Commonwealth Numbered Regulations

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (HONG KONG) REGULATIONS 1999 1999 No. 33 - SCHEDULE 1

Schedule 1 Mutual Legal Assistance Agreement
(regulation 3)

AGREEMENT BETWEEN
THE GOVERNMENT OF AUSTRALIA
AND
THE GOVERNMENT OF HONG KONG
CONCERNING MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS The Government of Australia and the Government of Hong
Kong, having been duly authorised by the sovereign government responsible for
the foreign affairs relating to Hong Kong, Desiring to improve the
effectiveness of law enforcement of both Parties in the investigation,
prosecution and prevention of crime and the confiscation of criminal proceeds,
Have agreed as follows:
Article I Scope of assistance

(1) The Parties shall provide, in accordance with the provisions of this
Agreement, mutual assistance in the investigation and prosecution of criminal
offences and in proceedings related to criminal matters.

(2) Assistance shall include:

   (a)  identifying and locating persons;

   (b)  serving of documents;

   (c)  the obtaining of evidence, articles or documents, including the
        execution of letters rogatory;

   (d)  executing requests for search and seizure;

   (e)  facilitating the personal appearance of witnesses;

   (f)  effecting the temporary transfer of persons in custody to appear as
        witnesses;

   (g)  obtaining production of judicial or official records;

   (h)  tracing, restraining, forfeiting and confiscating property used in or
        derived from criminal activities and the proceeds of criminal
        activities;

   (i)  providing information, documents and records;

   (j)  delivery of property, including lending of exhibits; and

   (k)  other assistance consistent with the objects of this Agreement which
        is not inconsistent with the law of the Requested Party.

(3) Assistance under this Agreement may be granted in connection with offences
against a law related to taxation, customs duties, foreign exchange control or
other revenue matters but not in connection with non-criminal proceedings
relating thereto.

(4) Assistance shall not include:

   (a)  the surrender of any fugitive offender;

   (b)  the execution in the Requested Party of criminal judgments imposed in
        the Requesting Party except to the extent permitted by the law of the
        Requested Party and this Agreement; and

   (c)  the transfer of persons in custody to serve sentences.
Article II Central Authority

(1) Each Party shall establish a Central Authority.

(2) The Central Authority of Hong Kong shall be the Attorney General or his
duly authorised officer. The Central Authority for Australia shall be the
Attorney-General's Department, Canberra.

(3) Requests under this Agreement shall be made only by the Central Authority
of the Requesting Party to the Central Authority of the Requested Party.
Article III Other assistance The Parties may provide assistance pursuant to
other agreements, arrangements or practices.
Article IV Limitations on compliance

(1) The Requested Party shall refuse assistance if:

   (a)  the request for assistance impairs the sovereignty, security or public
        order of Australia or, in the case of Hong Kong, of the State which is
        responsible for the foreign affairs relating to Hong Kong;

   (b)  the request for assistance relates to an offence of a political
        character;

   (c)  the request for assistance relates to an offence only under military
        law;

   (d)  there are substantial grounds for believing that the request for
        assistance will result in a person being prejudiced on account of that
        person's race, sex, religion, nationality or political opinions;

   (e)  the request for assistance relates to the prosecution of a person for
        an offence in respect of which the person has been convicted,
        acquitted or pardoned in the Requesting or Requested Party or has
        served the sentence imposed in either Party;

   (f)  it is of the opinion that the granting of the request would seriously
        impair its essential interests; or

   (g)  the acts or omissions alleged to constitute the offence would not, if
        they had taken place within the jurisdiction of the Requested Party,
        have constituted an offence.

(2) The Requested Party may refuse assistance if:

   (a)  the request for assistance relates to the prosecution or punishment of
        a person who could no longer be prosecuted by reason of lapse of time
        or for any other reason if the offence had been committed within the
        jurisdiction of the Requested Party;

   (b)  the Requesting Party cannot comply with any conditions relating to
        confidentiality or limitation as to the use of material provided; or

   (c)  the request for assistance relates to the prosecution or punishment of
        a person for an offence which is committed outside the area under the
        jurisdiction of the Requesting Party and the law of the Requested
        Party does not provide for the punishment of an offence committed in
        similar circumstances.

