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Mutual Assistance in Criminal Matters (Hong Kong) Regulations

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1991 No. 95*1* MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS
*1*Notified in the Commonwealth of Australia Gazette on 23 May 1991. 1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS -
REG 1
Citation
1. These Regulations may be cited as the Mutual Assistance in Criminal Matters (Hong Kong) Regulations. 1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS -
REG 2
Commencement
2. These Regulations commence on 3 June 1991. 1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS -
REG 3
Interpretation
3. In these Regulations, "the Act" means the Mutual Assistance in Criminal Matters Act 1987. 1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS -
REG 4
Application of the Act
4. The Act applies in relation to Hong Kong subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Agreement concerning the Investigation of Drug Trafficking and the Confiscation of the Proceeds of Drug Trafficking, being the Agreement the text of which is set out in the Schedule, made between the Government of Hong Kong and the Government of Australia at Hong Kong on 22 April 1991. 1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS -
SCHEDULE
SCH
SCHEDULE Regulation 4 AN AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF HONG KONG CONCERNING THE INVESTIGATION OF DRUG TRAFFICKING AND THE CONFISCATION OF THE PROCEEDS OF DRUG TRAFFICKING TABLE OF CONTENTS ARTICLE 1 : SCOPE OF ASSISTANCE ARTICLE 2 : DEFINITIONS ARTICLE 3 : CENTRAL AUTHORITIES ARTICLE 4 : CONTENTS OF REQUESTS ARTICLE 5 : EXECUTION OF REQUESTS ARTICLE 6 : REFUSAL OR POSTPONEMENT OF ASSISTANCE ARTICLE 7 : INFORMATION AND EVIDENCE ARTICLE 8 : PROCEEDS ARTICLE 9 : LIMITATION OF USE AND CONFIDENTIALITY ARTICLE 10 : AUTHENTICATION ARTICLE 11 : REPRESENTATION AND EXPENSES ARTICLE 12 : CONSULTATION ARTICLE 13 : ENTRY INTO FORCE, EXPIRY AND TERMINATION The Government of Australia and the Government of Hong Kong, having been duly authorised to conclude this Agreement by the Sovereign Government which is responsible for its foreign affairs, (the Parties), Desiring to provide mutual assistance, to the extent possible within their respective laws, in the investigation and prosecution of drug trafficking offences and in the confiscation of the proceeds of drug trafficking, Have agreed as follows: ARTICLE 1 SCOPE OF ASSISTANCE 1. The Parties shall, in accordance with the provisions of this Agreement, grant to each other assistance in investigations and proceedings in respect of drug trafficking including the tracing, restraining and confiscation of the proceeds of drug trafficking. 2. This Agreement shall not derogate from other obligations between the Parties pursuant to other agreements or arrangements or otherwise, nor prevent the Parties providing assistance to each other pursuant to other agreements or arrangements or otherwise. 3. This Agreement is intended solely for mutual assistance between the Parties. The provisions of the Agreement shall not create any right on the part of any private person to obtain assistance under this Agreement or to impede the execution of a request. ARTICLE 2 DEFINITIONS 1. For the purpose of this Agreement: (a) proceedings are instituted: (i) in Hong Kong when a magistrate issues a warrant or summons, when a person is charged with an offence after having been taken into custody without a warrant, or when a bill of indictment is preferred, whichever is earliest in time; (ii) in Australia when an information has been laid before a competent authority, when a person is charged with an offence after having been taken into custody without a warrant, or when a bill of indictment is preferred, whichever is earliest in time; (b) "proceeds" means any property that is derived or realised, directly or indirectly, by any person from drug trafficking, or the value of any such property; (c) "property" includes money and all kinds of moveable or immoveable and tangible or intangible property, and includes any interest in such property; (d) "drug trafficking" means engaging or being concerned, directly or indirectly, in the unlawful cultivation, production, supply, possession for supply, transport, storage, import or export of a dangerous drug or assisting another to retain or dispose of the proceeds of drug trafficking, whether in Hong Kong, Australia or elsewhere; (e) "dangerous drug" means: (i) in relation to Hong Kong, any of the drugs or substances specified in Part I of the First Schedule to the Dangerous Drugs Ordinance Cap. 134 as amended from time to time; or (ii) in relation to Australia, a narcotic substance as defined in the Proceeds of Crime Act 1987. ARTICLE 3 CENTRAL AUTHORITIES A Central Authority shall transmit and receive all requests for the purposes of this Agreement. Unless the relevant Party designates another authority, the Central Authority for the Government of Hong Kong shall be the Attorney General or his duly authorised officer; the Central Authority for the Government of Australia shall be the Attorney-General's Department, Canberra. ARTICLE 4 CONTENTS OF REQUESTS 1. In all cases requests for assistance shall be accompanied by: (a) the name of the competent authority conducting the investigation or proceedings to which the request relates; (b) a description of the nature of the investigation or proceedings, including a summary of the relevant facts and laws; (c) a statement of the purpose for which the request is made and the nature of the assistance sought; (d) a statement of the need, if any, for confidentiality and the reasons therefor; and (e) notice of any time limit within which compliance with the request is desired. 