SUPREME COURT ORDINANCE - minor amendment

SUPREME COURT ORDINANCE - minor amendment

CHAPTER 4

SUPREME COURT

1. The Rules of the Supreme Court are amended

(1) in Order 1, rule 2(3) by repealing 'or Order 62 and

substituting 'Order 62 or Order 115'

(2) in Order 11, rule 1 by adding after paragraph (1)(n)--

(o)the claim is made under the Drug Trafficking (Recovery
of Proceeds) Ordinance (Cap. 405). (L.N. 282 of 1989)

(3) in Order 49B

(a) in rule 2 by repealing $150 and substituting '$240';

(b)in rule 3(1), by repealing 'Medical and Health Servicesand
substituting 'Health';

(4) in Order 62

(a)in rule 13(1), by repealing 'The Chief Judicial Clerk of the
Registry' and substituting 'A Chief Judicial Clerk';

(b)in rule 13(2) and (3), by repealing 'the Chief' and substituting
'a Chief';

(c)in rule 21(4), by repealing '$25,000' and substituting
'$50,000';

(d) by adding after rule 21 (S)--

(HK)(6) If a bill of costs is withdrawn less than 7 days
before the appointment for taxation, a fee shall be
payable by the party who withdraws the bill. (L.N. 343 of
1989)

(HK)(7) The fee payable under paragraph (6) shall be
deducted by the Court from the amount deposited under
paragraph (5). (L.N. 343 of 1989)

(5) by repealing Order 74;

(6) in Order 115

(a) by renumbering it as Order 120;

(b)in the heading to rules 1, 2 and 3 by repealing ' 115'and
substituting '120';

(7) by adding after Order 114





ORDER 115

DRUG TRAFFICKING (RECOVERY OF
PROCEEDS)
ORDINANCE (CAP. 405)

Interpretation (O. 115, r. 1)

1. (1) In this Order 'the Ordinance' means the Drug
Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), and
a section referred to by number means the section so
numbered in the Ordinance.

(2) Expressions used in this Order which are used in the
Ordinance have the same meanings in this Order as in the
Ordinance.

Assignment of proceedings (0. 115, r. 2)

2. Subject to rule 12, the jurisdiction of the Court under
the Ordinance shall be exercised by a judge of the Court in
chambers.

Application for restraint order
or charging order (0. 115, r. 3)

3. (1) An application for a restraint order under section 10
or for a charging order under section 11 (to either of which
may be joined an application for the appointment of a receiver)
may be made by the Attorney General ex parte by originating
motion.

(2) An application under paragraph (1) shall be supported
by an affidavit, which shall

(a)state the grounds for believing that the defendant
has benefited from drug trafficking;

(b)state, as the case may be, either that proceedings
have been instituted against the defendant for a
drug trafficking offence (giving particulars of the
offence) and that they have not been concluded or
that, whether by the laying of an information or
otherwise, a person is to be charged with such an
offence;

(c)to the best of the deponent's ability, give full
particulars of the realisable property in respect of
which the order is sought and specify the person or
persons holding such property;

(d)where proceedings have not been instituted, verify
that the Attorney General is to have the conduct of
the proposed proceedings;

(e)where proceedings have not been instituted,
indicate when it is intended that they should be
instituted.





(3) An originating motion under paragraph (1) shall
be entitled in the matter of the defendant, naming him,
and in the matter of the Ordinance, and all subsequent
documents in the matter shall be so entitled.
(4) Unless the Court otherwise directs, an affidavit
under paragraph (2) may contain statements of informa-
tion or belief with the sources and grounds thereof.

