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 7

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Schedule 7

[r. 2]

Rules Relating to Requirement to Furnish Information and Produce Materials

1. Interpretation

In this Schedule—

authorized officer (獲授權人員) means—

(a) any police officer; or

(b) any person authorized in writing by the Secretary for Justice for the purposes of this Schedule.

2. Requirement to furnish information or produce material

(1) The Secretary for Justice may, for the purpose of an investigation into an offence endangering national security, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or to persons of a particular description.

(2) The Court of First Instance may, if on such an application it is satisfied that the conditions in subsection (4)(a), (b) and (d) or subsection (4)(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person, or persons of the particular description, to whom the application relates.

(3) An order under subsection (2) must—

(a) give particulars of the offence endangering national security that is under investigation;

(b) identify the particular person, or state the particular description of persons, in respect of whom the order is made;

(c) authorize the Secretary for Justice to require the person or persons in respect of whom the order is made to do either or both of the following—

(i) to answer questions or furnish information with respect to any matter that reasonably appears to an authorized officer to be relevant to the investigation;

(ii) to produce any material that reasonably appears to the Secretary for Justice to relate to any matter relevant to the investigation, or any material of a class that reasonably appears to the Secretary for Justice so to relate; and

(d) contain such other terms (if any) as the Court of First Instance considers appropriate in the public interest, but nothing in this paragraph is to be construed as authorizing the court to order the detention of any person in custody without that person’s consent.

(4) The conditions referred to in subsection (2) are—

(a) that there are reasonable grounds for suspecting that the offence endangering national security under investigation has been committed;

(b) where the application relates to a particular person—that there are reasonable grounds for suspecting that the person has information, or is in possession of material, likely to be relevant to the investigation;

(c) where the application relates to persons of a particular description, that—

(i) there are reasonable grounds for suspecting that some or all persons of that description have such information or are in possession of such material; and

(ii) the offence endangering national security could not effectively be investigated if the application was required to relate to a particular person, whether because of the urgency of the investigation, the need to keep the investigation confidential or the difficulty in identifying a particular person who has relevant information or material;

(d) that there are reasonable grounds for believing that it is in the public interest that an order under subsection (2) should be made in respect of that person or those persons, having regard to—

(i) the seriousness of the offence endangering national security under investigation;

(ii) whether or not the offence endangering national security could be effectively investigated if an order under subsection (2) is not made;

(iii) the benefit likely to accrue to the investigation if the information is disclosed or the material obtained; and

(iv) the circumstances under which the person or persons may have acquired, or may hold, the information or material (including any obligation of confidentiality in respect of the information or material and any family relationship with a person to whom the information or material relates).

(5) Where an order under subsection (2) authorizes the Secretary for Justice to require a person to answer questions or furnish information with respect to any matter that reasonably appears to an authorized officer to be relevant to an investigation, the Secretary for Justice may by one, or more than one, notice in writing served on that person require that person to attend before an authorized officer at a specified time and place, or at specified times and places, and answer questions or furnish information with respect to any matter that reasonably appears to the authorized officer to be relevant to the investigation.

(6) Where an order under subsection (2) authorizes the Secretary for Justice to require a person to produce any material that reasonably appears to the Secretary for Justice to relate to any matter relevant to an investigation, or any material of a class that reasonably appears to the Secretary for Justice so to relate, the Secretary for Justice may by one, or more than one, notice in writing served on that person require that person to produce at a specified time and place, or at specified times and places, any specified material that reasonably appears to the Secretary for Justice so to relate or any material of a specified class that reasonably appears to the Secretary for Justice so to relate.

(7) A notice in writing imposing a requirement on a person under subsection (5) or (6) must—

(a) state that a court order has been made under this section and include—

(i) the date of the order;

(ii) the particulars of the offence endangering national security under investigation;

(iii) where the order is made in respect of that particular person, a statement to that effect;

(vi) where the order is made in respect of persons of a particular description and that person is of that particular description, a statement to that effect;

(v) a statement of the authorization given to the Secretary for Justice by the order; and

(vi) a statement of any other terms of the order relevant to that person;

(b) have annexed to it a copy of the order made under this section, but there may be excluded from such copy—

(i) any reference in the order to a particular person other than that person, or to persons of a particular description not including that person; and

(ii) any details in the order that relate only to such particular person or persons of a particular description; and

(c) set out or have annexed to such notice the provisions of subsections (8), (9) and (10) and section 5 of this Schedule.

