Cap. 537 sub. leg. CB

United Nations Sanctions (ISIL and Al-Qaida) Regulation (Cap. 537, section 3)(Enacting provision omitted—E.R. 5 of 2018)[21 September 2018] Part 1 Preliminary 1. Interpretation In this Regulation—Al-Qaida (基地組織) means the entity listed under permanent reference number QDe.004 in the ISIL (Da’esh) and Al-Qaida Sanctions List;arms or related materiel (軍火或相關物資) includes—(a) any weapon, ammunition, military vehicle, military equipment or paramilitary equipment; and(b) any spare part for any item specified in paragraph (a);assistance (協助) means technical advice, assistance or training;authorized officer (獲授權人員) means—(a) a police officer;(b) a member of the Customs and Excise Service holding an office specified in Schedule 1 to the Customs and Excise Service Ordinance (Cap. 342); or(c) a public officer employed in the Customs and Excise Department in the Trade Controls Officer Grade;Commissioner (關長) means the Commissioner of Customs and Excise, any Deputy Commissioner of Customs and Excise or any Assistant Commissioner of Customs and Excise;Committee (委員會) means the Committee of the Security Council established under Resolution 1267, Resolution 1989 and Resolution 2253 concerning ISIL, Al-Qaida and associated individuals, groups, undertakings and entities;economic assets (經濟資產) means any funds or other financial assets or economic resources;economic resources (經濟資源) means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but can be used to obtain funds, goods or services;funds (資金) includes—(a) gold coin, gold bullion, cash, cheques, claims on money, drafts, money orders and other payment instruments;(b) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;(c) securities and debt instruments (including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures, debenture stock and derivatives contracts);(d) interest, dividends or other income on or value accruing from or generated by property;(e) credit, rights of set-off, guarantees, performance bonds or other financial commitments;(f) letters of credit, bills of lading and bills of sale;(g) documents evidencing an interest in funds or financial resources; and(h) any other instrument of export financing;Hong Kong person (香港人) means—(a) a person who is both a Hong Kong permanent resident and a Chinese national; or(b) a body incorporated or constituted under the law of the HKSAR;ISIL (伊黎伊斯蘭國) means Islamic State in Iraq and the Levant, also known as Da’esh, being the entity listed under permanent reference number QDe.115 in the ISIL (Da’esh) and Al-Qaida Sanctions List;ISIL (Da’esh) and Al-Qaida Sanctions List (《伊黎伊斯蘭國(達伊沙)和基地組織制裁名單》) means the list maintained by the Committee under Resolution 1267, Resolution 1989 and Resolution 2253 concerning ISIL, Al-Qaida and associated individuals, groups, undertakings and entities;licence (特許) means a licence granted under Part 3;master (船長), in relation to a ship, includes any person (other than a pilot) for the time being in charge of the ship;mode of transport (運輸工具) means a ship, aircraft or vehicle;operator (營運人), in relation to a mode of transport, means the person for the time being having the management of the mode of transport;pilot in command (機長), in relation to an aircraft, means the pilot designated by the operator or owner, as appropriate, as being—(a) in charge of the aircraft (without being under the direction of any other pilot in the aircraft); and(b) charged with the safe conduct of a flight;prohibited goods (禁制物品) means any arms or related materiel;relevant entity (有關實體) means—(a) a group, undertaking or entity named in the list published under section 25(1); or(b) a group, undertaking or entity—(i) acting on behalf of; or(ii) acting at the direction of,an individual, group, undertaking or entity named in that list;relevant person (有關人士) means—(a) an individual named in the list published under section 25(1); or(b) an individual—(i) acting on behalf of; or(ii) acting at the direction of,an individual, group, undertaking or entity named in that list;Resolution 1267 (《第1267號決議》) means Resolution 1267 (1999) adopted by the Security Council on 15 October 1999;Resolution 1989 (《第1989號決議》) means Resolution 1989 (2011) adopted by the Security Council on 17 June 2011;Resolution 2253 (《第2253號決議》) means Resolution 2253 (2015) adopted by the Security Council on 17 December 2015;responsible person (負責人) means—(a) for a ship—the charterer, operator or master of the ship;(b) for an aircraft—the charterer, operator or pilot in command of the aircraft; or(c) for a vehicle—the operator or driver of the vehicle;Secretary (局長) means the Secretary for Commerce and Economic Development;Security Council (安理會) means the Security Council of the United Nations;supply (供應) means supply, sale or transfer. Part 2 Prohibitions 2. Supply of goods prohibited (1) This section applies to—(a) a person acting in the HKSAR; and(b) a Hong Kong person acting outside the HKSAR.(2) A person must not supply, or agree to supply, directly or indirectly, or do any act likely to promote the supply of, any prohibited goods—(a) to, or to the order of, a relevant person or a relevant entity; or(b) to a destination for the purpose of delivery or transfer, directly or indirectly, to, or to the order of, a relevant person or a relevant entity.(3) A person who contravenes subsection (2) commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 7 years.