Mutual Legal Assistance in Criminal Matters (Israel) Order
(Enacting provision omitted—E.R. 1 of 2020)
[28 December 2006] L.N. 273 of 2006
(Format changes—E.R. 1 of 2020)
(Omitted as spent—E.R. 1 of 2020)
In relation to the scheduled arrangements for mutual legal assistance, it is directed that the Ordinance shall, subject to the modifications summarized in Schedule 1, apply as between Hong Kong and the State of Israel.
Section 5(1)(e) of the Ordinance shall be modified to read as follows—
the request relates to the prosecution of a person for an external offence in a case where the person—*
has been convicted, acquitted or pardoned by a competent court or other authority in the place,** or Hong Kong in respect of that offence or of another external offence constituted by the same act or omission as that offence;* or
has undergone the punishment provided by the law of that place or Hong Kong*,** in respect of that offence or of another external offence constituted by the same act or omission as that offence;”.
Section 17(1) of the Ordinance shall be modified by deleting paragraph (ii).
Section 17(3)(b) of the Ordinance shall be modified to read as follows—
the person, being free to leave Hong Kong, has not left Hong Kong within a period of 15 days after being notified that his presence is no longer required for any of the following purposes* has had an opportunity of leaving Hong Kong and has remained in Hong Kong otherwise than for**—
the purpose to which the request relates; or**
the purpose of giving assistance in relation to a criminal matter in Hong Kong certified in writing by the Secretary for Justice to be a criminal matter in relation to which it is desirable that the person give assistance.”.
Section 23(2)(a) of the Ordinance shall be modified—
by adding “or” at the end of subparagraph (i);
by deleting subparagraph (ii).
| * | The words underlined are added. (The underlining is for ease of identifying the modification). |
| ** | The words crossed out are deleted. (The crossing out is for ease of identifying the modification). |
The Government of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong Special Administrative Region”) having been duly authorized by the Central People’s Government of the People’s Republic of China and the Government of the State of Israel,
DESIRING to improve, through co-operation and mutual legal assistance in criminal matters, the effectiveness of law enforcement of both Parties in the investigation, prosecution and prevention of crime and the forfeiture of criminal proceeds,
HAVE AGREED as follows:
The Parties shall provide, in accordance with the provisions of this Agreement, mutual assistance in the investigation, prosecution and prevention of offences and in proceedings related to criminal matters.
Assistance shall include:
identifying and locating persons;
serving of documents;
obtaining of evidence, articles or documents, including execution of letters rogatory;
executing requests for search and seizure;
facilitating the personal appearance of witnesses;
effecting the temporary transfer of persons in custody to appear as witnesses or for other assistance under this Agreement;
obtaining the production of judicial or official records;
tracing, restraining and forfeiting the proceeds and instrumentalities of criminal activities;
providing information, documents and records;
delivery of material, including lending of exhibits; and
providing any other form of assistance not inconsistent with the laws of the Requested Party.
The Parties may, in accordance with their laws, grant assistance in fiscal offences, but shall refuse assistance if the primary purpose of the request is the assessment or collection of taxes.
This Agreement is intended solely for mutual assistance between the Parties. The provisions of this Agreement shall not give rise to any right on the part of any private person to obtain, suppress or exclude any evidence or to impede the execution of a request.
Each party shall establish a Central Authority for the purposes of the Agreement.
(2)(a) The Central Authority for Israel for the purpose of submitting requests under this Agreement shall be the Attorney General or an official designated by the Attorney General; the Central Authority for Israel for the purpose of accepting requests under this Agreement shall be the Minister of Justice, or an official designated by the Minister of Justice;
(b) The Central Authority for the Hong Kong Special Administrative Region shall be the Secretary for Justice or his or her duly authorised officer.
Either Party may change its Central Authority in which case it shall notify the other of the change.
Requests under this Agreement shall be made by the Central Authority of the Requesting Party to the Central Authority of the Requested Party.
The Parties may provide assistance to each other pursuant to other applicable International Agreements or through the provisions of their domestic laws. The Parties may also provide assistance pursuant to any applicable bilateral arrangement or agreement, provided such assistance is consistent with the laws of the Requested Party.
