Legislative Council

LC Paper No. LS 56/98-99

Paper for the House Committee Meeting
of the Legislative Council
on 30 October 1998

Legal Service Division Report on
Resolutions under Mutual Legal Assistance in
Criminal Matters Ordinance (Cap. 525)

Mutual Legal Assistance in Criminal Matters (Australia) Order
Mutual Legal Assistance in Criminal Matters (France) Order
Mutual Legal Assistance in Criminal Matters (New Zealand) Order
Mutual Legal Assistance in Criminal Matters (United Kingdom) Order
Mutual Legal Assistance in Criminal Matters (United States of America) Order

The Secretary for Security has given notices to move five motions at the LegCo's meeting to be held on 11 November 1998 to approve the following Orders :

  1. Mutual Legal Assistance in Criminal Matters (Australia) Order ("the Australia Order");

  2. Mutual Legal Assistance in Criminal Matters (France) Order ("the France Order");

  3. Mutual Legal Assistance in Criminal Matters (New Zealand) Order ("the New Zealand Order");

  4. Mutual Legal Assistance in Criminal Matters (United Kingdom) Order "the UK Order"); and

  5. Mutual Legal Assistance in Criminal Matters (United States of America) Order ("the US Order"),


made under section 4 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) ("the Ordinance").

2. Section 4(1) of the Ordinance provides that the Governor in Council (now the Chief Executive in Council) may, with the approval of the LegCo, in relation to any arrangements for mutual legal assistance, by order to which is annexed a copy of the arrangements direct that the Ordinance shall, subject to such modifications thereto as may be specified in the order, apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate. Section 4(3) requires that the modifications be summarized in a Schedule to the order. Section 4(7) restricts the LegCo's power under section 35(b) of the Interpretation and General Clauses Ordinance (Cap. 1) to amend the whole or any part of the subsidiary legislation by only allowing LegCo to accept or repeal the whole subsidiary legislation.

3. Schedule 1 to each of the Orders exhibits the bilateral arrangements entered into between Hong Kong with Australia, France, New Zealand, the United Kingdom and the United States of America for mutual legal assistance in criminal matters.

The Australia Order

4. Section 5(1)(e) of the Ordinance provides that the Secretary for Justice shall refuse assistance if the request relates to the prosecution of a person for an offence in respect of which he has been convicted, acquitted, pardoned or punished in the requesting jurisdiction. Article IV(1)(e) of the Hong Kong/Australia Agreement extends this protection to conviction, acquittal or pardon in the requested jurisdiction as well. The modification expands the scope of section 5(1)(e) to reflect the provision in the Agreement.

5. Section 17 of the Ordinance gives a person who comes to Hong Kong from another jurisdiction to render assistance certain immunities. These immunities cease to apply if the person has had the opportunity of leaving Hong Kong and has remained in Hong Kong otherwise than for the purpose of rendering assistance. Article XVII(2) of the Hong Kong/Australia Agreement provides that the immunities will continue to be applicable for a period of fifteen days after the person has had the opportunity of leaving Hong Kong. The modification reflects the protection in the Agreement by providing for a fifteen days period in section 17.

The France Order

6. The modification to section 5(1)(e) of the Ordinance reflects Article IV(1)(f) of the Hong Kong/France Agreement which extends the protection in section 5(1)(e) to conviction, acquittal or pardon in the requested state.

7. Section 5(1)(e) is further modified by allowing the Secretary for Justice to refuse a request for assistance in respect of an act or omission that, if it had occurred in Hong Kong, could no longer be prosecuted in Hong Kong by reason of lapse of time. This modification also reflects Article IV(1)(f) of the Hong Kong/France Agreement.

8. The modification to section 17 of the Ordinance is the same as the modification provided for in the Australia Order (see paragraph 5 above) except that the period is thirty days. This reflects the protection in Article XVI(6) of the Hong Kong/France Agreement.

The New Zealand Order

9. The modification to section 5(1)(e) of the Ordinance reflects Article IV(1)(e) of the HKSAR/New Zealand Agreement which extends the protection in section 5(1)(e) to conviction, acquittal or pardon in the requesting state, requested state or a third jurisdiction.

10. The modification to section 5(1)(e) of the Ordinance is exactly the same as the modification provided for in the France Order (see paragraph 7 above). The modification reflects Article IV(4) of the HKSAR/New Zealand Agreement.

