TNAG-2879-FCO40-4151-Agreements-between-the-Hong-Kong-Special-Administrative-Regi-1993 — Page 116

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International Criminal Division

Miss Brooks, Legal Advisers

p1 UK/SARG ра

370/9

CIVED IN

SOLICITOR'S OFFICE

HM CUSTOMS AND EXCISE

NEW KING'S BEAM HOUSE 22 UPPER GROUND

10 AUG 1993

ISTRY

LONDON SE1 9PJ

Dial Direct 071-865 extn 5725 Switchboard 071-620 1313

GTN 3913

Your reference

Ou reference

M3-739

Mr P F Ricketts

Hong Kong Department

Foreign and Commonwealth Office

Whitehall

London

SW1A 2AF

DESK OFFIC

GURY

August 1993

RE: DRAFT AGREEMENT BETWEEN HONG KONG AND THE UK CONCERNING

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

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In my letter of 23 June 1993, I said that I would be submitting the draft text to the Asset Forfeiture Unit in this Division in order to comment on the part of the text dealing with the restraint and confiscation of the proceeds of crime. I have now received a response from the Unit and would make the following points:-

1. The main problem identified is that the draft refers in Article 1, paragraph (2)(h), and in Article 1(x), to the confiscation etc of the proceeds of crime. It is pointed out that the relevant law in the UK, and also in Hong Kong, provides for the restraint and confiscation of property which represents the value of the proceeds of crime, whether or not that property is itself, directly or indirectly, the proceeds. This is an important point, since clearly a defendant in criminal proceedings very often possesses property coming from a wide range of sources and, where there is evidence to suggest that he has benefited from crime, the prosecution will wish to restrain and confiscate any property belonging to him whether or not that property can be shown to have been obtained through the commission of the crime. It is suggested that a simple solution would be for words such as "or their value" to be inserted wherever restraint or confiscation etc of the proceeds of crime is referred to;

2. Article XIX is clearly in very general terins, and it seems to us that there should somewhere be detailed provisions as to the information and documents which should be supplied by one party to the other for the purposes of restraint and confiscation etc. The existence of such provisions minimises the risk of delays caused by the requested party having to return requests which do not contain sufficient information or essential documentation. It is pointed out that the European Convention on Laundering, Search, Seizure And Confiscation Of The Proceeds From Crime done at

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