Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region/Schedule 2

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Schedule 2

[r. 2]

Rules Relating to Restriction on Persons under Investigation from Leaving Hong Kong

1. Interpretation

In this Schedule—

travel document (旅行證件) means a passport or other document establishing the identity or nationality of a holder.

2. Surrender of travel documents

(1) A magistrate may, on the application ex parte of a police officer, by written notice require a person who is the subject of an investigation in respect of an offence endangering national security reasonably suspected to have been committed by the person to surrender to the police officer any travel document in the person’s possession.

(2) A notice under subsection (1) must be served personally on the person to whom it is addressed.

(3) A person on whom a notice under subsection (1) is served must comply with the notice immediately.

(4) Subject to subsection (8), a person to whom a notice under subsection (1) is addressed must not leave Hong Kong, whether or not the notice has been served on the person under subsection (2), before the expiry of a period of 6 months from the date of the notice unless—

(a) an application made under section 3(1) of this Schedule for the return of a travel document is granted; or

(b) an application made under section 4(1) of this Schedule for permission to leave Hong Kong is granted.

(5) If a person on whom a notice under subsection (1) has been served fails to comply with the notice immediately, the person may be arrested and taken before a magistrate by a police officer.

(6) Where a person is taken before a magistrate under subsection (5), the magistrate must, unless the person immediately complies with the notice under subsection (1) or satisfies the magistrate that the person does not possess a travel document, by warrant commit the person to prison there to be safely kept—

(a) until the expiry of the period of 28 days from the date of the person’s committal to prison; or

(b) until the person complies with the notice under subsection (1) and a magistrate, by order, orders and directs the Commissioner of Correctional Services to discharge the person from prison (which order is sufficient warrant for the Commissioner of Correctional Services so to do),

whichever occurs first.

(7) Subject to subsection (8), a travel document surrendered to a police officer in compliance with a notice under subsection (1) may be detained for a period of 6 months from the date of the notice unless an application made under section 3(1) of this Schedule for the return of the travel document is granted.

(8) The period of 6 months referred to in subsections (4) and (7) may be extended for a further period of 3 months if a magistrate, on application by the police officer, is satisfied that the investigation could not reasonably have been completed before the date of such application and authorizes such extension. However, a magistrate must not hear an application under this subsection unless reasonable notice of the application has been given by the police officer to the person to whom the relevant notice is addressed.

(9) All proceedings before a magistrate under this section must be conducted in chambers.

(10) A notice under subsection (1) which has been served in accordance with subsection (2) and complied with must not be revoked or withdrawn.

3. Return of travel documents

(1) A person who has surrendered a travel document under section 2 of this Schedule may at any time make application in writing, either to the Commissioner of Police or to a magistrate or both for its return, and every such application must contain a statement of the grounds on which it is made.

(2) A magistrate must not consider an application made under subsection (1) unless the magistrate is satisfied that reasonable notice in writing of it has been given to the Commissioner of Police.

(3) The Commissioner of Police or a magistrate may only grant an application made under subsection (1) if the Commissioner of Police or the magistrate, as the case may be, is satisfied that having regard to all the circumstances, including the interests of the investigation referred to in section 2(1) of this Schedule, a refusal to grant the application would cause unreasonable hardship to the applicant.

(4) Before an application is granted under this section—

(a) the applicant may be required to—

(i) deposit such reasonable sum of money with such person as may be specified;

(ii) enter into such recognizance with such sureties, if any, as may be specified; or

(iii) deposit such a sum of money and enter into such a recognizance as may be specified;

(b) the applicant or surety may be required to deposit such property or document of title with such person as may be specified for retention by that person until such time as any recognizance entered into under this subsection is no longer required or is forfeited.

(5) A recognizance referred to in subsection (4) is to be subject to the conditions that—

(a) the applicant must further surrender the applicant’s travel document to a police officer at such time as may be specified; and

(b) the applicant must appear at such time and place in Hong Kong as may be specified and at such other time and place in Hong Kong as may subsequently be further specified.

(6) An application under this section may be granted either without conditions or subject to the conditions that—

(a) the applicant must further surrender the applicant’s travel document to a police officer at such time as may be specified; and

(b) the applicant must appear at such time and place in Hong Kong as may be specified and at such other time and place in Hong Kong as may subsequently be further specified.

