REGISTRATION UNDER SECTION 28 OF CAP. 525
Turning an external confiscation order into an enforceable Hong Kong order
Where a place outside Hong Kong obtains a qualifying confiscation order and seeks to recover property or value located in the HKSAR, the order is not automatically enforceable here. The Secretary for Justice must apply to the Court of First Instance for registration under section 28 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525).
If the Court registers the order, it may be enforced under section 27 as an order of the Court of First Instance. The external order may concern specified property, the value of criminal proceeds or another form of recovery falling within the statutory definition; it is not limited to a conventional conviction-based order against one individual.
UPDATE AND LEGAL CONTEXT
The enforcement stage of international asset recovery
Registration differs from interim restraint and must be considered against the current MLA position.
Restraint preserves; confiscation enforces recovery
A restraint order temporarily prevents dealings while a possible external confiscation order is preserved.Registration and enforcement are the later steps by which a qualifying external confiscation order is given effect in Hong Kong.
Current agreement status
Hong Kong currently has 21 operative bilateral MLA agreements.Singapore and the Republic of Korea are operative; the Netherlands is suspended; Kazakhstan is signed but not yet in force.
Assistance outside an operative treaty
Cap. 525 contains a mechanism for assistance supported by a certificate under section 5 where no prescribed arrangement applies.Whether assistance is provided remains an executive and legal determination in the individual request; it is not automatic merely because reciprocity is offered.
STATUTORY PROVISIONS
Registration and its principal safeguards
Registration of an external order
Under section 28 of Cap. 525, on an application by the Secretary for Justice, the Court of First Instance may register an external confiscation order if the statutory requirements are satisfied.
Registration is the gateway to enforcement in Hong Kong. Once registered, section 27 permits the external order to be enforced as an order of the Court of First Instance.
Finality requirement
At the time of registration, the external confiscation order must be in force and not subject to appeal. Appeal includes proceedings to discharge or set aside the judgment and applications for a new trial or stay of execution.
The requesting place must establish that the operative confiscation order is sufficiently final before Hong Kong enforcement may proceed.
Notice and opportunity to defend
Where a person against whom, or in relation to whose property, the order was made did not appear in the foreign proceedings, the Court must be satisfied that the person received notice in accordance with foreign law and in sufficient time to defend the proceedings.
A respondent may challenge registration by showing that the foreign process did not provide the notice and opportunity to defend required by section 28.
Interests of justice
The Court must be of the opinion that enforcing the external confiscation order in Hong Kong would not be contrary to the interests of justice.
This provides an additional judicial safeguard and permits the Court to consider whether enforcement would be unjust in the circumstances.
Double-jeopardy bar
The general refusal provisions in Cap. 525 prevent compliance where it would be contrary to Hong Kong law relating to double jeopardy.
The defence may examine whether the same person and conduct have already been finally determined in a manner engaging Hong Kong's double-jeopardy protection.
REGISTRATION PROCEDURE AND DEFENCE STRATEGIES
From foreign order to enforcement in Hong Kong
The respondent has an opportunity to contest whether the statutory requirements for registration and enforcement have been established.
Foreign order and request
The requesting place supplies the external confiscation order and information establishing its status, the underlying proceedings, notice to affected persons and the property or value sought to be recovered in Hong Kong.
Application by the Secretary for Justice
The Secretary for Justice applies to the Court of First Instance for registration and enforcement. Certificates and duly authenticated foreign court documents may be used to prove specified matters under Cap. 525.
Notice and contested hearing
Affected persons may oppose registration or enforcement and raise matters including finality, defective notice, the interests of justice, ownership and the scope of the property said to be realisable.
Registration and enforcement
If the requirements are met, the Court may register the order. It may then be enforced in Hong Kong as an order of the Court of First Instance using the statutory enforcement machinery.
Appeal, variation or discharge
Depending on the order made and the procedural circumstances, an affected person may pursue an available appeal or seek appropriate relief concerning registration, enforcement or property wrongly brought within the process.
HOW MCS CAN ASSIST
Contesting registration and enforcement
MCS can examine whether the external order is final, whether proper notice and an opportunity to defend were provided, and whether enforcement would be contrary to the interests of justice. We can represent respondents and third parties at the registration hearing, challenge property wrongly included in the application and advise on any available appeal, variation or discharge procedure.