(1) Where-
(a) either-
(i) in proceedings before the Court of First Instance or the District Court a person is to be sentenced
in respect of one or more specified offences and has not previously been sentenced in respect of
his conviction for the offence or, as the case may be, any of the offences concerned; or
(ii) proceedings for one or more specified offences have been instituted against a person but have not
been concluded because the person-
(A) has died; or
(B) has absconded; and
(b) an application is made by or on behalf of the Secretary for Justice for a confiscation order, (Amended
L.N. 362 of 1997)
the Court of First Instance or the District Court, as the case may be, shall act as follows. (Replaced 90 of 1995 s. 6.
Amended 25 of 1998 s. 2)
(2) (Repealed 90 of 1995 s. 6)
(3) The court shall-
(a) where subsection (1)(a)(i) is applicable-
(i) first determine, if the prosecution so requests, whether the specified offence or any of the
specified offences of which the person stands convicted is an organized crime;
(ii) then, or where no request has been made under subparagraph (i), first-
(A) impose on the person such period of imprisonment or detention (if any) as is appropriate in
respect of the offence or, as the case may be, the offences concerned;
(B) make such order or orders (other than a confiscation order) in relation to sentence as is
appropriate in respect of the offence or, as the case may be, the offences concerned, and
such order or orders may be or include any order-
(I) imposing any fine on the person;
(II) involving any payment by the person; or
(III) under section 38F or 56 of the Dangerous Drugs Ordinance (Cap 134), or under
section 72, 84A, 102 or 103 of the Criminal Procedure Ordinance (Cap 221);
(b) where subsection (1)(a)(ii)(A) is applicable-
(i) first be satisfied that-
(A) the person has died; and
(B) having regard to all relevant matters before it, the person could have been convicted in
respect of the offence or, as the case may be, the offences concerned;
(ii) then, where the court is satisfied under subparagraph (i), determine, if the prosecution so
requests, whether the offence or any of the offences concerned could have been an organized
crime;
(c) where subsection (1)(a)(ii)(B) is applicable-
(i) first be satisfied that-
(A) the person has absconded and that not less than 6 months have elapsed beginning with the
date which is, in the opinion of the court, the date on which the person absconded;
(B) in the case of-
(I) a person who is known to be outside Hong Kong and whose exact whereabouts are
known-
(aa) reasonable steps have been taken, but have been unsuccessful, to obtain the
return of that person to Hong Kong for the purposes of the proceedings
concerned;
Cap 455 - ORGANIZED AND SERIOUS CRIMES ORDINANCE 12
(bb) if that person is in custody outside Hong Kong for purposes other than the
purposes referred to in sub-sub-sub-subparagraph (aa), he is in such custody by
virtue of conduct which would constitute an indictable offence if it had
occurred in Hong Kong; and
(cc) notice of those proceedings was given to that person in sufficient time to enable
him to defend them;
(II) subject to subsection (3A), a person whose exact whereabouts are not known,
reasonable steps have been taken to ascertain the person's whereabouts (including, if
appropriate, a step mentioned in paragraph (a), (b) or (c) or rule 5(1) of Order 65 of
the Rules of the High Court (Cap 4 sub. leg. A)) and notice of those proceedings,
addressed to that person, has been published in a Chinese language newspaper, and an
English language newspaper, circulating generally in Hong Kong; and (Replaced 26
of 2002 s. 3)
(C) having regard to all relevant matters before it, the person could have been convicted in
respect of the offence or, as the case may be, the offences concerned;
(ii) then, where the court is satisfied under subparagraph (i), determine, if the prosecution so
requests, whether the offence or any of the offences concerned could have been an organized
crime. (Replaced 90 of 1995 s. 6)
(3A) Where subsection (3)(c)(i)(B)(II) is applicable, and notwithstanding that the court is satisfied as mentioned
in that subsection that actions have been taken, the court may, if it is satisfied that it is in the interests of justice to do
so, require that notice of the proceedings mentioned in that subsection be given to the person mentioned in that
subsection in such additional manner as the court may direct. (Added 26 of 2002 s. 3)
(4) The court shall then determine-
(a) where subsection (1)(a)(i) is applicable, whether the person has benefited from the specified offence or
from that offence taken together with any specified offence of which he is convicted in the same
proceedings, or which the court proposes to take or has taken into consideration in determining his
sentence;
(b) where subsection (1)(a)(ii) is applicable, whether the person has benefited from the specified offence
