Import and Export (Amendment) Bill 1999

Amend the Import and Export Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Import and Export (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 Import and Export Ordinance (Cap. 60) is amended by adding---

" "production notification" (生產通知書) means a notification required to be lodged under section
6AB(1);

"reference number" (編號)---

(a) in relation to a production notification, means the reference number assigned to the notification under section 6AB(2)(d);

(b) in relation to a validated production notification, means the reference number assigned to the notification under section 6AC(2);

"validated production notification" (認可生產通知書) means a production notification validated
under section 6AC(1);".

3. Part added

The following is added---

"PART IIA

Production Notification of Certain Textiles for Export

6AA. Definitions and application of this Part

(1) In this Part---

"issue" (發出、發給), in relation to any document, includes issue by using services provided by a
specified body;

"material particular" (要項), in relation to a production notification, means a particular---

(a) required under section 6AB(2) to be included in the notification; and

(b) prescribed by the regulations as material for the purposes of this definition;

"permitted period" (准許期間) means the period prescribed by the regulations for the purposes of
this definition;

"production" (生產), in relation to any specified textiles, means the process of manufacturing those
textiles as prescribed by the regulations for the purposes of this definition;

"the regulations" (規例) means the regulations made under section 31;

"specified textiles" (指明紡織品) means any textiles prescribed by the regulations for the purposes
of this definition.

(2) This Part shall not apply to specified textiles except specified textiles that are produced for export to a country or place prescribed by the regulations for the purposes of this section.

(3) The regulations may make provision for the purposes of exempting from this Part any specified textiles to which this Part would otherwise apply.

(4) A reference number of a production notification or validated production notification may be assigned by using services provided by a specified body.

6AB. Lodging of production notification

(1) A person shall not commence the production of any specified textiles (whether by himself or through any other person) unless he lodges with the Director a notification in respect of those textiles within the permitted period, or within such other period as the Director may, at his discretion, allow in a particular case.

(2) A production notification shall---

(a) be in such form and include such particulars and declarations as the Director may specify;

(b) be lodged with the Director on paper or using services provided by a specified body;

(c) be lodged in accordance with such other requirements, and attach or contain such other information, as the Director may determine; and

(d) be assigned a reference number by the Director.

(3) If there is any change in a material particular included in a production notification lodged by a person under subsection (1), the person shall inform the Director of the change by notice in writing or by using the services provided by a specified body---

(a) immediately if the notification is not a validated production notification;

(b) if the notification is a validated production notification, within 14 days of the change but, in any case, before applying for a licence in respect of the specified textiles to which the notification relates.

(4) Where but for this subsection a person would be required to comply with subsection (1) in relation to any textiles, then the person is not required to comply with that subsection---

(a) if the person complies with an undertaking given---

(i) in relation to the textiles; and

(ii) under regulation 8(3) of the Export (Certificates of Origin) Regulations (Cap. 60 sub. leg.) and that is comparable to the requirement of subsection (1); and

(b) until the expiration of 30 days after the commencement of this section.

(5) A person does not have to comply with the undertaking referred to in subsection (4)(a) in relation to any textiles on and after the day on which the person complies or is required to comply with subsection (1) in relation to the textiles, and, accordingly, regulation 12(2)(c) of the Export (Certificates of Origin) Regulations (Cap. 60 sub. leg.) does not apply to the undertaking to the extent the undertaking relates to the textiles.

6AC. Validation of production notification

(1) The Director shall validate a production notification if---

(a) it complies with section 6AB(2); and

(b) the Director is satisfied that the person who lodged the notification---

(i) has complied or will comply with the declarations made in the notification; and

(ii) is or will be capable of complying with the conditions, if any, that the Director is minded to impose under section 6AD(1) on the notification.

(2) The Director shall validate a production notification by assigning to the notification a reference number and endorsing that number on the notification.

(3) The Director shall issue a validated production notification to the person who lodged the notification with the Director.

(4) The Director may require an application for a licence in respect of any specified textiles to be supported by a validated production notification relating to those textiles.

