108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINARTOPIC3LEGAL FRAMEWORK AGAINST TRANSNATIONALORGANIZED CRIME BY CRIMINAL JUSTICE SYSTEMS IN
DIFFERENT COUNTRIES
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Advisers

Mr. Udaya Nepali Shrestha
Mr. Semisi Fonua Fifita
Mr.Cheung, Yim-fui
Mr. Yasutaka Harada
Professor Yuzuru Takahashi
Professor Kayo Konagai

I. INTRODUCTION
Under the theme of the 108th
International Seminar “Current Problems
in the Combat of Organized Transnational
Crime”, our group was assigned to explore
the legal framework against organizedtransnational crime in different countries’
criminal justice systems. The scope of our
exploration was identified and finalizedwith the following issues being focused on:(1) s p e c i f i c c r i m i n a l p r o v i s i o n s(substantive and procedural) for
efficient countermeasures against
crimes committed by organizedtransnational crime groups;(2) provisions for the confiscation of illicit
proceeds derived from the specificorganized transnational crimes;(3) provisions specifically directed atorganized crime groups;(4) provisions for pro-active and/or nontraditional strategies, such as,
undercover operations, wiretapping,immunity, controlled delivery etc., ininvestigating organized transnational
crimes;(5) provisions for witness protection
programmes;(6) special provisions with regard tosentencing policy; and(7) e x p l o r a t i o n o f p r o v i s i o n s f o r(Nepal)(Tonga)(Hong Kong)(Japan)(UNAFEI)(UNAFEI)

international co-operation in criminal
matters, such as extradition andmutual legal assistance.
In our examination, a total of 22
countries’ criminal justice systems werestudied, namely: Bangladesh, Colombia,
Fiji, Hong Kong, India, Japan, Madagascar,
Malaysia, Mexico, Mongolia, Nepal,
Nicaragua, Pakistan, Papua New Guinea,
Philippines, Korea, Saudi Arabia,
Thailand, Tonga, Turkey, Venezuela, and,
Viet Nam. Our study was conducted byways of referring to the individual
presentation reports of participants
attending this Seminar, holding ofinterviews with participants, of general
discussion in forum, and, examining ofconcerned law books.
II. CURRENT PROVISIONS IN
COMBATING ORGANIZEDTRANSNATIONAL CRIMES IN THE
RESPECTIVE COUNTRIES
A. Efficient Countermeasures
Defining the term “efficientcountermeasures” in legal justice systems
is difficult , the group is nevertheless of theopinion that it should be a formalized
system or arrangement facilitated either
by provisions or executive action

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RESOURCE MATERIAL SERIES No. 54(procedural) which is to speedily and timely
deal with the suspect in the course ofinvestigation and/or offender upon his/herarrest.Performance indicators are
therefore placed upon: simplified
procedures in investigating and detecting
offences; timely process of request forassistance; and speedy trial.
Upon examining the legal justicesystems of these 22 countries, it was
revealed that only the Philippines has the
set-up of ‘Special Dangerous Drug Court’to speed up the criminal proceedings for
drugs trafficking cases. In this court, trials
can be concluded within two months,
following the arrest of the offender. In Hong
Kong, authorization in conducting raid at
premises for firearms is delegated to police
officers of the rank of superintendent(under the Firearms and Ammunition
Ordinance) to speed processes. In addition,
under the Police Force Ordinance of Laws
of Hong Kong, banking institutes uponreceipt of the request from the police haveto supply information whether the subject
has any accounts drawn on the bank andall account records, if any, within 28 days.
It is noted that some countries, such as
India and Malaysia, will make use of theinternal security provisions to speed up
proceedings against criminal, however thegroup is of opinion that these kinds ofcountermeasures should not be
encouraged.
B. Confiscation of Illicit Proceeds
Provisions for confiscation of illicit
proceeds, although confined to illicit
trafficking in drugs, are in force in morethan half of the 22 countries assessed;
namely Bangladesh, Colombia, Hong Kong,
India, Japan, Korea, Malaysia,
Madagascar, Mexico, Nepal, Nicaragua,
Pakistan, Saudi Arabia and Turkey.
Amongst them, Bangladesh, Colombia,
Hong Kong, Mexico, Nepal, Pakistan,
Saudi Arabia and Turkey further have244