(4) It is a defence for a person charged with an offence under subsection (3) to prove that the person did not know and had no reason to believe—(a) that the goods concerned were prohibited goods; or(b) that the goods concerned were, or were to be, supplied—(i) to, or to the order of, a relevant person or a relevant entity; or(ii) to a destination for the purpose of delivery or transfer, directly or indirectly, to, or to the order of, a relevant person or a relevant entity. 3. Carriage of goods prohibited (1) This section applies to—(a) a ship that is registered in the HKSAR, or is in the HKSAR;(b) an aircraft that is registered in the HKSAR, or is in the HKSAR;(c) any other ship or aircraft that is for the time being chartered to a person who is—(i) a Hong Kong person; or(ii) in the HKSAR; and(d) a vehicle in the HKSAR.(2) Without limiting section 2, a mode of transport must not be used for the carriage of any prohibited goods if the carriage is, or forms part of, a carriage—(a) to, or to the order of, a relevant person or a relevant entity; or(b) to a destination for the purpose of delivery or transfer, directly or indirectly, to, or to the order of, a relevant person or a relevant entity.(3) If a mode of transport is used in contravention of subsection (2), each of the following persons commits an offence—(a) for a ship registered in the HKSAR—all of the responsible persons for the ship;(b) for any other ship—(i) the charterer of the ship if the charterer is a Hong Kong person, or is in the HKSAR;(ii) the operator of the ship if the operator is a Hong Kong person, or is in the HKSAR; and(iii) the master of the ship if the master is both a Hong Kong permanent resident and a Chinese national, or is in the HKSAR;(c) for an aircraft registered in the HKSAR—all of the responsible persons for the aircraft;(d) for any other aircraft—(i) the charterer of the aircraft if the charterer is a Hong Kong person, or is in the HKSAR;(ii) the operator of the aircraft if the operator is a Hong Kong person, or is in the HKSAR; and(iii) the pilot in command of the aircraft if the pilot in command is both a Hong Kong permanent resident and a Chinese national, or is in the HKSAR;(e) for a vehicle—all of the responsible persons for the vehicle.(4) A person who commits an offence under subsection (3) is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 7 years.(5) It is a defence for a person charged with an offence under subsection (3) to prove that the person did not know and had no reason to believe—(a) that the goods concerned were prohibited goods; or(b) that the carriage of the goods concerned was, or formed part of, a carriage—(i) to, or to the order of, a relevant person or a relevant entity; or(ii) to a destination for the purpose of delivery or transfer, directly or indirectly, to, or to the order of, a relevant person or a relevant entity. 4. Provision of assistance prohibited (1) This section applies to—(a) a person acting in the HKSAR; and(b) a Hong Kong person acting outside the HKSAR.(2) A person must not directly or indirectly provide to a relevant person or a relevant entity any assistance related to military activities.(3) A person who contravenes subsection (2) commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 7 years.(4) It is a defence for a person charged with an offence under subsection (3) to prove that the person did not know and had no reason to believe—(a) that the assistance was, or was to be, provided to a relevant person or a relevant entity; or(b) that the assistance related to military activities. 5. Making available or dealing with economic assets prohibited (1) This section applies to—(a) a person acting in the HKSAR; and(b) a Hong Kong person acting outside the HKSAR.(2) Except under the authority of a licence granted under section 7(1)—(a) a person must not directly or indirectly make available any economic assets to, or for the benefit of, a relevant person or a relevant entity; and(b) a person must not directly or indirectly deal with any economic assets belonging to, or owned or controlled directly or indirectly by, a relevant person or a relevant entity (including, if the person is a relevant person or a relevant entity, the economic assets belonging to, or owned or controlled directly or indirectly by, the person).(3) However, subsection (2) does not apply if the person does the act in a place outside the HKSAR under the authority of a permission granted in accordance with a law in force in the place (being a law substantially corresponding to section 7).(4) A person who contravenes subsection (2) commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 7 years.(5) It is a defence for a person charged with an offence under subsection (4) to prove that the person did not know and had no reason to believe—(a) for a contravention of subsection (2)(a)—that the economic assets were, or were to be, made available to, or for the benefit of, a relevant person or a relevant entity; or(b) for a contravention of subsection (2)(b)—that the person was dealing with economic assets belonging to, or owned or controlled directly or indirectly by, a relevant person or a relevant entity.(6) A person is not to be regarded as having contravened subsection (2) by reason only of having credited an account belonging to, or owned or controlled directly or indirectly by, a relevant person or a relevant entity with—(a) interest or other earnings due on that account; or(b) payment due under contracts, agreements or obligations that arose before the date on which the person or entity became a relevant person or a relevant entity.