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Dangerous Drugs, Independent Commission Against Corruption and Police Force (Amendment) Bill 1999
Amend the Dangerous Drugs Ordinance, the Independent Commission Against Corruption Ordinance and the Police Force Ordinance.
Enacted by the Legislative Council.
PART I
Preliminary
1. Short title and commencement
(1) This Ordinance may be cited as the Dangerous Drugs, Independent Commission Against Corruption and Police Force (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.
PART II
Amendments to the Dangerous Drugs Ordinance
2. Sections added
The Dangerous Drugs Ordinance (Cap. 134) is amended by adding---
"54AA. Taking of urine samples
(1) In any investigation in respect of an offence committed or believed to have been committed, a urine sample may be taken from a person only if---
(a) a police officer of or above the rank of superintendent or a member of the Customs and Excise Service of or above the rank of superintendent ("authorizing officer") authorizes it to be taken;
(b) the appropriate consent is given; and
(c) a magistrate gives approval under subsection (6) for it to be taken.
(2) An authorizing officer may only give an authorization as required under subsection (1)(a) if he has reasonable grounds---
(a) for suspecting the involvement of the person from whom the urine sample is to be taken in a serious arrestable offence; and
(b) for believing that the sample will tend to confirm or disprove the involvement of that person.
(3) An authorizing officer may give an authorization pursuant to subsection (2) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as practicable.
(4) Where an authorization has been given pursuant to subsection (2), a police officer or a member of the Customs and Excise Service may request the person from whom the urine sample is to be taken and that person's parent or guardian if he is under the age of 18 years, to give the appropriate consent to the taking of the sample and the officer or the member, in making the request, shall inform the person and his parent or guardian, as the case may be---
(a) of the nature of the offence in which the person is suspected to have been involved;
(b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the involvement of that person;
(c) that he may or may not give his consent to the taking of the sample;
(d) that if he consents to the taking of the sample, he may at any time withdraw that consent before the sample is taken;
(e) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence in relation to dangerous drugs; and
(f) that he may make a request to a police officer of or above the rank of superintendent or a member of the Customs and Excise Service of or above the rank of superintendent for access to the information derived from the sample.
(5) The appropriate consent must be given in writing and signed by the person or persons giving the consent.
(6) Where an authorization and the appropriate consent as required under subsection (1)(a) and (b) have been given, a police officer or a member of the Customs and Excise Service shall make an application to a magistrate in accordance with the Seventh Schedule for the magistrate's approval as required under subsection (1)(c) and the magistrate may give his approval in accordance with that Schedule.
(7) A urine sample may only be taken from a person by a police officer or a member of the Customs and Excise Service of the same sex as that person.
(8) In this section---
"appropriate consent" (適當的同意) means---
(a) in relation to a person who has attained the age of 18 years, the consent of that person;
(b) in relation to a person who has not attained the age of 18 years, the consent both of that person and of his parent or guardian;
"serious arrestable offence" (嚴重的可逮捕罪行) means an offence in relation to dangerous drugs for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 5 years.
54AB. Use and disposal of urine samples and information derived from analysis
(1) No person shall use a urine sample taken pursuant to section 54AA except for the purposes of forensic analysis in the course of an investigation of any offence in relation to dangerous drugs.
(2) No person shall use any information derived from the forensic analysis of a urine sample taken pursuant to section 54AA except in any proceedings for an offence in relation to dangerous drugs.
(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.
(4) The Commissioner of Police or the Commissioner of Customs and Excise, as the case may be, shall take reasonable steps to ensure that---
(a) a urine sample taken pursuant to section 54AA; and
(b) all information derived from the forensic analysis of the sample,
which may be retained by him or on his behalf are destroyed as soon as practicable after---
(i) if the person from whom the sample was taken has not been charged with any offence in relation to dangerous drugs, the expiry of---
(A) subject to subparagraph (B), 12 months from the date on which the sample is taken ("the relevant period");
(B) such further period or periods as may be extended under subsection (5) ("the extended period");
(ii) if the person has been charged with one or more offences in relation to dangerous drugs within the relevant period and the extended period, if any---
(A) the charge or all the charges, as the case may be, is or are withdrawn;
(B) the person is discharged by a court before conviction of the offence or all the offences, as the case may be; or
(C) the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal,
whichever occurs first.
