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HONG KONG BAR ASSOCIATION
SUBMISSIONS ON UNITED NATIONS
(ANTI-TERRORISM MEASURES) BILL
Background
1. As a result of the 911 terrorist
attack, the UN Security Council
passed Resolution 1373 of 2001 (UNSCR
1373) calling on member states to
criminalize wilful provision or
collection of funds for use in order
to carry out terrorists acts. The
HKSAR Government was directed by
the CPG in October 2001 to implement
UNSCR 1373. Further, the HKSAR is
also a member of the Financial Action
Task Force on Money Laundering (FATF),
an international body specialising
in recommending standards and best
practices in countering money laundering.
Following the 911 attack, FATF also
made 8 Special Recommendations to
tackle the issue.
2. It is recognised by the Administration
that the purpose of the Bill is
to implement the mandatory elements
of UNSCR 1373 as set out in its
§§1(a), (b), (c), (d)
and 2(a) and Recommendations II,
III and IV of the FATF Special Recommendations.
3. Various countries (including,
inter alia, the UK, Singapore, Canada,
Australia & New Zealand) have
already enacted legislation to implement
UNSCR 1373.
4. As recognised by the Secretary
for Security ("the Secretary"),
Hong Kong has always been one of
the safest cities in the world and
has traditionally not been the subject
to threats of terrorism. Further,
most activities typically associated
with terrorism are already dealt
with by our existing laws. The Government
should therefore adopt a minimalist
approach in implementing the obligations
under UNSCR 1373. The view was echoed
by the Secretary herself and it
is submitted that there is clearly
no need to do more than what is
necessary in Hong Kong.
5. The Bar also deplores the lack
for proper time for full public
consultation on the Bill when there
is obviously no urgency to enact
any anti-terrorist legislation in
Hong Kong.
Comments on the Bill (as amended
by Draft CSAs of 26th June 2002
and read together with the Secretary
for Security's Proposed Amendments
dated 28th June 2002 ("the
Proposed Amendments"))
Definition of terrorist property
6. The present definition is too
wide and should be amended to "any
property including funds that is
intended to be used to finance or
otherwise assist the commission
of a terrorist act".
7. In relation to s.4A (8) and
5(3), an order /notice made under
these sections respectively should
expire on the 1st anniversary. Two
years is too long given the drastic
consequences of an order/notice
made under these sections.
Subjective knowledge
8. The amendments to s. 11(1) and
11(4) of the Bill by substituting
"reasonable grounds to suspect"
to "suspects" are insufficient.
"Suspects" is insufficient
protection because the police can
act on the basis that someone merely
suspects that any property is terrorist
property without having satisfied
at the same time that there are
reasonable grounds of suspicion.
It is submitted that "suspects
on reasonable grounds" should
be used instead. We also urge the
Administration to amend s. 6 to
9 of the Bill by deleting "having
reasonable grounds to believe"
and substituting "believes
on reasonable grounds." It
is submitted that subjective knowledge
of the suspect should be taken into
account. Further, there should be
a requirement that the provider
or collector of funds must be aware
that the funds involved are to be
used for terrorist activities before
being liable under s. 6. Provisions
in relation to knowledge or intent
are absolutely vital in drafting
any legislation imposing criminal
liability. The approach proposed
is clearly more in line with §1(b)
of UNSCR 1373.
Gazette
9. The Bar is also of the view that
no person shall be presumed to know
of the existence or contents of
any notices published in the Gazette.
Otherwise persons may commit criminal
acts because they do not read the
Gazette.
Standard of proof
10. Specification of persons and
property as terrorist, terrorist
associates or terrorists property
can attract serious consequences,
the result of which can potentially
be more damaging than a criminal
conviction. It is therefore submitted
that in specification and forfeiture
proceedings, the criminal standard
of proof should be adopted instead.
Freezing of Funds
11. §1(c) of UNSCR 1373 provides
that members states should freeze
without delay funds and other financial
assets or economic resources of
persons who commit, or attempt to
commit terrorist acts or participate
in or facilitate the commission
of terrorist acts. A balance between
the power to freeze terrorist properties
and the right to private ownership
of property under Article 6 and
Article 105 of the Basic Law should
be maintained.
12. The Canadian Act requires the
recommendation of the Solicitor-General
before the Governor in Council freezes
any funds belonging to any entity
to be listed knowingly attempted,
carried out, participated in a terrorist
activity or is acting on behalf
of another such entity.
13. s. 5 of the Bill conferred
power on the Secretary to give notice
directing funds not be made available
to any person except under the authority
of a licence granted by the Secretary.
s.16 provides a mechanism to set
aside the notice by an application
to the Court of First Instance.
14. It is submitted that the power
to give notice under s.5 should
not rest solely in the hands of
the Secretary. The spirit of §1(c)
of UNSCR 1373 can be implemented
if power is given to the Secretary
to make an application to the Court
of First Instance to make such an
order. The procedure should be similar
to the application for an restraint
order under the Drug Trafficking
(Recovery of Proceeds) Ordinance
(Cap. 405).
15. Further, it should also be
expressly spelt out that any notice
(or court order) in relation to
freezing of funds shall not affect
the making available of funds specified
in such notice to a person solely
for the purpose of feeding, clothing,
housing or satisfying the medical
needs of such person or dependant
of such person or for the purposes
of obtaining legal advice or representation.
Forfeiture proceedings
16. In relation to s.13 (1), with
the proposed definition of "terrorist
property", sub-paragraph (a)
and (b) ought to be deleted.
Part 3
17. The ambiguity of the Bill is
also illustrated in Part 3 of the
Bill. Section 7 makes it an offence
to "make any funds or financial
(or related) services available,
directly, or indirectly" to
a person believed to be a terrorist
with no definition of what constitutes
"related service".
18. It is also submitted that s.
8 of the Bill ought be deleted as
the acts are sufficiently covered
by existing legislation such as
the Weapons Ordinance (Cap. 217),
the Biological Weapons Ordinance
(Cap. 491) and s. 33 of the Public
Order Ordinance (Cap. 245).
19. S. 9 should also be amended
to protect innocent connection with
specified organisations or persons.
Many terrorist organisations operate
under the appearance of a legitimate
organisation. It is therefore submitted
that knowledge that the organisation
or person that one is dealing with
is in fact a specified organisation
or person must be a necessary element
of the offence.
20. Similarly, s. 10 should also
be deleted as the section clearly
goes further than what is recommended
under UNSCR 1373 and the FATF Recommendations.
Compensation
21. The Bar welcomes the addition
of the section in relation to compensation
(s. 16A) for loss occasioned by
an order or notice obtained under
s. 4A(2) or 5(1) where there has
been an error.
22. However, it is submitted that
s. 16A(2)(a) and (c) should be deleted.
The draconian powers exercisable
'ex parte' must be balanced with
entitlement to compensation where
a mistake has been made. The fact
that a person was wrongfully specified
as a terrorist/terrorist associate
or has his property seized should
be sufficient to give rise to the
Court's discretion to order compensation.
It will be going to far to require
the "victim" to satisfy
that Court that there has been some
"serious default".
Section 17
23. This section should be deleted.
It puts too much power in the hands
of the Secretary.
July 9, 2002.
Hong Kong Bar Association
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