Hong Kong Ordinances

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SECT 2

Interpretation

(Past version on 26/09/1997).



"ancillary criminal matter" (附帶刑事事宜)

"appropriate authority" (有關當局)

"arrangements for mutual legal assistance" (相互法律協助的安排)

"assistance" (協助)

"authorized officer" (獲授權人員)

"court" (法院)

"criminal matter" (刑事事宜)

"dealing" (處理)

"duly certified" (妥為核證)

"external confiscation order" (外地沒收令)

"external law immunity certificate" (外地法律豁免權證明書)

"external offence" (外地罪行)

"external prisoner" (外地囚犯)

"external serious offence" (外地嚴重罪行)

"Hong Kong confiscation order" (香港沒收令)

"Hong Kong offence" (香港罪行)

"Hong Kong prisoner" (香港囚犯)

"Hong Kong serious offence" (香港嚴重罪行)

"investigation" (偵查)

"material" (物料)

"Monetary Authority" (金融管理專員)

"premises" (處所)

"prescribed arrangements" (訂明安排)

"prescribed place" (訂明地方)

"prosecution" (檢控)

"relevant auditor" (有關核數師)

"restrain" (限制)

"statement" (陳述)

"tax adviser" (稅務顧問)

"tax document" (稅務文件)

"thing" (物件)

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

"ancillary criminal matter" (附帶刑事事宜) means a matter relating to-

   (a)  the restraining of dealing with, or the seizure, forfeiture or
        confiscation of, property in connection with a Hong Kong offence or an
        external offence; or

   (b)  the obtaining, enforcement or satisfaction of a Hong Kong 
        confiscation order or an external confiscation order;

"appropriate authority" (有關當局), in relation to a place outside Hong
Kong, means a person whom the Secretary for Justice is satisfied is a person
who for the time being may under the law of that place- (Amended L.N. 362 of
1997)

   (a)  in the case of a request by Hong Kong to that place for assistance in
        a criminal matter, receive such a request; or

   (b)  in the case of a request by that place to Hong Kong for assistance in
        a criminal matter, make such a request;

"arrangements for mutual legal assistance" (相互法律協助的安排) means
arrangements-

   (a)  which are applicable to-

        (i)    the Government and the government of a place outside Hong Kong

(other than the Central People's Government or the government of any other
part of the People's Republic of China); or

        (ii)   Hong Kong and a place outside Hong Kong (other than any other
               part of the People's Republic of China); and (Amended 71 of
               1999 s. 3)

   (b)  for the purposes of the provision and obtaining of assistance in
        criminal matters between Hong Kong and that place;

"assistance" (協助) includes giving evidence;

"authorized officer" (獲授權人員) 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);

   (c)  any officer within the meaning of section 2 of the Independent 
        Commission Against Corruption Ordinance ( Cap 204); and

   (d)  any other person (including a person belonging to a class of persons)
        authorized in writing by the Secretary for Justice for the purposes of
        this Ordinance; (Amended L.N. 362 of 1997)

"court" (法院) includes a tribunal and magistrate;

"criminal matter" (刑事事宜) means-

   (a)  an investigation;

   (b)  a prosecution; or

   (c)  an ancillary criminal matter;

"dealing" (處理), in relation to property, 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);

"duly certified" (妥為核證) means (except in sections 29 and 30) duly 
certified as provided in section 32;

"external confiscation order" (外地沒收令) means an order, made under the
law of a place outside Hong Kong, for the purpose of-

   (a)  recovering (including forfeiting and confiscating)-

        (i)    payments or other rewards received in connection with an
               external serious offence or their value;

        (ii)   property derived or realised, directly or indirectly, from
               payments or other rewards received in connection with an
               external serious  offence or the value of such property; or

        (iii)  property used or intended to be used in connection with an
               external serious offence or the value of such property; or

   (b)  depriving a person of a pecuniary advantage obtained in connection
        with an external serious offence, and whether the proceedings which
        gave rise to that order are criminal or civil in nature, and whether
        those proceedings are in the form of proceedings against a person or
        property;

"external law immunity certificate" (外地法律豁免權證明書) means a
certificate given, or a declaration made, by a place outside Hong Kong or
under a law of a place outside Hong Kong certifying or declaring that, under
the law of that place, persons generally or a specified person could or could
not, either generally or in specified proceedings and either generally or in
specified circumstances, be required-

   (a)  to answer a specified question; or

   (b)  to produce a specified document;

"external offence" (外地罪行) means an offence against a law of a place
outside Hong Kong;

"external prisoner" (外地囚犯) means a person who is-

   (a)  being held in custody pending trial for or sentence for an
        external offence; or

   (b)  under a sentence of imprisonment for an external offence, but does not
        include a person who is at large having escaped from lawful custody;

"external serious offence" (外地嚴重罪行) means an external offence the
maximum penalty for which is death, or imprisonment for not less than 24
months;

"Hong Kong confiscation order" (香港沒收令) means an order, made under a
law of Hong Kong, for the purpose of-

   (a)  recovering (including forfeiting or confiscating)-

        (i)    payments or other rewards received in connection with a Hong 
               Kong serious offence or their value;

        (ii)   property derived or realised, directly or indirectly, from
               payments or other rewards received in connection with a
               Hong Kong serious  offence or the value of such property; or

        (iii)  property used or intended to be used in connection with a
               Hong Kong serious offence or the value of such property; or