(5) A police officer of or above the rank of chief superintendent or a member of or above the rank of chief superintendent of the Customs and Excise Service may extend or further extend the relevant period for not more than 6 months for each extension if he is satisfied on reasonable grounds that it is necessary to the continuing investigation of the offence or offences in relation to which the sample was taken that the sample and the information derived from the forensic analysis of the sample be retained.
(6) Without prejudice to the operation of subsections (4) and (5), if a person from whom a urine sample was taken pursuant to section 54AA has been convicted of one or more offences in relation to dangerous drugs, then the Commissioner of Police or the Commissioner of Customs and Excise, as the case may be, shall take reasonable steps to ensure that the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conclusion of all proceedings (including any appeal) arising out of the conviction.
54AC. Amendment of Seventh Schedule
The Chief Executive in Council may by order published in the Gazette amend the Seventh Schedule.".
3. Schedule added
The following is added---
` "SEVENTH SCHEDULE [ss. 54AA(6) &
54AC]
Application for and Giving of a Magistrate's Approval for the Taking of a Urine Sample
1. An application under section 54AA(6) of this Ordinance must be made in Form 1. A copy of the authorization duly given pursuant to section 54AA(2) of this Ordinance and of appropriate consent duly given and signed under section 54AA(5) of this Ordinance must be exhibited to Form 1.
2. Form 1 together with the exhibits referred to in section 1 must be submitted to a magistrate.
3. A magistrate, on receiving the application, may---
(a) give his approval if he is satisfied that---
(i) an authorization has been duly given pursuant to section 54AA(2) of this Ordinance;
(ii) there are reasonable grounds---
(A) for suspecting the involvement of the person from whom the urine sample is to be taken in a serious arrestable offence; and
(B) for believing that the sample will tend to confirm or disprove the involvement of that person; and
(iii) the appropriate consent has been duly given under section 54AA(5) of this Ordinance;
(b) order that an inter partes hearing shall be conducted in private for the purposes of determining whether the approval should be given or not if he considers that it is necessary in the interest of justice to do so; or
(c) reject the application if he thinks fit to do so.
4. An order made under section 3(b) must specify a hearing date and must be served on the applicant and the respondent not less than 3 days before the specified hearing date.
5. Where an order has been duly served under section 4, the applicant and the respondent must attend before the magistrate on the hearing date specified in the order. The respondent may be represented by his legal representative. The applicant and the respondent (or his legal representative, if any) may make representations at the hearing.
6. The magistrate, upon hearing the parties, may---
(a) give his approval if he is satisfied that---
(i) an authorization has been duly given pursuant to section 54AA(2) of this Ordinance;
(ii) there are reasonable grounds---
(A) for suspecting the involvement of the person from whom the urine sample is to be taken in a serious arrestable offence; and
(B) for believing that the sample will tend to confirm or disprove the involvement of that person; and
(iii) the appropriate consent has been duly given under section 54AA(5) of this Ordinance; or
(b) reject the application if he thinks fit to do so.
7. The approval under sections 3(a) and 6(a) must be given in Form 2.
FORM 1
APPLICATION FOR AN APPROVAL FOR THE TAKING OF A URINE SAMPLE
Section 54AA(6) of the Dangerous Drugs Ordinance (Cap. 134)
Application No.
Writ No.
TO A MAGISTRATE OF HONG KONG
IN THE MAGISTRATES COURT AT ..............................
I, ........................................ (name of the applicant), apply
for an approval to the taking of urine
sample from ........................................ (name of the suspect) on the following grounds---
(a) .............................. , a police officer of or above the rank of superintendent/a member of the Customs and Excise Service of or above the rank of superintendent* on .............................. (date) has given an authorization (which is exhibited to this form) to the taking of the sample from the said person as he has reasonable grounds---
(i) for suspecting the involvement of the said person in a serious arrestable
offence, namely an offence contrary to section ........................................ of
the ........................................ Ordinance (Cap. .................... ); and
(ii) for believing that the sample will tend to confirm or disprove the involvement of the said person,
relying on the following facts---
(b) the appropriate consent has been given (which is exhibited to this form).
Dated this day of (year).
........................................
Applicant.
(signature)
* Delete whichever is inapplicable.
------------------
FORM 2
Approval for the Taking of a Urine Sample
Section 54AA(6) of the Dangerous Drugs Ordinance (Cap. 134)
Application No.
Writ No.
HONG KONG. IN THE MAGISTRATES COURT AT .........................................
