Chapter: | 455 | ORGANIZED AND SERIOUS CRIMES ORDINANCE | Gazette Number | Version Date |
| | Long title | L.N. 145 of 2002 | 01/01/2003 |
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 offences relating to the proceeds of crime or property representing the proceeds of crime; and for ancillary and connected matters. (Enacted 1994. Amended 26 of 2002 s. 3)
[Sections 2, 25 to 27, 30, 32 to 35 and
} 2 December 1994 L.N. 651 of 1994
Schedules 1 and 2 The Ordinance, other than sections 2, 25
} 28 April 1995 L.N. 157 of 1995]
to 27, 30, 32 to 35 and Schedules 1
and 2
(Originally 82 of 1994) Section: | 1 | Short title | | 30/06/1997 |
PART I PRELIMINARY - (1) This Ordinance may be cited as the Organized and Serious Crimes Ordinance.
- (2) (Omitted as spent) (Enacted 1994)
- (1) In this Ordinance, unless the context otherwise requires
Section: | 2 | Interpretation | L.N. 185 of 2007 | 10/12/2007 |
"absconded" (潛逃), in relation to a person, includes absconded for any reason whatsoever, and whether or not, before absconding, the person had been-
(a) taken into custody; or
(b) released on bail; (Added 90 of 1995 s. 2) "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 Secretary for Justice for the purposes of this Ordinance; (Amended L.N. 362 of 1997)
"confiscation order" (沒收令) means an order made under section 8(7);
"dealing" (處理), in relation to property referred to in section 15(1) or 25, includes-
- (a) receiving or acquiring the property;
- (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise);
- (c) disposing of or converting the property;
- (d) bringing into or removing from Hong Kong the property;
(e) using the property to borrow money, or as security (whether by way of charge, mortgage or pledge or otherwise); (Added 90 of 1995 s. 2) "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 trustee (including provisional trustee), interim trustee or special manager appointed under the Bankruptcy Ordinance (Cap 6); or (Amended 18 of 2005 s. 48)
- (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 1 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 High Court; (Amended 25 of 1998 s. 2) "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
(4) This Ordinance applies to property whether it is situated in Hong Kong or elsewhere.
- (5) References in this Ordinance (except in sections 25 and 25A) 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. (Amended 90 of 1995 s. 2)
- (6) For the purposes of this Ordinance-
- (a) a person's proceeds of an offence are
- (i) any payments or other rewards received by him at any time (whether before or after 2 December 1994) in connection with the commission of that offence;
- (ii) any property derived or realised, directly or indirectly, by him from any of the payments or other rewards; and
(iii) any pecuniary advantage obtained in connection with the commission of that offence;
- (b) the value of the person's proceeds of that offence is the aggregate of the values of-
- (i) the payments or other rewards;
- (ii) that property; and
(iii) that pecuniary advantage. (Replaced 87 of 1997 s. 36)
- (7) For the purposes of this Ordinance-
- (a) a person's proceeds of organized crime are-
- (i) any payments or other rewards received by him at any time (whether before or after 2 December 1994) in connection with the commission of one or more organized crimes;
- (ii) any property derived or realised, directly or indirectly, by him from any of the payments or other rewards; and
(iii) any pecuniary advantage obtained in connection with the commission of one or more organized crimes;
- (b) the value of the person's proceeds of organized crime is the aggregate of the values of-
- (i) the payments or other rewards;
- (ii) that property; and
(iii) that pecuniary advantage. (Replaced 87 of 1997 s. 36)
- (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 with 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.
expressions. |
Expression | Relevant provision |
Charging order (押記令) ......................................................... | Section 16(2) |
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) |
| (Amended 90 of 1995 s. 2) |
(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;
(aa) when a person has been arrested for the offence and released on bail or has refused bail; (Added 26 of 2002 s. 3)
- (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 the Chief Executive's pardon in respect of the conviction for the offence; (Amended 13 of 1999 s. 3)
- (e)
- the court or magistrate sentencing or otherwise dealing with him in respect of his conviction for the offence where the Secretary for Justice either does not apply for a confiscation order, or applies for a confiscation order and the order is not made; or (Amended L.N. 362 of 1997)
- (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).
