material in the form in which it is recorded.

(17) An application for the discharge or variation of an order made under this section may be made by any person on whom a requirement is imposed under the order.

(18) Rules of court—

(a) shall provide for applications by any person on whom a requirement is imposed under an order made under this section for the discharge or variation of such order;

(b) may provide for―

(i) proceedings relating to orders under this section;

(ii) conditions that must be satisfied before a person may obtain a copy of such order.

(19) The Secretary for Security shall prepare a code of practice in connection with—

(a) the exercise of any of the powers conferred; and

(b) the discharge of any of the duties imposed,

by this section, and any such code shall be laid before the Legislative Council and shall not be promulgated until the code has been approved by the Legislative Council.

4. Order to make material available

(1) The Attorney General or an authorized officer may, for the purpose of an investigation into—

(a) an organized crime; or

(b) the proceeds of organized crime of any person who has committed or is suspected of having committed an organized crime; or

(c) the proceeds of a specified offence of any person who has committed, or is suspected of having committed, that specified offence,

make an ex parte application to the High Court for an order under subsection

(2) in relation to particular material or material of a particular description, whether in Hong Kong or, in the case of an application by the Attorney General, elsewhere.

(2) Subject to subsection (5) and section 28(10), the court may, if on such an application it is satisfied that the conditions in subsection (4)(a), (c) and (d) or subsection (4)(b), (c) and (d) are fulfilled, make an order that the person who appears to the court to be in possession or control of the material to which the application relates shall—

(a) produce the material to an authorized officer for him to take away; or

(b) give an authorized officer access to it,

within such period as the order may specify.

(3) The period to be specified in an order under subsection (2) shall be 7 days unless it appears to the court that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) are—

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b) where the investigation is into the proceeds of organized crime or a specified offence of a person—

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(c) that there are reasonable grounds for believing that the material to which the application relates—

(i) is likely to be relevant to the investigation for the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal privilege;

(d) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the material is obtained; and

(ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.

(5) Where an application under subsection (1) relates to material of a particular description, an order under subsection (2) shall only be made where an application in relation to particular material is not reasonably practicable.

(6) Where a court makes an order under subsection (2)(b) in relation to material on any premises it may, on the same or a subsequent application of an authorized officer, order any person who appears to it to be entitled to grant entry to the premises to allow an authorized officer to enter the premises to obtain access to the material.

(7) An application for the discharge or variation of an order made under subsection (2) or (6) may be made by any person who is subject to the order.

(8) Rules of court—

(a) shall provide for applications by any person who is subject to an order made under this section for the discharge or variation of such order;

(b) may provide for proceedings relating to orders under this section.

(9) Where material to which an application under this section relates consists of information recorded otherwise than in legible form—

(a) an order under subsection (2)(a) shall have effect as an order to produce the material in a form in which it can be taken away; and

(b) an order under subsection (2)(b) shall have effect as an order to give access to the material in a form in which it is visible and legible.

(10) Where an order made under subsection (2)(a) relates to information recorded otherwise than in legible form, an authorized officer may by notice in writing require the person to produce the material in a form in which it is visible and legible and can be taken away, and may by like notice release the person from any obligation under the order to produce the material in the form in which it was recorded.

(11) An order under subsection (2)—

(a) shall not confer any right to production of, or access to, items subject to legal privilege; and

(b) may be made in relation to material in the possession of a public body as defined in section 28.

(12) A person is not excused from producing any material in relation to which an order under subsection (2) is made on the ground that to do so

(a) might tend to incriminate him; or

(b) would breach an obligation as to secrecy or another restriction upon the disclosure of information imposed by statute or otherwise.

(13) Any person who without reasonable excuse fails to comply with an order made under subsection (2) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year.

(14) An authorized officer may photograph or make copies of any material produced under this section.

[cf. 1986 c. 32 s. 27 U.K.]

5. Authority for search

(1) An authorized officer may, for the purpose of an investigation into—

(a) an organized crime;

(b) the proceeds of organized crime of any person who has committed or is suspected of having committed an organized crime;

(c) the proceeds of a specified offence of any person who has committed, or is suspected of having committed, that specified offence,

apply to the High Court or the District Court for a warrant under this section in relation to specified premises.

(2) On such application the court may issue a warrant authorizing an authorized officer to enter and search the premises if it is satisfied—

(a) that a requirement imposed under section 3(6) in relation to material on the premises has not been complied with; or

(b) that an order made under section 4 in relation to material on the premises has not been complied with; or

(c) that the conditions in subsection (3)(a), (c) and (d) or subsection (3)(b), (c) and (d) are fulfilled; or

(d) that the conditions in subsection (4)(a), (c) and (d) or subsection (4)(b), (c) and (d) are fulfilled.

(3) The conditions referred to in subsection (2)(c) are—

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b) where the investigation is into the proceeds of organized crime or a specified offence of a person—

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(c) that the conditions in section 4(4)(c) and (d) are fulfilled in relation to any material on the premises;

(d) that it would not be appropriate to make an order under that section in relation to the material because—

(i) it is not practicable to communicate with any person entitled to produce the material; or

(ii) it is not practicable to communicate with any person entitled to grant access to the material or entitled to grant entry to the premises on which the material is situated; or

(iii) the investigation for the purposes of which the application is made might be seriously prejudiced unless an authorized officer could secure immediate access to the material.

(4) The conditions referred to in subsection (2)(d) are—

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b) where the investigation is into the proceeds of organized crime or a specified offence of a person—

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(c) that there are reasonable grounds for suspecting that there is on the premises material which is likely to be relevant to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularized;

(d) that—

(i) it is not practicable to communicate with any person entitled to grant entry to the premises; or

(ii) entry to the premises will not be granted unless a warrant is produced; or

(iii) the investigation for the purposes of which the application is made might be seriously prejudiced unless an authorized officer arriving at the premises could secure immediate entry to them.

(5) Where an authorized officer has entered premises in the execution of a warrant issued under this section, he may seize and retain any material, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which the warrant was issued.

(6) Any person who hinders or obstructs an authorized officer in the execution of a warrant issued under this section commits an offence and is liable—

(a) on conviction upon indictment to a fine of $250,000 and to imprisonment for 2 years; or

(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.

(7) An authorized officer may photograph or make copies of any material seized under this section.

[cf. 1986 c. 32 s. 28 U.K.]

6. Disclosure of information obtained under section 3, 4 or 5

(1) Where any information subject to an obligation of secrecy under the Inland Revenue Ordinance (Cap. 112) has been obtained from the Commissioner of Inland Revenue or any officer of the Inland Revenue Department under or by virtue of section 3, 4 or 5, that information may be disclosed by any authorized officer to the Attorney General for the purposes of—

(a) any prosecution of a specified offence;

(b) any application for a confiscation order; or

(c) any application for an order under section 15(1) or 16(1),

but may not otherwise be disclosed.