To each and all of the police officers of Hong Kong/members of the Customs and Excise Service of Hong Kong*.
APPLICATION has been made to the undersigned, a magistrate of Hong Kong,
by .............................. (name of the applicant) on .................... (date) and the undersigned magistrate,
relying on the facts specified in the said application/upon hearing the parties*, has satisfied that---
(a) .............................. , a police officer of or above the rank of superintendent/a member of the Customs and Excise Service of or above the rank of superintendent* on .................... (date) has duly given an authorization to the taking of the sample from .............................. (name of the suspect);
(b) there are reasonable grounds---
(i) for suspecting the involvement of the said person in a serious arrestable offence, namely an offence contrary to section........................................ of the ........................................ Ordinance (Cap. .................... ); and
(ii) for believing that the sample will tend to confirm or disprove the involvement of the said person; and
(c) the appropriate consent has been duly given.
You are herewith approved to take the urine sample from the said person.
Dated this day of (year).
........................................
Magistrate
[L. S.]
* Delete whichever is inapplicable.".
PART III
Amendments to the Independent Commission Against Corruption Ordinance
4. Sections added
The Independent Commission Against Corruption Ordinance (Cap. 204) is amended by adding---
"10E. Taking of non-intimate samples
(1) In any investigation in respect of an offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if---
(a) that person is dealt with and detained pursuant to section 10A; and
(b) an officer of the rank of Senior Commission Against Corruption Officer or above ("authorizing officer") authorizes it to be taken.
(2) An authorizing officer may only give an authorization as required under subsection (1)(b) if he has reasonable grounds---
(a) for suspecting the involvement of the person from whom the non-intimate sample is to be taken in a serious arrestable offence; and
(b) for believing that the sample will tend to confirm or disprove the involvement of that person.
(3) An authorizing officer may give an authorization pursuant to subsection (2) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as practicable.
(4) Where an authorization has been given pursuant to subsection (2), an officer shall, before the taking of a non-intimate sample, inform the person from whom the sample is to be taken---
(a) of the nature of the offence in which the person is suspected to have been involved;
(b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the involvement of that person;
(c) of the giving of the authorization;
(d) that he may or may not consent to the taking of the sample;
(e) that if he does not consent to the taking of the sample, the sample will still be taken from him by using reasonable force if necessary;
(f) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence for which a person may be arrested under section 10;
(g) that he may make a request to an officer of the rank of Senior Commission Against Corruption Officer or above for access to the information derived from the analysis of the sample; and
(h) that if he is subsequently convicted of any serious arrestable offence, any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) of the Police Force Ordinance (Cap. 232) and may be used for the purposes specified in subsection (2) of that section.
(5) Any consent given for the taking of a non-intimate sample pursuant to this section must be given in writing and signed by the person giving the consent.
(6) A non-intimate sample from a person may only be taken by---
(a) a registered medical practitioner; or
(b) an officer, or a public officer working in the Government Laboratory, who has received training for the purpose.
(7) An officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample from a person pursuant to this section.
(8) In this section, sections 10F and 10G---
"DNA" means deoxyribonucleic acid;
"DNA information" (DNA 資料) means genetic information derived from the forensic DNA analysis of an intimate sample or a non-intimate sample;
"intimate sample" (體內樣本) means---
(a) a sample of blood, semen or any other tissue fluid, urine or pubic hair;
(b) a dental impression;
(c) a swab taken from a person's body orifice other than the mouth or from a private part of a person's body;
"non-intimate sample" (非體內樣本) means---
(a) a sample of hair other than pubic hair;
(b) a sample taken from a nail or from under a nail;
(c) a swab taken from any part other than a private part of a person's body including the mouth but not any other body orifice;
(d) saliva;
(e) an impression of any part of a person's body other than the identifying particulars described in section 59(6) of the Police Force Ordinance (Cap. 232);
"private part" (私處) in relation to a person's body, means the genital or anal area and includes the breasts in the case of a woman;
"serious arrestable offence" (嚴重的可逮捕罪行) means an offence for which a person may be arrested under section 10 and for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 5 years.
10F. Limitations on use of samples and results of forensic analysis
(1) No person shall use a non-intimate sample taken pursuant to section 10E except for the purposes of---
(a) forensic analysis in the course of an investigation of any offence for which a person may be arrested under section 10; or
(b) any proceedings for any such offence.