(16A) An application for a confiscation order made in respect of a defendant where section 8(1)(a)(ii) or (7A) is applicable is concluded - (a)
- if the Court of First Instance or the District Court decides not to make such an order, when it makes that decision; or (Amended 25 of 1998 s. 2)
- (b)
- if such an order is made as a result of that application, when the order is satisfied. (Added 90 of 1995
s. 2)
(16B) An application under section 20(1A) in respect of a confiscation order made against a defendant is concluded - (a)
- if the Court of First Instance decides not to vary that order, when it makes that decision; or
- (b)
- if the Court of First Instance varies that order as a result of that application, when the order is satisfied. (Added 90 of 1995 s. 2. Amended 25 of 1998 s. 2)
- (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)
- (Repealed 79 of 1995 s. 50)
- (b)
- the expiration of the time prescribed for instituting the appeal, further appeal or review. (Amended 79 of 1995 s. 50)
- (18)
- Subject to subsection (19), nothing in this Ordinance shall require the disclosure of any items subject to legal privilege. (Added 26 of 2002 s. 3)
(19) Subsection (18) shall not prejudice the operation of sections 3, 4 and 5. (Added 26 of 2002 s. 3) (Enacted 1994)
[cf. 1986 c. 32 s. 38 U.K.]
Remarks:
Amendments retroactively made -see 25 of 1998 s. 2
PART II
POWERS OF INVESTIGATION - (1)
- The Secretary for Justice may, for the purpose of an investigation into an organized crime, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or to persons of a particular description. (Amended L.N. 362 of 1997; 25 of 1998 s. 2)
- (2)
- The Court of First Instance 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. (Amended 25 of 1998 s. 2)
(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 Secretary for Justice 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 Secretary for Justice 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 (Amended L.N. 362 of 1997)
(d) contain such other terms (if any) as the Court of First Instance 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. (Amended 25 of 1998 s. 2)
(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 material; (Amended 90 of 1995 s. 3)
- (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 Secretary for Justice 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 Secretary for Justice 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. (Amended L.N. 362 of 1997)
- (6)
- Where an order under subsection (2) authorizes the Secretary for Justice to require a person to produce any material that reasonably appears to the Secretary for Justice to relate to any matter relevant to an investigation, or any material of a class that reasonably appears to him so to relate, the Secretary for Justice 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. (Amended L.N. 362 of 1997)
(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 Secretary for Justice by the order; and (Amended
L.N. 362 of 1997)
- (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 $500000 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 Secretary for Justice, or a person authorized in writing by the Secretary for Justice 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. (Amended L.N. 362 of 1997)
- (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 (including the Secretary for Justice) referred to in subsection (15) may obtain a copy of such order. (Amended 90 of 1995 s. 3; L.N. 362 of 1997)
- (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.
(Enacted 1994)
Remarks:
Amendments retroactively made -see 25 of 1998 s. 2
(1) The Secretary for Justice 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 Court of First Instance 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 Secretary for Justice, elsewhere. (Amended L.N. 362 of 1997; 25 of 1998 s. 2) - (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 or control of the material holds or
controls it, as the case may be, (Amended 90 of 1995 s. 4) 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 or control of a public body as defined in section
28. (Amended 90 of 1995 s. 4)
- (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.
(Enacted 1994) [cf. 1986 c. 32 s. 27 U.K.]
Remarks:
Amendments retroactively made -see 25 of 1998 s. 2
(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 Court of First Instance or the District Court for a warrant under this section in relation to specified premises. (Amended 25 of 1998 s. 2)
(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 $250000 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.
- (8) Notwithstanding section 83 of the Interpretation and General Clauses Ordinance (Cap 1), but subject to this section, a warrant may be issued under this section authorizing entry to premises for the purpose of searching for or seizing material which is known or suspected to be journalistic material. (Added 88 of 1995 s. 6)
(Enacted 1994) [cf. 1986 c. 32 s. 28 U.K.]
- (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 Secretary for Justice 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 Department of Justice, the 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 Secretary for Justice 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 Secretary for Justice, 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).
(Enacted 1994. Amended L.N. 362 of 1997)
- (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 $500000 and to imprisonment for 3 years.
(Enacted 1994) [cf. 1986 c. 32 s. 31 U.K.]