(3) For the purpose of paragraph (1)(f) the Requested Party may include in its
consideration of essential interests whether the provision of assistance could
prejudice the safety of any person or impose an excessive burden on the
resources of the Requested Party.

(4) The Requested Party may refuse assistance if the request relates to an
offence which carries the death penalty in the Requesting Party but in respect
of which the death penalty is either not provided for in the Requested Party
or not normally carried out unless the Requesting Party gives such assurances
as the Requested Party considers sufficient that the death penalty will not be
imposed or, if imposed, not carried out.

(5) The Requested Party may postpone assistance if execution of the request
would interfere with an ongoing investigation or prosecution in the Requested
Party.

(6) Before denying or postponing assistance pursuant to this Article, the
Requested Party, through its Central Authority :

   (a)  shall promptly inform the Requesting Party of the reason for
        considering denial or postponement; and

   (b)  shall consult with the Requesting Party to determine whether
        assistance may be given subject to such terms and conditions as the
        Requested Party deems necessary.

(7) If the Requesting Party accepts assistance subject to the terms and
conditions referred to in paragraph (6)(b), it shall comply with those terms
and conditions.
Article V Requests

(1) Requests shall be made in writing except in urgent cases. In urgent cases,
requests may be made orally, but shall be confirmed in writing within 10 days
thereafter.

(2) Requests for assistance shall include:

   (a)  the name of the authority on behalf of which the request is made;

   (b)  a description of the purpose of the request and the nature of the
        assistance requested;

   (c)  a description of the nature of the investigation, prosecution, offence
        or criminal matter and whether or not proceedings have been
        instituted;

   (d)  where proceedings have been instituted, details of the proceedings;

   (e)  the court order, if any, or a certified copy thereof, sought to be
        enforced and a statement to the effect that it is a final order;

   (f)  a summary of the relevant facts and laws;

   (g)  any requirements for confidentiality;

   (h)  details of any particular procedure the Requesting Party wishes to be
        followed; and

   (i)  details of the period within which the request should be complied
        with.

(3) Requests, and all documents submitted in support of requests, shall be
accompanied by a translation in the language of the Requested Party.
Article VI Execution of requests

(1) The Central Authority of the Requested Party shall promptly execute the
request or arrange for its execution through its competent authorities.

(2) A request shall be executed in accordance with the law of the Requested
Party and, to the extent not prohibited by the law of the Requested Party, in
accordance with the directions stated in the request so far as practicable.

(3) 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.

(4) 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.

(5) Where required by the Requested Party, the Requesting Party shall return
the material provided under this Agreement when no longer needed for the
relevant investigation or proceeding.
Article VII 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 except:

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

   (b)  fees of experts;

   (c)  expenses of translation;

   (d)  the expenses associated with conveying any person to or from the
        Requested Party, and any fees, allowances or expenses payable to that
        person whilst in the Requesting Party pursuant to a request under this
        Agreement; and

   (e)  the expenses associated with conveying custodial or escorting
        officers.

(3) If during the execution of the request it becomes apparent that expenses
of an extraordinary nature are required to fulfil the request, the Parties
shall consult to determine the terms and conditions under which the execution
of the request may continue.
Article VIII Confidentiality and limitations of use

(1) The Requested Party shall use its best efforts to keep confidential a
request, its contents and the fact that it has been granted, except when
otherwise authorized by the Requesting Party. If the request cannot be
executed without breaching confidentiality, the Requested Party shall so
inform the Requesting Party which shall then determine whether the request
should nevertheless be executed.

(2) The Requested Party may require, after consultation with the Requesting
Party, that information or evidence furnished be kept confidential or be
disclosed or used only subject to such terms and conditions as it may specify.

(3) 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.
Article IX Obtaining of evidence, articles or documents

(1) Where a request is made that evidence be taken for the purpose of an
investigation, a prosecution of a criminal offence or a proceeding in relation
to a criminal matter in the jurisdiction of the Requesting Party the Requested
Party shall, subject to its laws, arrange to take such evidence.

(2) For the purposes of this Agreement, the giving or taking of evidence shall
include the production of documents, records or other material.