of which the court is satisfied that he could have been convicted or from that offence taken together
with any specified offence of which the court is satisfied that he could have been convicted in the same
proceedings or which the court could have taken into consideration in determining his sentence if he
had not died or absconded, as the case may be,
and, if he has, whether his proceeds of that specified offence or offences are in total at least $100000. (Replaced 90 of
1995 s. 6)
(5) If the court has determined-
(a) where subsection (1)(a)(i) is applicable-
(i) under subsection (3)(a)(i), that the specified offence or any of the specified offences of which the
person stands convicted is an organized crime; and
(ii) under subsection (4), that his proceeds of the specified offence or offences referred to in that
subsection are in total at least the amount specified in that subsection;
(b) where subsection (1)(a)(ii) is applicable-
(i) under subsection (3)(b)(ii) or (c)(ii), as the case may be, that the specified offence or any of the
specified offences concerned could have been an organized crime; and
(ii) under subsection (4), that his proceeds of the specified offence or offences referred to in that
subsection are in total at least the amount specified in that subsection,
the court shall then determine whether the person has benefited from organized crime. (Replaced 90 of 1995 s. 6)
(6) If the court determines that his proceeds of the specified offence or offences are in total at least the amount
specified in subsection (4), the court shall determine in accordance with section 11 the amount to be recovered in his
case by virtue of this section.
(7) The court shall then, in respect of the offence or offences concerned, order the person to pay-
(a) that amount; or
(b) without prejudice to the generality of paragraph (a), such proportion of that amount as it thinks fits
after taking into account any order or orders provided for or referred to in subsection (3)(a)(ii)(B)(I),
(II) or (III) which has or have been made in respect of the person. (Replaced 90 of 1995 s. 6)
(7A) WhereCap
455 - ORGANIZED AND SERIOUS CRIMES ORDINANCE 13
(a) a person has been convicted of one or more specified offences;
(b) an application for a confiscation order has been made in respect of the person; and
(c) the person has died or absconded before that application has been concluded,
then that application may still be concluded notwithstanding that death or abscondment, as the case may be. (Added
90 of 1995 s. 6)
(7B) Where subsection (7A) is applicable in relation to a person who has died-
(a) subsection (3)(a)(ii)(A) shall not apply in relation to the person;
(b) the court shall not make a confiscation order against the person unless it is satisfied that the person has
died. (Added 90 of 1995 s. 6)
(7C) Where subsection (7A) is applicable in relation to a person who has absconded, the court shall not make a
confiscation order against the person unless it is satisfied that-
(a) the person has absconded; and
(b) in the case of-
(i) a person who is known to be outside Hong Kong and whose exact whereabouts are known-
(A) reasonable steps have been taken, but have been unsuccessful, to obtain the return of that
person to Hong Kong for the purposes of the proceedings concerned; and
(B) notice of those proceedings was given to that person in sufficient time to enable him to
defend them;
(ii) subject to subsection (7D), a person whose exact whereabouts are not known-
(A) reasonable steps have been taken to ascertain the person's whereabouts (including, if
appropriate, a step mentioned in paragraph (a), (b) or (c) of rule 5(1) of Order 65 of the
Rules of the High Court (Cap 4 sub. leg. A)); and
(B) notice of those proceedings, addressed to that person , has been published in a Chinese
language newspaper, and an English language newspaper, circulating generally in Hong
Kong. (Replaced 26 of 2002 s. 3)
(7D) Where subsection (7C)(b)(ii) is applicable, and notwithstanding that the court is satisfied as mentioned in
that subsection that actions have been taken, the court may, if it is satisfied that it is in the interests of justice to do so,
require that notice of the proceedings mentioned in that subsection be given to the person mentioned in that subsection
in such additional manner as the court may direct. (Added 26 of 2002 s. 3)
(8) For the purposes of subsection (3)(b)(i)(B) or (ii) or (c)(i)(C) or (ii), information may be furnished to the
court after the person has died or absconded, as the case may be. (Replaced 90 of 1995 s. 6)
(8A) For the purposes of any Ordinance conferring rights of appeal in criminal cases, a confiscation order made
against a person shall be deemed to be a sentence passed on that person in respect of the offence or offences concerned
and, in the case of any such person who has died (whether before or after the making of such order), his personal
representative may act on his behalf for those purposes. (Added 90 of 1995 s. 6)
(8B) It is here