RESOURCE MATERIAL SERIES No.83

INTERNATIONAL RECOVERY OF ILL-GOTTEN ASSETS
Wayne Patrick Walsh*

I. PROCESSING REQUESTS FOR INTERNATIONAL RECOVERYOF ILL-GOTTEN ASSETS IN HONG KONG, CHINA(INCLUDING RESTRAINT ORDERS, CONFISCATION AND RECOVERY OF ASSETS)

A. The Legal Framework
On 1 July 1997 the People’s Republic of China resumed the exercise of sovereignty over Hong Kongand many of the international arrangements prevously applicable to Hong Kong under British rule fellaway. At the same time, the Basic Law of the Hong Kong Special Administrative Region (“HKSAR”) of thePeople’s Republic of China (“PRC”) became part of Hong Kong law. Under the principle of “one country, twosystems”, the Basic Law prescribes the system to be practised in the HKSAR under which the Governmentof the HKSAR is given a high degree of autonomy.
In the area of international co-operation in criminal matters, Article 96 of the Basic Law provides thatwith the assistance or authorization of the Central People’s Government, the Government of the HKSAR
may make appropriate arrangements with foreign states for reciprocal juridical assistance. Under Article 153of the Basic Law, international agreements to which the PRC is or becomes a party may be applied to the
HKSAR and international agreements to which the PRC is not a party but are implemented in HKSAR may
continue to be implemented in HKSAR.
According to Article 152 of the Basic Law, representatives of Government of the HKSAR may, using thename “Hong Kong, China”, participate in international organizations and conferences not limited to states.
Under these principles, HKSAR negotiates with foreign states for bilateral agreements for co-operationin criminal matters, such as mutual legal assistance, and is made subject to relevant international
agreements such as the United Nations Convention against Transnational Organized Crime and the United
Nations Convention against Corruption. Hong Kong, China also participates as a member of certain
international organizations and conferences using its own name, such as the Financial Action Task Force
Against Money Laundering.
On the domestic front, HKSAR enacted legislation in 1997 to implement the new internationalarrangements for co-operation in criminal matters, including the Mutual Legal Assistance in Criminal
Matters Ordinance, Cap. 525. This is an Ordinance to regulate the provision and obtaining of assistance incriminal matters between Hong Kong and places outside Hong Kong. It includes measures for the takingof evidence from witnesses (including by live TV link), search and seizure of things, production of material(such as bank records), service of documents, transfer of persons to give assistance in relation to criminal
matters, and restraint and confiscation of proceeds of crime.
1. Mechanism for Restraint and Confiscation of Proceeds of Crime
Mechanisms provided under domestic legislation, such as the Organised and Serious Crimes Ordinance,
Cap. 455, enable Hong Kong authorities to apply for restraint and confiscation measures during the courseof their own criminal investigations or prosecutions in Hong Kong. This includes cases of money laundering
against defendants in Hong Kong when the predicate offence may have occurred abroad. Local confiscation* Deputy Law Officer, Department of Justice, Hong Kong, China.

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is generally conviction based, although some powers of forfeiture exist absent a conviction. For example,
should an offender abscond, the court may confiscate his or her criminal assets. Confiscation is value-based,that is, an assessment of the value of the defendant’s criminal gains, and may attach to any identified assets
belonging to him or her or under his or her control.
However, international requests for restraint and confiscation of proceeds of crime based upon foreign
investigations and prosecutions are processed under the Mutual Legal Assistance in Criminal Matters
Ordinance. This Ordinance provides for a system of registration of external confiscation orders by the Hong
Kong court provided certain threshold criteria are met. These are:At the time of registration the foreign order is in force and not subject to appeal;The person against whom or in relation to whose property the foreign order was made received
The Hong Kong court is of the opinion that enforcing the order in Hong Kong would not be contrary

notice of the proceedings in the foreign place in sufficient time to enable him or her to defend them;to the interests of justice.

