RESOURCE MATERIAL SERIES No. 58

FIGHTING HONG KONG’S ORGANIZED CRIME,THE ORGANIZED & SERIOUS CRIME ORDINANCE
Peter Yam Tat-wing *I. BACKGROUND
Historically Hong Kong’s organizedcrime were often seen to be associated withactivities of triad societies active in the
territory. It was therefore no surprise thatapart from the array of criminal offences
under its Common Law Jurisdiction which
dealt with specific acts of the crime, Hong
Kong’s legal arsenal against triad andorganized crime was only to be found in its
Societies Ordinance which dealt with thethreat of triad societies by declaring themunlawful and outlawing their activities;
thus targeting the problem from anorganizational perspective.
The Societies Ordinance has beeneffective in suppressing the growth of triad
societies in Hong Kong. Whilst it is widely
acknowledged that our triad threats havebeen contained, the recent decades haveseen criminals transcending the traditionalboundary of triad societies, forming
themselves into organized crime groups.
Whereas some members of these organizedcrime groups may be triads themselves,
triad membership is no longer a prerequisite for joining such criminal
enterprise. To effectively deal with theseorganized crime groups, a new law wasneeded. Hong Kong first started working
on the new legislation by publishing a
discussion document in 1986 seeking public
views on how to deal with the threats posedby these organized crime groups. A further
discussion document on organized crime
was published in 1989. The two formed* Assistant Commissioner (Crime), Hong Kong Police
Force Headquarters, Hong Kong

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the basis of the public consultation
exercise. These culminated in the
introduction of the Organized Crime Billin 1991 and the revised Organized andSerious Crimes Bill in 1992.
October 1994 marked the enactment of
the Organized and Serious Crimes
Ordinance in Hong Kong after lengthy
discussion and some 70 amendments.
Nevertheless, this provided the police with
the new weapon which it needed to deal
with these newly emerged organized crimegroups which could not otherwise be dealt
with effectively under the Societies
Ordinance. The Ordinance came into full
effect in 1995.
II. THE ORDINANCE AT A GLANCE
In the absence of any applicableinternational protocol or convention, theOrdinance was modeled upon our earlier
Drug Trafficking (Recovery of Proceeds)
Ordinance enacted in 1989 and othersimilar legislations available in countries
having also Common Law Jurisdiction tofacilitate harmonization. It was enacted
to :
(i)

Create new powers ofinvestigation;(ii) Provide for confiscation of proceedsof crime;(iii) Enhance sentencing of certain
offenders; and(iv) Create new offences of dealing withproceeds of crime.
It created a schedule of offences(Schedule 1) which would become

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
organized crime, once they were linked tothe activities of triad societies, as well asother organized crime groups which set out
to commit such offences in repetition andothers which otherwise planned toendanger life, to inflict serious injury or toinflict serious loss of liberty.
The net casted by the Organized andSerious Crimes Ordinance is much wider
and the powers provided are much more
extensive than the earlier legislations.
Dedicated units in the Police and theDepartment of Justice work together toensure that this Ordinance is used correctly
and effectively in the fight againstorganized crime.

order which requires a person in possession
or control of material, in Hong Kong oroverseas, to produce that material to Policeor Customs & Excise officers forinvestigation of an organized crime;
proceeds of an organized crime; andproceeds of specified offence included in
Schedule 2 of the Ordinance. The creationof Schedule 2 specified offences extends thescope of this investigative power beyond
what is defined as organized crime and istherefore a very useful piece of legislation.
This is the most widely used Section andhas been used in a broad range of offences- from typical triad related offences tomoney laundering, to tax evasion on totally
342 occasions since the implementation of
the Ordinance.