The Requested Party may, or if so required by its laws shall, deny assistance if it determines that:
the request for assistance impairs the sovereignty, security or public order of the State of Israel or, in the case of the Government of the Hong Kong Special Administrative Region, the People’s Republic of China;
granting the request would seriously impair its essential interests;
the request for assistance relates to an offence of a political character;
the request for assistance relates to an offence under military law which would not be an offence under ordinary criminal law;
there are substantial grounds for believing that the request for assistance will result in a person being prejudiced on account of his race, religion, nationality, sex, social origin or political opinions;
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 either Party;
the Requesting Party cannot comply with any conditions of the Requested Party in relation to confidentiality or limitation as to use of the material provided;
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;
the request is not made in conformity with this Agreement; or
the request will impose an excessive burden on the resources of the Requested Party.
For the purpose of paragraph (1)(b), the Requested Party may include in its consideration of essential interests whether the provision of assistance could endanger the safety of any person.
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, will not be carried out.
The Requested Party may postpone assistance if execution of the request would interfere with an ongoing investigation or prosecution in the Requested Party.
Before denying or postponing assistance pursuant to this Article, the Requested Party, through its Central Authority, shall:
promptly inform the Requesting Party of the reason for the denial or postponement; and
consult with the Requesting Party to determine whether assistance may be given subject to such terms and conditions as the Requested Party deems necessary; if the Requesting Party accepts assistance subject to such terms and conditions, it shall comply with those terms and conditions.
Requests for assistance shall be made in writing and shall include the following:
the name of the authority on behalf of which the request is made;
a description of the purpose of the request, the nature of the assistance requested, and the connection between the assistance sought and the criminal matter to which it relates;
a description of the nature of the investigation, prosecution, offence or criminal matter, including the criminal laws which relate to the offence;
a statement of whether criminal proceedings have been instituted in the matter, and if so, details of the proceedings;
a summary of the relevant facts and laws;
any requirements for confidentiality;
details of any particular procedure that the Requesting Party wishes to be followed; and
details of the period within which the request should be complied with.
The Requested Party shall use its best efforts, in accordance with its law, to keep confidential a request and its contents except where otherwise authorized by the Requesting Party.
The request and all documents submitted in support of a request shall be in English or shall be accompanied by a translation into English.
The Central Authority of the Requested Party shall promptly execute the request or arrange for its execution through its competent authorities.
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.
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.
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.
Each Party shall respond promptly to reasonable inquiries from the other Party concerning the execution of the request or the proceedings in the Requesting Party to which the request relates.
The Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceeding arising out of a request for assistance and shall otherwise represent the interests of the Requesting Party.
The Requested Party shall bear all ordinary expenses relating to the execution of a request, except for the following:
fees of legal counsel retained at the request of the Requesting Party;
fees of experts;
expenses of translation, interpretation and transcription; and
travel expenses and allowances of persons transferred pursuant to Articles 14 or 15 of this Agreement.
If during the execution of the request it becomes apparent that expenses of an extraordinary nature are required to fulfill the request, the Parties shall consult to determine the terms and conditions under which the execution of the request may continue.
In the case of requests for seizure, immobilization or forfeiture of assets or restraining orders pursuant to this Agreement, in which a court of the Requested Party, in accordance with its laws, issues an order to compensate an injured party or requires the furnishing of a bond or other security, those costs shall be borne by the Requesting Party unless otherwise agreed by the Parties.
The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished to the Requesting Party be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify.
The Requesting Party shall not disclose or use information or evidence furnished to it for purposes other than those stated in the request without the prior consent of the Requested Party.
Where a request is made that evidence be taken for the purpose of a proceeding in relation to a criminal matter in the jurisdiction of the Requesting Party, the Requested Party shall endeavour to have such evidence taken.
For the purposes of this Agreement:
the giving or taking of evidence shall include the taking of statements and testimony, and the production of documents, records or other material; and
proceedings shall include investigations and prosecutions.
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.
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.
A person who is required to give evidence in the Requested Party pursuant to a request for assistance may decline to give evidence if 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.
If such person asserts a claim of immunity, incapacity or privilege under the laws of the Requesting Party, the evidence shall nonetheless be taken and the claim be made known to the Central Authority of the Requesting Party for resolution by the authorities of that Party.
Upon request, the Central Authority of the Requested Party shall furnish information in advance about the date and place of the taking of the evidence pursuant to this Article.
The Central Authority of the Requested Party may require that the Central Authority of the Requesting Party return any documents, records, or articles of evidence furnished to it in the execution of a request under this Agreement as soon as possible.
If permitted by their laws, the Parties may agree in specific cases that the taking of evidence of a witness in accordance with this Article may take place by means of video conference or other technological means.
The Requested Party shall, if requested, endeavour to ascertain the location or identity of any person or item specified in the request.
The Requested Party shall use its best efforts to serve any document transmitted to it for the purpose of service, and to the extent possible, shall effect such service in the manner specified by the Requesting Party.
