A proposed ‘duty of collaboration’ rule in Macau’s new bill for regulating junket operators and management companies, has appeared to give unusually broad powers to the authorities should they seek evidence of compliance with the new law. Disclosure to the authorities would be required, even if the matters concerned would usually be considered subject to lawyer-client confidentiality or other forms of professional secrecy, two gaming lawyers respectively told GGRAsia.
The Macau government has proposed a new consolidating bill that sets out to govern licensing and regulatory matters related to junket operators, their collaborators as well as management companies, which is now being deliberated at the Legislative Assembly.
The bill – “Regime for the exploitation of games of chance” – includes an article on duty of collaboration, which says: “In order to implement the provisions of this law, any person or entity must collaborate with the Macau SAR Government and provide all necessary support, providing the Gaming Inspection and Coordination Bureau and Financial Services Bureau with the necessary documents, information, elements or evidence when requested, even if they are documents, information and elements that are subject to the duty of secrecy.”
“This rule is set up to grant the Macau gaming and financial supervisors very broad powers to obtain any evidence related to the compliance or non-compliance with the proposed law,” observed local lawyer André Santos Raquel, from JNV – Lawyers and Notaries.
Mr Raquel added: “Even though this article already has a broad scope, the proposed wording further includes the section ‘even if these are subject to the duty of secrecy’, meaning that certain service providers such as banks and lawyers, which are traditionally bound by statutory secrecy duties, would now be required to comply with a request from the supervisors to provide materials.”
Another Macau lawyer, Sérgio de Almeida Correia, queried the rationale of the proposed article.
“The Macau Lawyers’ Code of Ethics states that lawyers cannot be questioned or reveal facts that constitute professional secrecy. All evidence obtained in violation of this rule… is null and void and cannot be used to incriminate or convict anyone,” explained Mr Correia.
He has also told GGRAsia: “This obligation of secrecy covers documents and only ends in exceptional situations at the request of the lawyer himself, and with the prior authorisation of the [Macao] Lawyers Association. The Macau Criminal Procedure Code guarantees lawyers – and other professions such as journalists, doctors and priests – the right to refuse to testify on those facts covered by professional secrecy.”
The proposed article on duty of collaboration has been discussed on Thursday by a Legislative Assembly committee, led by legislator Chan Chak Mo. There were also doubts expressed during the meeting on the rationale of the legal proposal. The committee would await government clarification, Mr Chan told reporters following the Thursday session.
Mr Raquel told GGRAsia: “There are broad duties of collaboration, for example in anti-money laundering legislation – which is reflected in instructions of several industry supervisors such as the Gaming Inspection and Coordination Bureau, the Monetary Authority or the Macau Lawyers’ Association – commanding a general duty to provide any and all assistance to the respective supervisors, but there is no rule pursuant to which a duty of secrecy is set aside.”
The lawyer further suggested: “The broad scope of this rule appears to be unprecedented, and should therefore be adjusted either: to include only the entities and individuals subject to the proposed law: [gaming] concessionaires, [junket] promoters, collaborators and management companies… or” in order “not to set aside any statutory duties of secrecy”.
