Commonwealth Numbered Regulations

1991 No. 95 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS - SCHEDULE

                          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 of the property;

   (d)  a statement specifying the person or persons in possession of the
        property, its connection with the subject of the investigation or
        proceedings and its connection with the offence to which they relate;
        and

   (e)  a statement describing the proceedings which have been or are about to
        be instituted, and where proceedings have not been instituted, when
        and in what form it is intended that they will be. 6. A request for
        confiscation shall be accompanied by:

   (a)  the original or a copy of any order in relation to the proceeds of
        drug trafficking and a summary of the grounds upon which the order was
        made;

   (b)  where the person against whom the order is made did not appear in the
        proceedings leading to the order, a statement that the person received
        notice of the proceedings in accordance with the law of the Requesting
        Party, and when that notice was received;

   (c)  a statement that neither the order nor any conviction to which it
        relates is subject to appeal, and that the period for lodging such
        appeals has expired; and

   (d)  a description of the property to which measures of confiscation are to
        be applied including as far as possible the location of the property.
ARTICLE 9
LIMITATION OF USE AND CONFIDENTIALITY 1. The Requested Party may require,
after consultation with the Requesting Party, that information or evidence
furnished or the source of such information or evidence be kept confidential
or be disclosed or used only subject to such terms and conditions as it may
specify. 2. The Requesting Party shall not disclose or use information or
evidence furnished for purposes other than those stated in the request without
the prior consent of the Central Authority of the Requested Party. 3. The
Requested Party shall to the extent requested keep confidential a request, its
contents, supporting documents and any action taken pursuant to the request
except to the extent necessary to execute it or where the disclosure is
specifically authorized by the Requesting Party in accordance with any terms
and conditions it may specify. 4. Subject to paragraph 3 of this Article, if
the request cannot be executed without breaching confidentiality requirements
stated in the request, the Requested Party shall so inform the Requesting
Party which shall then determine the extent to which it wishes the request to
be executed.
ARTICLE 10
AUTHENTICATION 1. Documents or materials supporting a request for assistance
involving the use of compulsory measures or the confiscation of proceeds shall
be authenticated in accordance with paragraph 2. Documents or materials
furnished in response to a request shall be similarly authenticated if
requested. 2. Documents and materials are authenticated for the purposes of
this Agreement if:

   (a)  they purport to be signed or certified by any person in his capacity
        as a judge, magistrate or officer of the court in question, or by or
        on behalf of the Central Authority of the Party sending the documents
        or material; and

   (b)  they purport to be sealed with an official seal of the Party sending
        the documents or of a department or officer of that Party.
ARTICLE 11
REPRESENTATION AND EXPENSES 1. The Requested Party shall make all necessary
arrangements for the representation of the Requesting Party in any proceedings
arising out of a request for assistance and shall otherwise represent the
interests of the Requesting Party. 2. The Requested Party shall assume all
ordinary expenses of executing a request within its boundaries, except:

   (a)  fees of counsel retained at the request of the Requesting Party;

   (b)  fees of experts;

   (c)  expenses of translation of documents; and

   (d)  travel expenses and allowances of persons. 3. If the execution of a
        request involves extraordinary or exceptional expenses the Parties
        shall consult to determine how these shall be met.
ARTICLE 12
CONSULTATION
The Parties shall consult promptly, at the request of either, concerning the
interpretation or application of this Agreement either generally or in
relation to a particular case.
ARTICLE 13
ENTRY INTO FORCE, EXPIRY AND TERMINATION 1. This Agreement shall apply to a
request pursuant to it whether or not the drug trafficking to which the
request relates occured prior to the Agreement entering into force. 2. This
Agreement shall enter into force on the date on which the Parties have
notified each other in writing that their respective requirements for the
entry into force of the Agreement have been complied with, and shall remain in
force for 3 years from that date. Thereafter the Agreement shall remain in
force for further successive periods of one year provided that both Parties
have agreed no less than 180 days before the end of the initial period, and
each current one year period, to extend it for a further year. 3. Either Party
may terminate this Agreement at any time by giving 180 days written notice to
the other Party. IN WITNESS WHEREOF the undersigned, being duly authorised
thereto by their respective Governments, have signed this Agreement. DONE in
duplicate at Hong Kong on the Twenty-second day of April One Thousand Nine
Hundred and Ninety One.
For the Government                     For the Government

of Australia:                               of Hong Kong:

GARETH EVANS                                 A. P. ASPREY