(7) In this section—deal with (處理) means—(a) in respect of funds—(i) use, alter, move, allow access to or transfer;(ii) deal with in any other way that would result in any change in volume, amount, location, ownership, possession, character or destination; or(iii) make any other change that would enable use, including portfolio management; and(b) in respect of other financial assets or economic resources—use to obtain funds, goods or services in any way, including by selling, hiring or mortgaging the assets or resources. 6. Entry or transit of persons prohibited (1) A relevant person must not enter or transit through the HKSAR.(2) However, subsection (1) does not apply to a case in respect of which—(a) the relevant entry or transit is necessary for the fulfilment of a judicial process; or(b) the Committee has determined that the relevant entry or transit is justified.(3) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 2 years.(4) This section does not apply to a person having the right of abode or the right to land in the HKSAR. Part 3 Licences 7. Licence for making available or dealing with economic assets (1) If, on application, the Chief Executive determines that one or more of the requirements in subsection (2) are met, the Chief Executive must grant, as appropriate, a licence for—(a) making available economic assets to, or for the benefit of, a relevant person or a relevant entity; or(b) dealing with economic assets belonging to, or owned or controlled directly or indirectly by, a relevant person or a relevant entity.(2) The requirements are as follows—(a) the economic assets are—(i) necessary for basic expenses, including payment for foodstuffs, rents, mortgages, medicines, medical treatments, taxes, insurance premiums and public utility charges;(ii) exclusively for the payment of reasonable professional fees or reimbursement of incurred expenses associated with the provision of legal services; or(iii) fees or service charges for the routine holding or maintenance of economic assets belonging to, or owned or controlled directly or indirectly by, a relevant person or a relevant entity;(b) the economic assets are necessary for extraordinary expenses.(3) However, if the Chief Executive determines that the requirement in subsection (2)(a) is met, the Chief Executive—(a) must cause the Committee to be notified of the intention to grant a licence under subsection (1); and(b) must grant the licence in the absence of a negative decision by the Committee within 3 working days of the notification.(4) Also, if the Chief Executive determines that the requirement in subsection (2)(b) is met, the Chief Executive—(a) must cause the Committee to be notified of the determination; and(b) must not grant the licence unless the Committee approves the determination. 8. Provision of false or misleading information or documents for purpose of obtaining licences (1) A person who, for the purpose of obtaining a licence, makes any statement or provides or produces any information or document that the person knows to be false or misleading in a material particular commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 2 years.(2) A person who, for the purpose of obtaining a licence, recklessly makes any statement or provides or produces any information or document that is false or misleading in a material particular commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 2 years. Part 4 Enforcement 9. Application of Part 4 This Part applies if an authorized officer has reason to suspect that a mode of transport to which section 3 applies has been, is being or is about to be used in contravention of section 3(2). 10. Power to board and search modes of transport The authorized officer may—(a) either alone or accompanied and assisted by any person acting under the officer’s authority, board the mode of transport and search it; and(b) for the purposes of paragraph (a), use or authorize the use of reasonable force. 11. Power to require information and production of cargo, article or document (1) The authorized officer may require a responsible person for the mode of transport to—(a) provide any information relating to the mode of transport, or to (for a ship or an aircraft) its cargo or (for a vehicle) any article carried on it, that the officer may specify; or(b) produce for inspection any of its cargo or articles, or any document relating to the mode of transport or to any of its cargo or articles, that the officer may specify.(2) The power under subsection (1) includes a power to—(a) specify whether the information should be provided orally or in writing and in what form; and(b) specify the time by which, and the place at which, the information should be provided or the cargo, article or document should be produced for inspection. 12. Power to direct movement (1) If the mode of transport is a ship, the authorized officer may do one or more of the following—(a) direct a responsible person for the ship to refrain, except with the consent of an authorized officer, from landing, at any port specified by the authorized officer, any part of the ship’s cargo that is specified;(b) require a responsible person for the ship to take any of the following steps—(i) to cause the ship and any of its cargo not to proceed with the voyage on which the ship is then engaged or about to be engaged until the responsible person is notified by an authorized officer that the ship and its cargo may proceed;(ii) if the ship is in the HKSAR—to cause the ship and any of its cargo to remain in the HKSAR until the responsible person is notified by an authorized officer that the ship and its cargo may depart;(iii) if the ship is in another place—(A) to take the ship and any of its cargo to a port specified by an authorized officer; and(B) to cause the ship and its cargo to remain in that place until the responsible person is notified by an authorized officer that the ship and its cargo may depart;(iv) to take the ship and any of its cargo to another destination specified by an authorized officer by agreement with the responsible person.