III. THE INVESTIGATIVE POWER
A. Section 3 - Witness Order
This Section permits the Attorney
General to apply to High Court for an orderwhich compels a person to provide
information to Police or Customs & Excise
officers conducting an investigation of anorganized crime. Non-compliance with theorder is an offence and is punishable witha fine of up to $500,000.- and 3 years
imprisonment. Effectively, this section
removes a person’s right of silence and istherefore an exceptional power. Elaborate
procedures are in place to guard against
abuse. This Section has only been used on
24 occasions by the Police and in the mostneeded cases since the implementation of
the Ordinance. Of note is its recent
application in the investigation of a numberof Loco-London Gold fraud cases whereby
directors of bogus Loco-London Goldtrading companies are compelled to provide
information on the running of thesecompanies.
B. Section 4 - Production Order
This section permits the Attorney
General, the Police or Customs & Excise
to apply to the High Court for a production

C. Section 5 - Search Warrant
This Section permits the High Court orDistrict Court to issue search warrants forthe same types of investigations as foundin Section 4 on application by Police or
Customs & Excise officers. This Section
has since been used on 69 occasions. The
offence for unauthorized disclosure of
information and for prejudicing theinvestigation under Section 7 provides
Section 3, 4, 5 with additional clout which
is not normally found in other legislations.
The maximum penalty under Section 7 isa fine of $500,000.- and imprisonment for
7 years.
D. Section 6 - Disclosure ofInformation
The Organized and Serious Crime
Ordinance is designed to deal withorganized crime at both a national andtransnational level. Section 6 of theOrdinance permits disclosure of
information obtained under Section 3 to 5
to other investigative authorities both inHong Kong and overseas, thus allowing thesharing of information in the fight againstorganized crime.

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RESOURCE MATERIAL SERIES No. 58
IV. CONFISCATION OF PROCEEDSOF CRIME
A. Section 8 - Confiscation Order
Section 8 permits the High Court orDistrict Court where a person has been
convicted of a specified offence defined
under this Ordinance including both
Schedule 1 and 2 offence, to make aconfiscation order in relation to the person’s
proceeds of that specified offence where theproceeds exceed $100,000.-. This thresholdbeing in place to disable the use of suchprovision in lesser offence. By including
Schedule 2 offences this covers most serious
crimes as well as organized crime.
If a person is convicted of an organizedcrime and the proceeds from that offence
exceed $100,000.-, then the court can orderthe confiscation of the value for all the
person’s proceeds from organized crime, theamount is not limited to the proceeds of theactual crime with which the person ischarged. There are statutory assumptions
under Section 9 for assessing the proceedsof crime which can go back 6 years fromthe date the person is charged. There isalso Restraint Order under Section 15 andCharging Order under Section 16 to help
ensure that the criminal charged or to be
charged with the specified offences are notable to dispose of their realizable property
and that any earnings from these property
are paid to the Government before any
applications for Confiscation Orders are
determined. Since implementation, around$10 million have been confiscated; $107
million have been restrained/charged; and$24 million discharged subsequently infavour of victims.
B. Section 13 - Enforcing
Confiscation Orders
Whenever the High Court or the District
Court makes a confiscation order it will also
make an order fixing a term of
imprisonment which the defendant is to16

serve if any of the amount which he is liable
to pay under the confiscation order is notduly paid or recovered. Depending on theamount the additional sentence can range
from 12 months to 10 years. This provides
a strong incentive for the defendants tohandover their proceeds of crime. There
has only been 1 instance since theintroduction of the Ordinance where thedefendant refused to pay up, the proceeds
having been transferred overseas. He
served an additional sentence of 3 years as
a result.
V. ENHANCED SENTENCING
Section 27 permits prosecuting counsel
to present information in the High Court
or District Court in respect of a person
convicted of a specified offence for the
purpose of having the court impose agreater sentence than would otherwise
have been imposed. The information may
relate to such matters as it being anorganized crime; it being triad related; its
prevalence; its impact upon the victim or
the community; or otherwise its pecuniary
significance. The additional sentence
imposed can be as much as one third of theusual tariff. At the same time that there
are provision in the Ordinance to deal withproceeds of crime, this provision provide
further deterrence to would be criminals.
Since its implementation, the police has
secured enhancing sentencing in 25 cases
involving 68 defendants.
VI. DEALING WITH PROCEEDS OF
CRIMESection 25 makes it an offence for a
person to deal with another person’s
proceeds of an indictable offence. Thisfurther expands the scope of the Ordinancebeyond organized crime and specified
offence, creating the offence of money
laundering as long as the property
represent proceeds of an indictable offence.
Section 25A further makes disclosure of