(3) For the purposes of requests under this Article the Requesting Party shall
specify the questions to be put to the witnesses or the subject matter about
which they are to be examined.

(4) Where, pursuant to a request for assistance, a person is to give evidence
for the purpose of proceedings in the Requesting Party, the parties to the
relevant proceedings in the Requesting Party, their legal representatives or
representatives of the Requesting Party may, subject to the laws of the
Requested Party, appear and question the person giving that evidence.

(5) A person who is required to give evidence in the Requested Party pursuant
to a request for assistance may decline to give evidence where either:

   (a)  the law of the Requested Party would permit that witness to decline to
        give evidence in similar circumstances in proceedings which originated
        in the Requested Party; or

   (b)  where the law of the Requesting Party would permit the person to
        decline to give evidence in such proceedings in the Requesting Party.

(6) If any person claims that there is a right to decline to give evidence
under the law of the Requesting Party, the Requested Party shall with respect
thereto rely on a certificate of the Central Authority of the Requesting
Party.
Article X Obtaining statements of persons Where a request is made to obtain
the statement of a person for the purpose of an investigation or proceeding in
relation to a criminal matter in the Requesting Party, the Requested Party
shall endeavour to obtain such statement.
Article XI Location or identity of persons The Requested Party shall, if
requested, endeavour to ascertain the location or identity of any person
specified in the request.
Article XII Service of documents

(1) The Requested Party shall serve any document transmitted to it for the
purpose of service.

(2) The Requesting Party shall transmit a request for the service of a
document pertaining to a response or appearance in the Requesting Party within
a reasonable time before the scheduled response or appearance.

(3) A request for the service of a document pertaining to an appearance in the
Requesting Party shall include such notice as the Central Authority of the
Requesting Party is reasonably able to provide of outstanding warrants or
other judicial orders in criminal matters against the person to be served.

(4) The Requested Party may effect service of any document by mail or, if the
Requesting Party so requests, in any other manner required by the law of the
Requesting Party which is not inconsistent with the law of the Requested
Party.

(5) The Requested Party shall, subject to its law, return a proof of service
in the manner required by the Requesting Party. If service cannot be effected,
the Requesting Party shall be so informed and advised of the reasons.

(6) Persons who fail to comply with any process served on them shall not
thereby be liable to any penalty or coercive measure pursuant to the law of
the Requesting Party.
Article XIII Publicly available and official documents

(1) Subject to its law the Requested Party shall provide copies of publicly
available documents, records or information.

(2) The Requested Party may provide copies of any document, record or
information in the possession of a government department or agency, but not
publicly available, to the same extent and under the same conditions as such
document, record or information would be available to its own law enforcement
and judicial authorities.
Article XIV Certification and authentication

(1) Documents or materials supporting a request for assistance involving the
use of compulsory measures or the forfeiture or confiscation of the proceeds
of crime shall be admissible in proceedings in the Requested Party if they -

   (a)  purport to be signed or certified by a Judge, Magistrate or other
        officer in or of the Requesting Party; and

   (b)  purport to be sealed with an official or public seal of the Requesting
        Party or an officer of the Requesting Party.

(2) Documents or materials furnished in response to a request shall only be
signed or certified and sealed if requested. Other documents or materials
shall be certified or authenticated by consular or diplomatic officers only if
the law of the Requesting Party specifically so requires.
Article XV Transfer of persons in custody

(1) A person in custody in the Requested Party whose presence is requested in
the Requesting Party for the purposes of providing assistance pursuant to this
Agreement shall if the Requested Party consents be transferred from the
Requested Party to the Requesting Party for that purpose, provided the person
consents and the Requesting Party has guaranteed the maintenance in custody of
the person and their subsequent return to the Requested Party.

(2) Where the sentence of imprisonment of a person transferred pursuant to
this Article expires whilst the person is in the Requesting Party the
Requested Party shall so advise the Requesting Party which shall ensure the
person's release from custody and that the person is treated as a person
referred to in Article XVI.
Article XVI Transfer of other persons

(1) The Requesting Party may request the assistance of the Requested Party in
making a person available for the purpose of providing assistance pursuant to
this Agreement.

