||Title:||ORGANIZED AND SERIOUS CRIMES ORDINANCE||Gazette Number:||37 of 1998|
|Section:||12||Heading:||Definition of principal terms used||Version Date:||20/11/1998|
(1) In this Ordinance, "realisable property" (可變現財產) means, subject to subsection (2)-
(2) Property is not realisable property if-
(a) any property held by the defendant; (Amended 90 of 1995 s. 11)
(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Ordinance; and (Amended 90 of 1995 s. 11)
(c) any property that is subject to the effective control of the defendant. (Added 90 of 1995 s. 11)
is in force in respect of the property.
(a) an order under section 102 or 103 of the Criminal Procedure Ordinance (Cap 221);
(b) an order under section 38F or 56 of the Dangerous Drugs Ordinance (Cap 134); or
(c) an order under section 12AA(1) of the Prevention of Bribery Ordinance (Cap 201),
(3) For the purposes of this Ordinance the amount that might be realised at the time a confiscation order is made against the defendant is- (Amended 90 of 1995 s. 11)
together with the total of the values at that time of all gifts caught by this Ordinance.
(a) the total of the values at that time of all the realisable property held by the defendant, less
(b) where there are obligations having priority at that time, the total amounts payable in pursuance of such obligations,
(4) Subject to subsections (5) to (10), for the purposes of this Ordinance the value of property (other than cash) in relation to any person holding the property-
(5) Subject to subsection (10), references in this Ordinance to the value at any time (referred to in subsection (6) as "the material time" (關鍵時間)) of a gift caught by this Ordinance or of any payment or reward are references to-
(a) where any other person holds an interest in the property, is-
(i) the market value of the first-mentioned person's beneficial interest in the property, less
(b) in any other case, is its market value.
(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and
whichever is the greater.
(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or
(b) where subsection (6) applies, the value there mentioned,
(6) Subject to subsection (10), if at the material time the recipient holds-
the value referred to in subsection (5)(b) is the value to him at the material time of the property mentioned in paragraph (a) or, as the case may be, of the property mentioned in paragraph (b), so far as it so represents the property which he received, but disregarding in either case any charging order.
(a) the property which he received (not being cash); or
(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,
(7) For the purposes of subsection (3), an obligation has priority at any time if it is an obligation of the defendant to-
(8) In subsection (7)(b) "the preferential debts" (優先債項)-
(a) pay an amount due in respect of a fine, or other order of a court, imposed or made on conviction of an offence, where the fine was imposed or order made before the confiscation order; or
(b) pay any sum which, if the defendant had been adjudged bankrupt or was being wound up, would be among the preferential debts.
(9) A gift (including a gift made before the commencement of this Ordinance) is caught by this Ordinance if-
(a) in relation to bankruptcy, means the debts to be paid in priority under section 38 of the Bankruptcy Ordinance (Cap 6) (assuming the date of the confiscation order to be the date of filing of the petition and of the bankruptcy order made under that Ordinance); and (Amended 37 of 1998 s. 11)
(b) in relation to winding up, means the debts to be paid under section 265 of the Companies Ordinance (Cap 32) (assuming the date of the confiscation order to be the date of commencement of the winding up and the relevant date for the purpose of that section).
(10) For the purposes of this Ordinance-
(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him; or
(b) it was made by the defendant at any time and was a gift of property received by the defendant in connection with a specified offence or an organized crime committed by him or another; or
(c) it was made by the defendant at any time and was a gift of property which in whole or in part directly or indirectly represented in the defendant's hands property received by him in that connection.
(11) For the purposes of subsection (1)-
(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and
(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the defendant.
(12) Where a person obtains a pecuniary advantage in connection with the commission of an offence, or the commission of one or more organized crimes, he is to be treated for the purposes of this Ordinance as if he had obtained in connection with that offence or those crimes, as the case may be, a sum of money equal to the value of that advantage, and the other provisions of this Ordinance shall be construed accordingly. (Added 87 of 1997 s. 36)
(a) property, or an interest in property, may be subject to the effective control of the defendant whether or not the defendant has-
(i) a legal or equitable estate or interest in the property; or
(b) without limiting the generality of any other provision of this Ordinance, in determining-
(ii) a right, power or privilege in connection with the property;
(i) whether or not property, or an interest in property, is subject to the effective control of the defendant; or
(ii) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of the defendant,
regard may be had to-
(A) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;
(B) a trust that has a relationship to the property; and
(C) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in subparagraph (A) or trusts of the kind referred to in subparagraph (B), and other persons. (Added 90 of 1995 s. 11)
[cf. 1986 c. 32 s. 5 U.K.]