This mechanism recognizes the principle that the proper forum for determination of the confiscation
order on its merits is the court of the foreign place seeking enforcement and that Hong Kong courts should
not relitigate the foreign order on its merits.
The mechanism is available whether the proceedings in the foreign jurisdiction giving rise to theconfiscation or forfeiture order are criminal or civil in nature, so long as they are connected to a criminal
matter. This means Hong Kong courts can give effect both to “in personam” and “in rem” confiscation orforfeiture orders, including orders made in the absence of a criminal conviction.
The Hong Kong court can also make a restraint order where an external confiscation order may be madein a proceeding which has been or is to be instituted in the foreign place, to restrain dealing in property
against which the order may be eventually enforced. The restraint order, if made, normally remains in force
until conclusion of the foreign proceedings and the registration of any external confiscation order.
In cases involving property which must be managed or sold to realize funds for payment into court,a receiver is to be appointed. All funds paid into court are held for five years pending a request from thegovernment of the foreign place that any or all of the proceeds be repatriated. After that, the funds are paid
into general revenue.
It is not a legal prerequisite that a bilateral mutual legal assistance agreement exist before assistance canbe given under the Ordinance, provided the requesting party gives a reciprocity undertaking that it would infuture provide similar assistance if requested by HKSAR. However, there must be a bilateral or multilateralarrangement in place under the Ordinance before any sharing of confiscated assets can take place.
2. Mechanism for Sharing
Under the Mutual Legal Assistance in Criminal Matters Ordinance, the Secretary for Justice may direct
the court to pay to a foreign government such proportion of the realized funds held as specified in the
direction. Payments may only be made to foreign governments that have bilateral agreements with the
HKSAR for mutual legal assistance in criminal matters or are party to other multilateral agreements such as
the United Nations Convention against Corruption which specifically provide for repatriation of assets.
HKSAR has adopted a policy on asset sharing and repatriation in such cases to take account of recent
international initiatives in this area. Sharing of realized assets is considered in all cases net of actual
expenses incurred, and the usual starting point is fifty-fifty sharing. However, each case will be consideredon its own merits. For example, where there are identified victims of fraud in the foreign jurisdiction
restitution will be addressed. In cases coming within Article 57 of the United Nations Convention against
Corruption, the full amount may be repatriated.

B. The Operational Framework
The Mutual Legal Assistance Unit of the Department of Justice works with Hong Kong law enforcement
to assist foreign jurisdictions in the tracing and restraint of proceeds of crime, as well as the registration of49

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external confiscation orders.
The Mutual Legal Assistance Unit acts as Hong Kong’s Central Authority under internationalarrangements for co-operation in criminal matters and is staffed by qualified lawyers. The Unit acts not only
as the Central Authority: it also executes the request by way of obtaining court orders and supervising law
enforcement.
Hong Kong law enforcement agencies are Hong Kong Police, Hong Kong Customs and Excise
Department, and the Independent Commission Against Corruption. Depending on the nature of theoffending in any particular case, officers from one of these agencies will work with the Mutual Legal
Assistance Unit to execute the foreign request for assistance.
In cases where not all assets may have been identified by the foreign jurisdiction, Hong Kong law
enforcement may work with their foreign counterparts initially at the law enforcement level to trace andidentify assets. The Joint Financial Intelligence Unit in Hong Kong is staffed by officers from Police andCustoms and Excise Department, and this Unit may also provide assistance.
Once the formal request for assistance is finalized, it should be sent by the Central Authority of therequesting jurisdiction direct to the Mutual Legal Assistance Unit, Department of Justice HKSAR. There isno need to route the request through embassies in Beijing or consular representatives in Hong Kong. This
only wastes time.
The request for restraint will be assigned to a lawyer in the Mutual Legal Assistance Unit who willconsider its contents and reply to the requesting authority. If the request does not comply with minimum
legal requirements, advice will be given. Once the request meets minimum legal requirements, it will
be processed. In cases of restraint and registration of external confiscation orders, this will necessitate
Secretary for Justice acting for the government of the requesting place to apply to Hong Kong courts fororders.
Restraint orders are usually applied for on an ex parte basis i.e. without notice to the defendants or otheraffected parties. The application will be supported by a detailed affidavit setting out all factual and legal
circumstances of the cases. If the application is granted, the court will appoint a return date several months
later by which time the defendants and other parties must be served notice of the proceedings and be given
the opportunity to oppose the continuation of the restraint order in Hong Kong. At the return date, if there
is no opposition, the court will usually order the restraint until further order i.e. until completion of theproceedings in the foreign jurisdiction and the making of any final confiscation order there. If the application
is opposed, a full hearing will be held and the court will make its decision depending upon the arguments
raised.
In cases where funds are held in bank accounts, the accounts will be frozen with interest continuing to
accrue. In cases of other property such as apartments or shares, receivers may be appointed to manage theproperty. The costs of receivers will be paid from the property under management. The defendants may
also apply to the court for release of funds for legal and living expenses, but only if the court is satisfied they
have no other available funds or means worldwide.
If no final confiscation order is obtained in the requesting jurisdiction, the restraint order in Hong Kong
will be discharged. On the other hand, if the requesting jurisdiction does obtain a final confiscation order in
its own courts over proceeds of crime in Hong Kong, the foreign jurisdiction should make a request to the
Mutual Legal Assistance Unit for registration of the order in the Hong Kong court. Again, counsel will act on
the request if the minimum legal requirements are met and will apply to the court to register the order. The
defendant and affected parties must be given notice of the registration and will have the opportunity to apply
to have it set aside. If the registration is not set aside, it will be enforced. In case of funds held in banks, thefunds will be paid into court. In case of other property, receivers may be appointed to realise the property
and pay the realized funds, net of expenses, into court.
The Mutual Legal Assistance Unit will keep the foreign jurisdiction informed of progress at all times.
Once all funds are paid into court, the requesting jurisdiction will be given an opportunity to apply for a50