(2) Subject to subsection (1), information obtained by any person under or by virtue of section 3, 4 or 5 may be disclosed by any authorized officer—

(a) to the Legal Department, the Royal Hong Kong Police Force, the Customs and Excise Department, the Immigration Department, and the Independent Commission Against Corruption; and

(b) where the information appears to the Attorney General to be likely to assist any corresponding person or body to discharge its functions, to that person or body.

(3) Subsection (2) is without prejudice to any other right to disclose. information obtained under or by virtue of section 3, 4 or 5 that may exist apart from subsection (2).

(4) In this section, “corresponding person or body” (相應的人員或機構) means any person who or body which, in the opinion of the Attorney General, has under the law of a place outside Hong Kong, functions corresponding to any of the functions of any body mentioned in subsection (2)(a).

7. Offence of prejudicing investigation

(1) Where an order under section 3 or 4 has been made or has been applied for and has not been refused or a warrant under section 5 has been issued, a person who, knowing or suspecting that the investigation in relation to which the order has been made or applied for or the warrant has been issued is taking place—

(a) without lawful authority or reasonable excuse makes any disclosure intending to prejudice the investigation; or

(b) falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of any material—

(i) knowing or suspecting that the material is likely to be relevant to the investigation; and

(ii) intending to conceal the facts disclosed by the material from persons carrying out the investigation,

commits an offence.

(2) Where a person has been arrested in connection with an investigation specified in subsection (1), that subsection shall not apply as regards any disclosure in respect of the investigation made after such arrest.

(3) A person who commits an offence under this section is liable—

(a) on conviction upon indictment to a fine and to imprisonment for 7 years; or

(b) on summary conviction to a fine of $500,000 and to imprisonment for 3 years.

[cf. 1986 c. 32 s. 31 U.K.]

PART III
Confiscation of Proceeds of Crime

8. Confiscation orders

(1) Where—

(a) in proceedings before the High Court or the District Court a person is to be sentenced in respect of a specified offence and has not previously been sentenced in respect of his conviction for that offence; and

(b) an application is made by or on behalf of the Attorney General for an order under this section,

the High Court or the District Court, as the case may be, shall act as follows.

(2) If the prosecution so requests, the court shall first determine whether the specified offence of which the person stands convicted is an organized crime.

(3) The court shall then or, where no request has been made under subsection (2), the court shall first—

(a) impose such period of imprisonment or detention (if any);

(b) make such other order in relation to sentence, not being an order provided for or referred to in subsection (7),

as is appropriate in respect of the offence concerned.

(4) The court shall then determine whether the person has benefited from the specified offence or from that offence taken together with any specified offence of which he is convicted in the same proceedings, or which the court proposes to take or has taken into consideration in determining his sentence, and, if he has, whether his proceeds of that specified offence or offences are in total at least $100,000.

(5) If the court has determined—

(a) under subsection (2), that the specified offence of which the person stands convicted is an organized crime; and

(b) under subsection (4), that his proceeds of the specified offence or offences referred to in that subsection are in total at least the amount specified in that subsection,

the court shall then determine whether the person has benefited from organized crime.

(6) If the court determines that his proceeds of the specified offence or offences are in total at least the amount specified in subsection (4), the court shall determine in accordance with section 11 the amount to be recovered in his case by virtue of this section.

(7) The court shall then, in respect of the offence concerned—

(a) order him to pay that amount;

(b) take account of the order before—

(i) imposing any fine on him; or

(ii) making any order involving any payment by him; or

(iii) making any order under section 38F or 56 of the Dangerous Drugs Ordinance (Cap. 134), or section 72, 84A, 102 or 103 of the Criminal Procedure Ordinance (Cap. 221).

(8) For the purposes of any Ordinance conferring rights of appeal in criminal cases, an order made against a person under this section shall be treated as a sentence passed on that person in respect of the offence or offences concerned.

(9) For the purposes of subsection (2)—

(a) the court shall only have regard to evidence such as would be admissible in criminal proceedings;

(b) the court shall only make a determination that a specified offence is an organized crime if it is so satisfied beyond reasonable doubt.

[cf. 1986 c. 32 s. 1 U.K.; 1988 c. 33 s. 72 U.K.]

9. Assessing the proceeds of crime

(1) The High Court or the District Court, as the case may be, may, for the purpose of determining whether a person convicted of a specified offence and found to have committed an organized crime has benefited from organized crime and, if he has, of assessing the value of his proceeds of organized crime, make the following assumptions, except to the extent that the defendant shows that any of the assumptions are incorrect in his case.

(2) Those assumptions are—

(a) that any property appearing to the court—

(i) to have been held by him at any time since his conviction; or

(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him,

was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with the commission of an organized crime;

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with the commission of an organized crime; and

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a payment or reward, he received the property free of any other interests in it.

(3) For the purpose of assessing the value of the defendant's proceeds of organized crime in a case where a confiscation order, or an order under section 3(6) of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), has previously been made against him, the court shall leave out of account any proceeds of organized crime that are shown to the court to have been taken into account in determining the amount to be recovered under that order.

[cf. 1986 c. 32 s. 2 U.K.]

10. Statements, etc. relevant to making confiscation order

(1) Where—

(a) the prosecutor tenders to the High Court or the District Court, as the case may be, a statement as to any matters relevant—

(i) to determining whether the defendant has benefited from a specified offence or an organized crime; or

(ii) to an assessment of the value of the defendant’s proceeds of a specified offence or an organized crime; and

(b) the defendant accepts to any extent any allegation in the statement,

the court may, for the purposes of so determining or making such an assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Where—

(a) a statement is tendered under subsection (1)(a); and

(b) the court is satisfied that a copy of that statement has been served on the defendant,

the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

(3) If the defendant fails in any respect to comply with a requirement under subsection (2), he may be treated for the purposes of this section as accepting every allegation in the statement apart from—

(a) any allegation in respect of which he has complied with the requirement; and

(b) any allegation that he has benefited from a specified offence or organized crime or that any payment or other reward was received by him in connection with the commission of a specified offence or an organized crime.

(4) Where—

(a) the defendant tenders to the court a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made; and

(b) the prosecutor accepts to any extent any allegation in the statement,

the court may, for the purposes of that determination, treat the acceptance by the prosecutor as conclusive of the matters to which it relates.

(5) An allegation may be accepted or a matter indicated for the purposes of this section either—

(a) orally before the court; or

(b) in writing in accordance with rules of court or, in the absence of such rules, in a form acceptable to the court.

(6) No acceptance by the defendant under this section that any payment or other reward was received by him in connection with the commission of a specified offence or an organized crime shall be admissible in evidence in any proceedings for an offence.

[cf. 1986 c. 32 s. 3 U.K.]

11. Amount to be recovered under confiscation order

(1) Subject to subsection (3), the amount to be recovered in the defendant’s case under the confiscation order shall be the amount the High Court or the District Court, as the case may be, assesses to be the value of the defendant’s proceeds of any specified offence to which section 8(4) applies or, where the court has determined under section 8(2) that a specified offence is an organized crime, all organized crime which he has committed.

