Hong Kong Country Profile - MLA in Relation to Asset Recovery

I. Channels for transmission of MLA requests

Requests for mutual legal assistance may be sent directly to the Mutual Legal Assistance Unit, International Law Division of the Department of Justice. The responsible staff of the MLA Unit will arrange authorisation of the request, appoint law enforcement officers to assist in execution, draft applications to court and appear as legal counsel to argue the case as necessary.

In case of urgent requests for mutual legal assistance, the requesting State may submit the request directly to the MLA Unit of the Department of Justice electronically or by fax. Furthermore, certain bilateral agreements may allow transmittal of oral requests with subsequent confirmation in writing within 10 days.

Requests need not be sent through the consular or diplomatic channel to Hong Kong, China. They may be sent directly by the central authority of the requesting State that is competent to make international requests for mutual legal assistance.

Incoming letters rogatory (which are requests by a court in a foreign State addressed directly to a court in Hong Kong, China to take evidence) may be sent to the Chief Secretary for Administration. The Chief Secretary for Administration sends the letters rogatory to the Registrar of the High Court, who then invites the Department of Justice (or other nominated agent) to apply to the Court to process these requests. These requests are processed under the Evidence Ordinance but this mechanism does not provide for confiscation of proceeds of crimes and other wider types of MLA procedures available under the MLACMO.

Incoming MLA requests are kept confidential, though parts of the request may have to be tendered in Court and thus be made public.

II. Specific acts of assistance in the context of mutual legal assistance

At the request of a foreign State, Hong Kong, China may provide for mutual assistance in identification, tracing, seizure of the proceeds of the offence of corruption and other related crimes with the purpose of eventually forfeiture and return to the requesting State or to the persons entitled.

Pursuant to the MLACMO, a foreign State may formally request Hong Kong, China to provide a broad range of legal measures related to the recovery of the proceeds of criminal acts, including:

1. Taking of oral evidence (including by live TV link)
2. Search warrants
3. Production orders
4. Arranging persons to travel to assist
5. Enforcement of external confiscation orders and obtaining restraint orders
6. Service of documents

Routine requests can usually be executed within three to four months or earlier depending upon the complexity of the case and the nature of assistance sought. Urgent requests are expedited as necessary.

III. Principles of Mutual Legal Assistance

The system of international co-operation in criminal matters in Hong Kong, China is guided by fundamental principles such as the principles of reciprocity, dual criminality and speciality. Therefore, the competent authorities are bound by these fundamental principles in the execution of mutual assistance requests.

1. Principle of reciprocity

Reciprocity exists where Hong Kong, China has a treaty relationship with a requesting State. Where the latter does not exist, Hong Kong, China may still provide mutual legal assistance in criminal matters under the provisions of the MLACMO on the basis of the domestic legislation upon a guarantee of reciprocity by the requesting State.

2. Principle of dual criminality

Dual criminality is a mandatory ground for provision of mutual legal assistance by the competent authorities in Hong King, China. It applies to provision of mutual assistance for coercive measures such as search warrants, production orders and restraint/confiscation orders. The requirement of dual criminality is conduct-based. It does not depend on how the laws of the requesting State categorize an offence or the terminology used to denominate the offence, or whether the offences in the requesting and requested States have the same elements. Hong Kong, China has not established a specific offence of bribery of foreign public officials although such conduct is criminalized in Hong Kong, China by the generic offence of corrupt transactions with agents under Section 9 of the Prevention of Bribery Ordinance Thus, requests for mutual legal assistance concerning that offence will satisfy the dual criminality requirement . Furthermore, illicit enrichment is an offence in Hong Kong, China. Therefore, requests for mutual legal assistance involving this offence will meet the requirement of dual criminality. Hong Kong, China may also provide MLA in proceedings against legal persons since it has established the criminal liability of legal persons. In the light of the obligations under Art. 46(7) of the UNCAC, Hong Kong, China may ensure the execution of non-coercive requests for mutual assistance  in the absence of dual criminality.