Restraint order and charging order
(0. 115, r. 4)
4. (1) A restraint order may be made subject to
conditions and exceptions, including but not limited to
conditions relating to the indemnifying of third parties
against expenses incurred in complying with the order, and
exceptions relating to living expenses and legal expenses of
the defendant, but the Attorney General shall not be
required to give an undertaking to abide by any order as to
damages sustained by the defendant as a result of the
restraint order.
(2) Unless the Court otherwise directs, a restraint
order made ex parte shall have effect until a day which
shall be fixed for the hearing inter partes of the application
and a charging order shall be an order to show cause,
imposing the charge until such day.
(3) Where a restraint order is made the Attorney
General shall serve copies of the order and of the affidavit
in support on the defendant and on all other named
persons restrained by the order and shall notify all other
persons or bodies affected by the order of its terms.
(4) Where a charging order is made the Attorney
General shall, unless the Court otherwise directs, serve
copies of the order and of the affidavit in support on the
defendant and, where the property to which the order
relates is held by another person, on that person and shall
serve a copy of the order on such of the persons or bodies
specified in Order 50, rule 2(1)(b) to (d) as shall be
appropriate.

Discharge or variation of order (O. 115, r. 5)
5. (1) Any person or body on whom a restraint
order or a charging order is served or who is notified of
such an order may apply by summons to discharge or vary
the order.
(2) The summons and any affidavit in support shall
be lodged with the Court and served on the Attorney
General and, where he is not the applicant, on the
defendant, not less than 2 clear days before the date fixed
for the hearing of the summons.





(3) Upon the Court being notified that proceedings
for the offences have been concluded or that the amount
payment of which is secured by a charging order has been
paid into court, any restraint order or charging order, as
the case may be, shall be discharged.

Further application by Attorney General
(O. 115, r. 6)

6. (1) Where a restraint order or a charging order
has been made the Attorney General may apply by
summons or, where the case is one of urgency, ex parte-

(a) to discharge or vary such order; or

(b)for a restraint order or a charging order in
respect of other realisable property; or
(c) for the appointment of a receiver.

(2) An application under paragraph (1) shall be
supported by an affidavit which, where the application is
for a restraint order or a charging order, shall to the best
of the deponent's ability give full particulars of the
realisable property in respect of which the order is sought
and specify the person or persons holding such property.

(3) The summons and affidavit in support shall be
lodged with the Court and served on the defendant and,
where one has been appointed in the matter, on the
receiver, not less than 2 clear days before the date fixed for
the hearing of the summons.

(4) Rule 4(3) and (4) shall apply to the service of
restraint orders and charging orders respectively made
under this rule on persons other than the defendant.

Realisation of property (O. 115, r. 7)

7. (1) An application under section 12 shall, where
there have been proceedings against the defendant in the
High Court, be made by the Attorney General by
summons and shall otherwise be made by originating
motion.

(2) The summons or originating motion, as the case
may be, shall be served with the evidence in support not
less than 7 days before the date fixed for the hearing of the
summons on-
(a) the defendant;

(b) any person holding any interest in the realisable
property to which the application relates; and
(c)the receiver, where one has been appointed in the
matter.





(3) The application shall be supported by an
affidavit, which shall, to the best of the deponent's ability,
give full particulars of the realisable property to which it
relates and specify the person or persons holding such
property, and a copy of the confiscation order, of any
certificate issued by the Court under section 6(2) and of
any charging order made in the matter shall be exhibited
to such affidavit.
(4) The Court may, on an application under section
12, exercise the power conferred by section 13(1) to direct
the making of payments by the receiver.

Receivers (O. 115, r. 8)

8. (1) Subject to this rule, the provisions of Order
30, rules 2 to 8 shall apply where a receiver is appointed in
pursuance of a charging order or under section 10 or 12.
(2) Where the receiver proposed to be appointed has
been appointed receiver in other proceedings under the
Ordinance, it shall not be necessary for an affidavit of
fitness to be sworn or for the receiver to give security,
unless the Court otherwise orders.
(3) Where a receiver has fully paid the amount
payable under the confiscation order and any sums remain
in his hands, he shall apply by summons for directions as
to the distribution of such sums.
(4) A summons under paragraph (3) shall be served
with any evidence in support not less than 7 days before
the date fixed for the hearing of the summons on-
(a) the defendant; and
(b)any other person who held property realised by
the receiver.

