Organized and Serious Crimes (Amendment) Bill 1999

Amend the Organized and Serious Crimes Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Organized and Serious Crimes (Amendment) Ordinance 1999.

(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Security by notice in the Gazette.

2. Part added

The Organized and Serious Crimes Ordinance (Cap. 455) is amended by adding---

"PART IVA

Remittance Agents and Money Changers

24A. Interpretation

In this Part and Schedule 6, unless the context otherwise requires---

"certificate of identity" (身分證明書), "document of identity" (簽證身分書), "identity card"
(身分證) and "travel document" (旅行證件) have

the meanings respectively assigned to them under section 2 of the Immigration Ordinance (Cap. 115);

"currency" (貨幣), "exchange transaction" (兌換交易) and "money changer" (貨幣兌換商) have
the meanings respectively assigned to them under section 2 of the Money Changers Ordinance
(Cap. 34);

"money" (金錢) means money in whatever form or currency;

"premises" (處所) includes place;

"record" (紀錄) includes, in addition to a record in writing---

(a) a disc, tape or other device in which data other than visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced from the disc, tape or other device; and

(b) a film, tape or other device in which visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced from the film, tape or other device;

"remittance agent" (匯款代理人)---

(a) subject to paragraph (b), means a person who provides a service to another person or persons as a business, of one or more of the following---

(i) sending, or arranging for the sending of, money to;

(ii) receiving, or arranging for the receipt of, money from; or

(iii) arranging for the receipt of money in,

a place outside Hong Kong;

(b) does not include---

(i) an authorized institution within the meaning of the Banking Ordinance (Cap. 155);

(ii) an authorized insurer within the meaning of the Insurance Companies Ordinance (Cap. 41);

(iii) a registered person within the meaning of the Securities and Futures Commission Ordinance (Cap. 24);

"remittance transaction" (匯款交易) means a service falling within paragraph (a) of the definition of
"remittance agent".

24B. Register of remittance agents and

money changers

(1) The Secretary for Security shall, by notice in the Gazette---

(a) appoint a public officer to be the responsible officer for the purposes of this section;

(b) specify an address to which a notice required to be given under this section to the responsible officer shall be sent.

(2) The responsible officer shall maintain a register, in such form as he thinks fit, containing---

(a) the name of every remittance agent and the address of

every premises in Hong Kong at which a remittance agent provides, whether in whole or in part and whether or not any other activity is carried on in the premises, a service as a remittance agent;

(b) the name of every money changer and the address of every premises in Hong Kong at which a money changer carries on, whether in whole or in part and whether or not any other activity is carried on in the premises, business as a money changer; and

(3) The register shall be kept at such place as is notified by the responsible officer by notice in the Gazette.

(4) A person who is already, immediately before the commencement of this section, a remittance agent or money changer shall, not later than 3 months after that commencement, send a notice in writing to the responsible officer at the specified address stating, in the case of a remittance agent, the particulars required to be included in the register under subsection (2)(a) and, in the case of a money changer, the particulars required to be included in the register under subsection (2)(b).

(5) A person who becomes a remittance agent or money changer on or after the commencement of this section shall, not later than 1 month after so becoming a remittance agent or money changer, as the case may be, send a notice in writing to the responsible officer at the specified address stating, in the case of a remittance agent, the particulars required to be included in the register under subsection (2)(a) and, in the case of a money changer, the particulars required to be included in the register under subsection (2)(b).

(6) Where a person ceases to be a remittance agent or money changer, or any particulars given by the person to the responsible officer under subsection (4) or (5) changes subsequent to the original submission, then the person shall not later than 3 months after the event send a notice in writing to the responsible officer at the specified address informing the responsible officer of his ceasing to be a remittance agent or money changer, or of such change, as the case may be.

(7) Any person may, with effect from such date and during such hours as shall be notified by the responsible officer by notice in the Gazette---

(a) inspect the register;

(b) with the consent of the responsible officer, obtain a copy of an entry in the register or an extract from the register.

(8) A person who, without reasonable excuse, contravenes subsection (4), (5) or (6) commits an offence and is liable on conviction to a fine at level 5.

(9) A person who sends any particulars under subsection (4), (5) or (6) which are false in a material particular commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 6 months.

