PART VI FORFEITURE
27. Seized articles, etc. liable to forfeiture
(1) There shall be liable to forfeiture--
(a) any article which has been seized by a member of the Customs and Excise Service or an authorized officer in connexion with the contravention of any provision of this Ordinance;
(b) any vessel not exceeding 250 gross tons and any vehicle so seized and which has been used in connexion with, or is the subject of, the contravention of any provision of this Ordinance, (Amended 22 of 1991 s. 9) whether or not any person has been convicted of an offence in respect of such contravention.
(2) The Commissioner may, at any time before serving notice under subsection (3), restore any article (other than an article referred to in the Schedule) or any vessel or vehicle which is liable to forfeiture to the person who appears to him to be the owner thereof or the authorized agent of the owner; and upon such restoration the provisions of this section and sections 28, 29 and 30 shall cease to apply to the article, vessel or vehicle.
(3) Within 21 days after the seizure of any article, vessel or vehicle which appears to him to be liable to forfeiture under subsection (1), the Commissioner shall serve notice of such seizure upon the owner of the article, vessel or vehicle: Provided that if there is more than one owner of any such article, vessel or vehicle, it shall be sufficient for the purposes of this subsection to give notice to one such owner.
(4) A notice given under subsection (3) shall be deemed to have been duly served if--
(a) it is delivered to the person on whom it is to be served;
(b) it is sent by registered post addressed to such person at the place of residence or business of such person, if any, known to the Commissioner; or
(c) where it cannot be served in accordance with paragraph (a) or (b), the notice is exhibited at the Customs and Excise Department, in a place to which the public have access, for a period of not less than 7 days commencing within 21 days from the date of the seizure of the article, vessel or vehicle.
(5) Where a notice has been served under subsection (3) in respect of any article, vessel or vehicle seized under this Ordinance any person--
(a) who is the owner thereof or the authorized agent of the owner; or
(b) who was in possession of the article, vessel or vehicle when it was seized, (hereinafter referred to as the claimant) may, within 30 days after--
(i) the date of the notice, if it was served under subsection (4) (a) or (b); or
(ii) the first day on which it was exhibited, if it was served under subsection (4) (c), give notice in writing to the Commissioner that he claims that the article, vessel or vehicle is not liable to forfeiture.
(6) If, on the date of expiration of the appropriate period of time specified in subsection (5) for the giving of a notice of claim, under that subsection, no such notice has been given in writing to the Commissioner the article, vessel or vehicle in respect of which notice was given under subsection (3) shall be forfeited forthwith to the Crown.
(Amended L. N. 294 of 1982)
28. Determination by magistrate of applications for forfeiture
(1) When a notice of claim is given under section 27 (5), the Commissioner or an authorized officer shall apply to a magistrate for the forfeiture of the article, vessel or vehicle and shall state in the application the name and address of the claimant as specified in the notice of the claim.
(Amended L. N. 294 of 1982)
(2) When any such application is made to a magistrate, the magistrate shall issue a summons to the claimant, requiring him to appear before a magistrate upon the hearing of the application, and shall cause a copy of such summons to be served upon the Commissioner. (Amended L. N. 294 of 1982)
(3) If, at the time and place appointed in a summons issued under subsection (2), the claimant or some other person who, though not the claimant, was, or would have been, entitled to make a claim under section 27 (5), appears before a magistrate, the magistrate shall hear the application.
(4) If, at such time and place, neither the claimant nor any other person who, though not the claimant, was, or would have been, entitled to make a claim under section 27 (5), appears before a magistrate and the magistrate is satisfied that the summons was duly served, the magistrate shall hear the application.
(5) Subject to the provisions of this Ordinance, an application under this section shall be deemed to be a complaint for the purposes of section 8 of the Magistrates Ordinance (Cap. 227).
(6) Upon the hearing of an application under this section a magistrate shall order that the article, vessel or vehicle, as the case may be, be forfeited to the Crown--
(a) in the case where--
(i) the person who appears in answer to the summons fails to satisfy the magistrate that he was, or would have been, entitled to make a claim under section 27 (5) in respect of the seized article, vessel or vehicle; and
(ii) no other person appears before the magistrate and satisfies him that he was, or would have been, entitled to make such claim; and
(iii) the magistrate is satisfied that the article, vessel or vehicle is liable to forfeiture; or
(b) in the case where the magistrate is satisfied that the article--
(i) is liable to forfeiture; and
(ii) is such an article as is referred to in the Schedule.
(7) Upon the hearing of the application under this section, in any case other than a case referred to in subsection (6) (a) or (b) a magistrate may, if he is satisfied--
(a) that a person is, or would have been, entitled to make a claim under section 27 (5) in respect of the seized article, vessel or vehicle; and
(b) that the article (not being such an article as is referred to in the Schedule), vessel or vehicle is liable to forfeiture, order that the article, vessel or vehicle--
(i) be forfeited to the Crown;
(ii) be delivered to the owner thereof or the authorized agent of the owner subject to any condition which he may specify in the order; or
(iii) be disposed of in such manner and subject to any such condition as he may specify in the order.