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share of the realized funds. This process will be determined by Secretary for Justice in consultation with
Hong Kong law enforcement and the authorities of the requesting jurisdiction on a case by case basis.

C. Minimum Legal Thresholds for Assistance
The Mutual Legal Assistance in Criminal Matters Ordinance contains minimum legal thresholds thatmust be met by the requesting place before assistance can be rendered.
The general thresholds common to all requests for mutual legal assistance, including restraint andconfiscation procedures, comprise the following grounds of refusal:The granting of the request would impair the sovereignty, security or public order of the PRC or any






The request relates to an offence of a political character;The request relates to a purely military offence;
The request was made for the purpose of punishing a person on account of race, religion, nationalitypart thereof;or political opinions;
The request gives rise to double jeopardy;The granting of the request would seriously impair the essential interests of Hong Kong;
Dual criminality is not met.

In addition, specific conditions apply for registration of an external confiscation order. The offence towhich the order relates must be punishable by imprisonment for not less than two years. The purpose of theorder must be for recovering payments or others rewards received in connection with the offence, property
derived or realized from such payments or rewards, or property used or intended to be used in connection
with the offence. The order may also be for the purpose of depriving a person of a pecuniary advantage
obtained in connection with the offence.
These conditions are broad and are easily met in most cases.

II. EFFECTIVE INTERNATIONAL CO-OPERATION (IN PARTICULAR, MUTUAL LEGALASSISTANCE) IN CASES OF RECOVERY OF ILL-GOTTEN ASSETS
A. Some of the Problems
Those practitioners who have worked in the area of mutual legal assistance know that serious obstacles
can arise in achieving effective recovery of proceeds of crime located abroad. Despite public adherence bygovernments to full co-operation between States in the recovery of ill-gotten assets, many practitioners
know there are considerable hurdles to overcome and there is general room for improvement by mostjurisdictions – both as victim States and as receiving States holding proceeds of crime.
The subject has taken on international significance in the wider political arena, and recent multilateral
instruments such as the United Nations Convention against Corruption now contain detailed provisions
on asset recovery (Chapter V) to facilitate effective co-operation between States. The United Nations
Office on Drugs and Crime, together with the World Bank, has established the Stolen Asset Recovery(StAR) Initiative as a platform to improve capabilities of countries in effective international asset recovery.
International bodies such as the Financial Action Task Force Against Money Laundering (FATF) arecurrently working on reviews to strengthen their standards on international co-operation for asset recovery
to encourage more effective implementation and outcomes in practice.
But serious problems persist.
1. The Absence of an Adequate Legal Framework
An adequate domestic framework to execute international requests for recovery of proceeds of crime isfundamental to any successful system. Foreign requests for recovery of assets invariably involve the useof coercive measures, such as restraint and confiscation of property, and countries receiving such requests
must have adequate legal powers to give effect to these requests.