(7) Where a travel document is returned to the applicant under this section subject to a condition imposed under subsection (5)(a) or (6)(a), then after the time specified under that subsection, the provisions of section 2(4) of this Schedule continue to apply in respect of the applicant and the provisions of section 2(7) of this Schedule continue to apply in respect of the travel document surrendered by the applicant pursuant to the condition as if no return had been made to the applicant under this section.

(8) Proceedings before a magistrate under this section—

(a) must be conducted in chambers; and

(b) are deemed to be proceedings which a magistrate has power to determine in a summary way within the meaning of sections 105 and 113(3) of the Magistrates Ordinance (Cap. 227) and, accordingly, Part VII of that Ordinance (which relates to appeals) applies, with the necessary modifications, to appeals against an order of a magistrate under this section.

(9) Anything to be specified in respect of an applicant under this section must be specified by notice in writing served personally on the applicant.

4. Permission to leave Hong Kong

(1) Without prejudice to section 3 of this Schedule, a person on whom a notice under section 2(1) of this Schedule is served may at any time make application in writing to the Commissioner of Police or to a magistrate or both for permission to leave Hong Kong, and every such application must contain a statement of the grounds on which it is made.

(2) A magistrate must not consider an application made under subsection (1) unless the magistrate is satisfied that reasonable notice in writing of it has been given to the Commissioner of Police.

(3) The Commissioner of Police or a magistrate may only grant an application made under subsection (1) if the Commissioner of Police or the magistrate, as the case may be, is satisfied that having regard to all the circumstances, including the interests of the investigation referred to in section 2(1) of this Schedule, a refusal to grant the application would cause unreasonable hardship to the applicant.

(4) Before an application is granted under this section—

(a) the applicant may be required to—

(i) deposit such reasonable sum of money with such person as may be specified;

(ii) enter into such recognizance with such sureties, if any, as may be specified; or

(iii) deposit such a sum of money and enter into such a recognizance as may be specified;

(b) the applicant or surety may be required to deposit such property or document of title with such person as may be specified for retention by that person until such time as any recognizance entered into under this subsection is no longer required or is forfeited.

(5) A recognizance referred to in subsection (4) is to be subject to a condition that the applicant must appear at such time and place in Hong Kong as may be specified and at such other time and place in Hong Kong as may subsequently be further specified.

(6) An application under this section may be granted either without condition or subject to a condition that the applicant must appear at such time and place in Hong Kong as may be specified and at such other time and place in Hong Kong as may subsequently be further specified.

(7) Where a person is permitted to leave Hong Kong under this section subject to a condition imposed under subsection (5) or (6), then after the time specified under that subsection or (if applicable) after the last of the times so specified, the provisions of section 2(4) of this Schedule continue to apply in respect of the person as if the person had not been permitted to leave Hong Kong under this section.

(8) Proceedings before a magistrate under this section—

(a) must be conducted in chambers; and

(b) are deemed to be proceedings which a magistrate has power to determine in a summary way within the meaning of sections 105 and 113(3) of the Magistrates Ordinance (Cap. 227) and, accordingly, Part VII of that Ordinance (which relates to appeals) applies, with the necessary modifications, to appeals against an order of a magistrate under this section.

(9) Anything to be specified in respect of an applicant under this section must be specified by notice in writing served personally on the applicant.

5. Further provisions relating to security, appearance, etc.

(1) Where a person granted an application under section 3 of this Schedule fails to comply with the requirement of any condition imposed under that section—

(a) the person may be arrested and dealt with in the same way that a person who fails to comply with a notice under section 2(1) of this Schedule may be arrested and dealt with under section 2(5) and (6) of this Schedule; and

(b) any deposit made or recognizance entered into under section 3 of this Schedule may be forfeited by a magistrate on application by a police officer or under section 65 (which relates to the enforcement of recognizances) of the Magistrates Ordinance (Cap. 227).

(2) If a person granted an application under section 4 of this Schedule fails to comply with the requirement of any condition imposed under that section, any deposit made or recognizance entered into under that section may be forfeited by a magistrate on application by a police officer or under section 65 of the Magistrates Ordinance (Cap. 227).

(3) Without prejudice to section 65 of the Magistrates Ordinance (Cap. 227), if a magistrate declares or orders the forfeiture of a recognizance under this section, the declaration or order may, on the application of the Commissioner of Police, be registered in the Court of First Instance, and on the registration, the provisions of sections 110, 111, 112, 113 and 114 (which relate to the enforcement of recognizances) of the Criminal Procedure Ordinance (Cap. 221) apply to and in relation to the recognizance.