Hong Kong Ordinances

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SECT 15

Requests to Hong Kong for production, etc. of material

Adaptation amendments retroactively made - see 71 of 1999 s. 3

(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 particular material or
        material of a particular description relevant to the criminal  matter
        may be-

        (i)    located in Hong Kong; or

        (ii)   likely to become located in Hong Kong; and

   (c)  that place requests the Secretary for Justice to obtain an order under
        this section in relation to that material, then the Secretary for
        Justice may nominate in writing an authorized  officer to make an
        application to the court for the order so requested. (Amended L.N. 362
        of 1997)

(2) Subject to subsection (10), the court may, if on an application referred
to in subsection (1) made by an authorized officer nominated under subsection
(1) it is satisfied that the conditions in subsection (5) are fulfilled, make
an order-

   (a)  that the person who appears to the court to be in possession or
        control of the material to which the application relates shall-

        (i)    produce the material to an authorized officer- (A) for him to
               take away and transmit to the place outside Hong Kong which
               made the request under subsection (1) which gave rise to the
               application; or (B) to enable him to take photographs or make
               copies of the material for the onward transmission to that
               place of those photographs or copies; or

        (ii)   give an authorized officer access to the material to enable him
               to take photographs or make copies of the material for the
               onward transmission to that place of those photographs or
               copies, within such period as the order may specify;

   (b)  that the person who appears to the court likely to come into
        possession or control of the material to which the application relates
        shall, when the person comes into possession or control of any such
        material-

        (i)    produce the material to an authorized officer- (A) for him to
               take away and transmit to the place outside Hong Kong which
               made the request under subsection (1) which gave rise to the
               application; or (B) to enable him to take photographs or make
               copies of the material for the onward transmission to that
               place of those photographs or copies; or

        (ii)   give an authorized officer access to the material to enable him
               to take photographs or make copies of the material for the
               onward transmission to that place of those photographs or
               copies, within such period as the order may specify; or

   (c)  in terms both of paragraphs (a) and (b).

(3) An order under subsection (2), in so far as it is in terms of paragraph
(b) of that subsection, shall cease to have effect upon the expiration of 3
months after the day on which the order is made, or upon the expiration of
such lesser period, if any, as is specified in the order for the purpose, but
nothing in this subsection shall-

   (a)  affect any obligation incurred under that order prior to its
        expiration;

   (b)  prevent, in relation to the person required to comply with that order,
        any further order being made under that subsection in respect of that
        person (including before the expiration of that first-mentioned
        order).

(4) 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.

(5) The conditions referred to in subsection (2) are-

   (a)  that there are reasonable grounds for believing that the material to
        which the application relates-

        (i)    is likely to be of substantial value (whether by itself or
               together with other material) to the criminal matter for the
               purpose of which the application is made; and

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

   (b)  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 criminal matter, if the
               material is obtained; and

        (ii)   to the circumstances under which the person- (A) in possession
               or control of the material holds or controls it, as the case
               may be; or (B) likely to come into possession or control of the
               material will hold or control it, as the case may be, if he
               comes into such possession or control, as the case may be, that
               the material should be produced or that access to it should be
               given; and

   (c)  in the case of an order proposed to be made under subsection

(2)(a)(i)(A) or (b)(i)(A), the Secretary for Justice has advised that-
(Amended L.N. 362 of 1997)

        (i)    the appropriate authority of the place outside Hong Kong
               concerned has given him a notice in writing setting out the
               grounds on which the original of the material is required for
               the purposes of the criminal matter; and

        (ii)   either- (A) because he is of the opinion, after considering all
               the circumstances, that the original of the material should be
               returned to Hong Kong upon the conclusion of the proceedings
               relating to the criminal  matter, he has sought and received
               from the appropriate authority an unqualified undertaking that
               the original of the material will be so returned; or (B) he is
               not of that opinion.

(6) Where a court makes an order under subsection (2)(a)(ii) or

   (b)  (ii) in relation to material on any premises it may, on the same or a
        subsequent application of an authorized officer nominated under
        subsection

(1), order any person who appears to him 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) Rules of court may provide for-

   (a)  the discharge and variation of orders under this section; and

   (b)  proceedings relating to such orders.

(8) Where the material to which an application under this section relates
consists of information contained in or accessible by means of any
data equipment-

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

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

(9) An order under subsection (2)-

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

   (b)  where-

        (i)    the person to which the order relates is a tax adviser or
               relevant auditor; and

        (ii)   the criminal matter to which the order relates is an
               investigation into an external offence relating to taxation,
               shall not confer any right to production of, or access to,
               items which are tax documents and- (A) the property of the
               tax adviser or relevant auditor, as the case may be; and (B) in
               the case of a tax adviser, originate 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;

   (c)  subject to section 3(3), shall have effect notwithstanding any
        obligation as to secrecy or other restriction upon the disclosure of
        information imposed by statute or otherwise if the Secretary for
        Justice is satisfied that it is in the public interest of Hong Kong
        that it have such effect; and (Amended L.N. 362 of 1997)

   (d)  may be made in relation to material in the possession of a public body
        if the Secretary for Justice is satisfied that it is in the public
        interest of Hong Kong that it may be so made. (Amended L.N. 362 of
        1997)

(10) In the case of material in the possession of a public body, an order
under subsection (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
Government.

(11) In this section-

"data equipment" (數據設備) means any equipment which-

   (a)  automatically processes information;

   (b)  automatically records or stores information;

   (c)  can be used to cause information to be automatically recorded, stored
        or otherwise processed on other equipment (wherever situated);

   (d)  can be used to retrieve information, whether the information is
        recorded or stored in the equipment itself or in other equipment
        (wherever situated);

"public body" (公共機構) means-

   (a)  any Government department; and

   (b)  any body specified by the Chief Executive under subsection

(12). (Amended 71 of 1999 s. 3)

(12) The Chief Executive may, by notice in the Gazette, specify a body to be a
public body for the purposes of this section. (Amended 71 of 1999 s. 3)

"data equipment" (數據設備)

"public body" (公共機構)