Hong Kong Ordinances

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SECT 12

Requests to Hong Kong for search and seizure

(1) Where-

   (a)  a criminal matter involving an external serious offence has commenced
        in a place outside Hong Kong;

   (b)  there are reasonable grounds to believe that a thing (including a
        thing belonging to a class of things) relevant to the criminal matter
        is located in Hong Kong; and

   (c)  an appropriate authority of that place requests the Secretary for
        Justice to arrange for the issue of a search warrant under this
        section in relation to that thing, the Secretary for Justice may
        nominate in writing an authorized officer to apply to a magistrate for
        the search warrant so requested. (Amended L.N. 362 of 1997)

(2) Where an authorized officer nominated under subsection (1) has reason to
believe that the thing to which the request relates is, or will, at a
specified time, be-

   (a)  on a person;

   (b)  in the clothing that is being worn by a person;

   (c)  otherwise in a person's effective control;

   (d)  upon any land; or

   (e)  upon or in any premises, the relevant officer may-

        (i)    lay before a magistrate an information on oath setting out the
               grounds for that belief; and

        (ii)   apply for the issue of a warrant under this section.

(3) Where an application is made under subsection (2), the magistrate shall,
subject to subsection (4), issue a warrant authorizing an authorized officer
(whether or not named in the warrant), with such assistance, and by such
force, as is necessary and reasonable to do such of the following as are
specified in the warrant-

   (a)  to search a person specified in the warrant for the thing;

   (b)  to enter upon land, or upon or into premises, specified in the
        warrant;

   (c)  to search any such land or premises for the thing; and

   (d)  to seize any thing found in the course of any such search that the
        relevant officer believes, on reasonable grounds, to be relevant to
        the criminal matter in the place outside Hong Kong concerned.

(4) A magistrate shall not issue a warrant under this section unless-

   (a)  the informant or some other person has given to the magistrate either
        orally on oath or by affidavit, such further information, if any, as
        the magistrate requires concerning the grounds on which the issue of
        the warrant is sought; and

   (b)  the magistrate is satisfied that there are reasonable grounds for
        issuing the warrant.

(5) There shall be stated in a warrant issued under this section-

   (a)  the purpose for which the warrant is issued, including a reference to
        the nature of the criminal matter in relation to which the search is
        authorized;

   (b)  whether the search is authorized at any time of the day or night or
        during specified hours of the day or night;

   (c)  a description of the kind of things authorized to be seized; and

   (d)  a day, not being later than one month after the issue of the warrant,
        on which the warrant ceases to have effect.

(6) If, in the course of searching, under a warrant issued under this section,
for a thing of a kind specified in the warrant, the authorized officer finds
another thing that the authorized officer believes on reasonable grounds-

   (a)  to be relevant to the criminal matter in the place outside Hong Kong
        concerned or to afford evidence as to the commission of a Hong Kong 
        offence; and

   (b)  is likely to be concealed, lost, destroyed or altered if it is not
        seized, the warrant shall be deemed to authorize the
        authorized officer to seize the other thing.

(7) Where an authorized officer finds, as a result of a search in accordance
with a warrant issued under this section, a thing which the authorized officer
seizes wholly or partly because he believes the thing on reasonable grounds to
be relevant to the criminal matter in the place outside Hong Kong concerned,
the authorized officer shall deliver the thing into the custody and control of
the Commissioner.

(8) Where a thing is delivered into the custody and control of the
Commissioner under subsection (7), the Commissioner shall arrange for the
thing to be kept for a period not exceeding one month from the day on which
the thing was seized pending a direction in writing from the Secretary for
Justice as to the manner in which the thing is to be dealt with (which may
include, subject to subsection (11), a direction that the thing be sent to an
appropriate authority of a place outside Hong Kong). (Amended L.N. 362 of
1997)

(9) An authorized officer who executes a search warrant issued under this
section shall, as soon as practicable after the execution of the warrant, give
to the person, or give to the owner or occupier of the land or premises or
leave in a prominent position on the land or at the premises, as the case
requires-

   (a)  a notice setting out-

        (i)    the name and rank of the authorized officer;

        (ii)   the name of the magistrate who issued the warrant and the day
               on which it was issued; and

        (iii)  a description of any thing seized and removed in accordance
               with the warrant; and

   (b)  in the case of any such thing which is a document, a copy of the
        document if that person, owner or occupier, as the case may be, so
        requests.

(10) Where subsection (3)(a) is applicable to a warrant issued under this
section-

   (a)  an authorized officer acting in accordance with the warrant may
        remove, or require a person to remove, any of the clothing that the
        person is wearing but only if the removal of the clothing is necessary
        and reasonable for an effective search of the person under the
        warrant;

   (b)  a person shall not be searched pursuant to the warrant except by a
        person of the same sex;

   (c)  nothing in this section shall be taken to authorize an
        authorized officer to carry out a search by way of an examination of a
        body cavity of a person;

   (d)  an authorized officer may also search-

        (i)    the clothing that is being worn by a person; and

        (ii)   any property in, or apparently in, the person's effective
               control.

(11) The Secretary for Justice shall not give a direction under subsection (8)
that the original of a thing be sent to the appropriate  authority of a place
outside Hong Kong unless-

   (a)  the appropriate authority of the place has, not more than 1 month
        after the thing was seized, 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)

(12) In this section, "Commissioner" (部門首長) means, where the
authorized officer concerned is an authorized officer by virtue of-

        (a)	paragraph (a) or (d) of the definition of "authorized officer", 
Commissioner within the meaning of the Police Force Ordinance ( Cap 232);

        (b)	paragraph (b) of the definition of "authorized officer", 
Commissioner within the meaning of the Customs and Excise Service  Ordinance (
Cap 342);

        (c)	paragraph (c) of the definition of "authorized officer", 
Commissioner within the meaning of the Independent Commission Against 
Corruption Ordinance ( Cap 204).

(13) For the purposes of this section, in the case of a criminal  matter in a
place outside Hong Kong which is an investigation into an
external offence relating to taxation, "thing" does not include a tax 
document which-

   (a)  is the property of a tax adviser or relevant auditor; 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.

"Commissioner" (部門首長)

"thing"