Variation of confiscation order (O. 115, r. 9)
9. (1) The defendant may apply by summons for
an order under section 15(1).
(2) A summons under paragraph (1) shall be served,
with any supporting evidence, not less than 7 days before
the date fixed for the hearing of the summons on the
Attorney General and on the receiver, where one has been
appointed in the matter.

Compensation (O. 115, r. 10)
10. An application for an order under section 27
shall be made by summons, which shall be served, with any
supporting evidence, on the person alleged to be in default
and on the Attorney General not less than 7 days before
the date fixed for the hearing of the summons.





Disclosure of information (O. 115, r. 11)

11. (1) An application under section 23 shall be made by
the Attorney General by summons, which shall state the
nature of the order sought and whether material sought to be
disclosed is to be disclosed to a receiver appointed under
section 10 or 12 or in pursuance of a charging order or to an
authorized officer.

(2) The summons and affidavit in support shall be served
on the public body

(a)not less than 7 days before the date fixed for the
hearing of the summons; and

(b)where the public body is a Government Department,
in accordance with Order 77, rule 4.

(3) The affidavit in support of an application under
paragraph (1) shall state the grounds for believing that the
conditions in section 23(4) and, if appropriate, section 23(7)
are fulfilled.

Exercise of powers under section 29

(O. 115, r. 12)

12. The powers conferred on the Court by section 29 may
be exercised by a judge in chambers and a Master.

Application for registration
(O. 115, r. 13)

13. An application for registration of an external
confiscation order under section 29(1) may be ex parte.

Evidence in support of application
under section 29(1) (O. 115, r. 15)

15. An application for registration of an external
confiscation order must be supported by an affidavit

(a)exhibiting the order or a verified or certified or
otherwise duly authenticated copy thereof and,
where the order is not in the English language, a
translation thereof into English certified by a notary
public or authenticated by affidavit; and

(b) stating-

(i) that the order is in force and is not subject to
appeal;

(ii) where the person against whom the order was
made did not appear in the proceedings, that he
received notice thereof in sufficient time to enable
him to defend them;





(iii) in the case of money, either that at the
date of the application the sum payable under the
order has not been paid or the amount which
remains unpaid, as may be appropriate, or, in the
case of other property, the property which has
not been recovered; and

(iv) to the best of the deponent's knowledge,
particulars of what property the person against
whom the order was made holds in Hong Kong,
giving the source of the deponent's knowledge.

Register of orders (O. 115, r. 16)

16. (1) The Registrar shall keep a register of the
orders registered under the Ordinance.
(2) There shall be included in such register partic-
ulars of any variation or setting aside of a registration, of
any variation, satisfaction or discharge of a registered
order, and of any execution issued on such an order.

Notice of registration (O. 115, r. 17)

17. (1) Notice of the registration of an order must
be served on the person against whom it was obtained by
delivering it to him personally or by sending it to him at
his usual or last known address or place of business or in
such other manner as the Court may direct.

(2) Service of such a notice out of the jurisdiction is
permissible without leave, and Order 11, rules 5, 6 and 8
shall apply in relation to such a notice as they apply in
relation to a writ.

(3) The notice shall state the period within which
an application may be made to vary or set aside the
registration and that the order will not be enforced until
after the expiration of that period.

Application to vary or set aside registration
(O. 115, r. 18)

18. An application by the person against whom an
order was made to vary or set aside the registration of an
order must be made to ajudge by summons supported by
affidavit.

Enforcement of order (O. 115, r. 19)

19. (1) An order registered under the Ordinance
shall not be enforced until after the expiration of the
period specified in accordance with rule 17(3) or, if that
period has been extended by the Court, until after the
expiration of the period so extended.





(2) If an application is made under rule 18, an order shall
not be enforced until after such application is determined.

