Hong Kong Ordinances

UNSOLICITED ELECTRONIC MESSAGES ORDINANCE - SECT 36

Authority may obtain information or documents relevant to investigation

(1) If the Authority is satisfied that there are reasonable grounds for
believing that a person is, or is likely to be, in possession of information
(including but not limited to passwords) or a document that is relevant to the
Authority's investigation of a contravention or suspected contravention of a
provision of this Ordinance, the Authority may serve a notice in writing on
the person, accompanied by a copy of this section in Chinese and English—

   (a)  requesting the person to—

        (i)    give the information in writing to the Authority; or

        (ii)   produce the document to the Authority,
as the case requires, before a date ("the relevant date") specified in the
notice, being a date reasonable in all the circumstances of the case; and

   (b)  stating that if the person is of the view that he cannot, or does not
        wish to, comply with the request, then he may make representations in
        writing to the Authority as to why he is of that view before
        the relevant date.

(2) Where the Authority receives representations referred to in subsection
(1)(b) from a person, the Authority shall, after considering the
representations, serve a notice in writing on the person—

   (a)  stating that the Authority has considered the representations; and

   (b)  stating either—

        (i)    that the notice served on the person under subsection (1) is
               withdrawn with effect from the date of service of the notice
               under this subsection; or

        (ii)   that the notice served on the person under subsection (1)
               remains in force and the Authority will on a date specified in
               the notice served under this subsection seek an order under
               subsection (3) unless the person has, before that date,
               complied with the notice served on the person under subsection
               (1).

(3) Where a notice served on a person under subsection (1) has not been
withdrawn under subsection (2)(b)(i) and the person has not complied with the
notice before the relevant date, or before the date specified in the notice
served on the person under subsection (2), as the case may be, then a
magistrate may, on application by the Authority—

   (a)  if satisfied by information on oath that there are reasonable grounds
        for believing that the person is, or is likely to be, in possession of
        the information or a document to which the first-mentioned notice
        relates and that the information or document is relevant to the
        Authority's investigation of a contravention or suspected
        contravention of a provision of this Ordinance;

   (b)  after considering the representations, if any, referred to in
        subsection (1)(b) received by the Authority in consequence of the
        service of the first-mentioned notice; and

   (c)  after considering the representations, if any, made by the Authority
        or the person on the hearing of the application, issue an order that
        the person shall, within the time specified in the order, give the
        information in writing to the Authority or produce the document to the
        Authority, as the case requires.

(4) The person in respect of whom an application is made by the Authority
under subsection (3) shall be entitled to be heard on the hearing of the
application—

   (a)  where the person is an individual, either in person or through a
        counsel or solicitor; or

   (b)  where the person is an organization, either through a counsel or
        solicitor or through—

        (i)    in the case of a Hong Kong company or other company or body
               corporate, any of its directors or other officers;

        (ii)   in the case of a partnership, any of its partners; and

        (iii)  in the case of any other organization, any of its officers.

(5) Any information or document to be given or produced to the Authority by a
person in compliance with a notice under subsection (1) or an order under
subsection (3) shall be so given or produced by reference to the information
or document at the time of service of that notice except that the information
or document may take account of any processing that was done between the time
of service and the time when the information or document is so given or
produced if that processing would have been done irrespective of the service
of that notice.

(6) For the avoidance of doubt, it is hereby declared that where a person
gives or produces any information or document under this section
notwithstanding that the information or document is the subject of a
confidentiality agreement with another person that prevents the
first-mentioned person from releasing the information or document, the
first-mentioned person shall not be liable for any civil liability or claim
whatever in respect of the giving or production of that information or
document, as the case may be, contrary to that agreement.

(7) Nothing in this section shall require a person to give any information, or
to produce any document, that the person could not be compelled to give in
evidence, or produce, in civil proceedings before the Court of First Instance.

(8) A person commits an offence if he, without reasonable excuse—

   (a)  fails to comply with an order under subsection (3);

   (b)  fails to comply with subsection (5); or

   (c)  in purported compliance with a notice under subsection (1) or an order
        under subsection (3), knowingly gives information that is false or
        misleading, and shall be liable on summary conviction to a fine at
        level 5 and to imprisonment for 2 years.

(9) In this section, "processing" (處理), in relation to any information or
document, includes amending, augmenting, deleting or rearranging all or any
part of the information or document, whether by automated means or otherwise.

"processing" (處理)