Hong Kong Ordinances

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SECT 10

Requests to Hong Kong for taking of evidence, etc.

(Past version on 20/02/1998).

(1) Where a request is made by an appropriate authority of a place outside
Hong Kong that-

   (a)  evidence be taken in Hong Kong;

   (b)  evidence be taken by way of a live television link from a person in
        Hong Kong; or

   (c)  a thing (including a thing belonging to a class of things) in Hong
        Kong be produced, for the purposes of a criminal matter in the place,
        the Secretary for Justice may authorize in writing-

        (i)    where paragraph (a) applies, the taking of evidence and the
               transmission of the evidence to that place;

        (ii)   where paragraph (b) applies, the taking of evidence by way of a
               live television link from the person concerned; or

        (iii)  where paragraph (c) applies, the production of the thing and,
               subject to subsection (14), the transmission of the thing to
               that place. (Replaced 23 of 2003 s. 20)

(2) Where the Secretary for Justice authorizes the taking of evidence or the
production of a thing under subsection (1)-

   (a)  in the case of the taking of evidence under subsection (1)(i), a
        magistrate may take the evidence on oath or otherwise than on oath of
        each witness appearing before the magistrate to give evidence in
        relation to the matter, and a magistrate who takes any such evidence
        shall- (Amended 23 of 2003 s. 20)

        (i)    cause the evidence to be put in writing and certify that the
               evidence was taken by the magistrate; and

        (ii)   cause the writing so certified to be sent to the Secretary for
               Justice; (Amended 23 of 2003 s. 20)

   (aa) in the case of the taking of evidence under subsection

(1)(ii), a magistrate shall be present during the taking of the evidence and
the magistrate shall-

        (i)    identify the witness;

        (ii)   upon the conclusion of the taking of the evidence, draw up
               minutes indicating the date on which the evidence is taken, the
               place where the evidence is taken, and whether or not an oath
               or affirmation has been administered to the witness;

        (iii)  certify that the minutes were drawn up by the magistrate; and

        (iv)   cause the minutes so certified to be sent to the Secretary for
               Justice; or (Added 23 of 2003 s. 20)

   (b)  in the case of the production of a thing under subsection

(1)(iii), a magistrate may require the production of the thing and, where the
thing is produced, the magistrate shall certify that the thing was produced to
the magistrate and shall send the thing (which, in the case of a document, may
be a copy of the document certified by the magistrate to be a true copy) to
the Secretary for Justice. (Amended L.N. 362 of 1997; 23 of 2003 s. 20)

(2A) A magistrate may only take the evidence of a witness under subsection
(2)(a) otherwise than on oath where this is asked for by the
appropriate authority of the place outside Hong Kong. (Added 23 of 2003 s. 20)

(3) A proceeding under subsection (2) shall be held in open court except
where-

   (a)  the magistrate is satisfied that it is necessary for the proceeding to
        be held in camera in order to comply with any prescribed  arrangements
        relating to the proceeding;

   (b)  the magistrate exercises a power pursuant to the provisions of any
        other Ordinance whereby he may hold the proceeding in camera; (Amended
        23 of 2003 s. 20)

   (c)  the criminal matter outside Hong Kong to which the proceeding relates
        is an investigation and the magistrate is satisfied that there are
        reasonable grounds for believing that-

        (i)    it is in the interest of the person required to give evidence,
               or produce a thing, for the purposes of that matter that the
               proceeding be held in camera; or

        (ii)   that matter would be substantially prejudiced if the proceeding
               were held in open court; or (Amended 23 of 2003 s. 20)

   (d)  in the case of the taking of evidence under subsection (1)(ii)-

        (i)    the criminal matter outside Hong Kong to which the proceeding
               relates is a prosecution;

        (ii)   the appropriate authority of the place concerned requests that
               the proceeding be held in camera; and

        (iii)  the proceedings in the place concerned in which the evidence is
               to be received will be held in camera. (Added 23 of 2003 s. 20)

(4) The magistrate conducting a proceeding under subsection (2) shall permit-

   (a)  the person to whom the criminal matter in the place outside Hong Kong
        concerned relates;

   (b)  any other person giving evidence or producing a thing at the
        proceeding before the magistrate; and

   (c)  the appropriate authority of that place, to appear, or have legal
        representation, or both, at the proceeding before the magistrate.