116TH INTERNATIONAL TRAINING COURSE
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knowledge or suspicions that property
represent proceeds of indictable offence
mandatory and creates an offence forprejudicing the investigation. To protect
the confidentiality of such disclosures,
Section 26 provides restriction on revealing
disclosures under Section 25A in both civil
and criminal proceedings. The maximum
penalty for money laundering under
Section 25 is a fine of $5 million andimprisonment for 14 years. A total of 35
defendants in 30 cases have since been
convicted of money laundering offences.
VII. OVERALL EVALUATIONThe Organized and Serious Crime
Ordinance has provided law enforcement
officers in Hong Kong with the powers todeal with organized crime of both anational and transnational nature. The
Police investigative capability to combat
triads and organized crime groups has beenenhanced by these new provisions. The
power to compel the production of
documents and statements from victims
and witness has been particularly usefulin breaking through ‘the wall of silence’
which hitherto has hampered the Police
efforts in their investigations. The
confiscation of proceeds of crime from thesecriminals not only served to restore justice
but also crippled the operation of thesecriminal fraternities which could otherwise
continue to thrive on their wealth.
Enhanced sentences for those criminals
convicted in connection with triad andorganized crime offences not only removed
them from the streets for much longer
periods, but also act as a deterrent to those
who would otherwise follow in theirfootsteps.

VIII. CONCLUSION
Whilst Hong Kong accumulates its
experience in the use of this newlegislation, there are lessons which we havelearned from drafting the legislation to
implementing the provisions. The many
amendments to the Ordinance since its
enactment is testimony to this learning
process. There are still other amendments
which we will introduce to the legislaturenext year in order to enhance theeffectiveness of this very importantlegislation. It is the wish of the author thatsuch valuable experience are shared andthat this paper has taken the matter one
step further in the right direction.

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RESOURCE MATERIAL SERIES No. 58
Appendix A
ORGANIZED AND SERIOUS CRIMES ORDINANCESCHEDULE 1 OFFENCES
Common law offences
1.
2.
3.
4.

murderkidnapping
false imprisonment
conspiracy to pervert the course of justiceStatutory offences
Offence

Description

5.

Import and Export Ordinance (Cap. 60)
section 6A
import and export of strategic commodities
section 6C
import of certain prohibited articles
section 6D(1) and (2)export of certain articles in Hong Kong
section 6E
carriage, etc. of prescribed articles in Hong
Kong waters
section 18
importing or exporting unmanifested cargo

6.

Immigration Ordinance (Cap. 115)
section 37D(1)section 38(4)section 42(1) and (2)arrange passage to Hong Kong ofunauthorized entrants
carrying an illegal immigrant
false statements, forgery of documents anduse and possession of forged documents

7.

Dangerous Drugs Ordinance (Cap. 134)
section 4(1)trafficking in dangerous drugs
section 4A(1)trafficking in purported dangerous drugs
section 6(1)manufacturing a dangerous drug

8.

Gambling Ordinance (Cap. 148)
section 5
section 7(1)18

operating, managing or controlling
gambling establishment
bookmaking

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Appendix A
9.

Societies Ordinance (Cap. 151)
section 19
section 21
section 22

10. Money Lenders Ordinance (Cap. 163)
section 24(1)penalties on an office-bearer, etc. of an
unlawful society
allowing a meeting of an unlawful society
to be held on premises
inciting etc., a person to become a memberof an unlawful society

lending money at an excessive interest rate

11. Crimes Ordinance (Cap. 200)
section 24
section 25
section 53
section 54

section 55
section 60
section 61
section 71
section 75(1)section 98(1)section 100(1)section 105
section 118
section 119
section 120
section 129
section 130
section 131
section 134
section 137
section 139

threatening a person with intent
assaulting with intent to cause certain acts
to be done or omitted
causing explosion likely to endanger life orproperty
attempt to cause explosion, or making or
keeping explosive with intent to endanger
life or property
making or possession of explosive
destroying or damaging property
threats to destroy or damage property
forgery
possessing a false instrument with intent
counterfeiting notes and coins with intent
custody or control of counterfeit notes andcoins with intent
importation and exportation of counterfeit
notes and coinsrape
procurement of person by threats
procurement of person by false pretencestrafficking to or from Hong Kong in persons
control over person for purpose of unlawful
sexual act or prostitution
causing prostitution of person
detention of person for unlawful sexual act
or in vice establishment
living on earnings of prostitution
keeping a vice establishment