(10) In this section---

"register" (紀錄冊) means the register maintained under subsection (2);

"responsible officer" (負責人員) means the responsible officer appointed under subsection (1)(a);

"specified address" (指明地址) means the address specified under subsection (1)(b).

24C. Duty on remittance agents and money

changers to keep records

(1) This section shall not apply to a remittance transaction or exchange transaction which is less than $20,000 in value or an equivalent amount in any other currency.

(2) A remittance agent shall---

(a) not complete a remittance transaction unless the remittance agent keeps a record of---

(i) if the transaction falls within paragraph (a)(i) of the definition of "remittance agent" in section 24A, the particulars specified in Part 1 of Schedule 6;

(ii) if the transaction falls within paragraph (a)(ii) of the definition of "remittance agent" in section 24A, the particulars specified in Part 2 of Schedule 6;

(iii) if the transaction falls within paragraph (a)(iii) of the definition of "remittance agent" in section 24A, the particulars specified in Part 3 of Schedule 6;

(b) verify the name and identity of the instructor or recipient referred to in the particulars, as the case may be, by reference to his certificate of identity, document of identity, identity card or travel document, if such instructor or recipient appears in person; and

(c) keep that record for not less than 6 years after the date of the transaction notwithstanding that the remittance agent may have ceased his business subsequent to the transaction.

(3) A money changer shall---

(a) not complete an exchange transaction (and notwithstanding section 3(1)(c) of the Money Changers Ordinance (Cap. 34)) unless the money changer keeps a record of the particulars specified in Part 4 of Schedule 6;

(b) verify the name and identity of the client referred to in

the particulars by reference to his certificate of identity, document of identity, identity card or travel document, if such client appears in person; and

(c) keep that record for not less than 6 years after the date of the transaction notwithstanding that the money changer may have ceased his business subsequent to the transaction.

(4) A remittance agent who contravenes subsection (2), or a money changer who contravenes subsection (3), commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 3 months.

(5) The Secretary for Security may, by notice in the Gazette, amend---

(a) the amount specified in subsection (1);

(b) Schedule 6.

24D. Criminal liability

(1) If a person employed by a remittance agent does an act which would be an offence under section 24C(4) if done by a remittance agent, each of the following persons is guilty of that offence as if he were a remittance agent who had committed the offence and each person is liable to the penalty prescribed for the offence---

(a) the person employed by the remittance agent;

(b) the remittance agent, unless the remittance agent took reasonable steps to prevent the commission of the offence; and

(c) where the employer of the person is a corporation, each director, manager, secretary and other similar officer of the corporation and any person purporting to act in any of those capacities unless he took reasonable steps to prevent the commission of the offence.

(2) Subject to subsection (3), for the purposes of this section, a person is deemed to be a director of a corporation if he occupies the position of a director by whatever name he may be called or is a person

in accordance with whose directions or instructions a director of the corporation acts.

(3) A person shall not, by reason only that a director of the corporation acts on advice given by him in a professional capacity, be taken to be a person in accordance with whose directions or instructions a director acts.

(4) If a partner in a partnership of remittance agents commits

an offence under section 24C(4) and it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any other partner of the partnership, that other partner shall be guilty of the like offence.

(5) This section shall apply to and in relation to a money changer as it applies to and in relation to a remittance agent as if any reference in subsections (1) to (4) to a remittance agent were a reference to a money changer.

24E. Power of authorized officers to enter

premises and inspect books, etc.

(1) Where an authorized officer has a reasonable suspicion that a remittance agent has committed
an offence under this Part (in this section referred to as the "suspected offence" (嫌疑罪行)), he
may enter any premises where the activities of the remittance agent are being carried on and may
demand the production of and inspect the remittance agent's records relating to any remittance
transaction carried out by the remittance agent or relating to his activities as a remittance agent, and
may take notes, copies or extracts thereof or therefrom.

(2) Where pursuant to subsection (1) an authorized officer has entered any premises where the activities of a remittance agent are being carried on, he may seize any records relating to any remittance transaction carried out by the remittance agent or relating to his activities as a remittance agent that the officer reasonably believes to be related to the suspected offence.

(3) Any records seized under subsection (2) shall, as soon as practicable after such seizure, be delivered to the Commissioner of Police or the Commissioner of Customs and Excise, or to some person nominated by either Commissioner in that behalf, by the authorized officer who seized them.

