Cap. 525 sub. leg. O

Mutual Legal Assistance in Criminal Matters (Ukraine) Order(Cap. 525, section 4)(Enacting provision omitted—E.R. 1 of 2020) [3 July 2004] L.N. 124 of 2004(Format changes—E.R. 1 of 2020) 1. (Omitted as spent—E.R. 1 of 2020) 2. Ordinance to apply between Hong Kong and Ukraine (1) 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 Ukraine.(2) In subsection (1), scheduled arrangements for mutual legal assistance (列明的相互法律協助的安排) means arrangements which are applicable to Hong Kong and Ukraine, a copy of which is annexed at Schedule 2. Schedule 1 [s. 2]Modifications to the Ordinance 1. Section 5(1)(e) of the Ordinance shall be modified to read as follows— “(e) the request relates to the prosecution of a person for an external offence in a case where the person—*(i)* 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(ii)* 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;”. 2. Section 5(1) of the Ordinance shall be modified by adding— “(ea) the request relates to the prosecution of a person in respect of an act or omission that, if it had occurred in Hong Kong, could no longer be prosecuted in Hong Kong by reason of lapse of time;*”. 3. Section 17(3)(b) of the Ordinance shall be modified to read as follows— “(b) the person has had an opportunity of leaving Hong Kong, 15 days have expired since that opportunity* and the person* has remained in Hong Kong otherwise than for—(i) the purpose to which the request relates; or(ii) 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.”. * 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). Schedule 2 [s. 2]Agreement between the Hong Kong Special Administrative Region of the People’s Republic of China and Ukraine Concerning Mutual Legal Assistance in Criminal Matters The Hong Kong Special Administrative Region of the People’s Republic of China (“The Hong Kong Special Administrative Region”), having been duly authorised by the Central People’s Government of the People’s Republic of China, and Ukraine, hereinafter referred to as “the Parties”, Being guided by mutual intent to improve the effectiveness of co-operation of both Parties in the fields of prevention, investigation and prosecution of crime and the confiscation of criminal proceeds; Have agreed as follows: ARTICLE 1SCOPE OF LEGAL ASSISTANCE (1) The Parties shall provide, in accordance with the provisions of this Agreement, legal assistance in the investigation and prosecution of criminal offences and in proceedings related to criminal matters. (2) Legal assistance shall include:(a) location of persons and objects, including their identification;(b) serving of documents including documents seeking attendance of persons;(c) the furnishing of information, articles, records and documents, including criminal records, judicial documents and other official documents;(d) obtaining of evidence and testimony;(e) search and seizure of property;(f) taking measures in relation to locating, restraint and confiscation of criminal proceeds;(g) effecting the temporary transfer of persons in custody to provide assistance;(h) transfer of property, whether temporary or otherwise, including material evidence and exhibits. (3) In the case of requests relating to taxation offences assistance shall be refused if the primary purpose of the request is the assessment or collection of tax. (4) 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.ARTICLE 2CENTRAL AUTHORITIES (1) The Parties shall establish Central Authorities. (2) The Central Authority of Ukraine shall be the General Prosecutor’s Office of Ukraine in relation to matters under preliminary investigation and the Ministry of Justice of Ukraine in relation to judicial proceedings. The Central Authority of 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. (3) Requests in relation to matters under this Agreement shall be sent by the Central Authority of the Requesting Party to the Central Authority of the Requested Party.ARTICLE 3OTHER ASSISTANCE The Parties may provide assistance pursuant to other agreements, arrangements or practices.ARTICLE 4LIMITATIONS ON COMPLIANCE (1) The Requested Party shall refuse legal assistance if:(a) such assistance may impair the sovereignty, security or public order of Ukraine or, in the case of the Hong Kong Special Administrative Region, the People’s Republic of China;(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 fulfillment of the request for assistance will result in prejudice to a person on account of his/her race, 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 Requested Party or for which the person could no longer be prosecuted by reason of lapse of time if the offence had been committed within the jurisdiction of the Requested Party;(f) the Requesting Party cannot comply with any conditions in relation to confidentiality or limitation as to the use of material provided;(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; or(h) it is of the opinion that the granting of the request would seriously impair its essential interests. (2) 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. (3) The Requested Party may postpone assistance if execution of the request would interfere with an ongoing investigation or prosecution in the Requested Party. (4) Where the Requested Party is considering denying or postponing assistance pursuant to this Article it shall, through the Central Authorities—(a) promptly inform the Requesting Party of its reasons for considering denial or postponement; and(b) consult with the Requesting Party to determine whether assistance may be given subject to such terms and conditions as the Requested Party deems necessary. (5) If the Requesting Party accepts assistance subject to the terms and conditions referred to in paragraph (4)(b), it shall comply with those terms and conditions.ARTICLE 5CONTENTS AND FORM OF REQUESTS FOR LEGAL ASSISTANCE (1) Requests shall be made in writing. In urgent cases, requests may be made orally, but shall be confirmed in writing within 10 days thereafter. (2) Requests for legal assistance shall include:(a) the name of the authority on behalf of which the request is made;(b) 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;(d) a summary of the matter and text of the relevant provisions of the law;(e) any requirements for confidentiality;(f) details of any particular procedure the Requesting Party wishes to be followed;(g) the time within which the request should be complied with; and(h) any other information which is required to facilitate execution of the request. (3) A request and documents submitted in support of the request shall, if they are not in English, be accompanied by a translation into English.ARTICLE 6EXECUTION OF REQUESTS FOR LEGAL ASSISTANCE (1) The Central Authority to whom a request is sent shall promptly execute the request or arrange for its execution by 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 its law, in accordance with the directions stated in the request (with the utmost possible compliance with the procedure suggested by the Requesting Party). (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.ARTICLE 7REPRESENTATION AND EXPENSES (1) The Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceeding related to a request for assistance and shall otherwise represent the interests of the Requesting Party. (2) The Requested Party shall assume all ordinary expenses relating to the execution of the request, except:(a) fees of counsel retained at