11. The modification to section 17 of the Ordinance is the same as the modification provided for in the Australia Order (see paragraph 5 above) except that the period is twenty one days. The modification reflects the protection in Article XVII(2) of the Agreement.

The UK Order

12. The modification to section 5(1)(e) of the Ordinance is exactly the same as the modification provided for in the France Order (see paragraph 6 above). This reflects the provision in Article IV(1)(e) of the HKSAR/UK Agreement.

13. The further modification to section 5(1)(e) of the Ordinance is exactly the same as the modification provided for in the France Order (see paragraph 7 above). This reflects the provision in Article IV(1)(e) of the HKSAR/UK Agreement.

14. A new paragraph (h) is added to section 5(1) to provide that the Secretary for Justice shall refuse assistance if the request relates to confiscation of the proceeds of crime and the underlying offence would not be a basis for confiscation in Hong Kong had the offence occurred in Hong Kong. The modification is to reflect Article IV(1)(h) of the HKSAR/UK Agreement.

15. The modification to section 17 of the Ordinance is exactly the same as the modification provided for in the Australia Order (see paragraph 5 above). The modification reflects the additional protection in Article XVII(2) of the HKSAR/UK Agreement.

16. Sections 17 and 23 of the Ordinance provide respectively, among other things, immunity from civil suit to a person who comes to Hong Kong to render assistance in a criminal case and a person who travels from Hong Kong to other jurisdiction to render assistance in a criminal case. The modification to section 17 and 23 remove such immunity since it is not provided for in the Agreement.

The US Order

17. Section 5(1)(g) of the Ordinance provides that the Secretary for Justice shall refuse assistance if the offence in respect of which assistance is sought would, if it had occurred in Hong Kong, not be an offence under Hong Kong law. Article 3(1)(d) of the Hong Kong/US Agreement modifies section 5(1)(g) to the extent that assistance is to be given in respect of certain serious criminal offences at the Annex to the Agreement, irrespective of whether those offences would constitute criminal offences if they had taken place within the jurisdiction of the Requested Party. The modification to section 5(1)(g) of the Ordinance reflects the provision in Article 3(1)(d) of the Agreement.

18. The modification to section 17 of the Ordinance is exactly the same as the modification provided for in the Australia Order (see paragraph 5 above). The modification reflects the protection in Article 13(3) of the Agreement.

19. Section 23 of the Ordinance requires the Secretary for Justice to be satisfied that persons who are to travel to other jurisdictions from Hong Kong to provide assistance receive adequate immunities. Article 13(2) of the Hong Kong/US Order modifies section 23 to the effect that such immunities can be limited by the Requesting Party. However, the person affected will be advised by the Requested Party of the nature of those limitations. The modification to section 23 reflects the provision in Article 13(2) of the Agreement.

20. In respect of the Hong Kong/US Agreement, it is noted that there is no provision for refusal by the Requested Party if the request relates to an offence which carries death penalty within the jurisdiction of the Requesting Party. Similar provision is however found in all of the above Agreements. The Administration clarifies that it is not uncommon in international agreements to leave out the death penalty exception provision. In this case, the US Government did not agree to inclusion of a death penalty exception provision in the Agreement. However, the discretion to refuse assistance for offences punishable with death penalty is rested in the Secretary for Justice under section 5(3)(c) of the Ordinance, which is not modified in Schedule 2 to the Order.

21. It is further noted that in respect of certain Agreements made before 1 July 1997, references are made to the office of Attorney General. The Administration clarifies that, upon the approval of the Orders by LegCo, diplomatic notes will be sent to those contracting parties concerned informing them of the change in title of office from Attorney General to Secretary for Justice.

22. The five Orders specify the scope and procedures in relation to the provision of assistance in criminal matters. They also provide for safeguards in the rights of persons involved in criminal proceedings. They are substantially conforming with the provisions in the Ordinance.

23. The five Orders will come into operation on days to be appointed respectively by the Secretary for Security by notice in the Gazette.

24. The legal and drafting aspects of the Orders are in order.



Prepared by

Lam Ping-man, Stephen
Assistant Legal Adviser
Legislative Council Secretariat
29 October 1998

Resolution/criminal