(4) Where any records seized under subsection (2) are delivered in accordance with subsection (3) to the Commissioner of Police or the Commissioner of Customs and Excise, or to some person nominated by either Commissioner in that behalf, the Commissioner of Police, the Commissioner of Customs and Excise or that person, as the case may be, shall, if no prosecution is instituted within 6 months after such delivery in respect of the suspected offence to which they relate, return, or arrange for the return of, such records to the remittance agent from whom they were so seized.

(5) This section shall apply to and in relation to a money changer as it applies to and in relation to a remittance agent as if any reference in subsections (1) to (4)---

(a) to a remittance agent were a reference to a money changer;

(b) to a remittance transaction were a reference to an exchange transaction.".

3. Schedule added

The following is added---

"SCHEDULE 6 [ss. 24A & 24C]

Particulars to be Recorded by Remittance Agents

and Money Changers

PART 1

Particulars to be Recorded by Remittance Agents where

Paragraph (a)(i) of the Definition of "Remittance

Agent" in Section 24A is Applicable

1. Transaction serial number

2. Currency and amount involved

3. Date and time of receiving instructions from instructor(s)/sender(s)

4. Instruction details (including method of delivery and/or acknowledgement)

5. Name, identity card number (or certificate of identity, document of identity or travel document number with place of issue), telephone number and address of instructor(s)

6. Name, identity card number (or certificate of identity, document of identity or travel document number with place of issue), telephone number and address of sender(s), if available

7. Bank account(s) involved, if any

8. Name and particulars of recipient(s)

9. Currency and amount to each recipient

10. Date and time sent

PART 2

Particulars to be Recorded by Remittance Agents where

Paragraph (a)(ii) of the Definition of "Remittance

Agent" in Section 24A is Applicable

1. Transaction serial number

2. Currency and amount involved

3. Date and time of receiving instructions by the agent

4. Instruction details (including method of receipt and/or acknowledgement)

5. Name and address, or name and bank account number of instructor(s)

6. Name, telephone number and address of sender(s)

7. Bank account(s) involved, if any

8. Name, identity card number (or certificate of identity, document of identity or travel document number with place of issue), telephone number, address or, if payment is to be made into a Hong Kong bank account, the name of the account holder and account number, of the recipient(s) apart from the remittance agent

9. Currency and amount involved by each recipient

10. Date and time received by recipient(s)

PART 3

Particulars to be Recorded by Remittance Agents where

Paragraph (a)(iii) of the Definition of "Remittance

Agent" in Section 24A is Applicable

1. Transaction serial number

2. Currency and amount involved

3. Date and time of receiving instructions from instructor(s)

4. Instruction details (including method of delivery and/or acknowledgement)

5. Name, identity card number (or certificate of identity, document of identity or travel document number with place of issue), telephone number and address of instructor(s)

6. Date and time of giving instructions to agent outside Hong Kong

7. Bank account(s) involved, if any

8. Name, particulars, telephone number and address of recipient(s)

9. Currency and amount to each recipient

PART 4

Particulars to be Recorded by Money Changers

1. Transaction serial number

2. Date and time of transaction

3. Currencies and amount exchanged

4. Exchange rate

5. Name, identity card number (or certificate of identity, document of identity or travel document number with place of issue) of client

6. Telephone number and address of client".

Explanatory Memorandum

The purpose of this Bill is to amend the Organized and Serious Crimes Ordinance (Cap. 455) to add a new Part IVA to, in the interests of detecting and suppressing money laundering---

(a) require a register to be kept of the names and addresses of all remittance agents and money changers (new section 24B). (See, also, the definition of "remittance agent" in new section 24A and the definition of "money changer" in section 2 of the Money Changers Ordinance (Cap. 34));

(b) require remittance agents and money changers to keep records of transactions which concern amounts of $20,000 or more or an equivalent amount in any other currency (new section 24C);

(c) include a new section 24D to specify the criminal liability of remittance agents and money changers and their employees; and

(d) include a new section 24E to specify the powers of authorized officers to enter the premises of remittance agents and money changers and inspect their records (the new section is based on section 28 of the Money Lenders Ordinance (Cap. 163)).