(2) No person shall use the results of forensic analysis of a non-intimate sample taken pursuant to section 10E except---
(a) for the purposes of---
(i) forensic comparison and interpretation in the course of an investigation of any offence for which a person may be arrested under section 10; or
(ii) any proceedings for such an offence; or
(b) for the purposes of section 59G(1) and (2) of the Police Force Ordinance (Cap. 232) where the results are of forensic DNA analysis.
(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.
10G. Disposal of samples and records
(1) The Commissioner shall take reasonable steps to ensure that---
(a) a non-intimate sample taken pursuant to section 10E; and
(b) a record to the extent that it contains information about the sample and particulars that are identifiable by any person as particulars identifying that information with the person from whom the sample was taken,
which may be retained by him or on his behalf are destroyed as soon as practicable after---
(i) if the person has not been charged with any offence for which a person may be arrested under section 10, the expiry of---
(A) subject to subparagraph (B), 12 months from the date on which the sample was taken("the relevant period"); or
(B) such further period or periods as may be extended under subsection (2) ("the extended period");
(ii) if the person has been charged with one or more offences for which a person may be arrested under section 10 within the relevant period and the extended period, if any---
(A) the charge or all the charges, as the case may be, is or are withdrawn;
(B) the person is discharged by a court before conviction of the offence or all the offences, as the case may be; or
(C) the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal,
whichever occurs first.
(2) An officer of the rank of Assistant Director of the Commission Against Corruption or above may extend or further extend the relevant period for not more than 6 months for each extension if he is satisfied on reasonable grounds that it is necessary to the continuing investigation of the offence or offences in relation to which the sample was taken that the sample and the record concerned be retained.
(3) Subsection (1) shall not affect any DNA information which has already been permanently stored in the DNA database pursuant to section 59G(1)(a), (b) or (c) of the Police Force Ordinance (Cap. 232).
(4) Without prejudice to the operation of subsections (1) and (2), if a person from whom a non-intimate sample was taken pursuant to section 10E has been convicted of one or more offences for which a person may be arrested under section 10, then the Commissioner shall take reasonable steps to ensure that the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conclusion of all proceedings (including any appeal) arising out of the conviction.".
PART IV
Amendments to the Police Force Ordinance
5. Interpretation
Section 3 of the Police Force Ordinance (Cap. 232) is amended by adding---
""appropriate consent" (適當的同意) means---
(a) in relation to a person who has attained the age of 18 years, the consent of that person;
(b) in relation to a person who has not attained the age of 18 years, the consent both of that person and of his parent or guardian;
"DNA" means deoxyribonucleic acid;
"DNA information" (DNA 資料) means genetic information derived from the forensic DNA analysis of an intimate sample or a non-intimate sample;
"Independent Commission Against Corruption" (總督特派廉政專員公署) means the Independent Commission Against Corruption established under section 3 of the Independent Commission Against Corruption Ordinance (Cap. 204);
"intimate sample" (體內樣本) means---
(a) a sample of blood, semen or any other tissue fluid, urine or pubic hair;
(b) a dental impression;
(c) a swab taken from a person's body orifice other than the mouth or from a private part of a person's body;
"non-intimate sample" (非體內樣本) means---
(a) a sample of hair other than pubic hair;
(b) a sample taken from a nail or from under a nail;
(c) a swab taken from any part other than a private part of a person's body including the mouth but not any other body orifice;
(d) saliva;
(e) an impression of any part of a person's body other than the identifying particulars described in section 59(6);
"private part" (私處) in relation to a person's body, means the genital or anal area and includes the breasts in the case of a woman;
"registered dentist" (註冊牙醫) has the same meaning as it has in the Dentist Registration Ordinance (Cap. 156);
"serious arrestable offence" (嚴重的可逮捕罪行) means an offence for which a person may under or by virtue of any law be sentenced to imprisonment for a term not less than 5 years.".
6. Sections added
The following are added---
"59A. Intimate samples
(1) In any investigation in respect of an offence committed or believed to have been committed, an intimate sample may be taken from a person for forensic analysis only if---
(a) a police officer of or above the rank of superintendent ("authorizing officer") authorizes it to be taken;
(b) the appropriate consent is given; and
(c) a magistrate gives approval under section 59B for it to be taken.
(2) An authorizing officer may only give an authorization as required under subsection (1)(a) if he has reasonable grounds---
(a) for suspecting the involvement of the person from whom the intimate sample is to be taken in a serious arrestable offence; and
(b) for believing that the sample will tend to confirm or disprove the involvement of that person.
