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5. Accordingly, new section 12AA provides for the making of an order for confiscation of property or pecuniary resources in the control of the convicted person, to an amount or value not exceeding the amount or value of assets the acquisition of which has not been satisfactorily explained. Application for an order must be made by the Attorney General within 28 days after the conviction. Where the assets are held by a person other than the person convicted, then that other person must be given reasonable notice that an order is sought, and an opportunity to show cause why it should not be made. No order may be made upon assets held by a person other than the person convicted if that other person satisfies the court that he received the assets in good faith and has subsequently incurred expense or obligations in respect of the assets of such a nature that an order would be unjust in the circumstances. Additionally, a confiscation order and a monetary penalty under section 12(3) cannot be imposed in respect of the same assets.
6. New section 12AB provides a right of appeal to the Court of Appeal against an order to a person other than the convicted person, who is holding assets against which a confiscation order is made. A convicted person may appeal against such an order under Part IV of the Criminal Procedure Ordinance. New section 12AC states that a court or the Court of Appeal may award costs to any person in respect of proceedings relating to a confiscation order, if the order is not made or is quashed. The costs will be payable from general revenue.
7. Clause 5 makes minor amendments to section 13 of the Ordinance, first to ensure that where an investigating officer may require the production of documents and articles, they may be copied or photographed as appro- priate and secondly to remove doubts about the scope of an authorization under that section.
8. Clause 6 amends section 14, dealing with the powers of the Commissioner to obtain information in the course of an investigation. Under section 14(1) a suspect, or another person, may be required by written notice to give a written statement listing his assets. The amount of detail to be given depends on whether the statement is required from a suspect or from another person, but in neither case it is presently required to state from whom the property was acquired, and in one case it is not required to state when it was acquired. Both of these details are considered vital aspects of an investigation and provision is made to include them by amending section 14(1)(a) and (c) of the principal Ordinance.
9. Clauses 7 and 8 make a number of related amendments with respect to notices and orders restricting dealings by a suspected person with property held by him or by a third party on his behalf.
10. Clause 7 amends section 14A of the Ordinance-
(a) to make it clear that a notice issued by the Commissioner under that section to a suspect will, unless it otherwise provides, apply also to the income from the property specified in the notice; and
(b) to enable a notice to remain in force once a prosecution has commenced, until proceedings on the prosecution are finalized (as is presently the case with restraining orders under section 14C) and, if a confiscation or monetary penalty order is made on conviction, until that order is complied with.
i
t
A
11. Clause 8 amends section 14C—
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(a) to provide that a restraining order in respect of specified property
may also apply to income from the property; and
(b) to provide that where a confiscation or monetary penalty order is made on the conviction of a suspected person the restraining order will remain in force until the order is complied with.
12. Clauses 9 and 10 amend procedures governing the surrender and the return of a suspect's travel document. Clause 9 amends section 17A—
(a) to make it clear that an initial application for the surrender of a
travel document shall be made ex parte;
(b) to require notice of an application to detain a travel document beyond the initial 6 month period to be given to the former holder; and
(c) to specify that a notice to surrender, once served and complied with, cannot be withdrawn (the appropriate manner of seeking a return of travel documents being provided by new section 17B). 13. Clause 10 inserts two new sections. Section 17B deals generally with the return of travel documents surrendered under section 17A. It provides that the former holder of a travel document may apply to the Commissioner at any time for its return. The Commissioner may return the document, with or without conditions, refuse to return it, or refer the application to a magistrate for determination. Where return of the docu- ment is refused, or is subject to conditions, the applicant may appeal to a magistrate who will then determine whether, and upon what conditions, the document will be returned. The Commissioner or a magistrate, as the case may be, may require the holder to enter into a recognizance or deposit assets as security for compliance with the conditions of return. New section 17C provides a power to arrest the holder where he has failed to comply with conditions upon which his travel document was returned, and for forfeiture of securities by a magistrate.
14. Clause 11 amends section 18 to provide for the deposit of property and documents of title as security for the grant of bail under that section, and for additional powers to enforce a forfeited recognizance, in the same manner as provided by section 17C.
15. Clause 12 amends section 21A (under which a certificate signed by the Chief Secretary as to the emoluments and status of a Crown servant at any time may be admitted as evidence in proceedings for an offence against section 10) to enable such a certificate to be tendered in proceedings for any offence under the Ordinance.
16. Clause 13 deletes from the Schedule of public bodies the Hong Kong Model Housing Society which has been dissolved.
17. Clause 14 replaces references to the Colony with references to Hong Kong throughout the Ordinance.
18. The Bill has no Public Service staffing or public expenditure implications.
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