(8) An authorized officer may photograph or make copies of any material produced in compliance with a requirement under this section.

(9) A person must not under this section be required to furnish any information or produce any material relating to items subject to legal professional privilege, except that a lawyer may be required to furnish the name and address of the lawyer’s client.

(10) An order under subsection (2), and a notice in writing imposing a requirement under subsection (5) or (6), may be made in relation to information held by, and material in the possession of any Government department or any body specified by the Chief Executive by notice in the Gazette.

(11) A person is not excused from furnishing information or producing any material required under this section on the ground that to do so—

(a) might tend to incriminate the person; or

(b) would breach an obligation as to secrecy or another restriction on the disclosure of information or material imposed by statute or otherwise.

(12) A statement by a person in response to a requirement imposed by virtue of this section may not be used against the person in criminal proceedings against the person except as follows—

(a) in evidence in proceedings under subsection (14) or section 36 of the Crimes Ordinance (Cap. 200); or

(b) for the purpose of impeaching the person’s credibility in proceedings in respect of any offence where in giving evidence the person makes a statement inconsistent with it.

(13) Any person who without reasonable excuse fails to comply with a requirement imposed on the person under this section commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 1 year.

(14) Any person who, in purported compliance with a requirement under this section—

(a) makes a statement that the person knows to be false or misleading in a material particular; or

(b) recklessly makes a statement that is false or misleading in a material particular,

commits an offence and is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 3 years.

(15) Where an order under subsection (2) has been made, the Secretary for Justice, or a person authorized in writing by the Secretary for Justice for the purpose of this subsection, may, after satisfying any conditions that may be prescribed by rules of court in this respect, obtain a copy of the order; but subject to the foregoing part of this subsection and to subsection (7)(b), no person is entitled to obtain a copy of the order or any part of the order.

(16) Where a requirement imposed on a person under this section relates to material which consists of information recorded otherwise than in legible form—

(a) the requirement is to have effect as a requirement to produce the material in a form in which it can be taken away; and

(b) an authorized officer may, by notice in writing served on that person, require that person to produce at a specified time and place, or at specified times and places, the material in a form in which it is visible and legible and can be taken away, and may by like notice release the person from any obligation under the requirement to produce the material in the form in which it is recorded.

(17) An application for the discharge or variation of an order made under this section may be made by any person on whom a requirement is imposed under the order.

3. Order to make material available

(1) The Secretary for Justice or an authorized officer may, for the purpose of an investigation into—

(a) an offence endangering national security; or

(b) the proceeds of an offence endangering national security of any person who has committed or is suspected of having committed an offence endangering national security,

make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to particular material or to material of a particular description, whether in Hong Kong or, in the case of an application by the Secretary for Justice, elsewhere.

(2) Subject to subsection (5), the court may, if on such an application it is satisfied that the conditions in subsection (4)(a), (c) and (d) or subsection (4)(b), (c) and (d) are fulfilled, make an order that the person who appears to the court to be in possession or control of the material to which the application relates must—

(a) produce the material to an authorized officer for the officer to take away; or

(b) give an authorized officer access to it, within such period as the order may specify.

(3) The period to be specified in an order under subsection (2) must be 7 days unless it appears to the court that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4) The conditions referred to in subsection (2) are—

(a) where the investigation is into an offence endangering national security, that there are reasonable grounds for suspecting that the offence endangering national security has been committed;

(b) where the investigation is into a person’s proceeds of an offence endangering national security—

(i) that the person has committed an offence endangering national security, or that there are reasonable grounds for suspecting that the person has committed an offence endangering national security; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from an offence endangering national security;

(c) that there are reasonable grounds for believing that the material to which the application relates—

(i) is likely to be relevant to the investigation for the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal professional privilege;

(d) that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given, having regard to—

(i) the benefit likely to accrue to the investigation if the material is obtained; and

(ii) the circumstances under which the person in possession or control of the material holds or controls it, as the case may be.

(5) Where an application under subsection (1) relates to material of a particular description, an order under subsection (2) may be made only where an application in relation to particular material is not reasonably practicable.