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Traditionally, jurisdictions have relied upon their own powers of investigation to commence a local
investigation or prosecution with a view to restraining or confiscating the assets based on offences
committed abroad. However, this local procedure is sometimes ill-suited to foreign requests where mostof the criminal activity has taken place abroad, where the evidence is also mostly located abroad and where
jurisdictional issues concerning the right to prosecute can arise.
More recently, jurisdictions have begun enacting legislation which enables their own courts to recognize
and enforce confiscation or forfeiture orders obtained abroad but covering proceeds of crime located in theirown jurisdiction. This procedure has the great benefit of ensuring that the merits of the confiscation order
are more or less determined in the State where the crime or predicate offence occurred. The courts in therequested State where the assets are located then simply ensure certain fundamental thresholds are met
for registration and enforcement of the order without re-litigating the merits of the order obtained in therequesting State.
Claims for recovery of assets may also be pursued through the civil courts of the State in possession of
the ill-gotten gains. These are essentially private actions between plaintiffs and defendants based on civil
law claims and remedies.
But whatever the case, it is essential that States have some legal framework in place to executeinternational requests for recovery of proceeds of crime effectively and efficiently. It is even better if theframework is supported by bilateral treaties between States for mutual legal assistance in criminal matters,
specifically covering asset recovery. Without a suitable legal framework, nothing much is really possible
when a request is received.
2. Inadequate Implementation of the Law
However, even if an appropriate legal framework is in place to make and process requests, serious
problems remain in the effective implementation of these procedures in actual casework. Many jurisdictions
now have laws including purpose-built laws for mutual legal assistance, but what good is the law if it is noteffectively implemented?
Effective implementation depends upon sufficient provision of personnel and resources to deal withrequests for international co-operation. Most resources in any criminal justice system are allocated todomestic cases, and foreign requests for assistance have sometimes been treated with less priority. This
mindset is changing and it is increasingly common for countries to have dedicated units within justice andlaw enforcement agencies to deal with foreign requests for legal assistance. This trend is to be encouraged
and should continue.
However, it is equally important to ensure that personnel are adequately trained and sufficiently expert
in the work they must undertake. Success in this area depends very much upon motivated personnel
who seek results and who do not simply act as link in a chain of bureaucratic paper-shuffling with no true
engagement in the substantive outcomes. There must be a system, but the system must be operated by
the right people and be as simple as possible, notwithstanding the sensitivities sometimes involved e.g. inrequests concerning current or past political figures in the victim State.
The overall legal and court system in the requested State must also have integrity and be functioning
effectively and efficiently. If the request is fed into a dysfunctional court system with systemic delays orlacking integrity of process then effective implementation will not be achieved at all.
3. North versus SouthThe old north/south divide between rich nations and under-developed nations can be very much an issue
in asset recovery work. However, it’s more a divide between developed financial centres (e.g. London, New
York, Hong Kong, Zurich) which tend to receive or have proceeds of crime routed through their systems anddeveloping nations who may be the victim of large scale larceny by persons in positions of power or privilege
who have deposited their ill-gotten gains abroad.
Serious issues arise between what the financial centre may require from the requesting jurisdiction inorder to effectively restrain or confiscate property in its jurisdiction and what the requesting jurisdiction is52

