THE JUDICIAL ASSET-RECOVERY TRACK
Preserving property before determining the recoverable benefit
The mechanisms for restraining and ultimately recovering criminal assets in Hong Kong are judicially governed by the Organized and Serious Crimes Ordinance (OSCO, Cap. 455) and the Drug Trafficking (Recovery of Proceeds) Ordinance (DTROP, Cap. 405).
While the Joint Financial Intelligence Unit uses the Letter of No Consent mechanism as an interim response to suspected property, restraint and confiscation orders form the judicial asset-recovery track. A restraint order is made by the Court of First Instance to preserve realisable property. A confiscation order may subsequently be made by the Court of First Instance or District Court under the applicable statutory conditions.
Please see our JFIU and Suspicious Transaction Reports page for more information ↗Consent to dealing is withheld; the bank commonly restricts the account.
Realisable property is preserved by a binding court order.
The court orders payment of the assessed benefit, subject to the statutory scheme.
OSCO SECTION 15 · DTROP SECTION 10
The application and effect of a Restraint Order
A restraint order is intended to prevent dissipation and preserve property that may later be realised to satisfy a confiscation order. Under OSCO, the Court of First Instance may prohibit any person from dealing with realisable property, subject to conditions and exceptions stated in the order. DTROP provides the corresponding restraint jurisdiction for drug-trafficking proceeds.
The order may prohibit any person from dealing with realisable property, subject to the conditions and exceptions specified by the Court.
A binding legal restriction on dealing with property
The order may prevent property from being transferred, spent, disposed of or otherwise dealt with. Its scope is governed by the terms of the order, including any allowance for reasonable living or legal expenses and any other exception authorized by the Court.
OSCO SECTION 8 · DTROP SECTION 3
Recovery through a Confiscation Order
Following conviction and an application by the Secretary for Justice, the court determines whether the defendant benefited from the relevant offence and assesses the recoverable amount in accordance with the statutory scheme. The order requires the defendant to pay that amount; realisable property may then be used to satisfy the order.
The Court of First Instance or District Court determines whether the defendant benefited from the specified offence and, where the statutory conditions are met, makes a confiscation order requiring payment of the determined amount.
A value-based order, not automatic forfeiture of one identified asset
If a defendant is convicted of money laundering or another qualifying offence, the Secretary for Justice may ask the court to assess the defendant's benefit. The resulting confiscation order is an order to pay the assessed sum. Restrained realisable property may be realised to meet that liability under the statutory enforcement process.