(3) An authorizing officer may give an authorization pursuant to subsection (2) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as practicable.
(4) Where an authorization has been given pursuant to subsection (2), a police officer may request the person from whom the intimate sample is to be taken and that person's parent or guardian if he is under the age of 18 years, to give the appropriate consent to the taking of the sample and the police officer, in making the request, shall inform the person and his parent or guardian, as the case may be---
(a) of the nature of the offence in which the person is suspected to have been involved;
(b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the involvement of that person;
(c) that he may or may not give his consent to the taking of the sample;
(d) that if he consents to the taking of the sample, he may at any time withdraw that consent before the sample is taken;
(e) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence;
(f) that he may make a request to a police officer of or above the rank of superintendent for access to the information derived from the analysis of the sample; and
(g) that if the person is subsequently convicted of any serious arrestable offence, any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section.
(5) The appropriate consent must be given in writing and signed by the person or persons giving the consent.
(6) An intimate sample---
(a) of urine may only be taken from a person by a police officer of the same sex as that person;
(b) of a dental impression may only be taken from a person by a registered dentist;
(c) other than urine or dental impression, may only be taken from a person by a registered medical practitioner.
59B. Magistrate's approval for the taking of intimate samples
Where an authorization and the appropriate consent as required under section 59A(1)(a) and (b) have been given, a police officer shall make an application to a magistrate in accordance with Schedule 2 for
the magistrate's approval as required under section 59A(1)(c) and the magistrate may give his approval in accordance with that Schedule.
59C. Non-intimate samples
(1) In any investigation in respect of any offence committed or believed to have been committed, a non-intimate sample may be taken from a person with or without his consent for forensic analysis only if---
(a) that person is in police detention or is in custody on the authority of a magistrate or court; and
(b) a police officer of or above the rank of superintendent ("authorizing officer") authorizes it to be taken.
(2) An authorizing officer may only give an authorization as required under subsection (1)(b) if he has reasonable grounds---
(a) for suspecting the involvement of the person from whom the non-intimate sample is to be taken in a serious arrestable offence; and
(b) for believing that the sample will tend to confirm or disprove the involvement of that person.
(3) An authorizing officer may give an authorization pursuant to subsection (2) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as practicable.
(4) Where an authorization has been given pursuant to subsection (2), a police officer shall, before the taking of a non-intimate sample, inform the person from whom the sample is to be taken---
(a) of the nature of the offence in which the person is suspected to have been involved;
(b) that there are reasonable grounds to believe that the sample will tend to confirm or disprove the involvement of that person;
(c) of the giving of the authorization;
(d) that he may or may not consent to the taking of the sample;
(e) that if he does not consent to the taking of the sample, the sample will still be taken from him by using reasonable force if necessary;
(f) that the sample will be analysed and the information derived from such analysis may provide evidence that might be used in criminal proceedings for such offence or any other offence;
(g) that he may make a request to a police officer of or above the rank of superintendent for access to the information derived from the analysis of the sample; and
(h) that if he is subsequently convicted of any serious arrestable offence, any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section.
(5) Any consent given for the taking of a non-intimate sample pursuant to this section must be given in writing and signed by the person or persons giving the consent.
(6) A non-intimate sample may only be taken by---
(a) a registered medical practitioner; or
(b) a police officer, or a public officer working in the Government Laboratory, who has received training for the purpose.
(7) A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample from a person pursuant to this section.
59D. Limitations on use of samples and results of forensic analysis
(1) No person shall use an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C except for the purposes of---
(a) forensic analysis in the course of an investigation of any offence; or
(b) any proceedings for any such offence.
(2) No person shall use the results of forensic analysis of an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C except---
(a) for the purposes of---
(i) forensic comparison and interpretation in the course of an investigation of any offence; or
(ii) any proceedings for such an offence; or
(b) in case the results are of forensic DNA analysis, for the purposes of section 59G(1) and (2).
(3) Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.
59E. Non-intimate samples of swabs from the mouths of convicted persons
(1) Where a person---
(a) has been convicted of a serious arrestable offence on or after the commencement of this section; and
(b) either---
(i) has not had an intimate sample or a non-intimate sample taken from him before the conviction; or
(ii) has had an intimate sample or a non-intimate sample taken from him before the conviction but the sample was destroyed under section 59H(1) or (4) or section 10G(1) or (4) of the Independent Commission Against Corruption Ordinance (Cap. 204),
then a police officer of the rank of superintendent or above may authorize the taking of a non-intimate sample of a swab from the mouth of the person for the purposes of section 59G(1) and (2).