   (b)  depriving a person of a pecuniary advantage obtained in connection
        with a Hong Kong serious offence, and whether the proceedings which
        gave rise to that order are criminal or civil in nature, and whether
        those proceedings are in the form of proceedings against a person or
        property;

"Hong Kong offence" (香港罪行) means an offence against a law of Hong
Kong;

"Hong Kong prisoner" (香港囚犯) means a person who is-

   (a)  being held in custody pending trial for or sentence for a Hong 
        Kong offence; or

   (b)  under a sentence of imprisonment for a Hong Kong offence, but does not
        include a person who is at large having escaped from lawful custody;

"Hong Kong serious offence" (香港嚴重罪行) means a Hong Kong offence the
maximum penalty for which is death, or imprisonment for not less than 24
months;

"investigation" (偵查) means an investigation-

   (a)  into a Hong Kong offence or external offence; or

   (b)  for the purposes of an ancillary criminal matter;

"material" (物料) includes any books, document or other record in any form
whatsoever, and any article or substance;

"Monetary Authority" (金融管理專員) means the Monetary Authority
appointed under section 5A of the Exchange Fund Ordinance ( Cap 66);

"premises" (處所) includes-

   (a)  a structure (whether or not movable or offshore), building, tent,
        vehicle, vessel, aircraft or hovercraft;

   (b)  a place (whether or not enclosed or built upon); and

   (c)  a part of premises (including premises of a kind referred to in
        paragraph (a) or (b));

"prescribed arrangements" (訂明安排) means arrangements for mutual legal 
assistance which are the subject of an order under section 4(1) which is in
force;

"prescribed place" (訂明地方) means a place outside Hong Kong to or from
which assistance in criminal matters may be provided or obtained, as the case
may be, pursuant to prescribed arrangements;

"prosecution" (檢控) means a trial of a person for a Hong Kong offence or
external offence, and includes any proceedings to determine whether a person
should be tried for such an offence;

"relevant auditor" (有關核數師) means a person appointed as an auditor
for the purposes of any enactment;

"restrain" (限制), in relation to property, includes seizing the property;

"statement" (陳述) includes evidence;

"tax adviser" (稅務顧問) means a person appointed bona fide to give
advice, in the course of his employment or of a business carried on by him,
about the tax affairs of another person (whether appointed directly by that
other person or another tax adviser of that other person);

"tax document" (稅務文件)-

   (a)  in relation to a tax adviser, means a document which falls within Part
        1 of Schedule 1;

   (b)  in relation to a relevant auditor, means a document which falls within
        Part 2 of Schedule 1;

"thing" (物件) includes material. (Amended 71 of 1999 s. 3)

(2) For the purposes of this Ordinance-

   (a)  the law of a place outside Hong Kong includes the law of any part of
        that place;

   (b)  conduct in-

        (i)    a colony or dependency; or

        (ii)   a vessel, aircraft or hovercraft, of a place outside Hong Kong
               shall be treated as if the conduct were conduct in the
               territory of that place.

(3) For the avoidance of doubt, it is hereby declared that any one set of
arrangements for mutual legal assistance may be made with any number
(including any combination) of-

   (a)  governments of places outside Hong Kong;

   (b)  places outside Hong Kong, and the other provisions of this Ordinance
        (including the definition of

"arrangements for mutual legal assistance") which relate, whether directly or
indirectly, to arrangements for mutual legal assistance shall be construed
accordingly.

(4) Where arrangements applicable to-

   (a)  the Government and the government of a place outside Hong Kong; or

   (b)  Hong Kong and a place outside Hong Kong, are partly for the purposes
        specified in paragraph (b) of the definition
of "arrangements for mutual legal assistance" and partly for other purposes,
the arrangements are in this Ordinance arrangements for mutual 
legal assistance to the extent that they relate to those specified purposes.

(5) In the definitions of "Hong Kong confiscation order" and

"external confiscation order" and in subsection (9), any reference to an order
includes any order, decree, direction or judgment, or any part thereof,
howsoever described.

(6) Where a person obtains a pecuniary advantage referred to in
paragraph (b) of the definition of "Hong Kong confiscation order" or

"external confiscation order", he is to be treated for the purposes of this
Ordinance as if he had obtained in connection with the Hong Kong 
serious offence or external serious offence, as the case may be, to which the
advantage relates a sum of money equal to the value of the advantage, and the
other provisions of this Ordinance shall be construed accordingly.

(7) For the avoidance of doubt, it is hereby declared that this Ordinance
shall not entitle a private person, or any person acting on behalf of a
private person, to-

   (a)  obtain, suppress or exclude any evidence; or

   (b)  impede or otherwise prejudice any request under this Ordinance, in
        respect of a criminal matter in Hong Kong or a place outside Hong
        Kong.

(8) In this Ordinance, any reference (howsoever expressed) to any thing being
required to be done, or being done, in relation to a criminal  matter also
includes a reference to such a thing being required to be done, or being done,
in the criminal matter.

(9) In this Ordinance, any reference to an order being made in a proceeding
includes a reference to an order arising out of the proceeding.

(10) Subject to subsection (11), nothing in this Ordinance shall require the
disclosure of any items subject to legal privilege within the meaning of
section 13. (Added 26 of 2002 s. 5)

(11) Subsection (10) shall not prejudice the operation of Part IV. (Added 26
of 2002 s. 5)