(2) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made (whether by an acceptance under section 10 or otherwise), the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied as mentioned in subsection (3).

(3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of the defendant’s proceeds for the purpose of subsection (1), the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.

[cf. 1986 c. 32 s. 4 U.K.]

12. Definition of principal terms used

(1) In this Ordinance, “realisable property” (可變現財產) means, subject to subsection (2)—

(a) any property held by the defendant; and

(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Ordinance.

(2) Property is not realisable property if―

(a) an order under section 102 or 103 of the Criminal Procedure Ordinance (Cap. 221);

(b) an order under section 38F or 56 of the Dangerous Drugs Ordinance (Cap. 134); or

(c) an order under section 12AA(1) of the Prevention of Bribery Ordinance (Cap. 201),

is in force in respect of the property.

(3) For the purposes of sections 10 and 11 the amount that might be realised at the time a confiscation order is made against the defendant is—

(a) the total of the values at that time of all the realisable property held by the defendant, less

(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,

together with the total of the values at that time of all gifts caught by this Ordinance.

(4) Subject to subsections (5) to (10), for the purposes of this Ordinance the value of property (other than cash) in relation to any person holding the property—

(a) where any other person holds an interest in the property, is—

(i) the market value of the first-mentioned person’s beneficial interest in the property, less

(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and

(b) in any other case, is its market value.

(5) Subject to subsection (10), references in this Ordinance to the value at any time (referred to in subsection (6) as “the material time” (關鍵時間)) of a gift caught by this Ordinance or of any payment or reward are references to—

(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or

(b) where subsection (6) applies, the value there mentioned,

whichever is the greater.

(6) Subject to subsection (10), if at the material time the recipient holds—

(a) the property which he received (not being cash); or

(b) property which, in whole or in part, directly or indirectly

represents in his hands the property which he received,

the value referred to in subsection (5)(b) is the value to him at the material time of the property mentioned in paragraph (a) or, as the case may be, of the property mentioned in paragraph (b), so far as it so represents the property which he received, but disregarding in either case any charging order.

(7) For the purposes of subsection (3), an obligation has priority at any time if it is an obligation of the defendant to—

(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or

(b) pay any sum which, if the defendant had been adjudged bankrupt or was being wound up, would be among the preferential debts.

(8) In subsection (7)(b), “the preferential debts” (優先債項)—

(a) in relation to bankruptcy, means the debts to be paid in priority under section 38 of the Bankruptcy Ordinance (Cap. 6) (assuming the date of the confiscation order to be the date of filing of the petition and of the receiving order made under that Ordinance); and

(b) in relation to winding up, means the debts to be paid under section 265 of the Companies Ordinance (Cap. 32) (assuming the date of the confiscation order to be the date of commencement of the winding up and the relevant date for the purpose of that section).

(9) A gift (including a gift made before the commencement of this Ordinance) is caught by this Ordinance if—

(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him; or

(b) it was made by the defendant at any time and was a gift of property received by the defendant in connection with a specified offence or an organized crime committed by him or another; or

(c) it was made by the defendant at any time and was a gift of property which in whole or in part directly or indirectly represented in the defendant’s hands property received by him in that connection.

(10) For the purposes of this Ordinance—

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the defendant.

[cf. 1986 c. 32 s. 5 U.K.]

PART IV
Enforcement, etc. of Confiscation Orders

13. Application of procedure for enforcing fines

(1) Subject to this section, where the High Court or the District Court, as the case may be, orders the defendant to pay any amount under section 8—

(a) the court shall make an order fixing a term of imprisonment which he is to serve if any of the amount which he is liable to pay is not duly paid or recovered; and

(b) section 114(1), (3), (4), (5), (6) and (7) of the Criminal Procedure Ordinance (Cap. 221) shall apply as if—

(i) that amount were a fine imposed upon him by the court; and

(ii) the term of imprisonment fixed under this section were a term fixed under section 114(1)(c) of that Ordinance.

(2) The terms set out in column 2 of the following table shall be the maximum terms of imprisonment under subsection (1) applicable respectively to the amounts set out opposite thereto.

TABLE

	An amount not exceeding $200,000 ............................................................................................................................................................................................................................................................................................................	12 months
	An amount exceeding $200,000 but not exceeding $500,000 ............................................................................................................................................................................................................................................................................................................	18 months
	An amount exceeding $500,000 but not exceeding $1 million ............................................................................................................................................................................................................................................................................................................	2 years
	An amount exceeding $1 million but not exceeding $2.5 million ............................................................................................................................................................................................................................................................................................................	3 years
	An amount exceeding $2.5 million but not exceeding $10 million ............................................................................................................................................................................................................................................................................................................	5 years
	An amount exceeding $10 million ............................................................................................................................................................................................................................................................................................................	10 years

(3) Subsections (1) and (2) shall apply in relation to the District Court notwithstanding any limitation on the jurisdiction of that court as to the imposition of penalties set out in section 82 of the District Court Ordinance (Cap. 336).

(4) Where the defendant—

(a) becomes liable to serve a term of imprisonment fixed under this section in respect of a confiscation order; and

(b) is also liable to serve a term of imprisonment or detention in respect of the offence or offences concerned,

the term of imprisonment mentioned in paragraph (a) shall not begin to run until after the end of the term of imprisonment or detention mentioned in paragraph (b).

(5) For the purposes of subsection (4)—

(a) consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term; and

(b) there shall be disregarded—

(i) any sentence suspended under section 109B of the Criminal Procedure Ordinance (Cap. 221) which has not taken effect at the time the defendant becomes liable to a term of imprisonment under this section; and

(ii) any term of imprisonment fixed under section 114(1) of the Criminal Procedure Ordinance (Cap. 221) for which the defendant has not at that time been committed.

(6) Section 109A of the Criminal Procedure Ordinance (Cap. 221) shall not apply in relation to fixing a term of imprisonment under this section.

[cf. 1986 c. 32 s. 6 U.K.]

14. Cases in which restraint orders and charging orders may be made

(1) The powers conferred on the High Court by sections 15(1) and 16(1) are exercisable where—

(a) proceedings have been instituted against the defendant for a specified offence;

(b) the proceedings have not been concluded; and

(c) the High Court is satisfied that there is reasonable cause to believe that the defendant has benefited from that specified offence.

(2) Those powers are also exercisable where the High Court is satisfied—

(a) that, whether by the laying of an information or otherwise, a person is to be charged with a specified offence; and

(b) that there is reasonable cause to believe that he has benefited from that specified offence.

(3) For the purposes of sections 15 and 16, in relation to the exercise of those powers at any time before proceedings have been instituted, references in this Ordinance—

(a) to the defendant shall be construed as references to the person referred to in subsection (2)(a);

(b) to the prosecutor shall be construed as references to the person who the High Court is satisfied is to have the conduct of the case for the prosecution in the proposed proceedings; and

(c) to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (2)(a) for a specified offence.