(2) Where an authorization has been given under subsection (1), a police officer shall, before the taking of a non-intimate sample of a swab from the mouth, inform the person from whom the sample is to be taken---
(a) of the giving of the authorization;
(b) of the grounds for giving it;
(c) that any DNA information derived from the sample may be permanently stored in the DNA database maintained under section 59G(1) and may be used for the purposes specified in subsection (2) of that section; and
(d) that the person may make a request to a police officer of or above the rank of superintendent for access to the DNA information derived from the sample.
(3) A non-intimate sample of a swab from the mouth of a person may only be taken by a police officer who has received training for the purpose.
(4) A police officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample of a swab from the mouth of a person pursuant to this section.
59F. Non-intimate samples given voluntarily
(1) Any person who has attained the age of 18 years may voluntarily give an authorization to a police officer of the rank of superintendent or above---
(a) for the taking of a non-intimate sample from him ("volunteer");
(b) for the storage of DNA information derived from the sample in the DNA database maintained under section 59G(1); and
(c) for the use of the DNA information for the purposes specified in section 59G(2).
(2) An authorization given under subsection (1) must be in writing and signed by the volunteer.
(3) A police officer of the rank of superintendent or above may accept the authorization given under subsection (1).
(4) A non-intimate sample may only be taken from a person by---
(a) a registered medical practitioner; or
(b) a police officer, or a public officer working in the Government Laboratory, who has received training for the purpose.
(5) Where a non-intimate sample is taken from a volunteer pursuant to this section, the volunteer may, at any time by notice in writing to the Commissioner, withdraw his authorization given for the purposes referred to in subsection (1)(b) and (c).
59G. DNA database
(1) There shall be maintained (whether in computerized form or otherwise), by the Government Chemist on behalf of the Commissioner, a DNA database storing DNA information derived from an intimate sample or a non-intimate sample taken from a person pursuant to---
(a) section 59A or 59C if the person has been subsequently convicted of any serious arrestable offence;
(b) section 10E of the Independent Commission Against Corruption Ordinance (Cap. 204) if the person has been subsequently convicted of any serious arrestable offence;
(c) section 59E; or
(d) section 59F.
(2) No person shall---
(a) have access to any information stored in the DNA database; or
(b) disclose or use any such information,
except to the extent necessary for the purposes of---
(i) forensic comparison with any other DNA information in the course of an investigation of any offence by a police officer or an officer of the Independent Commission Against Corruption;
(ii) producing evidence in respect of the DNA information in any proceedings for any such offence;
(iii) making the information available to the person to whom the information relates; or
(iv) administering the DNA database.
(3) Any person who contravenes subsection (2) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.
59H. Disposal of samples and records, etc.
(1) The Commissioner shall take reasonable steps to ensure that---
(a) an intimate sample or a non-intimate sample taken pursuant to section 59A or 59C; and
(b) a record to the extent that it contains information about the sample and particulars that are identifiable by any person as particulars identifying that information with the person from whom the sample was taken,
which may be retained by him or on his behalf are destroyed as soon as practicable after---
(i) if the person has not been charged with any offence, the expiry of---
(A) subject to subparagraph (B), 12 months from the date on which the sample was taken ("the relevant period");
(B) such further period or periods as may be extended under subsection (2) ("the extended period");
(ii) if the person has been charged with one or more offences within the relevant period and the extended period, if any---
(A) the charge or all the charges, as the case may be, is or are withdrawn;
(B) the person is discharged by a court before conviction of the offence or all the offences, as the case may be; or
(C) the person is acquitted of the offence or all the offences, as the case may be, at trial or on appeal,
whichever occurs first.
(2) A police officer of or above the rank of chief superintendent may extend or further extend the relevant period for not more than 6 months for each extension if he is satisfied on reasonable grounds that it is necessary to the continuing investigation of the offence or offences in relation to which the sample was taken that the sample and the record concerned be retained.
(3) Subsection (1) shall not affect any DNA information which has already been permanently stored in the DNA database pursuant to section 59G(1)(a), (b) or (c).
