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Obtaining of evidence (EO Section 76): Evidence may be obtained through examination of witnesses and the production of documents. Search and seizures for evidentiary purposes (MLAO Section 12): Search warrants relating to persons, land, and any premises, including the seizing of anything found in the course of the search that is reasonably believed to be relevant, may be issued if the request relates to a serious offense and there are reasonable grounds to believe that a thing relevant to the case is located in Hong Kong SAR, China. A search and seizing warrant may be issued with respect to any “thing” including books, documents, or other records and any articles or substances. The “things,” however, do not include any item subject to legal privilege or, if the request relates to an investigation into taxation offenses, any “tax documents” that belong to a tax adviser or auditor and are (in specified ways) connected with the giving or obtaining of advice about the tax affairs of the client. Production Orders (MLAO Section 15): Assistance may be sought if the request relates to a serious offense and there are reasonable grounds to believe that the material for which the order is sought is located or likely to be located in Hong Kong SAR, China. The “things,” however, do not include any item subject to legal privilege or, if the request relates to an investigation into taxation offenses, any “tax documents” that belong to a tax adviser or auditor and are (in specified ways) connected with the giving or obtaining of advice about the tax affairs of the client. Serving of Documents (MLAO Section 31): A person’s failure to comply with any foreign process served is not an offense under Hong Kong SAR, China, law. Monitoring orders are not available under the MLAO and the DTROP.
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C.3. Access to Information Covered by Banking or Professional Secrecy •
Pursuant to MLAO Section 15, the production of items or information covered by other secrecy obligations (including banking secrecy) may be compelled if the secretary for justice is satisfied that it is in the public interest of Hong Kong to do so; items may not be compelled if they are subject to legal privilege or, if the request relates to an investigation into taxation offenses and the production order relates to a tax advisor or a relevant auditor, “tax documents” that belong to a tax advisor or auditor and are (in specified ways) connected with the giving or obtaining of advice about the tax affairs of the client.
Provisional Measures (Freezing, Seizing, and Restraint Orders) C.4. Direct Enforcement of Foreign Freezing and Seizing Orders •
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Book 1.indb 138
The MLAO and the DTROP do not provide for direct application of foreign restraint or seizing orders. Rather, requesting countries through the secretary of justice have to apply for issuance of a domestic restraint order pursuant to MLAO Section 27 MLAO or DTROP Section 10 (as modified by DTROP Or) as outlined below. The DTROP is confined to proceeds relating to drug trafficking offenses. I
Barriers to Asset Recovery
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