provisions for confiscation of illicit proceeds
derived other than from drug trafficking.
Of note, some countries have already had
provisions in the final draft to regulate theconfiscation of illicit proceeds derived fromdrug trafficking and/or organized crimes,
although they are yet to be enacted, suchas the Anti-Organized Crime Law of Japan,
the Proceeds of Crime and Money
Laundering (Prevention) Act of India, andthe Money Laundering Control Act ofThailand.
C. Criminalization of Organized
Crime Groups
Provisions for criminalizing members oforganized crime groups can be divided into
two categories: the first being provisions
criminalizing the MEMBERSHIP of anorganized crime group which making it anoffence of being a member; the second
category is described as provisions
criminalizing SPECIFIC OFFENCES
COMMITTED BY MEMBERS of anorganized crime groups. By this criteria,
the “Society Ordinance” of Hong Kong andthe “Act for the Punishment of Violent
Crimes” of Korea are under the firstcategory; while the “Anti-Boryodukan Law”
of Japan, and, the “Uttar Pradesh
Gangsters and Anti-Social Activities(Prevention) Act” which is only applicablein the State of Uttar Pradesh of India
should be within the second’s.
D. Provisions for Pro-Active
Strategies in Investigating
Organized Crimes
For easy reference, pro-active strategies
in investigating organized crimes are
confined to those assessed to be the mostreliable and effective evidence-gathering
techniques, such as undercover operations,
wiretapping, immunity, and controlled
delivery.

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
1. Undercover Operations
Under the laws of Colombia, Malaysia,
Mexico, Pakistan (for drugs offences only),
Madagascar, Saudi Arabia, Venezuela, andViet Nam, in the course of investigation anddetection of criminal activities, themounting of undercover operations by the
deployment of operatives is legallypermitted and governed. Evidence so
adduced is admissible in court. While in
Bangladesh, Hong Kong, Japan,
Philippines and Turkey, undercover
operations are common practice and legal
in the sense that there is no laws to rule itillegal. Undercover operations are basicallyillegal in the countries of India, Korea,
Nepal, Nicaragua, Thailand, Tonga, andFiji.
2. Wiretapping
The definition of wiretapping in ourstudy is defined to the interception and/or
the tapping of conversations over the
telephone without the knowledge of boththe calling and receiving parties.
Provisions permitting the wiretapping in
the course of investigation exist in
Colombia, India (mainly for information/
intelligence gathering and evidence so
obtained is not admissible in court),
Madagascar, Malaysia (applicable only todrug trafficking and kidnapping offences),
Mexico, Pakistan, Philippines, Turkey(subject to the prior approval of the court),
Venezuela, and Viet Nam.
3. Immunity
In view of the difficulties encounteredin prosecuting the master-minds ofcriminal syndicates (principal offenders),
especially for victimless crimes, due to thesecret operation of most of the organizedcrime groups, the granting of immunity tomembers of the criminal syndicate oroperatives in undercover operations, so as
to obtain their testimonial evidence incourt, is assessed as one of the mosteffective and reliable tactics. Immunity, interm of its types, can be divided into two
categories in accordance with the approachof U. S. A.. The first type which is granted
through legislation is called “formal”
immunity, while the second type is granted
by way of negotiation carried out between
the defense counsel and prosecutor withthe acknowledgment of the presiding judge.
In respect of “formal” immunity, it can befurther divided as “use” and “transaction”
immunity.
(i) Use Immunity: briefly protects awitness from prosecution in respect of
their testimonial evidence in court fromincriminating themself for a particularoffence.
(ii) Transaction Immunity: is a blanket
protection to a witness fromprosecution regarding their testimonial
evidence in court for a particular crime,or a series of crimes (transaction), in
which s/he is incriminated.
“Informal” immunity is basically anagreement as a result of the bargain and/or negotiation between the defense counsel
and prosecutor, with the cognisance of thepresiding judge. By this agreement thewitness is protected from prosecution.
Our study of these 22 countries’ legal
justice systems revealed that provisions toregulate immunity exist in Colombia, Hong
Kong, India, Mexico, Pakistan, thePhilippines, the Republic of Korea, Saudi
Arabia, Venezuela and Viet Nam, although
the circumstances under which it isgranted may be defferent.
4. Controlled Delivery“Controlled Delivery” is an effective toolin combating illicit drugs trafficking andis defined in the 1988 United Nations
Conference for the Adoption of theConvention Against Illicit Trafficking inNarcotic Drugs and Psychotropic