2. Documents accompanying requests for assistance shall also contain the following information: (a) where possible, the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings; (b) where necessary, details of any particular procedure or requirement that the Requesting Party wishes to be followed and the reasons therefor; (c) in the case of requests for the taking of evidence or search and seizure, a statement indicating the basis for belief that the evidence or material may be found in the jurisdiction of the Requested Party unless this appears from the request itself; (d) in the case of requests to take evidence from a person, a statement as to whether sworn or affirmed statements are required, and a description of the subject matter of the evidence sought; (e) in the case of search and seizure, a declaration that seizure could be obtained by compulsory measures if the property were situated within the jurisdiction of the Requesting Party; (f) in the case of lending of exhibits, the person or class of persons who will have custody of the exhibit, the place to which the exhibit is to be removed, any tests to be conducted and the date by which it is anticipated that the exhibit will be returned.3. If the Requested Party considers that the information contained in the request is not sufficient to enable the request to dealt with, that Party may request that additional material be furnished.4. A request shall be made in writing. In urgent circumstances and where permitted by the Requested Party, a request may be made orally but shall be confirmed in writing promptly thereafter. ARTICLE 5 EXECUTION OF REQUESTS 1. To the extent permitted by its laws, the Requested Party shall provide assistance in accordance with the requirements specified in the request, and shall respond to the request as soon as practicable after it has been received.2. The Requested Party shall promptly inform the Requesting Party of any circumstances which are likely to cause a significant delay in responding to the request.3. The Requested Party shall promptly inform the Requesting Party of a decision not to comply in whole or in part with a request for assistance and the reason for that decision.4. The Requesting Party shall promptly inform the Requested Party of any circumstances including any action taken in the courts of the Requesting Party which may affect the request or its execution. ARTICLE 6 REFUSAL OR POSTPONEMENT OF ASSISTANCE 1. Assistance shall be refused if: (a) the Requested Party is of the opinion that execution of the request would be contrary to the interests of justice; or (b) the Requested Party is of the opinion that the request, if granted, would prejudice its essential or like interests.2. Assistance may be refused if: (a) the request relates to the prosecution or punishment of a person for an offence which is committed outside the jurisdiction of the Requesting Party and the Requested Party cannot prosecute that person for such an offence committed outside its jurisdiction in similar circumstances; (b) provision of the assistance sought could prejudice the safety of any person or impose an excessive burden on resources; or (c) the Requesting Party fails, in response to a request by the Requested Party, to give an assurance that the death penalty will not be imposed for the offence to which the request relates or, if imposed, will not be carried out.3. The Requested Party may refuse or postpone assistance if execution of the request would interfere with an ongoing investigation or proceedings within its jurisdiction.4. Before refusing to grant a request for assistance the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to conditions, it shall comply with those conditions. ARTICLE 7 INFORMATION AND EVIDENCE 1. The Parties may make requests for information and evidence for the purpose of an investigation or proceedings.2. The Requested Party shall as appropriate and in so far as its laws permit: (a) provide information and documents or copies thereof for the purpose of an investigation or proceedings in the jurisdiction of the Requesting Party; (b) take the evidence of witnesses and require witnesses to produce documents, records or other material for transmission to the Requesting Party; (c) search for, seize and deliver to the Requesting Party any relevant material, and provide such information as may be required by the Requesting Party concerning the place of seizure, the circumstances of seizure and the subsequent custody of the material seized prior to delivery.3. Where required by the Requested Party, the Requesting Party shall return material provided under this Article when no longer needed. ARTICLE 8 PROCEEDS 1. A request may be made for assistance in securing the confiscation of proceeds. Such assistance shall be given by whatever means are appropriate. This may include enforcing an order made by a court in the jurisdiction of the Requesting Party and initiating or assisting in proceedings in relation to the proceeds to which the request relates.2. A request may be made for assistance in the restraint of property for the purpose of ensuring that it will be available to satisfy any order of a court for the recovery of proceeds.3. Proceeds confiscated pursuant to this Agreement shall accrue to the Requested Party, unless otherwise mutually determined in a particular case.4. Where action has been taken in the jurisdiction of the Requested Party pursuant to a request for assistance under paragraph 1 or 2 of this Article, and there is a representation in Hong Kong or Australia as the case may be by a person affected by the order, the relevant Party shall inform the other Party as soon as possible and shall also inform it promptly of the outcome of that representation.5. A request for assistance in the restraint of property shall be accompanied by: (a) the original or a copy of any relevant restraint order; (b) a statement describing the grounds for believing that the person subject to the investigation or proceedings has benefited from drug trafficking; (c) a description of the property to which measures of restraint are to be applied including as far as possible the location