(4) Where the High Court has made an order under section 15(1) or 16(1) by virtue of subsection (2), the High Court shall discharge the order if proceedings in respect of the offence are not instituted within such time as the High Court considers reasonable.

[cf. 1986 c. 32 s. 7 U.K.]

15. Restraint orders

(1) The High Court may by order (referred to in this Ordinance as a “restraint order” (限制令)) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.

(2) A restraint order may apply—

(a) to all realisable property held by a specified person, whether the property is described in the order or not; and

(b) to realisable property held by a specified person, being property transferred to him after the making of the order.

(3) This section shall not have effect in relation to any property for the time being subject to a charge under section 16.

(4) A restraint order—

(a) may be made only on an application by the prosecutor;

(b) may be made on an ex parte application to a judge in chambers; and

(c) shall provide for notice to be given to persons affected by the order.

(5) A restraint order—

(a) may be discharged or varied in relation to any property; and

(b) shall be discharged when proceedings for the offence are concluded.

(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.

(7) Where the High Court has made a restraint order, the High Court may at any time appoint a receiver—

(a) to take possession of any realisable property; and

(b) in accordance with the High Court’s directions, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such exceptions and conditions as may be specified by the High Court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.

} (8) For the purposes of this section, dealing with property held by any person includes (without prejudice to the generality of the expression)—

(a) where the property is a debt owed to that person, making a payment to any person in reduction or full settlement of the amount of the debt;

(b) making or receiving a gift of the property; and

(c) removing the property from Hong Kong.

(9) Where the High Court has made a restraint order, an authorized officer may, for the purpose of preventing any realisable property being removed from Hong Kong, seize the property.

(10) Property seized under subsection (9) shall be dealt with in accordance with the High Court’s directions.

(11) Where any property specified in a restraint order is immovable property the order shall, for the purposes of the Land Registration Ordinance (Cap. 128)—

(a) be deemed to be an instrument affecting land; and

(b) be registrable as such in the Land Registry under that Ordinance in such manner as the Land Registrar thinks fit.

[cf. 1986 c. 32 s. 8 U.K.]

16. Charging orders in respect of land, securities, etc.

(1) The High Court may make a charging order on realisable property for securing the payment to the Government―

(a) where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; and

(b) in any other case, of an amount not exceeding the amount payable under the confiscation order.

(2) For the purposes of this Ordinance, a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Government.

(3) A charging order―

(a) may be made only on an application by the prosecutor;

(b) may be made on an ex parte application to a judge in chambers;

(c) shall provide for notice to be given to persons affected by the order; and

(d) may be made subject to such conditions as the High Court thinks fit and, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective.

(4) Subject to subsection (6), a charge may be imposed by a charging order only on―

(a) any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Ordinance—

(i) in any asset of a kind specified in Schedule 3; or

(ii) under any trust; or

(b) any interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) be imposed by a charging order on the whole beneficial interest under the first mentioned trust.

(5) In any case where a charge is imposed by a charging order on any interest in an asset of a kind specified in Schedule 3, the High Court may provide for the charge to extend to any interest, dividend or other distribution payable and any bonus issue in respect of the asset.

(6) The High Court may make an order discharging or varying the charging order and shall make an order discharging the charging order if the proceedings for the offence are concluded or the amount payment of which is secured by the charge is paid into the High Court.

(7) An application for the discharge or variation of a charging order may be made by any person affected by it.

(8) Subject to the provisions of this Ordinance, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustee, by writing under his hand.

[cf. 1986 c. 32 s. 9 U.K.]

17. Realisation of property

(1) Where—

(a) a confiscation order is made;

(b) the order is not subject to appeal or review within the meaning of section 2(17); and

(c) the proceedings in which it was made have not been concluded,

the High Court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6).

(2) The High Court may appoint a receiver in respect of realisable property.

(3) The High Court may empower a receiver appointed under subsection (2), under section 15 or in pursuance of a charging order—

(a) to enforce any charge imposed under section 16 on realisable property or on any interest, dividend or other distribution payable and any bonus issue in respect of such property; and

(b) in relation to any realisable property other than property for the time being subject to a charge under section 16, to take possession of the property subject to such conditions or exceptions as may be specified by the High Court.

(4) The High Court may order any person having possession of realisable property to give possession of it to any such receiver.

(5) The High Court may empower any such receiver to realise any realisable property in such manner as the High Court may direct.

(6) The High Court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Ordinance as the High Court may direct and the High Court may, on the payment being made, by order transfer, grant or extinguish any interest in the property.

(7) Subsections (4) to (6) do not apply to property for the time being subject to a charge under section 16.

(8) The High Court shall not in respect of any property exercise the powers conferred by subsection (3)(a), (5) or (6) unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the High Court.

[cf. 1986 c. 32 s. 11 U.K.]

18. Application of proceeds of realisation and other sums

(1) Subject to subsection (2), the following sums in the hands of a receiver appointed under section 15 or 17 or in pursuance of a charging order, that is—

(a) the proceeds of the enforcement of any charge imposed under section 16;

(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 15 or 17; and

(c) any other sums, being property held by the defendant,

shall first be applied in payment of such expenses incurred by a person acting as an insolvency officer as are payable under section 23(2) and then shall, after such payments (if any) as the High Court may direct have been made out of those sums—

(i) be payable to the Registrar; and

(ii) be applied on the defendant’s behalf towards the satisfaction of the confiscation order in the manner provided by subsection (3).

(2) If, after the amount payable under the confiscation order has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute those sums—

(a) among such of those who held property which has been realised under this Ordinance; and

(b) in such proportions,

as the High Court may direct after giving a reasonable opportunity for such persons to make representations to the High Court.

(3) The receipt of any sum by the Registrar on account of an amount payable under a confiscation order shall reduce the amount so payable, but the Registrar shall apply the sum received for the purposes specified in this section and in the order so specified.

(4) The Registrar shall first pay any expenses incurred by a person acting as an insolvency officer and payable under section 23(2) but not already paid under subsection (1).

(5) If the sum was paid to the Registrar by a receiver appointed under section 15 or 17 or in pursuance of a charging order, the Registrar shall next pay the receiver’s remuneration and expenses.

(6) After making—

(a) any payment required by subsection (4); and

(b) in a case to which subsection (5) applies, any payment required by that subsection,

the Registrar shall reimburse any amount paid under section 24(2).

(7) Any balance in the hands of the Registrar after he has made all payments required by the foregoing subsections shall be disposed of under section 93 of the Interpretation and General Clauses Ordinance (Cap. 1) as if it were a fine imposed under the authority of an Ordinance.

[cf. 1986 c. 32 s. 12 U.K.]

19. Exercise of powers by High Court or receiver

(1) This section applies to the powers conferred on the High Court by sections 15 to 18, or on a receiver appointed under section 15 or 17 or in pursuance of a charging order.

(2) Subject to subsections (3), (4), (5) and (6), the powers shall be exercised with a view to making available for satisfying the confiscation order or, as the case may be, any confiscation order that may be made in the defendant’s case the value for the time being of realisable property held by any person by the realisation of such property.

