THE PRE-CHARGE SURRENDER OF TRAVEL DOCUMENTS
Section 17A may operate before a person has been charged.
The Prevention of Bribery Ordinance (Cap. 201) gives the ICAC a specific mechanism for requiring a person under investigation to surrender passports and other travel documents before any criminal charge has been laid.
Under section 17A, the Commissioner may apply to a Magistrate for a written notice requiring a person who is the subject of an investigation into a suspected offence under the Ordinance to surrender every travel document in their possession. Proceedings before the Magistrate under the section are conducted in chambers.
The statutory power is distinct from ordinary bail conditions imposed after charge. Once a notice is personally served, its requirements and the accompanying restriction on departure must be taken seriously.
THE SECTION 17A PROCEDURE
Surrender, restriction on departure and continued detention.
Application by the Commissioner
The Commissioner of the ICAC may apply to a Magistrate under section 17A where a person is the subject of an investigation concerning an offence alleged or suspected to have been committed by that person under the Prevention of Bribery Ordinance.
Notice to surrender
The Magistrate may issue a written notice requiring the person to surrender every travel document in their possession to the Commissioner. The notice must be served personally. A person served must comply immediately or within the time stated in the notice.
Restriction on departure
The statutory scheme restricts the person from leaving Hong Kong while the notice remains operative. A failure to surrender a travel document, an attempt to leave in contravention of the restriction or other non-compliance may lead to arrest, detention and criminal consequences under the Ordinance.
Six months and further extensions
A surrendered travel document may initially be detained for six months. A Magistrate may authorise further extension for periods of three months where satisfied on the Commissioner's application that the investigation could not reasonably have been completed earlier.
APPLICATIONS FOR RELIEF
Return of the documents and permission to travel are separate statutory routes.
Sections 17B and 17BA allow an affected person to seek relief without waiting for the investigation or the initial period of detention to end.
Return of travel documents
A person who has surrendered a travel document may apply in writing to the Commissioner, a Magistrate, or both for its return. The application must state its grounds. A Magistrate cannot consider it unless satisfied that reasonable written notice has been given to the Commissioner.
Permission to leave Hong Kong
Without limiting section 17B, a person served with a section 17A notice may apply in writing to the Commissioner, a Magistrate, or both for permission to leave Hong Kong. This may be appropriate where the immediate objective is a particular journey rather than the permanent return of the travel documents.
THE UNREASONABLE-HARDSHIP TEST
The interests of the investigation are balanced against the applicant's circumstances.
An application under section 17B or 17BA may be granted only where the Commissioner or Magistrate is satisfied, having regard to all the circumstances—including the interests of the investigation—that refusing the application would cause unreasonable hardship to the applicant.
Relevant evidence may concern urgent overseas medical treatment, a serious family emergency or essential cross-border business responsibilities that cannot reasonably be dealt with remotely. Ordinary inconvenience or a preference to travel may not be sufficient; the purpose, urgency, duration and proposed itinerary should be supported by reliable material.
Before granting an application, the Commissioner or Magistrate may require a reasonable deposit, a recognizance with sureties, property or documents of title as security, or a combination of those measures. Conditions may require the applicant to return, surrender the travel document again and appear at specified times and places in Hong Kong.
HOW MCS CAN ASSIST
Applications for the return of travel documents or permission to travel.
If surrendering your travel documents causes unreasonable hardship, MCS can advise on an application under section 17B and/or section 17BA. We can identify the appropriate statutory route, prepare the supporting evidence, give reasonable notice to the Commissioner where a Magistrate's application is pursued, and address the proposed itinerary, return arrangements, security, sureties and other conditions.
Where an application has been refused or conditions cannot realistically be met, we can advise on the available further steps in light of the reasons given and the circumstances of the individual case.