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RESOURCE MATERIAL SERIES No. 58
Appendix A
12. Theft Ordinance (Cap. 210)section 9
section 10
section 11(1)section 16(A)section 17
section 18
section 18D
section 19
section 23(1) and (4)section 24 (1)theftrobbery
burglaryfraudobtaining property by deception
obtaining a pecuniary advantage bydeception
procuring false entry in certain records
false accounting
blackmailhandling stolen goods

13. Offences against the Person Ordinance (Cap. 212)
section 17
shooting or attempting to shoot, orwounding or striking with intent to dogrievous bodily harm
14. Firearms and Ammunition Ordinance (Cap. 238)
section 13
possession of arms or ammunition without
licencesection 14
dealing in arms or ammunition without alicence20

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Appendix A
14A. Trade Descriptions Ordinance (Cap. 362)
offences in respect of infringement of trade
section 9(1) and (2)mark rights
import or export of goods bearing forged
trade marksection 12(provided that for the purpose of thisOrdinance, an offence under section
1 2 o f t h e Tr a d e D e s c r i p t i o n s
Ordinance does not include an offence
relating only to false tradedescription)section 22(provided that for the purpose of thisOrdinance, ‘offence under thisOrdinance’ referred to in section 22 of
the Trade Descriptions Ordinanceonly means an offence under (a) section 9(1) or (2) of that
Ordinance;or(b) section 12 of that Ordinance,
excluding any offence relating only tofalse trade description)

being accessory to certain offences
committed outside Hong Kong

15. Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405)
section 25(1)assisting another to retain the benefit ofdrug trafficking
16. Organized and Serious Crimes Ordinance (Cap. 455)
section 25(1)assisting a person to retain proceeds ofindictable offence
17. Weapons of Mass Destruction (Control of Provision of Services) Ordinance (Cap.
526)
section 4
providing services that assist thedevelopment, production, acquisition or
stockpiling of weapons of mass destruction

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RESOURCE MATERIAL SERIES No. 58
Appendix A
18. Copyright Ordinance (Cap. 528)
section 118(1), (4) and (8)(provided that for the purpose of thisOrdinance, ‘infringing copy’ referred
to in section 118(1) and (4) of the
Copyright Ordinance does not include
a copy of a work which is an infringing
copy by virtue only of section 35(3) ofthat Ordinance)
section 120(1), (2), (3) and (4)(provided that for the purpose of thisOrdinance, ‘infringing copy’ Referred
to in section 120(1) and (3) of the
Copyright Ordinance does not include
a copy of a work which is an infringing
copy by virtue only of section 35(3) ofthat Ordinance)

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offences relating to making or dealing withinfringing copies

offences relating to making infringing
copies outside Hong Kong

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Appendix B
ORGANIZED AND SERIOUS CRIMES ORDINANCESCHEDULE 2 OFFENCES
Common law offences1.
2.

manslaughter
conspiracy to defraud

Statutory offences
Offence3.

Import and Export Ordinancesection 14
section 14A
section 18A
section 35A

4.

Description

Immigration Ordinance (Cap. 115)
section 37DA(1)(Cap. 60)
alteration of vessels, aircraft or vehicles forthe purpose of smuggling
construction, etc., of vessels for the purposeof smuggling
assisting, etc., in export of unmanifested
cargoassisting, etc., in carriage of prohibited,etc., articles

assisting unauthorized entrant to remain

5.

Dangerous Drugs Ordinance (Cap. 134)
supplying or procuring a dangerous drug
section 5 (1)to or for unauthorized persons
offence relating to cannabis plant or opium
section 9(1), (2) and (3)poppykeeping or managing a divan for the taking
section 35(1)of dangerous drugs
section 37(1)permitting premises to be used for unlawful
trafficking, manufacturing or storage of
dangerous drugs

6.