PART III
CONFISCATION OF PROCEEDS OF CRIME
(1) Where - (a)
- either-
- (i)
- in proceedings before the Court of First Instance or the District Court a person is to be sentenced in respect of one or more specified offences and has not previously been sentenced in respect of his conviction for the offence or, as the case may be, any of the offences concerned; or
- (ii)
- proceedings for one or more specified offences have been instituted against a person but have not been concluded because the person-
- (A)
- has died; or
- (B)
- has absconded; and
- (b)
- an application is made by or on behalf of the Secretary for Justice for a confiscation order, (Amended
L.N. 362 of 1997) the Court of First Instance or the District Court, as the case may be, shall act as follows. (Replaced 90 of 1995 s. 6. Amended 25 of 1998 s. 2) - (2)
- (Repealed 90 of 1995 s. 6)
- (3)
- The court shall-
- (a)
- where subsection (1)(a)(i) is applicable-
- (i)
- first determine, if the prosecution so requests, whether the specified offence or any of the specified offences of which the person stands convicted is an organized crime;
- (ii)
- then, or where no request has been made under subparagraph (i), first-
- (A)
- impose on the person such period of imprisonment or detention (if any) as is appropriate in respect of the offence or, as the case may be, the offences concerned;
- (B)
- make such order or orders (other than a confiscation order) in relation to sentence as is appropriate in respect of the offence or, as the case may be, the offences concerned, and such order or orders may be or include any order
- (I)
- imposing any fine on the person;
- (II)
- involving any payment by the person; or
(III) under section 38F or 56 of the Dangerous Drugs Ordinance (Cap 134), or under section 72, 84A, 102 or 103 of the Criminal Procedure Ordinance (Cap 221);
- (b)
- where subsection (1)(a)(ii)(A) is applicable-
- (i)
- first be satisfied that-
- (A)
- the person has died; and
- (B)
- having regard to all relevant matters before it, the person could have been convicted in respect of the offence or, as the case may be, the offences concerned;
- (ii)
- then, where the court is satisfied under subparagraph (i), determine, if the prosecution so requests, whether the offence or any of the offences concerned could have been an organized crime;
- (c)
- where subsection (1)(a)(ii)(B) is applicable-
(i) first be satisfied that- - (A)
- the person has absconded and that not less than 6 months have elapsed beginning with the date which is, in the opinion of the court, the date on which the person absconded;
- (B)
- in the case of-
(I) a person who is known to be outside Hong Kong and whose exact whereabouts are known(aa) reasonable steps have been taken, but have been unsuccessful, to obtain the
return of that person to Hong Kong for the purposes of the proceedings concerned;
(bb) if that person is in custody outside Hong Kong for purposes other than the purposes referred to in sub-sub-sub-subparagraph (aa), he is in such custody by virtue of conduct which would constitute an indictable offence if it had occurred in Hong Kong; and
(cc) notice of those proceedings was given to that person in sufficient time to enable him to defend them;
(II) subject to subsection (3A), a person whose exact whereabouts are not known, reasonable steps have been taken to ascertain the person's whereabouts (including, if appropriate, a step mentioned in paragraph (a), (b) or (c) or rule 5(1) of Order 65 of the Rules of the High Court (Cap 4 sub. leg. A)) and notice of those proceedings, addressed to that person, has been published in a Chinese language newspaper, and an English language newspaper, circulating generally in Hong Kong; and (Replaced 26 of 2002 s. 3)
(C) having regard to all relevant matters before it, the person could have been convicted in respect of the offence or, as the case may be, the offences concerned;
(ii) then, where the court is satisfied under subparagraph (i), determine, if the prosecution so requests, whether the offence or any of the offences concerned could have been an organized crime. (Replaced 90 of 1995 s. 6)
(3A) Where subsection (3)(c)(i)(B)(II) is applicable, and notwithstanding that the court is satisfied as mentioned in that subsection that actions have been taken, the court may, if it is satisfied that it is in the interests of justice to do so, require that notice of the proceedings mentioned in that subsection be given to the person mentioned in that subsection in such additional manner as the court may direct. (Added 26 of 2002 s. 3)
(4) The court shall then determine- - (a)
- where subsection (1)(a)(i) is applicable, 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;
- (b)
- where subsection (1)(a)(ii) is applicable, whether the person has benefited from the specified offence of which the court is satisfied that he could have been convicted or from that offence taken together with any specified offence of which the court is satisfied that he could have been convicted in the same proceedings or which the court could have taken into consideration in determining his sentence if he had not died or absconded, as the case may be,
and, if he has, whether his proceeds of that specified offence or offences are in total at least $100000. (Replaced 90 of 1995 s. 6)
(5) If the court has determined-