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able to give. Financial centres usually have sophisticated and well-developed legal systems which require
minimum legal thresholds and evidential requirements to be met before requests can be processed. Someless developed jurisdictions do not operate at such a sophisticated level and cannot provide the necessarylevels of information or detail required. Some may even have difficulty in formulating a request forassistance in the first place.
The StAR Initiative is working on issues such this in an attempt to bridge the divide and remove
barriers to effective asset recovery. Is the problem with financial centres which set their thresholds toohigh in processing requests, or is the problem with requesting jurisdictions that do not adequately andsufficiently pursue requests and provide the necessary information requested by the financial centres? Is it
a combination of both?
4. Common Law versus Civil Law
This is another divide than can cause problems – the different procedural requirements between
common law and civil law legal systems. Common law jurisdictions find it relatively easily to communicate
between themselves to understand the requirements of the other jurisdiction in processing requests.
The requirements are often very similar. Civil law jurisdictions likewise may operate smoothly between
themselves. But when a civil law jurisdiction seeks assistance from a common law jurisdiction, or vice versa,
immediate procedural barriers to communication can arise. Procedures which a civil law jurisdiction seeks in
a common law jurisdiction may simply just not be available, and procedures that a common law jurisdiction
asks a civil law jurisdiction to follow in making a request for assistance may be simply impossible to comply
with.
This can sometime cause misunderstandings or even resentment by both parties that the request iseither not being acted upon or pursued in good faith. For example, requests for additional information by therequested jurisdiction in an attempt to ‘fit’ the request to its own procedural system may be regarded by theother as a way of somehow refusing or delaying the request.
But simply put, powers and procedures between the two systems are different. In civil law jurisdiction
investigating magistrates or prosecutors may be able to freeze bank accounts by administrative action,
whereas in common law jurisdictions a more cumbersome procedure of formal court orders is usually
involved. Common law jurisdictions may ask for evidence “on oath or affirmation”, which may be a concept
unknown to some civil law jurisdictions. Investigating magistrates from civil law jurisdictions may ask
common law jurisdiction to “take over the inquiry and take all steps as necessary to locate and confiscateproceeds of the crime”, whereas common law jurisdiction usually act upon specific instructions such as“restrain all funds in bank account xxx”.
5. Delay
The most common complaint and problem associated with requests to recover proceeds of crime is delay.
The procedures to make formal requests are often regarded by law enforcement as cumbersome and timeconsuming, involving formalities in their own jurisdiction before the request is issued, further formalities intransmission of the request, and yet further formalities in execution once received by the other jurisdiction.
Lack of adequate legal frameworks, ineffective processing, communication and resource gaps (see 1 - 4
above) all add sometimes to a sense of frustration that the system is not working, or if it is it is working then
only very slowly. In some cases, countries eventually give up pursuit of the request due to lack of progressin the requested State.
But this is something of a two-way street. The requested States may equally say the delay is causedby the requesting State not providing the additional information required so to execute the request. The
requested jurisdiction may have obtained an initial restraint order at the request of the other jurisdiction but
may not be able to enforce confiscation and realize the assets in its own jurisdiction because the requesting
jurisdiction has not obtained a final confiscation order that can be enforced abroad.
The fact remains that requests for international legal co-operation between different countries involving
the exercise of compulsory powers over persons and property will of necessity involve a certain degreeof formality, time and effort to achieve. Countries and practitioners should work together to improve53

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co-operation, overcome identified problems and reduce delay in individual cases.
The question remains: how?

B. Some Suggested Solutions
There are no easy or instant solutions. From a practical perspective, there are a variety of forces at playwhich may inhibit effective co-operation, ranging from over-arching political considerations to systemic
failures in criminal justice systems to individual lack of action in particular cases.
However, experience suggests that some immediate progress can be made by focusing in particular on
operational imperatives regardless of the wider political or legal context.
1. Partnerships
Identify your major partners for asset recovery. At the domestic level these are likely to be law
enforcement agencies, justice ministries, financial sector players such as banks where assets may be
held, and private sector entities such as accounting firms which may provide experts to assist in tracingor managing assets. Work with each other to establish procedures and protocols that each is familiar when
making or receiving international requests for asset recovery.
At the international level, identify which jurisdictions are key jurisdictions for asset recovery work. Ifbilateral treaties or agreements have not been established, work to establish them. Identify counterpart
players and agencies within those jurisdictions, so that when an actual case arises the channels ofcommunication are already established and known.
Develop and maintain your network of contacts. This may be achieved by regular case consultations withyour more important partners on an annual or biennial basis. Attend international conferences and seminars
when asset recovery issues are being discussed in multilateral forums. Sign up to relevant networking
groups, such as the Asset Recovery Experts Network (www.aren.assetrecovery.org).
2. Case Communication
Keep talking, talking, and talking. Set up an easy line of communication, including by email if possible. Be
responsive. Requests received should be acknowledged and a way forward offered. If further information isrequired, it should be supplied expeditiously. Avoid a stalemate situation – the requesting party complains
the request is not being processed. The requested party complains it needs more information before it can
do so.
Don’t stop talking to each other. This can be difficult, particularly if foreign language issues are involved.
But keep working at it. If necessary, convene face-to-face meetings in important cases by travelling to theother jurisdiction to discuss.
Have information available upon request in booklets or on your website about how to make requests for
asset recovery, including contact details. Offer to review foreign requests in draft before they are formallysent to ensure that they are compliant and may be executed.
Build trust.
3. Resources
Political commitments by governments to ensure effective recovery of proceeds of crime must be backed
by adequate provision of funding to establish and maintain the agencies which are engaged at the operational
level.
In some jurisdictions specialized agencies have been established to recover proceeds of crime, both
domestically and at the international level. But for most jurisdictions the work is assumed by existing
law enforcement and criminal justice system agencies within a broader platform of other work. Whatever
approach is used, trained personnel, including financial investigators and lawyers, must be made available
and given opportunity to focus on international asset recovery work.