Variation, satisfaction and discharge of
registered order (O. 115, r. 20)

20. Upon the Court being notified by the applicant for
registration that an order which has been registered has been
varied, satisfied or discharged, particulars of the variation,
satisfaction or discharge, as the case may be, shall be entered
in the register.

Rules to have effect subject to Orders
in Council (O. 115, r. 21)

21. Rules 12 to 20 shall have effect subject to the
provisions of any order made under section 28.

Statement relating to drug trafficking (O. 115, r. 22)

(HK)22. (1) Where, in any proceedings in respect of a drug
trafficking offence, the Attorney General or the defendant
proposes to tender to the Court any statement or other
document under section 5 he shall give a copy thereof as soon
as practicable to the defendant or the Attorney General, as the
case may be, and to the appropriate officer of the Court.

(2) Any statement tendered to the Court by the Attorney
General under section 5(1)(a) shall include the following
particulars, namely

(a) the name of the defendant;

(b)the name of the person by whom the statement is
tendered;

(c)if the statement is tendered after the defendant has
been convicted, the date on which and the place
where the relevant conviction occurred;

(d)such information known to the Attorney General as
is relevant to the determination whether the
defendant has benefited from drug trafficking and to
the assessment of the value of his proceeds of drug
trafficking, together with an indication (so far as is
known) of the dates on which any relevant
payments or rewards were received by the
defendant and their values.





Investigation into drug trafficking-discharge and variation of
orders (O. 115, r. 23)

(HK)23. (1) Where an order under section 20 has been made,
the person required to comply with it may apply in writing to
the appropriate officer of the Court for the order to be
discharged or varied, and on hearing such an application the
Court may discharge the order or make such variations to it as
it thinks fit.

(2) Subject to paragraph (3), where a person proposes to
make an application under paragraph (1) for the discharge or
variation of an order, he shall give a copy of the application,
not later than 48 hours before the making of the application, to
the authorized officer by whom the application for an order
was made, or if such officer is not known or cannot be found,
to another authorized officer, together with a notice indicating
the time and place at which the application for discharge or
variation is to be made.

(3) The Court may direct that paragraph (2) need not be
complied with if it is satisfied that the person making the
application has good reason to seek a discharge or variation
of the order as soon as possible and it is not practicable to
comply with that paragraph.

(L.N. 282 of 1989)

(8) in Appendix C by repealing Forms No. 6 and 7.

2. The Supreme Court Suitors' Funds Rules are amended-

(1) in rule 3 by adding after paragraph (4)--

(4A) Where money is lodged by a party to arbitration
proceedings who makes payment into the Supreme Court in
accordance with rules of court the receipt shall contain a
statement of the circumstances as set out in the notice of
payment which accompanied the payment in.

(2) in rule 8(1), by repealing 'the Registrar and Accountant or
such other officer or officers' and substituting '2 persons'.

3. The Supreme Court Fees (In Prize) Order is amended in the Schedule
in item 27, by repealing 'three miles' and substituting '5 kilometres'.

4. The Supreme Court Fees Rules are amended in the First Schedule by
adding after item 19





19a. Processing of a bill of costs which 10% of the is
withdrawn less than 7 days taxing fee which before the
appointment for would be

taxation ............ payable if the
..................... bill was to be
..................... allowed in full or
..................... $1,000
..................... whichever is the
..................... less
..................... (L.N. 345 of
..................... 1989)
L.N. 282 of 1989 L.N. 74 of 1989 L.N. 76 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 282 of 1989 L.N. 282 of 1989 L.N. 343 of 1989 L.N. 351 of 1982 L.N. 343 of 1989 L.N. 397 of 1984

L.N. 282 of 1989 L.N. 74 of 1989 L.N. 76 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 343 of 1989 L.N. 282 of 1989 L.N. 282 of 1989 L.N. 343 of 1989 L.N. 351 of 1982 L.N. 343 of 1989 L.N. 397 of 1984

https://oelawhk.lib.hku.hk/items/show/3634

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