(2) The Requested Party shall, if satisfied that satisfactory arrangements for
that person's security will be made by the Requesting Party, request the
person to consent to travel to and remain in the Requesting Party to provide
assistance.
Article XVII Safe conduct

(1) A person who consents to provide assistance pursuant to Articles XV or XVI
shall not be prosecuted, detained, or restricted in their personal liberty in
the Requesting Party for any criminal offence or proceeded against on a civil
matter which preceded their departure from the Requested Party.

(2) Paragraph (1) shall not apply if the person, not being a person in custody
transferred under Article XV, and being free to leave, has not left the
Requesting Party within a period of 15 days after being notified that their
presence is no longer required, or having left the Requesting Party, has
returned.

(3) A person who consents to give evidence under Articles XV or XVI shall not
be subject to prosecution based on that person's testimony, except for perjury
and contempt.

(4) A person who consents to provide assistance pursuant to Articles XV or XVI
shall not be required to give evidence or to assist any investigation other
than the proceeding or investigation to which the request relates.

(5) A person who does not consent to give assistance pursuant to Articles XV
or XVI shall not by reason thereof be liable to any penalty or coercive
measure by the courts of the Requesting or Requested Party.
Article XVIII Search and seizure

(1) The Requested Party shall, insofar as its law permits, carry out requests
for search, seizure and delivery of any material to the Requesting Party which
is relevant to a proceeding or investigation in relation to a criminal matter
provided that the information supplied would justify such action under the law
of the Requested Party.

(2) The Requested Party shall provide such information as may be required by
the Requesting Party concerning the result of any search, the place of
seizure, the circumstances of seizure, and the subsequent custody of the
material seized.

(3) The Requesting Party shall observe any conditions imposed by the Requested
Party in relation to any seized material which is delivered to the Requesting
Party.
Article XIX Proceeds of crime

(1) The Requested Party shall, upon request, endeavour to ascertain whether
any proceeds of crime against the law of the Requesting Party are located
within its jurisdiction and shall notify the Requesting Party of the result of
its inquiries. In making the request, the Requesting Party shall notify the
Requested Party of the basis of its belief that such proceeds may be located
in its jurisdiction.

(2) Where pursuant to paragraph (1) suspected proceeds of crime are found the
Requested Party shall take such measures as are permitted by its law to
prevent any dealing in, transfer or disposal of, those suspected proceeds of
crime, pending a final determination in respect of those proceeds by a Court
of the Requesting Party.

(3) Upon request, the Requested Party shall, to the extent its laws permit,
give effect to a final order forfeiting or confiscating proceeds of crime made
by a court of the Requesting Party.

(4) In the application of this Article, the rights of bona fide third parties
shall be respected under the law of the Requested Party.

(5) Proceeds confiscated pursuant to this Agreement shall be retained by the
Requested Party unless otherwise decided by the Parties in a particular case.

(6) In this Article "proceeds of crime" includes:

   (a)  property used in connection with the commission of an offence;

   (b)  property derived or realized, directly or indirectly, from the
        commission of an offence; or

   (c)  property which represents the value of property and other benefits
        derived from the commission of an offence.
Article XX Settlement of disputes Any dispute arising out of the
interpretation, application or implementation of this Agreement shall be
resolved through diplomatic channels if the Central Authorities are themselves
unable to reach agreement.
Article XXI Entry into force and termination

(1) This Agreement shall enter into force thirty days after 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.

(2) This Agreement shall apply to requests whether or not the relevant acts or
omissions occurred prior to this Agreement entering into force.

(3) Each of the Parties may terminate this Agreement at any time by giving
notice in writing to the other. In that event the Agreement shall cease to
have effect three months after the date of the receipt of that notice.
Requests for assistance which have been received prior to termination of the
Agreement shall nevertheless be processed in accordance with the terms of the
Agreement as if the Agreement was still in force.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their
respective Governments, have signed this Agreement. DONE at Sydney, Australia,
this twenty-third day of September one thousand nine hundred and ninety six,
in English and Chinese, both texts being equally authentic. FOR THE GOVERNMENT
OF AUSTRALIA                                FOR THE GOVERNMENT

OF HONG KONG
Daryl Williams                              A. Chan