Protection of Non-Government Certificates of Origin (Amendment) Bill 1999

Amend the Protection of Non-Government Certificates of Origin Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Protection of Non-Government Certificates of Origin (Amendment) Ordinance 1999.

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

2. Interpretation

Section 2 of the Protection of Non-Government Certificates of Origin Ordinance (Cap. 324) is amended by adding---

" "security device" (保安裝置) means a device issued to a person by a specified body for the
purpose of authenticating information to be sent using information technology services provided by
the specified body;

"services provided by a specified body" (指明團體所提供的服務) means information technology
services for the transmission of information to and from an approved body under this Ordinance,
provided by a specified body;

"specified agent" (指明代理人) has the same meaning as in section 2 of the Import and Export
Ordinance (Cap. 60);

"specified body" (指明團體) has the same meaning as in section 2 of the Import and Export
Ordinance (Cap. 60);".

3. Sections added

The following are added---

"2A. Authorization of information

(1) Where information received by an approved body was sent using services provided by a specified body, evidence which shows that the information was authenticated by the use of a security device is, in the absence of evidence to the contrary, proof that the person issued with the security device by the specified body---

(a) furnished the information; or

(b) made a statement or declaration contained in the information.

(2) Where information received by an approved body was sent using services provided by a specified body through a specified agent who has obtained an authorization in accordance with section 2C, a person named in the information as the one who furnished the information or who made a statement or declaration contained in the information is, in the absence of evidence to the contrary, regarded for the purposes of this Ordinance as the person who---

(a) furnished the information; or

(b) made the statement or declaration contained in the information.

2B. Safekeeping of security device

A person who has been issued with a security device---

(a) shall not authorize or suffer any other person to use; and

(b) shall take all reasonable steps and exercise due diligence in preventing any other person from using,

the device for authenticating information to be sent to an approved body under this Ordinance using services provided by a specified body.

2C. Duty of specified agent

A specified agent shall not send any information on behalf of a person using services provided by a specified body unless the specified agent has obtained from the person an authorization in writing to do so.".

4. Power to issue certificates

Section 3(3) is repealed and the following substituted---

"(3) A certificate of origin shall be---

(a) issued on paper or using services provided by a specified body;

(b) in such form as the approved body issuing the certificate may specify; and

5. Discretion to refuse to issue or to revoke

certificates of origin

Section 4 is amended---

(a) in subsection (3), by adding "or by notice sent using services provided by a specified body," after "registered post,";

(b) in subsection (4), by adding "issued on paper" after "surrender the certificate or copy".

6. Sections added

The following are added---

"6A. Certificate of record of information sent using services provided by specified body

(1) A document purporting---

(a) to be a copy of the record of any information sent using services provided by a specified body and produced from the computer systems of an approved body; and

(b) to be certified by a person authorized by the approved body for such a purpose,

shall be admitted as evidence in any proceedings under this Ordinance before a court or magistrate on its production without further proof.

(2) Where a document is produced and admitted as evidence under subsection (1)---

(a) the court or magistrate before which it is produced shall, until the contrary is proved, presume---

(i) that it was certified under subsection (1)(b);

(ii) that the document is a true copy of the record of information so sent; and

(iii) that the record was duly made at the time referred to in the document; and

(b) the document is evidence of the contents of the information sent by the sender using the services provided by the specified body.

(3) Where a document is produced and admitted as evidence under subsection (1), the court or magistrate may, if it or he thinks fit, on its or his own motion or on the application of any party to the proceedings, summon the person who certified the document and examine him as to its subject matter.

6B. Offences relating to the use or keeping

of a security device

Where a person who has been issued with a security device contravenes section 2B(a) or (b), he commits an offence and is liable to a fine at level 5 and to imprisonment of 6 months.

6C. Offence by specified agent

A specified agent who contravenes section 2C commits an offence and is liable to a fine at level 3.".

7. Offences in relation to certificates of origin

Section 7 is amended---

(a) in subsection (1)(g), by adding ", whether on paper or using information technology services, that is" before "likely to mislead";

(b) in subsection (2)(a), by adding "or any information given, whether verbal or in writing or otherwise," after "in any declaration made".

8. Liability of company, directors, etc.

Section 8(1) is amended by adding ", or any information furnished by using services provided by a specified body," after "where a document".

9. Powers and obstruction of authorized officers

Section 10 is amended by adding---

"(4) An authorized officer may---

(a) require any information which he reasonably suspects relates to an offence which has been, or may have been, committed under this Ordinance that is---

(i) contained in a computer in, on or accessible from the premises, place, vessel, aircraft or vehicle entered or boarded under this section; or

(ii) contained in any device found in or on the premises, place, vessel, aircraft or vehicle entered or boarded under this section and which is capable of being retrieved on a computer,

to be produced on a computer in or on the premises, place, vessel, aircraft or vehicle in a visible and legible form, and examine the information;

(b) require any information described in paragraph (a) to be produced in a form in which it can be taken away and in which it is either visible and legible or capable of being retrieved on a computer; and

(5) Any person who---

(a) obstructs an authorized officer in the exercise of any power or the performance of any duty conferred or imposed on authorized officers by this Ordinance; or

(b) fails to comply with any requirement, direction or demand given or made by an authorized officer in the exercise or performance of any such power or duty,

commits an offence and is liable to a fine at level 3 and to imprisonment for 6 months.

(6) Any person who knowingly makes a false report, or furnishes any false or misleading information, to any authorized officer in exercising or performing his powers or duties under this Ordinance commits an offence and is liable to a fine at level 3 and to imprisonment for 6 months.".

Explanatory Memorandum

This Bill amends the Protection of Non-Government Certificates of Origin Ordinance (Cap. 324) ("the principal Ordinance) to enable the approved bodies under the principal Ordinance to handle applications for certificates of origin using information technology such as electronic data interchange.

2. Clause 2 defines the terms used in the new provisions. The expressions "specified body" and "specified agent" as defined in the Import and Export Ordinance (Cap. 60) are adopted as the same companies authorized to provide information technology services under the principal Ordinance.

3. Clause 3 sets out the provisions relating to the use of information technology services provided by a specified body. Proposed section 2A deals with how the provider of information is established in cases where the information sent to an approved body is authenticated by a security device, and where such information is sent through a specified agent. It is an offence for a person issued with a security device to authorize its use by others, and for a specified agent to send information on behalf of a person without his written authorization (proposed sections 2B and 2C at clause 3, and proposed sections 6B and 6C at clause 6).

4. Clauses 4 and 5 amend sections 3 and 4 to allow a certificate of origin to be issued and revoked using services provided by a specified body.

5. Clause 6 also adds the proposed section 6A, which enables certificates of records of information sent using services provided by a specified body and produced from an approved body's computer systems to be admissible as evidence in court proceedings.

6. Clauses 7 and 8 amend sections 7 and 8 to cater for offences involving documents issued or information furnished using information technology services.

7. Clause 9 amends section 10 to confer powers on authorized officers of the Customs and Excise Department to require information to be produced from computers and to take away copies so produced. New offences are also created, including those for furnishing false information to and obstructing an authorized officer in performing his duties under the principal Ordinance.