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RESOURCE MATERIAL SERIES No. 54
Substances, as “the technique of allowing
illicit or suspicious consignments, or
substances substituted for them, to passout of, through or into the territory of one
or more countries, with the knowledge andunder the supervision of their competentauthorities, with a view to identifying
persons involved in the commission of theoffence”.
Out of the 22 countries, adopting thetactics of controlled delivery in tackling
illicit drugs trafficking, handling stolen
goods, etc. is legalized in Hong Kong, India,
Japan, Madagascar, Malaysia, Pakistan,Philippines, Saudi Arabia, Turkey andVietnam. Nevertheless difficulties has been
experienced in some countries affecting the
success of these operations, due to theinadequate cooperation and coordination of
involved countries, especially destination
countries.
E. Witness Protection Programmes
The importance of witness protection isparticularly pertinent in the success of
combating organized crimes, not only
because of preventing threat and/or
violence to the witnesses but also as aguarantee in gaining the confidence of
witnesses in support in of organized crime
prevention and detection.
Most of the countries studied realize theessential need of protecting witnesses.
Their witness protection programmes canbasically be categorized in to three types:(1) Countries with witness protection
programmes regulated by legislation
are: Colombia, Mexico, Philippines,
Saudi Arabia and Turkey (applicable toterrorist matters only). While in Hong
Kong (Witness Protection Ordinance)and Nepal (Witness Protection Act) arein the draft stages.
(2) Countries with the witness protection
programme formalized by way of
executive action are: Bangladesh, Hong

246

Kong, Korea and Nepal.
(3) This group consists of those remaining
countries in which the witness
protection issue is not formalized nor
legislated, but may be provided in caseof need.
Of note is that despite witness protection
programmes in force in law or otherwise
in some countries, the extent andstandards varied. Some countries only
confine their protection to the trial period,
although some countries provide a fullrange of protection including physicalprotection, relocation of residence, financial
support, change of identity, and theextending of the scheme to cover thewitness family and relatives. However it
is unfortunate to note that some arehampered by the lack of financial andhuman resources to afford a comprehensive
witness protection programme.
F. Special Criminal Punishment/
Sentencing Policy
Sentencing policy is basically a decision
making process for the authority todetermine the treatment of a convicted
offender. It nevertheless implies themessage of deterrence, punishment andrehabilitation, in accordance with thepriority allocated and nature of the offence.
Of course, the background of the offendershould be taken into consideration as well.
Under this scope, a lot of factors such as
the characteristics of the country, social,political economic, development stage,
phenomenon of the country, may bebrought up. For the sake of our study, focus
is placed upon the issue of sentencing policy
with regard to organized crime offenders.
Amongst the countries studied, Hong Kong
(Society Ordinance, and, Organized andSerious Crime Ordinance), Japan (AntiBoryokudan Law) and Korea (Act for the
Punishment of Violent Crimes) havespecial provisions to criminalize themembers of an organized group by

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
enhancing the sentence for the offence
committed, although in Japan being amember of Boryokudan itself is not an
offence under the Anti-Boryokudan Law.
Whereas Bangladesh, India, Malaysia,
Pakistan, the Philippines, Saudi Arabia
and Turkey, has capital punishment inforce for drug trafficking offences.
G. Provisions for International
Cooperation
There is no dispute that international
cooperation becomes a “must” if organizedtransnational crime is to be combatedeffectively and efficiently. The effectivemeans are the surrender of fugitives andmutual assistance in criminal investigationby the facilitation of national provisions
and/or bilateral/multilateral agreements;
although difficulty is experienced byrequesting countries due to lack of bilateralagreements with the requested countries,or, in view of the principle of speciality andof dual criminality.
Upon studying the 22 countries, thosewith national provisions to facilitate theinternational cooperation are Bangladesh,
Colombia, Japan, Madagascar, Mexico,
Malaysia, Nepal, Pakistan, the Philippines,
the Republic of Korea, Saudi Arabia,
Thailand, Turkey and Venezuela, while
Hong Kong is in the stage of drafting the
fugitive offenders bill.
III. QUESTIONS TO BE ANSWEREDAmongst the above seven issues,
adoption of pro-active strategies such as
undercover operations, wiretapping,immunities, and controlled delivery ininvestigating organized crimes attracted
active discussions in the forum; not onlyin the scope of human rights, individual
freedom, personal privacy but also bringing
up the dilemmas being encountered by law
enforcement agents, the issue ofentrapment, and the issue of police ethics.