The Requesting Party shall transmit a request for service of a document pertaining to a response or an appearance in the Requesting Party within a reasonable time before the scheduled response or appearance.
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.
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, or cannot be effected in the manner specified, the Requesting Party shall be so informed and shall be advised of the reasons.
A person who fails to comply with any process served on him shall not thereby be liable to any penalty or coercive measure pursuant to the law of the Requesting Party or Requested Party.
Subject to its law, the Requested Party shall provide copies of publicly available documents.
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.
Documents, transcripts, records, statements or other material which are to be transmitted to the Requesting Party shall only be certified or authenticated if the Requesting Party so requests. Material shall be certified or authenticated by consular or diplomatic officers only if the law of the Requesting Party specifically so requires.
A person in custody in the Requested Party, whose presence is requested in the Requesting Party for the purpose 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 his subsequent return to the Requested Party without the need for extradition proceedings.
Where the sentence of imprisonment of a person transferred pursuant to this Article expires while 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. Such person shall be entitled to receive from the Requesting Party an allowance and travel expenses for his return travel to the Requested Party, if he returns to that Party.
The Requesting Party may request the assistance of the Requested Party in inviting a person to travel to the Requesting Party for the purpose of providing assistance pursuant to this Agreement.
The Requested Party shall, if satisfied that satisfactory arrangements have been made by the Requesting Party, request the person to travel to the Requesting Party to provide assistance. Such arrangements will include, but need not be limited to, ensuring the security of the person and providing travel expenses and living allowances; the person shall be under no compulsion to accept such invitation.
The Central Authority of the Requested Party shall promptly inform the Central Authority of the Requesting Party of the response of the person.
A person who consents to provide assistance pursuant to Articles 14 or 15 shall not be prosecuted, detained, or restricted in his personal liberty in the Requesting Party for any criminal offence which preceded his departure from the Requested Party, except as provided in Article 14.
Paragraph (1) shall not apply if the person, not being a person in custody transferred under Article 14, and being free to leave, has not left the Requesting Party within a period of 15 days after being notified that his presence is no longer required, or having left the Requesting Party, has returned.
A person who consents to give evidence under Articles 14 or 15 shall not be subject to prosecution based on his testimony, except for perjury.
A person who consents to provide assistance pursuant to Articles 14 or 15 shall not be required to give evidence in any proceedings other than the proceedings to which the request relates.
A person who does not consent to give evidence pursuant to Articles 14 or 15 shall not by reason thereof be liable to any penalty or coercive measure by the courts of the Requesting Party or Requested Party.
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 if the request includes information justifying such action under the laws of the Requested Party.
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 property seized.
The Requesting Party shall observe any conditions imposed by the Requested Party in relation to any seized property which is delivered to the Requesting Party including conditions deemed necessary to protect third party interests in the property delivered to the Requesting Party.
The Requested Party shall, upon request, endeavour to ascertain whether any proceeds or instrumentalities of a crime against the laws 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 or instrumentalities may be located in its jurisdiction.
Where pursuant to paragraph (1) suspected proceeds or instrumentalities of crime are found, the Requested Party shall take such measures as are permitted by its law to prevent any dealing in, use of, transfer or disposal of, such suspected proceeds or instrumentalities of crime, pending a final determination in respect thereof by a court of the Requesting Party.
Where a request is made for assistance in securing the forfeiture of proceeds or instrumentalities of crime, such assistance may be given by whatever means are appropriate under the laws of the Requested Party. This may include enforcing an order made by a court in the Requesting Party and initiating or assisting in proceedings in relation to the proceeds or instrumentalities to which the request relates.
Proceeds or instrumentalities forfeited pursuant to this Agreement shall be retained by the Requested Party unless otherwise agreed upon between the Parties.
Any dispute arising out of the interpretation, application or implementation of this Agreement shall be resolved through diplomatic channels if the Central Authorities have not succeeded in reaching an agreement.
Each Contracting Party shall notify the other Contracting Party in writing of the completion of its internal legal procedures required for the entry into force of this Agreement. This Agreement shall enter into force thirty days after the date of the later of the two notifications.
This Agreement shall apply to any request presented after its entry into force, even if the request relates to offences which occurred before that date.
Either Party may terminate this Agreement by means of written notice to the other Party. In that event the Agreement shall cease to have effect on the receipt of such 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 by their respective governments, have signed this Agreement.
DONE at Hong Kong this twenty-sixth day of July two thousand and five, in duplicate, in the Chinese, English and Hebrew languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.