Gambling Ordinance (Cap. 148)
section 14
section 15(1)providing money for unlawful gambling or
for an unlawful lottery
permitting premises to be used as gambling
establishment

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RESOURCE MATERIAL SERIES No. 58
Appendix B
7.

Registration of Persons Ordinance (Cap. 177)
section 7A

8.

Crimes Ordinance (Cap. 200)
section 72
section 73
section 74
section 76
section 99(1)section 101

9.

possession of forged identity cards

copying a false instrument
using a false instrument
using a copy of a false instrument
making or possessing equipment formaking a false instrument
passing, etc., counterfeit notes and coins
making or custody or control ofcounterfeiting materials and implements

Prevention of Bribery Ordinance (Cap. 201)
section 4(1)section 5(1)section 6(1)section 9(2)bribery of public servant
bribery for giving assistance, etc., in regard
to contracts
bribery for procuring withdrawal of tenders
bribery of agent

10. Theft Ordinance (Cap. 210)section 12(1)section 18A

aggravated burglary
obtaining services by deception

11. Offences against the Person Ordinance (Cap. 212)
section 19
wounding or inflicting grievous bodily
harm
12. Criminal Procedure Ordinance (Cap. 221)
section 90(1)24

doing an act with intent to impede
apprehension or prosecution of offender116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Appendix C
ORGANIZED & SERIOUS CRIME ORDINANCE
INTERPRETATION
1. “organized crime” means a Schedule I offence that (a) is connected with the activities of a particular triad society;(b) is related to the activities of 2 or more persons associated together solely or
partly for the purpose of committing 2 or more acts, each of which is a Schedule
1 offence and involves substantial planning and organization; or(c) is committed by 2 or more persons, involves substantial planning andorganization and involves (i) loss of the life of any person, or a substantial risk for such a loss;(ii) serious bodily or psychological harm to any person, or a substantial riskof such harm; or(iii) serious loss of liberty of any person.
2. “Schedule 1 offence” means (a) any of the offences specified in Schedule 1;(b) conspiracy to commit any of those offences;(c) inciting another to commit any of those offences;(d) attempting to commit any of those offences;(e) aiding, abetting, counselling or procuring the commission of any of those
offences.
3. “specified offence” means (a) any of the offences specified in Schedule 1 or Schedule 2;(b) conspiracy to commit any of those offences;(c) inciting another to commit any of those offences;(d) attempting to commit any of those offences.
(e) aiding, abetting, counselling or procuring the commission of any of those
offences;
4. “triad society” includes any society which (a) uses any ritual commonly used by triad societies, any ritual closely resembling
any such ritual or any par of any such ritual; or(b) adopts or makes use of any triad title or nomenclature.

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RESOURCE MATERIAL SERIES No. 58
Appendix D
MILESTONE OF THE ORGANIZED & SERIOUS CRIMES ORDINANCE
21 October 1994

OSCO enacted

2 December 1994

Provisions relating to money laundering and enhanced
sentencing came into force

28 April 1995

Other provisions relating to investigative powers andconfiscation of crime proceeds took effect

27 July 1995

Organized and Serious Crimes (Amendment) Ordinance 1995
which improves the confiscation and money laundering
provisions of the OSCO was passed by the Legislative Council

1 September 1995

Organized and Serious Crimes (Amendment) Ordinance 1995
brought into operation

27 June 1997

Offence under S.4 of the Weapons of Mass Destruction(Control of Provision of Services) Ordinance [Cap. 525] wereadded into Schedule 1 of OSCO following the enactment ofCap. 525

16 July 1999

‘Fraud’ under S. 16(A) of the Theft Ordinance was added into
Schedule 1 of OSCO following the amendment of the Theft
Ordinance

12 January 2000

Offences under the Trade Descriptions Ordinance [Cap. 362]
and Copyright Ordinance [Cap. 528] were added into
Schedule 1 of OSCO

27 January 2000

Organized and Serious Crimes (Amendment) Ordinance 2000
which requires any person or company involved in remitting
money into or out of Hong Kong to be registered with police
and to keep proper records of all transactions for the amountover HK$ 20,000 was passed by the Legislative Council

1 June 2000

Organized and Serious Crimes (Amendment) Ordinance 2000
came into force

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