Despite in some countries undercover
operations and/or wiretapping are yet tobe legally permitted (of course in this sense
it should not be assumed as illegal), law
enforcement agencies adopt them as acommon practice for information/
intelligence gathering. This sort of practiceapparently brings out a question of
temptation and entrapment, should thelaw enforcement agent lack supervisionand coaching. Meanwhile the belief thatthe law enforcement agency, as part of thesocial justice system, should reflect justiceby maintaining the law and order withhonesty and integrity, these practices are
no doubt putting the law enforcement
agent(s) in a dilemma. It is easy to imagine
the next question of credibility of theofficers concerned in their testimonial
evidence under which the informational
evidence is gathered. Should the officer
intentionally deny or conceal the truth, orshould s/he be holding to the ethic ofhonesty and tell the whole truth?
Immunity was another hot issue during
the discussion session. By adopting theapproach of the U.S.A., immunity (asdescribed earlier), both formal or informal,
basically puts a suspect under exemption
from prosecution. This tool seems to be oneof the most effective countermeasures inbringing the heads of organized criminal
syndicates before justice. The question of
abuse (such as what can be done if thewitness whom the immunity has been
granted turns hostile in court) should
however become another concern of thelegislators.
In the course of the forum, the meaningof immunity also attracted active
discussion although it was eventuallyclarified that by adopting the U.S.A.’s
approach and other countries’ approaches,
the application and circumstances underwhich it is granted might be different. In
Hong Kong, the immunity (called Public247

RESOURCE MATERIAL SERIES No. 54
Interest Immunity) can be granted either
before the commission of the offence, orafter the commission of the offence. The
former applies to police officers (operative)
and/or witnesses (Informer) who have beentasked to take part in the undercover
operation, while the latter can be granted
to a suspect so as to testify against a
principal offender.
Unless undercover operations,
wiretapping, and immunity are formalized
and founded with clear and specificlegislation, the question of dilemmas andabuse remain to be answered.
The tactics of controlled delivery also
causes concern upon the issue of lack ofeffective and efficient cooperation andcoordination. In this aspect, the setting up
of a joint action task force which not only
involves law enforcement agencies ofaffected countries, but also includes legal
counsel of concerned countries, appears to
be a possible solution.
IV. CONCLUSION
Coming across the aforementioned
scenario of organized crime, it is realizedthat perhaps there is no country in theworld left free from organized crime one
way or other. The problem of crime has
been faced by all countries irrespective of
economic and technological development or
nation size. However, the crimes haveflourished all over the world wherever
there is a favorable atmosphere in respectof economic benefit and legal lacunas.
On the basis of general discussion of thisgroup, it may be commented that there isno specific law in each country dealing withall transnational organized crime, that has
substantive and procedural legal provisions
for the efficient countermeasures against
such crimes. In view of the rapid
development of globalization, the248

realization of provisions for confiscation ofillicit proceeds derived from specificorganized crimes becomes urgent.
Provisions providing undercover
operations, wiretapping, immunity,
controlled delivery and so on have been
discussed in length. Most of the countries
have these sort of practices in theircountries, necessary to overcome criminal
activities, but very few countries haveaccording legal provisions (without which
the law enforcement agencies are
handicapped to combat the targeted crimeand criminals). It is almost a consensus
that such laws should be materialized andformalized so as to enable crime combatting
agencies, but with full respect forrecognized human rights, individual
freedoms and personal privacy.
Protection of witnesses is needed forcases to be actioned effectively. By such,
witnesses as can not only be protected fromthe danger of threat and violence, but canalso be confident in their support oforganized crime prevention and detection.
Many countries are found to havedomestic laws providing extradition andmutual legal assistance in criminal
matters. Some of the countries, although
there is no such laws, have entered into
mutual assistance agreement with many
countries, especially neighbouring
countries, for the arrangement oftransborder as well as international
crimes. Beside this, countries studied havelinks with interpol, by which capability in
combatting organized transnational crimes
are further enhanced. Moreover, United
Nation’s instruments relating to drugs andother transnational organized crimes arein effect in almost all participating
countries, such as Vienna Convention
Against Illicit Trafficking in Narcotic Drugs
and Psychotropic Substances, 1988. The
Seminar was in consensus to make an

108TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
effort to adhere to such internationalarrangements and cooperation, either inbilateral or multilateral ways.
In sum, it is noted that the law
enforcement authorities would require
legal room to accommodate effective
methods against organised crime, either
through national or international means.
Being transnational in nature, proper
information, law and law enforcement
agencies, as well as proper adjudication are
a l w a y s d e e m e d n e c e s s a r y. To d a y,commitment has been shown by the worldin such matters in many forums. However,proper arrangements for uniform andefficient countermeasures are still needed
to be realized and explored as early as
possible before new crimes come.

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