(2) If the mode of transport is an aircraft and the aircraft is in the HKSAR, the authorized officer may require a responsible person for the aircraft to cause the aircraft and any of its cargo to remain in the HKSAR until the responsible person is notified by an authorized officer that the aircraft and its cargo may depart.(3) If the mode of transport is a vehicle, the authorized officer may require a responsible person for the vehicle to—(a) take the vehicle and any article carried on it to a place specified by an authorized officer; and(b) cause the vehicle and the article to remain in that place until the responsible person is notified by an authorized officer that the vehicle and the article may depart. 13. Failure to comply with direction or requirement (1) A responsible person for a mode of transport commits an offence if, without reasonable excuse, the person—(a) disobeys a direction given under section 12(1)(a); or(b) refuses or fails to comply with a requirement made under section 11(1) or 12(1)(b), (2) or (3)—(i) within the time specified by an authorized officer; or(ii) if no time is specified—within a reasonable time.(2) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 6 and to imprisonment for 6 months. 14. Provision of false or misleading information or documents (1) A responsible person for a mode of transport commits an offence if the person, in response to a requirement made under section 11(1)—(a) provides or produces to an authorized officer any information or document that the person knows to be false or misleading in a material particular; or(b) recklessly provides or produces to an authorized officer any information or document that is false or misleading in a material particular.(2) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 6 and to imprisonment for 6 months. 15. Power to enter and detain modes of transport (1) Without limiting sections 13 and 14, this section applies if an authorized officer has reason to suspect that a requirement made under section 12(1)(b), (2) or (3) may not be complied with.(2) The officer may take any steps that appear to the officer to be necessary to secure compliance with that requirement including, in particular, steps to—(a) enter or authorize the entry on any land or the mode of transport concerned;(b) detain or authorize the detention of the mode of transport, or of (for a ship or an aircraft) any of its cargo or (for a vehicle) any article carried on it; or(c) use or authorize the use of reasonable force.(3) Subject to subsections (4) and (5), subsection (2) does not authorize the detention of a ship or vehicle for more than 12 hours, or of an aircraft for more than 6 hours.(4) The Chief Secretary for Administration may, by order in writing, authorize the detention of a ship for further periods of not more than 12 hours each, or of an aircraft for further periods of not more than 6 hours each.(5) The Commissioner may, by order in writing, authorize the detention of a vehicle for further periods of not more than 12 hours each.(6) An order under subsection (4) or (5) must state the time from which, and period for which, the order is effective. 16. Production of proof of identity Before or on exercising a power conferred by this Part, an authorized officer must, if requested by any person, produce proof of the officer’s identity to the person for inspection. Part 5 Evidence 17. Interpretation of Part 5 In this Part—premises (處所) includes any place and, in particular, includes—(a) any mode of transport or offshore structure; and(b) any tent or movable structure;seized property (被檢取財產) means anything seized under section 18(3). 18. Power of magistrate or judge to grant warrant (1) A magistrate or judge may grant a warrant if satisfied by information on oath given by an authorized officer that there are reasonable grounds for suspecting that—(a) an offence under this Regulation has been committed or is being committed; and(b) there is, on any premises specified in the information, evidence in relation to the commission of the offence.(2) A warrant granted under subsection (1) may authorize an authorized officer, together with any other person named in the warrant, at any time within 1 month from the date of the warrant, to—(a) enter the premises specified in the information; and(b) search the premises.(3) A person authorized by a warrant to search any premises may exercise any or all of the following powers—(a) the power to search any person who is found on, or whom the authorized person has reasonable grounds to believe to have recently left or to be about to enter, the premises;(b) the power to seize and detain anything found—(i) on the premises; or(ii) on any person referred to in paragraph (a),that the authorized person has reasonable grounds to believe to be evidence in relation to the commission of an offence under this Regulation;(c) the power to take in relation to anything seized under paragraph (b) any other steps that may appear necessary for preserving the thing and preventing interference with it.(4) A person may only be searched under this section by a person who is of the same sex.(5) If a person is empowered under this section to enter any premises, the person may use any force that is reasonably necessary for the purpose. 19. Detention of seized property (1) A seized property may not be detained for more than 3 months.