RE PURSUANT TO SECTION 4 OF THE ORGANIZED AND SERIOUS CRIMES ORDINANCE, CHAPTER 455

HCCM 52/2018

[2018] HKCFI 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONFIDENTIAL MISCELLANEOUS PROCEEDINGS

NO 52 OF 2018

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D E C I S I O N

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1.  This is an application for a production order pursuant to section 4(2) of the Organized and Serious Crimes Ordinance, Cap 455. It is said to satisfy the conditions in section 4(4)(b), (c) and (d) which read:

“(b) where the investigation is into the proceeds of organized crime or a specified offence of a person—

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(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 privilege;

(d) that there are reasonable grounds for believing that it is in the public interest, having regard—

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

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

that the material should be produced or that access to it should be given.”

2.  Those conditions in so far as material refer to “the investigation”.  The issue here is whether this application comes within the concept of an investigation now that the subject of the investigation has been charged with the offence of dealing with property known or believed to represent proceeds of an indictable offence, and is due to stand trial in the District Court on 13 March 2018. 

3.  There is no specific provision that bars applying for a production order once proceedings for an offence are instituted.  A case can continue to be under investigation notwithstanding that a charge or charges have been laid against an alleged offender or offenders.  It still remains that the relevant authorities are seeking to gather further material in investigating the case.

4.  Upon being satisfied that all the requirements and conditions have been met, I grant the application.