(4) Without prejudice to the operation of subsections (1) and (2), if a person from whom an intimate sample or a non-intimate was taken pursuant to section 59A or 59C has been convicted of one or more offences, then the Commissioner shall take reasonable steps to ensure that the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conclusion of all proceedings (including any appeal) arising out of the conviction.
(5) Where a non-intimate sample of a swab was taken from the mouth of a person pursuant to section 59E and his conviction of the relevant serious arrestable offence has been subsequently quashed on appeal other than an order of re-trial, the Commissioner shall take reasonable steps to ensure that any DNA information derived from the sample which may be retained by him or on his behalf is destroyed as soon as practicable after the conviction is quashed.
(6) The Government Chemist, whilst maintaining the DNA database under section 59G(1), shall take reasonable steps to ensure that every non-intimate sample taken pursuant to section 59E or 59F is retained only for as long as is necessary to enable DNA information to be obtained from the sample, and is then destroyed.
(7) Where a non-intimate sample is taken from a person pursuant to section 59F and that person subsequently serves a notice to the Commissioner under subsection (5) of that section, the Commissioner shall take reasonable steps to ensure---
(a) in case the sample has not been analysed, that the sample is destroyed as soon as practicable;
(b) in case the sample has been analysed but DNA information derived from the sample has not been stored in the DNA database pursuant to section 59G(1)(d), that the DNA information is destroyed as soon as practicable;
(c) in case DNA information derived from the sample has been stored in the DNA database pursuant to section 59G(1)(d), that the DNA information is removed from the DNA database and destroyed as soon as practicable,
after the Commissioner receives the notice.
59I. Amendment of Schedule 2
The Chief Executive in Council may by order published in the Gazette amend Schedule 2.".
7. Oath or Declaration of Office
The Schedule is renumbered as Schedule 1.
8. Schedule added
The following is added---
"SCHEDULE 2 [ss. 59B & 59I]
Application for and Giving of a Magistrate's Approval for the Taking of Intimate Samples
1. An application under section 59B of this Ordinance must be made in Form 1. A copy of the authorization duly given pursuant to section 59A(2) of this Ordinance and of appropriate consent duly given and signed under section 59A(5) of this Ordinance must be exhibited to Form 1.
2. Form 1 together with the exhibits referred to in section 1 must be submitted to a magistrate.
3. A magistrate, on receiving the application, may---
(a) give his approval if he is satisfied that---
(i) an authorization has been duly given pursuant to section 59A(2) of this Ordinance;
(ii) there are reasonable grounds---
(A) for suspecting the involvement of the person from whom the intimate sample is to be taken in a serious arrestable offence; and
(B) for believing that the sample will tend to confirm or disprove the involvement of that person; and
(iii) the appropriate consent has been duly given under section 59A(5) of this Ordinance;
(b) order that an inter partes hearing shall be conducted in private for the purposes of determining whether the approval should be given or not if he considers that it is necessary in the interest of justice to do so; or
(c) reject the application if he thinks fit to do so.
4. An order made under section 3(b) must specify a hearing date and must be served on the applicant and the respondent not less than 3 days before the specified hearing date.
5. Where an order has been duly served under section 4, the applicant and the respondent must attend before the magistrate on the hearing date specified in the order. The respondent may be represented by his legal representative. The applicant and the respondent (or his legal representative, if any) may make representations at the hearing.
6. The magistrate, upon hearing the parties, may---
(a) give his approval if he is satisfied that---
(i) an authorization has been duly given pursuant to section 59A(2) of this Ordinance;
(ii) there are reasonable grounds---
(A) for suspecting the involvement of the person from whom the intimate sample is to be taken in a serious arrestable offence; and
(B) for believing that the sample will tend to confirm or disprove the involvement of that person; and
(iii) the appropriate consent has been duly given under section 59A(5) of this Ordinance; or
(b) reject the application if he thinks fit to do so.
7. The approval under sections 3(a) and 6(a) must be given in Form 2.
FORM 1
Application for an Approval for the Taking of an Intimate Sample
Section 59B of the Police Force Ordinance (Cap. 232)
Application No.
Writ No.
TO A MAGISTRATE OF HONG KONG
IN THE MAGISTRATES COURT AT ..............................
I, ........................................ (name of the applicant), apply for an
approval to the taking of an
intimate sample, namely ........................................ , from ........................................ (name of the suspect) on the following grounds---
(a) ............................. , a police officer of the rank of superintendent or above on..............................