(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Ordinance, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.

(4) The powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.

(5) An order may be made or other action taken in respect of a debt owed by the Government.

(6) In exercising those powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the confiscation order.

[cf. 1986 c. 32 s. 13 U.K.]

20. Variation of confiscation orders

(1) If, on an application by the defendant in respect of a confiscation order, the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the confiscation order, the High Court shall make an order—

(a) substituting for the amount to be recovered under the confiscation order such lesser amount as the High Court thinks just in all the circumstances of the case; and

(b) substituting for the term of imprisonment fixed under section 13 in respect of the amount to be recovered under the confiscation order a shorter term determined in accordance with that section in respect of the lesser amount.

(2) For the purposes of subsection (1)—

(a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the High Court shall take into account the extent to which any property held by him may be distributed among creditors; and

(b) the High Court may disregard any inadequacy in the realisable property which appears to the High Court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Ordinance from any risk of realisation under this Ordinance.

[cf. 1986 c. 32 s. 14 U.K.]

21. Bankruptcy of defendant, etc.

(1) Where a person who holds realisable property is adjudged bankrupt—

(a) property for the time being subject to a restraint order made before the order adjudging him bankrupt; and

(b) any proceeds of property realised by virtue of section 15(7) or 17(5) or (6) for the time being in the hands of a receiver appointed under section 15 or 17,

are excluded from the property of the bankrupt for the purposes of the Bankruptcy Ordinance (Cap. 6).

(2) Where a person has been adjudged bankrupt, the powers conferred on the High Court by sections 15 to 18 shall not be exercised in relation to—

(a) property for the time being comprised in the property of the bankrupt for the purposes of the Bankruptcy Ordinance (Cap. 6); and

(b) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 30(3) of the Bankruptcy Ordinance (Cap. 6).

(3) Nothing in the Bankruptcy Ordinance (Cap. 6) shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the High Court by sections 15 to 18.

(4) Subsection (2) does not affect the enforcement of a charging order—

(a) made before the order adjudging the person bankrupt; or

(b) on property which was subject to a restraint order when the order adjudging him bankrupt was made.

(5) Where, in the case of a debtor, an interim receiver stands appointed under section 13 of the Bankruptcy Ordinance (Cap. 6) and any property of the debtor is subject to a restraint order, the powers conferred on the interim receiver by virtue of that Ordinance do not apply to property for the time being subject to the restraint order.

(6) Where a person is adjudged bankrupt and has directly or indirectly made a gift caught by this Ordinance—

(a) a court shall not make an order under—

(i) section 31, 47 or 49 of the Bankruptcy Ordinance (Cap. 6); or

(ii) section 60 of the Conveyancing and Property Ordinance (Cap. 219),

in respect of the making of the gift at any time when proceedings for a specified offence have been instituted against him and have not been concluded or when property of the person to whom the gift was made is subject to a restraint order or charging order; and

(b) any order made under any of those sections after the conclusion of the proceedings shall take into account any realisation under this Ordinance of property held by the person to whom the gift was made.

[cf. 1986 c. 32 s. 15 U.K.]

22. Winding up of company holding realisable property

(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to—

(a) property for the time being subject to a restraint order made before the relevant time; and

(b) any proceeds of property realised by virtue of section 15(7) or 17(5) or (6) for the time being in the hands of a receiver appointed under section 15 or 17.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the High Court by sections 15 to 18 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable—

(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company’s creditors; or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Nothing in the Companies Ordinance (Cap. 32) shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the High Court by sections 15 to 18.

(4) Subsection (2) does not affect the enforcement of a charging order made before the relevant time or on property which was subject to a restraint order at the relevant time.

(5) In this section—

“company” (公司) means any company which may be wound up under the Companies Ordinance (Cap. 32);

“the relevant time” (有關時間) means—

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the High Court, such a resolution had been passed by the company, the time of the passing of the resolution; and

(c) in any other case where such an order has been made, the time of the making of the order.

[cf. 1986 c. 32 s. 17 U.K.]

23. Insolvency officers dealing with property subject to restraint order

(1) Without prejudice to the generality of any provision contained in the Bankruptcy Ordinance (Cap. 6), the Companies Ordinance (Cap. 32) or any other Ordinance, where—

(a) any insolvency officer seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order; and

(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of that property,

he shall not be liable to any other person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence; and the insolvency officer shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.

(2) Any insolvency officer who incurs expenses—

(a) in respect of such property as is mentioned in subsection (1)(a) and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or

(b) other than in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that subsection) to payment of those expenses under section 18(1) or (4).

[cf. 1986 c. 32 s. 17A U.K.]

24. Receivers: supplementary provisions

(1) Where a receiver appointed under section 15 or 17 or in pursuance of a charging order takes any action—

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property;

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.

(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under section 18(5), be paid by the prosecutor or, in a case where proceedings for a specified offence are not instituted, by the person on whose application the receiver was appointed.

[cf. 1986 c. 32 s. 18 U.K.]

PART V
Miscellaneous

25. Assisting a person to retain proceeds of indictable offence

(1) Subject to subsection (3), a person who enters into or is otherwise concerned in an arrangement whereby—

(a) the retention or control by or on behalf of another (“the relevant person” (有關的人)) of the relevant person’s proceeds of an indictable offence is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or

(b) the relevant person’s proceeds of an indictable offence—

(i) are used to secure funds that are placed at the relevant person’s disposal; or

(ii) are used for the relevant person’s benefit to acquire property by way of investment,

knowing or having reasonable grounds to believe that the relevant person is a person who has committed or has benefited from an indictable offence, commits an offence.

(2) In this section, references to any person’s proceeds of an indictable offence include a reference to any property which, in whole or in part, directly or indirectly, represented in his hands his proceeds of an indictable offence.

(3) Where a person discloses to an authorized officer a suspicion or belief that any funds or investments are derived from or used in connection with an indictable offence or any matter on which such a suspicion or belief is based—

(a) if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he does not commit an offence under this section if the disclosure is made in accordance with this paragraph, that is—

(i) it is made before he does the act concerned, being an act done with the consent of the authorized officer; or

(ii) it is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it;

(b) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by rules of professional conduct; and

(c) he shall not be liable in damages for any loss arising out of—

(i) the disclosure;

(ii) any act done or omitted to be done in relation to the funds or investments in consequence of the disclosure.

(4) In proceedings against a person for an offence under this section, it is a defence to prove―

(a) that he did not know or suspect that the arrangement related to any person’s proceeds of an indictable offence; or

(b) that he did not know or suspect that by the arrangement the retention or control by or on behalf of the relevant person of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in subsection (1); or

(c) that—

(i) he intended to disclose to an authorized officer such a suspicion, belief or matter as is mentioned in subsection (3) in relation to the arrangement; but

(ii) there is reasonable excuse for his failure to make disclosure in accordance with subsection (3)(a).