(2) However, if the seized property is relevant to an offence under this Regulation, and proceedings for the offence have begun, it may be detained until the completion of those proceedings. Part 6 Disclosure of Information or Documents 20. Disclosure of information or documents (1) Any information or document provided, produced or seized under this Regulation may be disclosed only if—(a) the person who provided or produced the information or document or from whom the document was seized has given consent to the disclosure;(b) the information or document is disclosed to a person who would have been empowered under this Regulation to require that it be provided or produced;(c) the information or document is disclosed on the authority of the Chief Executive, subject to the information or document being transmitted through and with the approval of the instructing authority, to—(i) any organ of the United Nations;(ii) any person in the service of the United Nations; or(iii) the Government of any place outside the People’s Republic of China,for the purpose of assisting the United Nations or that Government in securing compliance with, or detecting evasion of, measures in relation to ISIL, Al-Qaida and associated individuals, groups, undertakings and entities decided on by the Security Council; or(d) the information or document is disclosed with a view to the institution of, or otherwise for the purposes of, any proceedings for an offence under this Regulation.(2) For the purposes of subsection (1)(a)—(a) a person may give consent to the disclosure if the person is entitled to the information or to the possession of the document in the person’s own right; and(b) a person may not give consent to the disclosure if the person has obtained the information or possessed the document only in the person’s capacity as servant or agent of another person. Part 7 Other Offences and Miscellaneous Matters 21. Liability of persons other than principal offenders (1) If—(a) the person convicted of an offence under this Regulation is a body corporate; and(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate,the director, manager, secretary or other similar officer is also guilty of the offence.(2) If—(a) the person convicted of an offence under this Regulation is a firm; and(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any partner in the firm or any other person concerned in the management of the firm,the partner or other person is also guilty of the offence. 22. Offences in relation to obstruction of authorized persons etc. A person who obstructs another person (including a person acting under the authority of an authorized officer) in the exercise of the powers of that other person under this Regulation commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 6 months. 23. Offences in relation to evasion of this Regulation A person who destroys, mutilates, defaces, secretes or removes anything with intent to evade any of the provisions of this Regulation commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine and to imprisonment for 2 years. 24. Consent and time limit for proceedings (1) Proceedings for an offence under this Regulation may only be instituted by or with the consent of the Secretary for Justice.(2) Summary proceedings against a person for an offence under this Regulation that is alleged to have been committed outside the HKSAR must be commenced within 12 months from the date on which the person first enters the HKSAR after the alleged commission of the offence. 25. Publication of list of individuals, groups, undertakings and entities by Secretary (1) The Secretary may publish on the website of the Commerce and Economic Development Bureau (CEDB) a list of individuals, groups, undertakings and entities for the purposes of the definitions of relevant person and relevant entity in section 1.(2) The Secretary may include in the list the name of an individual, group, undertaking or entity included in the ISIL (Da’esh) and Al-Qaida Sanctions List.(3) The list may also contain other information that the Secretary considers appropriate.(4) The Secretary may remove the name of an individual, group, undertaking or entity from the list if the individual, group, undertaking or entity no longer meets the description under subsection (2).(5) If a list is published under subsection (1), the Secretary is to make a copy of the list available for inspection by the public free of charge at the office of the Secretary during normal office hours.(6) In any legal proceedings, a document purporting to be a copy of a list referred to in subsection (1) printed from the website of the CEDB—(a) is admissible in evidence on production without further proof; and(b) unless the contrary is proved, is evidence of the information contained in the list. 26. Exercise of powers of Chief Executive (1) The Chief Executive may delegate any of the Chief Executive’s powers or functions under this Regulation to any person or class or description of person.(2) The Chief Executive may authorize a person to whom a power or function is delegated to sub-delegate it to another person or class or description of person.(3) A delegation or authorization under subsection (1) or (2) may be subject to any restriction or condition the Chief Executive considers appropriate. 27. Exercise of powers of Secretary (1) The Secretary may delegate any of the Secretary’s powers or functions under this Regulation to any person or class or description of person.(2) A delegation under subsection (1) may be subject to any restriction or condition the Secretary considers appropriate.