the request of the Requesting Party;(b) fees of experts;(c) expenses of translation, interpretation and record-keeping; and(d) travel expenses and allowances of persons. (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 each other to determine the terms and conditions under which the execution of the request may continue.ARTICLE 8LIMITATIONS OF USE (1) The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished including documents, articles or records 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 including documents, articles or records for purposes other than those stated in the request without the prior consent of the Central Authority of the Requested Party.ARTICLE 9OBTAINING EVIDENCE (1) Where a request is made that evidence be taken for the purpose of an investigation, prosecution or proceeding in relation to a criminal matter in the jurisdiction of the Requesting Party the Requested Party shall arrange to have such evidence taken. (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 for assistance under this Article the Requesting Party shall specify the questions to be put to the witnesses or the subject matter they are to be examined on. (4) Where pursuant to the request for assistance under this Article a person is required to give evidence, that person, the person to whom the investigation, prosecution or proceeding relates and representatives of the Requesting Party may, subject to the laws of the Parties, appear or have legal representation or both when the evidence is taken. (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 legislation 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 legislation of the Requesting Party would permit him to decline to give evidence in such proceedings in the Requesting Party. (6) If any person claims that there is the 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 10OBTAINING STATEMENTS OF PERSONS Where a request is made to obtain the statement of a person for the purpose of an investigation, prosecution or proceeding in relation to a criminal matter in the Requesting Party, the Requested Party shall endeavour to obtain such statement.ARTICLE 11LOCATION OR IDENTIFICATION OF PERSONS AND ARTICLES The Requested Party shall, if requested, endeavour to ascertain the location or identity of any person or articles specified in the request.ARTICLE 12SERVICE 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 that requires 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 that requires 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 shall, subject to its law, return a proof of service in the manner required by the Requesting Party. (5) No request may result in any penalty or coercive measure for non-appearance.ARTICLE 13PUBLICLY AVAILABLE AND OFFICIAL DOCUMENTS (1) Subject to its law the Requested Party shall, if requested, provide copies of publicly available documents. (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 14AUTHENTICATION (1) Documents or other material which are to be transmitted to the Requesting Party shall only be certified or authenticated if the Requesting Party so requests. Such material shall not require any particular form of certification or authentication unless the law of the Requesting Party specifically so requires. (2) Documents furnished by the Requesting Party in support of a request shall only be certified or authenticated if the Requested Party so requests. Such documents shall not require any particular form of certification or authentication unless the law of the Requested Party specifically so requires.ARTICLE 15TRANSFER 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 his 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.ARTICLE 16TRANSFER 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 the satisfactory arrangements for that person’s security will be made by the Requesting Party, request the person to travel to the Requesting Party to provide assistance.ARTICLE 17SAFE CONDUCT (1) A person who is in the Requesting Party for the purpose of providing assistance pursuant to Articles 15 or 16 shall not, whilst there:(a) be prosecuted, detained, or restricted in his personal liberty for any criminal offence which preceded his departure from the Requested Party, except as provided in Article 15;(b) be subject to any civil suit in respect of acts or omissions which preceded his departure from the Requested Party unless the civil suit could have been instituted against him even if he were not present in the Requesting Party. (2) Paragraph (1) shall not apply if the person has not left the Requesting Party within a period of 15 days after being notified that his presence is no longer required, except for cases when such person is unable to leave the Requesting Party due to circumstances beyond that person’s control. (3) A person who consents to give evidence under Articles 15 or 16 shall not be subject to prosecution based on his testimony, except for perjury. (4) A person who consents to provide assistance pursuant to Articles 15 or 16 shall not be required to provide assistance in any proceedings other than the proceedings to which the request relates. (5) A person who does not consent to provide assistance pursuant to Articles 15 or 16 shall not by reason thereof be liable to any penalty or coercive measure by the courts of the Requesting Party or Requested Party.ARTICLE 18SEARCH 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 an investigation, prosecution or proceeding in relation to a criminal matter. (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 property seized. (3) 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.ARTICLE 19PROCEEDS FROM CRIME (1) The Requested Party shall, upon request, endeavour to ascertain whether any proceeds from crime according to 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 from 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 from crime, pending a final determination in respect of those proceeds by a Court of the Requesting Party. (3) Where a request is made for assistance in securing the confiscation of proceeds such request shall be executed pursuant to 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 to which the request relates. (4) Proceeds confiscated pursuant to this Agreement shall be retained by the Requested Party unless otherwise agreed upon between the Parties. (5) For the purpose of this Agreement “proceeds from crime” includes—(a) payments or other rewards received in connection with a criminal offence or their value;(b) property derived or realized directly or indirectly from payments or other rewards received in connection with a criminal offence or the value of such property;(c) property used or intended to be used in connection with a criminal offence or the value of such property; and(d) a pecuniary advantage obtained in connection with a criminal offence.ARTICLE 20SETTLEMENT 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 21ENTRY 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 is concluded for an indefinite term and shall terminate six months after either of the Parties has given notice to the other of such termination. 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.Done at the Hong Kong Special Administrative Region, this Second Day of April Two Thousand and Three in the Chinese, English and Ukrainian languages, each text being equally authentic. In case of divergence in interpretation the English text shall prevail.