(5) A person who commits an offence under this section is liable—

(a) on conviction upon indictment to a fine of $5,000,000 and to imprisonment for 14 years; or

(b) on summary conviction to a fine of $500,000 and to imprisonment for 3 years.

(6) In this section, references to an indictable offence include a reference to conduct which would constitute an indictable offence if it had occurred in Hong Kong.

[cf. 1986 c. 32 s. 24 U.K.]

26. Restriction on revealing disclosure under section 25

(1) Subject to subsection (2), no witness in any civil or criminal proceedings shall be obliged—

(a) to reveal that a disclosure was made under section 25(3);

(b) to reveal the identity of any person as the person making the disclosure; or

(c) to answer any question if the answer would lead, or would tend to lead, to the revealing of any fact or matter referred to in paragraph (a) or (b).

(2) Subsection (1) shall not apply in any proceedings—

(a) for an offence under section 25 or this section; or

(b) where the court is of the opinion that justice cannot fully be done between the parties without revealing the disclosure or the identity of any person as the person making the disclosure.

(3) Subject to subsections (4), (5) and (6), no person shall publish or broadcast any information so as to reveal or suggest―

(a) that a disclosure was made under section 25(3); or

(b) the identity of any person as the person making the disclosure.

(4) In subsection (3), “information” (資料)—

(a) includes a report of any civil or criminal proceedings;

(b) does not include information published for statistical purposes by, or under the authority of, the Government.

(5) Subsection (3) shall not apply in respect of proceedings—

(a) against the person making the disclosure for an offence under section 25; or

(b) for an offence under this section.

(6) The court or a magistrate may, if satisfied that it is in the interests of justice to do so, by order dispense with the requirements of subsection (3) to such extent as may be specified in the order.

(7) If information is published or broadcast in contravention of subsection (3), each of the following persons—

(a) in the case of publication as part of a newspaper or periodical publication, any proprietor, editor, publisher and distributor thereof;

(b) in the case of a publication otherwise than as part of a newspaper or periodical publication, any person who publishes it and any person who distributes it;

(c) in the case of a broadcast, any person who broadcasts the information and, if the information is contained in a programme, any person who transmits or provides the programme and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical publication,

commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.

(8) Proceedings for an offence under this section shall not be instituted except with the consent of the Attorney General.

(9) In this section—

“broadcast” (廣播) includes broadcast by radio, film, videotape or television;

“publish” (出版) means publish in writing.

27. Sentencing in respect of specified offences

(1) This section applies where, in proceedings in the District Court or the High Court, a person has been convicted of a specified offence.

(2) The prosecution may furnish information to the court regarding any or all of the following—

(a) the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the person has been so convicted;

(b) the nature and extent of any benefit, whether financial or otherwise, that accrued or was intended to accrue, directly or indirectly, to that or any other person from that act;

(c) the prevalence of that specified offence;

(d) the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrences of that specified offence;

(e) the nature and extent of the total benefit, whether financial or otherwise, accruing directly or indirectly to any person from recent occurrences of that specified offence.

(3) Only information that would be admissible in evidence in criminal proceedings (including proceedings in respect of sentencing) may be furnished to the court under subsection (2).

(4) If the prosecution so requests, the court shall determine whether the evidence adduced at the trial or, if the conviction followed a plea of guilty, the matters accepted by the court prior to conviction show that the specified offence was an organized crime.

(5) The prosecution shall not request a determination under subsection (4) unless it has given notice to the person of its intention to seek such a determination, and unless such notice has been given prior to the plea last entered by the person or within such further time as may have been allowed by the court under subsection (6).

(6) If a person has pleaded guilty to a specified offence and it appears to the court, having regard to the time at which the prosecution was informed of the accused’s intention to plead guilty, that it would be in the interests of justice to allow the prosecution further time within which to give the notice provided for in subsection (5), the court may order accordingly and may specify such period for that purpose as it considers reasonable in the circumstances, and if notice is given pursuant to an order under this subsection the court may allow the accused to withdraw his plea of guilty.

(7) The court shall not make a determination under subsection (4) that a specified offence was an organized crime unless, subsequent to his receipt of the notice required to be given under subsection (5), the person convicted has been given an opportunity to be heard on the matter.

(8) If in making a determination under subsection (4) the court determines that the specified offence was an organized crime by reason of its connection with the activities of a particular triad society, the prosecution may furnish information to the court regarding the nature and extent of those activities and the way in which the offence was connected with those activities.

(9) The court may receive and take into account regarding a matter referred to in subsection (8) any information which it considers reliable in the circumstances.

(10) Where the prosecution seeks to furnish information to a court under this section regarding any matter referred to in subsection (2) or (8), the court shall allow the person convicted an opportunity to object to the reception of the information, and where any such information is received by the court the court shall allow the person an opportunity to furnish information regarding that same matter.

(11) Subject to subsections (12) and (13), where a court is satisfied beyond reasonable doubt―

(a) that the specified offence was an organized crime; or

(b) as to any information furnished under subsection (2) or (8),

or where any such matter is agreed by the person convicted, the court shall have regard to such matter when it passes a sentence on the person for the relevant specified offence and may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such matter, have passed.

(12) If an application has been made for a confiscation order under section 8, the court shall not have regard for the purpose of subsection (11) to any proceeds of a specified offence or organized crime to which the application for the confiscation order relates.

(13) A sentence passed pursuant to subsection (11) shall not exceed the maximum penalty permitted by law for the offence.

(14) This section operates without prejudice to any other information that may be furnished to a court before a person is sentenced, or to any other information to which a court shall or may have regard when sentencing a person for any offence.

(15) This section does not apply to a person who is convicted of a specified offence committed before the commencement of this section.

28. Disclosure of information held by public bodies

(1) Subject to subsection (4), the High Court may, on an application by the prosecutor, order any material mentioned in subsection (3) which is in the possession of a public body to be produced to the High Court within such period as the High Court may specify.

(2) The power to make an order under subsection (1) is exercisable if―

(a) the powers conferred on the High Court by sections 15(1) and 16(1) are exercisable by virtue of section 14(1); or

(b) those powers are exercisable by virtue of section 14(2) and the High Court has made a restraint or charging order which has not been discharged,

but where the power to make an order under subsection (1) is exercisable by virtue only of paragraph (b), section 14(3) shall apply for the purposes of this section as it applies for the purposes of sections 15 and 16.

(3) The material referred to in subsection (1) is any material which—

(a) has been submitted to an officer of a public body by the defendant or by a person who has at any time held property which was realisable property;

(b) has been made by an officer of a public body in relation to the defendant or such a person; or

(c) is correspondence which passed between an officer of a public body and the defendant or such a person,

and an order under that subsection may require the production of all such material or of a particular description of such material, being material in the possession of the body concerned.

(4) An order under subsection (1) shall not require the production of any material unless it appears to the High Court that the material is likely to contain information that would facilitate the exercise of the powers conferred on the High Court by sections 15 to 17 or on a receiver appointed under section 15 or 17 or in pursuance of a charging order.