(6) Where a court makes an order under subsection (2)(b) in relation to material on any premises it may, on the same or a subsequent application of an authorized officer, order any person who appears to it to be entitled to grant entry to the premises to allow an authorized officer to enter the premises to obtain access to the material.

(7) An application for the discharge or variation of an order made under subsection (2) or (6) may be made by any person who is subject to the order.

(8) Where material to which an application under this section relates consists of information recorded otherwise than in legible form—

(a) an order under subsection (2)(a) is to have effect as an order to produce the material to an authorized officer in a form in which it can be taken away by the officer; and

(b) an order under subsection (2)(b) is to have effect as an order to give an authorized officer access to the material in a form in which it is visible and legible.

(9) Where an order made under subsection (2)(a) relates to information recorded otherwise than in legible form, an authorized officer may, by notice in writing, require the person to produce the material in a form in which it is visible and legible and can be taken away, and may by like notice release the person from any obligation under the order to produce the material in the form in which it is recorded.

(10) An order under subsection (2)—

(a) must not confer any right to production of, or access to, items subject to legal professional privilege; and

(b) may be made in relation to material in the possession or control of any Government department or any body specified by the Chief Executive by notice in the Gazette.

(11) A person is not excused from producing any material in relation to which an order under subsection (2) is made on the ground that to do so—

(a) might tend to incriminate the person; or

(b) would breach an obligation as to secrecy or another restriction on the disclosure of information or material imposed by statute or otherwise.

(12) Any person who without reasonable excuse fails to comply with an order made under subsection (2) commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 1 year.

(13) An authorized officer may photograph or make copies of any material produced under this section.

4. Disclosure of information obtained under section 2 or 3 of this Schedule

(1) Where any information subject to an obligation of secrecy under the Inland Revenue Ordinance (Cap. 112) has been obtained from the Commissioner of Inland Revenue or any officer of the Inland Revenue Department under or by virtue of section 2 or 3 of this Schedule, that information may be disclosed by any authorized officer to the Secretary for Justice for the purposes of—

(a) any prosecution of an offence endangering national security;

(b) an application for a confiscation order under section 9 of Schedule 3 or an application for a forfeiture order under section 13 of Schedule 3; or

(c) an application for a restraint order or charging order under section 6 of Schedule 3,

but may not otherwise be disclosed.

(2) Subject to subsection (1), information obtained by any person under or by virtue of section 2 or 3 of this Schedule may be disclosed by any authorized officer—

(a) to the Department of Justice and the Hong Kong Police Force; and

(b) where the information appears to the Secretary for Justice to be likely to assist any corresponding person or body to discharge its functions—to that person or body.

(3) Subsection (2) is without prejudice to any other right to disclose information obtained under or by virtue of section 2 or 3 of this Schedule that may exist apart from subsection (2).

(4) In this section—

corresponding person or body (相應的人員或機構) means any person who or body which, in the opinion of the Secretary for Justice, has under the law of a place outside Hong Kong functions corresponding to any of the functions of any body mentioned in subsection (2)(a).

5. Offence of prejudicing investigation

(1) Where an order under section 2 or 3 of this Schedule has been made or has been applied for and has not been refused, a person who, knowing or suspecting that the investigation in relation to which the order has been made or applied for is taking place—

(a) without lawful authority or reasonable excuse makes any disclosure intending to prejudice the investigation or makes any disclosure being reckless as to whether the disclosure will prejudice the investigation; or

(b) falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of any material—

(i) knowing or suspecting that the material is likely to be relevant to the investigation; and

(ii) intending to conceal the facts disclosed by the material from persons carrying out the investigation,

commits an offence.

(2) Where a person has been arrested in connection with an investigation specified in subsection (1), that subsection does not apply as regards any disclosure in respect of the investigation made after such arrest.

(3) A person who commits an offence under this section is liable on conviction on indictment to a fine and to imprisonment for 7 years.

6. Rules of court

For the rules of court applicable to any application made under this Schedule, reference may be made to the rules of court applicable to similar applications under the laws of Hong Kong (in particular, the Rules of the High Court made under section 30 of the Organized and Serious Crimes Ordinance (Cap. 455)) with the necessary modifications.

[SIGNED ON THE CHINESE TEXT]
Chief Executive

6 July 2020