6AD. Director's discretion in respect of

validated production notifications

(1) The Director may issue a validated production notification subject to such conditions specified or referred to in the notification as he may see fit to impose.

(2) The Director may cancel a validated production notification at the request of its holder.

(3) The Director may revoke or suspend a validated production notification if it appears to him that---

(a) a condition imposed on, or a declaration made in, the notification has not been complied with; or

(b) false or misleading information has been given in connection with the validated production notification.

(4) The Director may serve notice of the cancellation, revocation or suspension of a validated production notification on its holder and such holder shall, in the absence of evidence to the contrary, be deemed to be served with the notice if it---

(a) is delivered to the holder personally, or in the case of a partnership, to a person apparently concerned with the management of, or apparently employed by, the partnership;

(b) is addressed to the holder and left at or forwarded by registered mail to him at his usual or last known place of abode or business; or

(5) The holder of a validated production notification that has been cancelled, revoked or suspended shall immediately surrender to the Director the validated production notification and all its copies issued to him by the Director.

(6) No person shall use a validated production notification that has been cancelled, revoked or suspended, or quote its reference number, for any purpose in connection with the export of the specified textiles to which the notification relates.

(7) A person who contravenes subsection (5) or (6) commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 3 months.

(8) The Director may delegate any of the powers and duties conferred or imposed on him by this Part to any appointed officer.".

4. General powers of members of Customs and

Excise Service, etc.

Section 20 is amended---

(a) in subsection (1)---

(i) in paragraph (a), by repealing everything after "occupied by" and substituting---

"a person who---

(i) has been registered under this Ordinance;

(ii) has lodged a production notification with the Director;

(iii) has been issued with a validated production notification; or

(iv) is the holder of a licence;";

(ii) in paragraph (c)---

(A) in subparagraph (i), by adding ", production notification or validated production notification" after "licence";

(B) by adding---

"(ib) any document or information relating to any licence or validated production notification, or to any production notification, declaration or other document required to be lodged, delivered or provided to the Commissioner or Director in connection with the requirements of this Ordinance;

(ic) the reference number of any production notification or validated production notification;";

(iii) in paragraph (d), by repealing "or of any record or document" and substituting ", production notification or validated production notification, or of any record, document or information";

(iv) in paragraph (da), by repealing "or any record or document referred to in paragraph (c)" and substituting ", production notification or validated production notification, or to any record, document or information referred to in paragraph (c),";

(v) in paragraph (e), by repealing "may be issued" and substituting "or validated production notification may be issued or any production notification has been lodged";

(b) in subsection (2)(a), by adding "or validated production notification" after "licence".

5. Special powers of the members of the Customs

and Excise Service, etc.

Section 21 is amended---

(a) in subsection (3), by repealing "has been issued" and substituting "or validated production notification has been issued or a production notification has been lodged";

(b) in subsection (4), by adding ", production notification, validated production notification" after "licence" where it twice appears.

6. Power to make regulations

Section 31(1) is amended---

(a) in paragraph (m), by adding "or validated production notification, or any person required to lodge a production notification or any other document under this Ordinance, or any combination thereof," after "licence";

(b) in paragraph (n), by repealing "may be issued" and substituting "or validated production notification may be issued, or in respect of which any production notification or other document is required to be lodged under this Ordinance, or any combination thereof,";

(i) in subparagraph (i), by repealing "may be issued" and substituting "or validated production notification may be issued, or in respect of which any production notification or other document is required to be lodged under this Ordinance, or any combination thereof";

(ii) in subparagraph (ii), by repealing "may be issued" and substituting "or validated production notification may be issued, or in respect of which any production notification or other document is required to be lodged under this Ordinance, or any combination thereof";

(d) in paragraph (p), by adding ", validated production notification or other document issued under this Ordinance" after "any licence";

(e) by adding---

"(zb) providing for any matter required or permitted by Part IIA to be prescribed by or provided for in the regulations;

(zc) without prejudice to the generality of paragraph (z), specifying any matter referred to in paragraph (zb) in a Schedule to any regulation made under this Ordinance, and providing that the Director-General of Trade may, by order published in the Gazette, amend that Schedule;

(zd) empowering the Director to determine a process to be the process of manufacturing any specified textiles for the purposes of the definition of "production" in section 6AA(1);

(ze) empowering the Director to specify a particular as material for the purposes of the definition of "material particular" in section 6AA(1); ".