(5) The High Court may by order authorize the disclosure to such a receiver of any material produced under subsection (1) or any part of such material; but the High Court shall not make an order under this subsection unless a reasonable opportunity has been given for an officer of the public body to make representations to the High Court.

(6) Material disclosed in pursuance of an order under subsection (5) may, subject to any conditions contained in the order, be further disclosed for the purposes of the functions under this Ordinance of the receiver or the High Court.

(7) The High Court may by order authorize the disclosure to an authorized officer of any material produced under subsection (1) or any part of such material; but the High Court shall not make an order under this subsection unless—

(a) a reasonable opportunity has been given for an officer of the public body to make representations to the High Court; and

(b) it appears to the High Court that the material is likely to be relevant in exercising functions relating to the investigation of specified offences.

(8) Material disclosed in pursuance of an order under subsection (7) may, subject to any conditions contained in the order, be further disclosed for the purposes of functions relating to the investigation of specified offences.

(9) Material may be produced or disclosed in pursuance of this section notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise.

(10) An order under subsection (1) and, in the case of material in the possession of a public body, an order under section 4(2) may require any officer of the public body (whether named in the order or not) who may for the time being be in possession of the material concerned to comply with it, and such an order shall be served as if the proceedings were civil proceedings against the Crown.

(11) In this section, “public body” (公共機構) means―

(a) any Government department; and

(b) any body specified by the Governor under subsection (12).

(12) The Governor may, by notice in the Gazette, specify a body to be a public body for the purposes of this section.

[cf. 1986 c. 32 s. 30 U.K.]

29. Compensation

(1) If an investigation is begun against a person for a specified offence or offences and any of the following circumstances occur, namely―

(a) no proceedings are instituted against that person;

(b) proceedings are instituted against that person but do not result in his conviction for any specified offence; or

(c) proceedings are instituted against that person and he is convicted of one or more specified offences, but―

(i) the conviction or convictions concerned are quashed; or

(ii) he is granted a pardon in respect of the conviction or convictions concerned,

the High Court may, on application by a person who held property which was realisable property, order compensation to be paid by the Government to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.

(2) The High Court shall not order compensation to be paid under subsection (1) unless it is satisfied―

(a) that there has been some serious default on the part of any person concerned in the investigation or prosecution of the offence or offences concerned; and

(b) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of an order of the High Court under sections 15 to 17.

(3) The High Court shall not order compensation to be paid under subsection (1) in any case where it appears to the High Court that the investigation would have been continued, or the proceedings would have been instituted or continued, as the case may be, if the serious default had not occurred.

(4) Without prejudice to subsection (1), where―

(a) a disclosure is made by any person in accordance with section 25(3) in relation to any property;

(b) in consequence of the disclosure and for the purposes of an investigation or prosecution in respect of a specified offence or offences any act is done or omitted to be done in relation to that property; and

(c) no proceedings are instituted against any person in respect of that offence or those offences or no order is made by the High Court under section 15 or 16 in relation to that property,

the High Court may, on application by a person who held the property, order compensation to be paid by the Government to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order.

(5) The High Court shall not order compensation to be paid under subsection (4) unless it is satisfied—

(a) that there has been some serious default on the part of any person concerned in the investigation or prosecution of the offence or offences concerned and that, but for that default, the act or omission referred to in subsection (4)(b) would not have occurred; and

(b) the applicant has, in consequence of the act or omission referred to in subsection (4)(b), suffered loss in relation to the property.

(6) The amount of compensation to be paid under this section shall be such as the High Court thinks just in all the circumstances of the case.

[cf. 1986 c. 32 ss. 19 & 24(3) U.K.]

30. Rules of court

The power to make rules of court under section 54 of the Supreme Court Ordinance (Cap. 4) shall include power to make rules of court for the purposes of this Ordinance.

31. Amendment of amount in section 8(4) and Schedules

Subject to the approval of the Legislative Council, the Governor in Council may by order amend the amount specified in section 8(4) and the Schedules.

32. Savings

This Ordinance operates without prejudice to the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405).

Consequential Amendments

Money Lenders Ordinance

33. Prohibition of excessive interest rates

Section 24(4) of the Money Lenders Ordinance (Cap. 163) is amended by repealing everything after “shall be” and substituting―

“liable—

(a) on summary conviction to a fine of $500,000 and to imprisonment for 2 years;

(b) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 10 years.”.

34. Time limitation for instituting certain proceedings

Section 32A is amended by repealing “24 or”.

Customs and Excise Service Ordinance

35. Ordinances referred to in sections 17 and 17A

Schedule 2 to the Customs and Excise Service Ordinance (Cap. 342) is amended by adding―

“Organized and Serious Crimes Ordinance (82 of 1994)”.

Drug Trafficking (Recovery of Proceeds) Ordinance

36. Assessing the proceeds of drug trafficking

Section 4(5) of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) is amended by adding “, or an order under section 8(7) of the Organized and Serious Crimes Ordinance (82 of 1994)," after "confiscation order”.

Offences Relevant to Definitions of “Organized Crime” and “Specified Offence”

Common law offences

1. murder

2. kidnapping

3. false imprisonment

4. conspiracy to pervert the course of justice

Statutory offences

	Offence	Description*
5.	Import and Export Ordinance (Cap. 60)
	section 6A	import or export of strategic commodities
	section 6C	import of certain prohibited articles
	section 6D(1) and (2)	export of certain prohibited articles
	section 6E	carriage, etc. of prescribed articles in Hong Kong waters
	section 18	importing or exporting unmanifested cargo
6.	Immigration Ordinance (Cap. 115)
	section 37D(1)	arranging passage to Hong Kong of unauthorized entrants
	section 38(4)	carrying an illegal immigrant
	section 42(1) and (2)	false statements, forgery of documents and use and possession of forged documents
7.	Dangerous Drugs Ordinance (Cap. 134)
	section 4(1)	trafficking in dangerous drugs
	section 4A(1)	trafficking in purported dangerous drugs
	section 6(1)	manufacturing a dangerous drug
8.	Gambling Ordinance (Cap. 148)
	section 5	operating, managing or controlling gambling establishment
	section 7(1)	bookmaking
9.	Societies Ordinance (Cap. 151)
	section 19	penalties on an office-bearer, etc. of an unlawful society
	section 21	allowing a meeting of an unlawful society to be held on premises
	section 22	inciting etc., a person to become a member of an unlawful society
10.	Money Lenders Ordinance (Cap. 163)
	section 24(1)	lending money at an excessive interest rate
11.	Crimes Ordinance (Cap. 200)
	section 24	threatening a person with intent
	section 25	assaulting with intent to cause certain acts to be done or omitted
	section 53	causing explosion likely to endanger life or property
	section 54	attempt to cause explosion, or making or keeping explosive with intent to endanger life or property
	section 55	making or possession of explosive
	section 60	destroying or damaging property
	section 61	threats to destroy or damage property
	section 71	forgery
	section 75(1)	possessing a false instrument with intent
	section 98(1)	counterfeiting notes and coins with intent
	section 100(1)	custody or control of counterfeit notes and coins with intent
	section 105	importation and exportation of counterfeit notes and coins
	section 118	rape
	section 119	procurement of person by threats
	section 120	procurement of person by false pretences
	section 129	trafficking to or from Hong Kong in persons
	section 130	control over person for purpose of unlawful sexual act or prostitution
	section 131	causing prostitution of person
	section 134	detention of person for unlawful sexual act or in vice establishment
	section 137	living on earnings of prostitution
	section 139	keeping a vice establishment
12.	Theft Ordinance (Cap. 210)
	section 9	theft
	section 10	robbery
	section 11(1)	burglary
	section 17	obtaining property by deception
	section 18	obtaining a pecuniary advantage by deception
	section 18D	procuring false entry in certain records
	section 19	false accounting
	section 23(1) and (4)	blackmail
	section 24(1)	handling stolen goods
13.	Offences against the Person Ordinance (Cap. 212)
	section 17	shooting or attempting to shoot, or wounding or striking with intent to do grievous bodily harm
14.	Firearms and Ammunition Ordinance (Cap. 238)
	section 13	possession of arms or ammunition without licence
	section 14	dealing in arms or ammunition without a licence
15.	Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405)
	section 25(1)	assisting another to retain the benefit of drug trafficking
16.	Organized and Serious Crimes Ordinance (82 of 1994)
	section 25(1)	assisting a person to retain proceeds of indictable offence