(date) has given an authorization (which is exhibited to this form) to the taking of the sample from the said person as he has reasonable grounds---
(i) for suspecting the involvement of the said person in a serious arrestable
offence, namely an offence contrary to section ........................................ of
the ........................................ Ordinance (Cap. ....................); and
(ii) for believing that the sample will tend to confirm or disprove the involvement of the said person,
relying on the following facts---
(b) the appropriate consent has been given (which is exhibited to this form).
Dated this day of (year).
........................................
Applicant.
(signature)
FORM 2
Approval for the Taking of an Intimate Sample
Section 59B of the Police Force Ordinance (Cap. 232)
Application No.
Writ No.
HONG KONG. IN THE MAGISTRATES COURT AT .........................................
To each and all of the police officers of Hong Kong.
APPLICATION has been made to the undersigned, a magistrate of Hong Kong,
by ........................................ (name of the applicant) on .............................. (date) and the undersigned
magistrate, relying on the facts specified in the said application upon hearing the parties
on .............................. (date)* has satisfied that---
(a) ............................. , a police officer of the rank of superintendent or above on ..............................
(date) has duly given an authorization to the taking of an intimate sample,
namely ........................................ from ........................................ (name of the suspect);
(b) there are reasonable grounds---
(i) for suspecting the involvement of the said person in a serious arrestable offence, namely an
offence contrary to section ........................................ of the ........................................ Ordinance (Cap. ....................); and
(ii) for believing that the sample will tend to confirm or disprove the involvement of the said person; and
(c) the appropriate consent has been duly given.
You are herewith approved to bring the said person to a registered medical practitioner/registered
dentist* for the intimate sample, namely ........................................ , to be taken from him/take
the intimate sample namely ........................................ from the said person*.
Dated this day of (year).
........................................
Magistrate
[L. S.]
* Delete whichever is inapplicable.".
Explanatory Memorandum
The object of this Bill is to amend the Dangerous Drugs Ordinance (Cap. 134), the Independent Commission Against Corruption Ordinance (Cap. 204) and the Police Force Ordinance (Cap. 232) by making provisions in respect of the taking of intimate and non-intimate samples from individuals. (See the definitions of "intimate sample" and "non-intimate sample" in new section 10E(8) at clause 4 and amended section 3 at clause 5).
Dangerous Drugs Ordinance (Cap. 134)
2. Clause 2 adds the following provisions---
(a) new section 54AA to provide for, inter alia, the power to take urine samples from suspects under certain conditions;
(b) new section 54AB to specify the use and disposal of urine samples; and
(c) new section 54AC to empower the Chief Executive in Council to amend the Seventh Schedule.
3. Clause 3 adds a new Seventh Schedule to provide for the procedure of application to, and the giving of approval by, a magistrate for the taking of urine samples.
Independent Commission Against Corruption Ordinance (Cap. 204)
4. Clause 4 adds the following provisions---
(a) new section 10E to provide for, inter alia, the power to take non-intimate samples from suspects under certain conditions;
(b) new section 10F to set out limitations on the use of samples and results of forensic analysis; and
(c) new section 10G to specify the disposal of samples and records.
Police Force Ordinance (Cap. 232)
5. Clause 5 defines the terms used in the new provisions added.
6. Clause 6 adds the following provisions---
(a) new section 59A to provide for, inter alia, the power to take intimate samples from suspects under certain conditions;
(b) new section 59B to provide for applications for a magistrate's approval for the taking of intimate samples;
(c) new section 59C to provide for, inter alia, the power to take non-intimate samples from suspects under certain conditions;
(d) new section 59D to set out limitations on the use of intimate samples and non-intimate samples and results of forensic analysis;
(e) new section 59E to provide for, inter alia, the power to take non-intimate samples from persons who have been convicted of serious arrestable offences on or after the commencement of the Bill;
(f) new section 59F to provide for the power to accept non-intimate samples given voluntarily by any non-suspects;
(g) new section 59G to provide for the maintaining of a DNA database and set out limitations on the access, disclosure and use of the DNA information stored in the database;
(h) new section 59H to specify the disposal of samples and records; and
(i) new section 59I to empower the Chief Executive in Council to amend Schedule 2.
7. Clause 7 is a consequential amendment.
8. Clause 8 adds a new Schedule 2 to provide for the procedure of application to, and the giving of approval, by a magistrate for the taking of intimate samples.
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