(5) The certificate by the magistrate under subsection (2) shall state
whether, when the evidence was taken or the thing was produced, any of the
following persons were present-

   (a)  the person to whom the criminal matter in the place outside Hong Kong
        concerned relates or his legal representative, if any;

   (b)  any other person giving evidence or producing a thing or his legal
        representative, if any.

(6) For the purposes of this section, the person to whom the criminal matter
in the place outside Hong Kong concerned relates is competent but not
compellable to give evidence.

(7) For the purposes of this section, a person who is required to give
evidence, or produce a thing, for the purposes of a criminal matter in a place
outside Hong Kong, is not compellable to answer a question, or produce a
thing, that the person is not compellable to answer or produce, as the case
may be, in the criminal matter in that place.

(8) A duly certified external law immunity certificate is admissible in
proceedings under this section as evidence of the facts stated in the
certificate.

(9) Subsection (7) does not apply in a case where its application would be
inconsistent with any provision of prescribed arrangements, if any, between
Hong Kong and the prescribed place concerned.

(10) For the purposes of this section, a person who is required to give
evidence, or produce a thing, for the purposes of a criminal matter in a place
outside Hong Kong, is not compellable to give evidence, or produce a thing,
that the person could not be compelled to give or produce, as the case may be,
in Hong Kong-

   (a)  if that matter were a trial of a person for a Hong Kong offence or
        proceedings to determine whether a person should be tried for such an
        offence; or

   (b)  without prejudice to the generality of paragraph (a)-

        (i)    on the ground that to do so might tend to incriminate him; and

        (ii)   if- (A) the provisions of any Ordinance which qualify a
               person's right not to incriminate himself had never been
               enacted; and (B) that matter were a trial of a person for a
               Hong Kong offence or proceedings to determine whether a person
               should be tried for such an offence.

(11) Without prejudice to the generality of subsection (10), for the purposes
of this section, a tax adviser or relevant auditor who is required to give
evidence, or produce a thing, for the purposes of a criminal matter in a place
outside Hong Kong which is an investigation into an external offence relating
to taxation, is not compellable to give evidence, or produce a thing, to the
extent that the evidence or thing, as the case may be, relates to, or is, a
tax document which-

   (a)  is the property of that tax adviser or relevant auditor, as the case
        may be; and

   (b)  in the case of a tax adviser, originates from him, or from his client
        or another tax adviser of the client, for or in connection with the
        giving or obtaining of advice about the tax affairs of the client.

(12) For the purposes of this section, and without prejudice to the operation
of subsection (6), (7), (9), (10) or (11), a person who is required to give
evidence, or produce a thing, for the purposes of a criminal matter in a place
outside Hong Kong, shall not be required-

   (a)  to state what things relevant to that matter are or have been in his
        possession or control; or

   (b)  to produce any things other than particular things specified by the
        magistrate conducting the proceedings concerned under subsection (2),
        or things belonging to a particular class of things specified by that
        magistrate, as being things, or a class of things, as the case may be,
        appearing to that magistrate to be, or to be likely to be, in his
        possession or control.

(13) It is hereby declared that evidence taken for the purposes of this
section shall not be admissible in evidence, or otherwise used, for the
purposes of any criminal matter, civil proceedings, disciplinary proceedings,
or other proceedings, in Hong Kong except any prosecution of the person who
gave that evidence for the offence of perjury, or contempt of court, in
respect of that evidence.

(14) The Secretary for Justice shall not authorize under subsection

(1) the transmission of the original of a thing to a place outside Hong Kong
unless-

   (a)  the appropriate authority of the place has, not more than 1 month
        after the thing was produced, given the Secretary for Justice a notice
        in writing setting out the grounds on which the original of the thing
        is required for the purposes of the criminal matter concerned in that
        place; and

   (b)  in any case where the Secretary for Justice is of the opinion, after
        considering all the circumstances, that the original of the thing
        should be returned to Hong Kong upon the conclusion of the proceedings
        relating to that criminal matter, the appropriate authority has given
        an unqualified undertaking to the Secretary for Justice that the
        original of the thing will be so returned. (Amended L.N. 362 of 1997)

(15) In this section, "live television link" (電視直播聯繫) means a
system in which two places are equipped with, and linked by, audio visual
facilities that enable persons at one place to see and hear persons at the
other place, and vice versa, at the same time. (Added 23 of 2003 s. 20)

"live television link" (電視直播聯繫)