* Note: The short description of offences in this Schedule is for ease of reference only.

Other Specified Offences

Common law offences

1. manslaughter

2. conspiracy to defraud

Statutory offences

	Offence	Description*
3.	Import and Export Ordinance (Cap. 60)
	section 14	alteration of vessel, aircraft or vehicle for the purpose of smuggling
	section 14A	construction, etc., of vessels for the purpose of smuggling
	section 18A	assisting, etc., in export of unmanifested cargo
	section 35A	assisting, etc., in carriage of prohibited, etc., articles
4.	Immigration Ordinance (Cap. 115)
	section 37DA(1)	assisting unauthorized entrant to remain
5.	Import and Export Ordinance (Cap. 60)
	section 5(1)	supplying or procuring a dangerous drug to or for unauthorized persons
	section 9(1), (2) and (3)	offences relating to cannabis plant or opium poppy
	section 35(1)	keeping or managing a divan for the taking of dangerous drugs
	section 37(1)	permitting premises to be used for unlawful trafficking, manufacturing or storage of dangerous drugs
6.	Gambling Ordinance (Cap. 148)
	section 14	providing money for unlawful gambling or for an unlawful lottery
	section 15(1)	permitting premises to be used as gambling establishment
7.	Registration of Persons Ordinance (Cap. 177)
	section 7A	possession of forged identity cards
8.	Crimes Ordinance (Cap. 200)
	section 72	copying a false instrument
	section 73	using a false instrument
	section 74	using a copy of a false instrument
	section 76	making or possessing equipment for making a false instrument
	section 99(1)	passing, etc. counterfeit notes and coins
	section 101	making or custody or control of counterfeiting materials and implements
9.	Prevention of Bribery Ordinance (Cap:201)
	section 4(1)	bribery of public servant
	section 5(1)	bribery for giving assistance, etc. in regard to contracts
	section 6(1)	bribery for procuring withdrawal of tenders
	section 9(2)	bribery of agent
10.	Theft Ordinance (Cap. 210)
	section 12(1)	aggravated burglary
	section 18A	obtaining services by deception
11.	Offences against the Person Ordinance (Cap. 212)
	section 19	wounding or inflicting grievous bodily harm
12.	Theft Ordinance (Cap. 210)
	section 90(1)	doing an act with intent to impede apprehension or prosecution of offender

* Note: The short description of offences in this Schedule is for ease of reference only.

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Assets on which a Charging Order may be Imposed

1. Land in Hong Kong.

2. Securities of any of the following kinds―

(a) Government stock,

(b) stock of any body incorporated in Hong Kong;

(c) stock of any body incorporated outside Hong Kong or of any state or territory outside Hong Kong, being stock registered in a register kept at any place within Hong Kong;

(d) units of any unit trust in respect of which a register of the unit holders is kept at any place within Hong Kong.

3. In this Schedule—

(a) the terms “Government stock” (政府證券) and “land” (土地) have the same meaning as in section 2 of the Supreme Court Ordinance (Cap. 4);

(b) the terms “stock” (股份) and “unit trust” (單位信托基金) have the same meaning as in section 20A of that Ordinance.

Organized and Serious Crimes Ordinance (82 of 1994)

SECTION 3
NOTICE REQUIRING ATTENDANCE TO ANSWER QUESTIONS OR FURNISH INFORMATION

To: . . . . . . . . . . . . . . . . . . . . . . . . .
(name and address of person)

1. On. . . . . . . . . . . . . . . . . . . .
(date), in the High Court, Hong Kong an order was made by the Hon. Mr. Justice. . . . . . . . . . . . . . . . . . . .under section 3 of the Organized and Serious Crimes Ordinance (82 of 1994) for the purpose of an investigation into an organized crime. A copy of the order as it relates to you is annexcd to this Notice.

2. Particulars of the organized crime under investigation are—

(a) offence:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) Date of offence :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) Place of offence:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) Other particulars:. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

*3. The order was made in respect of you.

or

*3. The order was made in respect of. . . . . . . . . . . . . . . . . .
(description of persons)and you are a person of that description.

4. The order authorizes the Attorney General to require a person referred to in paragraph 3 above—

*(a) to answer questions or otherwise furnish information with respect to any matter that reasonably appears to an authorized officer to be relevant to the investigation;

*(b) to produce any material that reasonably appears to the Attorney General to relate to any matter relevant to the investigation, or any material of a class that reasonably appears to him to so relate.

5. This Notice requires you―

*(a) to attend before. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name and description of authorized officer)at. . . . . . . . . . . . . . . . . . . .
(place of interview)on. . . . . . . . . . . . . . . . . . . .
(date and time of interview)to answer questions or otherwise furnish information with respect to any matter that reasonably appears to the authorized officer to be relevant to the investigation;

*(b) to produce at. . . . . . . . . . . . . . . . . .
(time(s) and place(s))the following material or class of material—

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6. The order also requires. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(other terms of the order relevant to the person)

7.	NOTE: 1.	This Notice has important legal consequences. It is in your interests to read the provisions of the Ordinance set out with this Notice, and to seek legal advice in relation to your rights and obligations under the Notice.
	2.	You may be accompanied by a solicitor and a barrister when you attend to answer questions or furnish information in compliance with paragraph 5(a) of the Notice, or to produce material in compliance with paragraph 5(b) of the Notice.

Dated thisday of19.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
for and on behalf of the Attorney General.

* Delete as appropriate.