7. Offences in respect of licences, production

notifications, etc.

Section 36 is amended---

(a) in subsection (1)---

(i) in paragraph (b), by repealing "or";

(ii) in paragraph (c)---

(A) by adding "production notification," before "declaration";

(B) by repealing "this Ordinance," and substituting "this Ordinance; or";

(iii) by adding---

"(d) any particulars or information provided to the Director, an authorized officer or member of the Customs and Excise Service in connection with the requirements of this Ordinance,";

(b) by adding---

"(1A) A person who fails to comply with---

(a) any provision of section 6AB; or

(b) any condition imposed on a validated production notification,

commits an offence and is liable on conviction to a fine of $500,000 and to imprisonment for 2 years.";

(d) by adding---

"(3) Any person who furnishes or causes to be furnished to another person a production notification that---

(a) he knows or has reason to believe may be lodged with the Director for validation; and

(b) has been signed by him in blank or with the material particulars incomplete,

commits an offence and is liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(4) For the purpose of this section, "material particular" (要項), in relation to a production
notification, means material particular as defined in section 6AA(1).".

8. Offences by directors, partners, etc.

Section 36A is amended---

(a) by renumbering it as section 36A(1);

(b) by adding---

"(2) Where an offence under section 36 committed by a partner in a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any act on the part of, any other partner of the partnership or any person concerned in the management of the partnership, that other partner or the person concerned in the management of the partnership commits the like offence.".

Explanatory Memorandum

The object of this Bill is to amend the Import and Export Ordinance (Cap. 60) to make statutory provisions for the Production Notification (PN) arrangement, which aims at strengthening the enforcement and preserving the integrity of the export control system for textiles.

2. Clause 3 adds the proposed Part IIA relating to the PN arrangement. The proposed section 6AA provides for the definitions of the terms used in, and the scope of application of, that Part. Under the proposed section 6AB, before a person commences production of certain specified textiles, he is required to lodge with the Director-General of Trade ("the Director") on paper or by electronic data interchange, for validation purposes, a PN containing, inter alia, the particulars of the production. The proposed section 6AB(4) and (5) provides transitional arrangements for a similar PN arrangement presently being operated by means of undertakings under the Export (Certificates of Origin) Regulations (Cap. 60 sub. leg.).

3. A PN will be validated by the Director if he is satisfied, inter alia, that the declarations made in it will be complied with. The Director may impose conditions on a validated PN, require an application for documents like licences and certificates of origin to be supported by the validated PN, and cancel, revoke or suspend the validated PN under certain circumstances (proposed sections 6AC and 6AD). Failure to surrender to the Director a validated PN that has been cancelled, revoked or suspended, or using that PN in connection with textile export, is made an offence (proposed section 6AD(5), (6) and (7)).

4. Clauses 4 and 5 amend sections 20 and 21 to provide members of the Customs and Excise Service and other authorized officers with enforcement powers relating to matters covered by a PN.

5. Clause 6 amends section 31 to enable the Chief Executive in Council to make regulations to---

‧ provide for detailed requirements relating to the PN arrangement; and

‧ empower the Director, inter alia, to amend those requirements if placed in a Schedule to the regulations.

6. Clause 7 amends section 36 to create new offences in respect of PNs, including---

‧ giving of false or misleading information;

‧ failure to lodge a PN as required or to comply with a condition imposed on a validated PN;

‧ forging, or altering without authorization, a validated PN;

‧ furnishing to another person a production notification signed in blank or with material particulars incomplete.

7. Clause 8 adds a new subsection to section 36A to, inter alia, make a partner in a partnership criminally liable if he consents to the commission of an offence under section 36 by another partner.