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Personnel should not be too junior or rotated too quickly. Experienced operators are required to ensure
effective outcomes. Specialization is needed.
4. Central Authorities
Central authorities can perform an important role in achieving effective outcomes. They are usually
the first point of contact with the foreign requesting party and are the gateway for execution of the request
domestically. However, central authorities should not simply act as a post-box. They should add value
wherever possible.
Central authorities may advise on the adequacy of the request. They can provide direct contact detailsof the responsible officer within the central authority, as well as contact details of other officers or agencies
responsible for executing the request. They should oversee execution of the request on a pro-active basis, if
not by directly executing themselves then by at least overseeing its timely execution.
Some central authorities receive large numbers of requests for international assistance, not just limited
to asset recovery work. They should give priority to cases as necessary and have in a place an effective
electronic case management system to track cases and their progress towards effective execution.
5. Anti-Corruption Efforts
However, the best work at the operational level is not going to be good enough if systemic corruption or
criminal justice failures pervade either the State making the request or the State receiving the request.
Some of the more high-profile international asset recovery cases have involved political leaders who havestolen from the coffers of the State they have been elected to lead, sometimes aided or at least unchecked bya corrupt political system. After regime change, their ill-gotten gains have become the target of recovery by
the new regime. But the existing systems in the country may have become corrupted to such an extent thatthey cannot effectively manage pursuit of these assets abroad. And when they can, questions may still arise
concerning the return and disposal of these assets to a system which remains fundamentally corrupted. Will
ill-gotten assets only be returned to end up in some-one else’s own pocket?
It is only when both requested and requesting States have in place fundamentally fair institutional
systems that operate relatively free of corrupt interference that this problem will be alleviated. Of course
the scope of such reform goes far beyond measures for effective asset recovery.
However, recent instruments such as the United Nations Convention against Corruption are leading theway for systemic reform. The provisions of the Convention rightly go beyond the standard criminalization
and asset recovery measures to include detailed provisions on corruption prevention measures in both the
public and the private sector, aimed at ensuring the integrity of institutions operating within each State.

C. Asset Management and Retention - Who Gets the Money?
Finally, to deal with the question of what happens to the ill-gotten gains if and when recovered.
Many jurisdictions have in place a scheme to protect and manage proceeds of crime pending enforcementof a final confiscation order. The funds remain under restraint in the jurisdiction where they are located, anddepending upon the nature of the asset under restraint, receivers are sometimes appointed to manage theproperty. If these are private sector receivers they may be paid from the assets under management.
Once the final confiscation order is enforced and all property realized, where do the funds go – to thejurisdiction in which they were seized, the jurisdiction requesting seizure, or are they shared? Bilateralor multilateral agreements may regulate such issues. Under the United Nations Convention against
Corruption, in certain types of cases all funds must be repatriated to the victim State. Under the United
Nations Convention against Transnational Organized Crime, restitution of victims of fraud is strongly
encouraged.
If the funds or a portion of the funds are retained by the jurisdiction in which they were seized, they
may be paid into general revenue. Some jurisdictions operate asset forfeiture funds into which recovered
proceeds are paid. The funds are then used for to pay for domestic law enforcement initiatives and other55

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related purposes.
Whatever the case, proper asset sharing and repatriation of ill-gotten gains must be the cornerstoneof a successful system. Law enforcement and criminal justice agencies will not usually be willing to
expend considerable time and effort to pursue ill-gotten gains abroad if they know, even when successfully
recovered, the ill-gotten gains will not be repatriated or at least shared.

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