Hong Kong Ordinances

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SECT 5

Refusal of assistance

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

(1) A request by a place outside Hong Kong for assistance under this Ordinance
shall be refused if, in the opinion of the Secretary for Justice-

   (a)  the granting of the request would impair the sovereignty of the
        People's Republic of China or the security or public order of the
        People's Republic of China or any part thereof; (Amended 71 of 1999 s.
        3)

   (b)  the request relates to the prosecution or punishment of a person for
        an external offence that is, or is by reason of the circumstances in
        which it is alleged to have been committed or was committed, an
        offence of a political character;

   (c)  the request relates to the prosecution or punishment of a person in
        respect of an act or omission that, if it had occurred in Hong Kong,
        would have constituted an offence under the military law applicable in
        Hong Kong but not also under the ordinary criminal law of Hong Kong;

   (d)  there are substantial grounds for believing that the request was made
        for the purpose of prosecuting, punishing or otherwise causing
        prejudice to a person on account of the person's race, religion,
        nationality or political opinions;

   (e)  the request relates to the prosecution of a person for an
        external offence in a case where the person has been convicted,
        acquitted or pardoned by a competent court or other authority in the
        place, or has undergone the punishment provided by the law of that
        place, in respect of that offence or of another external offence
        constituted by the same act or omission as that offence;

   (f)  the granting of the request would seriously impair the essential
        interests of Hong Kong; or

   (g)  the request relates to an act or omission that, if it had occurred in
        Hong Kong, would not have constituted a Hong Kong offence.

(2) Where the criminal matter to which a request by a place outside Hong Kong
for assistance under this Ordinance relates is an investigation into an
external offence relating to taxation, then the request shall be refused-

   (a)  if the place is not a prescribed place; or

   (b)  unless the Secretary for Justice is supplied with information that
        satisfies him that the primary purpose of the request is not the
        assessment or collection of tax.

(3) A request by a place outside Hong Kong for assistance under this Ordinance
may be refused by the Secretary for Justice-

   (a)  if that place is not a prescribed place;

   (b)  if that place is a prescribed place, pursuant to the terms of the
        prescribed arrangements concerned; or

   (c)  if the request relates to an external serious offence punishable with
        death and-

        (i)    the act or omission constituting that offence, if it had
               occurred in Hong Kong- (A) would not have constituted a
               Hong Kong serious offence punishable with death; or (B) would
               have constituted a Hong Kong serious offence punishable with
               death in respect of which the punishment was not normally
               carried out; and

        (ii)   the place outside Hong Kong concerned fails to give an
               undertaking that satisfies the Secretary for Justice that the
               death penalty will not be imposed in respect of that
               external serious offence or, if imposed, will not be carried
               out.

(4) Without prejudice to the generality of subsection (3)(a), a request by a
place outside Hong Kong for assistance under this Ordinance shall be refused
if-

   (a)  the place is not a prescribed place; and

   (b)  the appropriate authority of the place fails to give an undertaking to
        the Secretary for Justice which satisfies the Secretary for Justice
        that the place will, subject to its law, comply with a future request
        by Hong Kong to the place for assistance in a criminal matter.
        (Amended L.N. 362 of 1997)