Certain evidentiary tests may have to be met before Hong Kong, China cooperates. For incoming and outgoing MLA requests, measures such as the issuance of search warrants and production orders require reasonable grounds to believe that evidence may be found in the possession of the person or entity against whom the order is directed. There are no evidentiary tests for other measures, such as the taking of evidence from a witness.

3. Principle of speciality

Specialty and use limitation may be required by Hong Kong, China for cooperation. The principle of specialty requires that mutual legal assistance be granted under condition that a requesting State does not use documents and information obtained through the means of mutual assistance in certain instances. For MLA requests, bilateral agreements may impose use limitation on information provided to requesting States. When no bilateral agreements are in place, Hong Kong, China may impose use limitation for incoming MLA requests in certain circumstances, e.g., if the information provided is of a personal or confidential nature. In these cases, Hong Kong, China will require an assurance from the competent authorities of the requesting State. Use limitation applies to all MLA requests made under the UNCAC.

IV. Form and contents of MLA requests

1. What language may requests to the Central Authority be made in?

Foreign requests and their enclosures shall be submitted in English or Chinese.

2. What information should be included in requests?

In order for the MLA request to be processed, it should meet the formal content requirements as specified in Section 8 of the MLACMO, which is entitled 'Requests for assistance to Hong Kong':

1. the name of the authority concerned with the criminal matter to which the request relates;
2. a description of the nature of the criminal matter (in particular, details of the external offence; to which the criminal matter relates) and a statement setting out a summary of the relevant facts and laws;
3. a description of the purpose of the request and of the nature of the assistance being sought;
4. details of the procedure that the place outside Hong Kong, China concerned wishes to be followed by Hong Kong, China in giving effect to the request, including details of the manner and form in which any information, document or thing is to be supplied to the place pursuant to the request;
5. a statement setting out the wishes of the place concerning the confidentiality of the request and the reason for those wishes;
6. details of the period within which the place wishes the request be complied with;
7. a statement setting out the maximum penalty for the external offence to which the criminal matter relates; and
8. any other information that may assist in giving effect to the request.

The following practical advice is worth considering with respect to requests to Hong Kong, China for restraint and confiscation of proceeds of crime:

1. Make early contact at the law enforcement level (e.g. FIU)
2. Make early contact with the MLA Unit
3. Ensure that identifiable property exists in Hong Kong, China to be restrained or confiscated
4. Be clear about the nature and status of proceedings in your country (e.g. criminal or civil, what stage reached)
5. Provide a clear summary of facts and other matters (contents of request)
6. Send the request direct to MLA Unit
7. Be sure sufficient time is allowed for processing
8. Once property has been restrained in Hong Kong, China continue to actively litigate in your jurisdiction to obtain a final confiscation order
9. Prior to sending the request to register the final confiscation order, make sure the minimum requirements are met (order not subject to appeal; defendants were given notice and opportunity to defend
10. Once the order is registered in Hong Kong, China and proceeds realised, consider making an application to share in the proceeds.

V. Grounds for refusal to grant MLA

Section 5 of the MLACMO contains detailed provisions on the grounds for refusal to grant cooperation in criminal matters. Hong Kong, China may refuse provision of mutual assistance for cases involving an offence of a political character  Under the UNCAC, corruption offences may not be considered political offences if the law of a State Party so permits.

Under the MLACMO, Hong Kong, China may refuse to cooperate when rendering of mutual legal assistance in criminal matters would seriously impair the essential interests of Hong Kong, China. In addition, execution of the request for mutual assistance may be refused if it impairs the sovereignty of P.R. China, or the security or public order of the P.R. China or any part thereof.

The denial of MLA because of bank secrecy is not expressly dealt with in the MLACMO or the bilateral MLA agreements involving Hong Kong, China. The only exception is the agreement with Belgium, which states that bank secrecy shall not be invoked as an essential interest for denying cooperation. At common law, a bank's duty of confidentiality to its clients is subject to certain exceptions, such as disclosure compelled by a court order issued under the MLACMO. Accordingly, there is no law which prohibits access by the authorities to information or documents on grounds of bank secrecy. For requests made under the UNCAC, Hong Kong, China is prohibited from declining to render MLA on the ground of bank secrecy.