(8) Upon the hearing of the application--
(a) a certified true copy of the record of the proceedings, including the decision of the court, in any proceedings in respect of the contravention of any provision of this Ordinance shall be admissible in evidence; and
(b) a certificate issued by a Certifying Authority certifying the gross tonnage of any vessel shall, upon production of the certificate and without proof of the signature thereon, be admissible as prima facie evidence of the facts stated therein. (Amended 22 of 1991 s. 10)
(9) In subsection (8), "Certifying Authority" means the Director of Marine or any person authorized by him as a certifying authority under the Merchant Shipping (Registration) (Tonnage) Regulations (Cap. 415 sub. leg. ). (Added 22 of 1991 s. 10)
29. Power to release seized vessels and vehicles prior to the hearing
(1) Where an application has been made under section 28 in respect of a vessel or vehicle which is liable to forfeiture, a magistrate may, upon payment into court by way of security of a sum of money not less in amount than the value of the seized vessel or vehicle, as assessed by the Commissioner or an authorized officer, order that the vessel or vehicle be delivered to the claimant thereof upon the condition that the vessel or vehicle be re-delivered into the custody of the Commissioner before the date of hearing of the application.
(2) If--
(a) a magistrate has ordered under subsection (1) that a seized vessel or vehicle be delivered to the claimant thereof; and
(b) the vessel or vehicle is not delivered into the custody of the Commissioner before the date of the hearing under section 28, the magistrate hearing the application may, in lieu of ordering under section 28 (6) or (7) that the vessel or vehicle be forfeited to the Crown, order that the money paid into court under subsection (1) of this section be forfeited to the Crown or returned to the person who paid it into court.
(Amended L. N. 294 of 1982)
30. Claims for the return of forfeited articles, etc.
(1) The owner of any article, vessel or vehicle forfeited to the Crown under this Ordinance, or the authorized agent of the owner, may, within 6 weeks after--
(a) the article, vessel or vehicle has been forfeited to the Crown under section 27 (6) or has been forfeited to the Crown by order of a magistrate under section 28 (6) or (7); or
(b) the determination of any appeal against an order for forfeiture of the article, vessel or vehicle made by a magistrate under section 28 (6) or
(7), give notice in writing to the Commissioner of his intention to submit to the Governor a moral claim in respect of the forfeited article, vessel or vehicle. (Amended L. N. 294 of 1982)
(2) Where the owner of any forfeited article, vessel or vehicle or his authorized agent has given notice in writing to the Commissioner under subsection (1) and has submitted a moral claim to the Governor by lodging it in triplicate with the Chief Secretary within one month from the date of such notice, the Governor after considering the claim may--
(Amended L. N. 294 of 1982)
(a) order the return of the forfeited article, vessel or vehicle to the claimant; or
(b) direct that the claim be referred to the Governor in Council.
(3) The Governor in Council after considering the claim referred to him under subsection (2) may--
(a) order the return of the forfeited article, vessel or vehicle to the claimant; or
(b) reject the claim.
PART VII REGULATIONS
31. Power to make regulations
(1) The Governor in Council may make regulations for all or any of the following purposes--
(a) prohibiting the import and export of any article;
(b) prohibiting the import and export of any article except under and in accordance with the terms and conditions of a licence;
(c) providing for the issue of licences to import or export any article;
(ca) empowering the Director to exempt any person from any requirement to obtain a licence to import or export any prohibited article; (Added 50 of 1984 s. 2)
(d) prescribing conditions to be observed by any person before or after the issue of an import licence or an export licence;
(e) imposing upon owners of ships, aircraft and vehicles, masters of ships, commanders of aircraft and persons in charge of vehicles such obligations in respect of manifests, bills of lading, air waybills, air consignment notes and such other similar matters as may be necessary for carrying into effect the provisions of this Ordinance;
(f) imposing other conditions or restrictions on the import or export of any article;
(g) imposing conditions or restrictions on any cargo placed in or on any vessel, aircraft or vehicle for the purpose of import or export;
(h) controlling the examination and storage of articles imported or exported or about to be imported or exported;
(i) requiring any person importing or exporting any article to give any specified information in respect of the article before or after it has been imported or exported;
(j) regulating the movement within Hong Kong of any article which has been or is intended to be imported or exported or otherwise dealt with under the provisions of this Ordinance;
(ja) providing for the imposition of conditions in the discretion of the Commissioner on the carriage of articles prescribed by the regulations or by the Director in accordance with the requirements of the regulations on or by vessels in the waters of Hong Kong including activities incidental to the transportation on land of the articles to the vessels and loading of such articles on to such vessels and for the issue of licences by the Commissioner to regulate all such activities; (Added 22 of 1991 s. 11)
(k) providing for the issue of certificates in respect of the importing, exporting, producing, processing, manufacturing and composition of any article and for conditions which may be attached to such certificate;
(l) providing for the issue of certificates in respect of preferential customs tariffs and for conditions which may be attached to such certificate;
(m) providing for the registration of any person applying for the issue of any licence and for conditions which may be attached to such registration;
(n) providing for the registration of any person importing, exporting, manufacturing, processing, storing, distributing, selling or dealing with any article in respect of which any licence may be issued and for the conditions which may be attached to the registration of any such person;
(o) providing for the registration of any premises--
(i) in respect of which any licence may be issued; or
(ii) connected with the importing, exporting, manufacture, processing, storage, distribution, sale or other dealing with any article in respect of which any licence may be issued, and prescribing any condition upon the registration of such premises;
(p) providing for the cancellation, revocation or suspension for any period of the registration of any person where the Director is satisfied that the person so registered has contravened any condition of any licence;
(q) providing for the imposition and administration of quota controls in respect of the import or export of any article;
(r) providing for the sale or transfer of any quota and for the conditions under which any quota may be sold or transferred;
(s) providing for the registration of any person involved in any dealing with an article on which any quota control is imposed and the transfer of any such registration from one person to another;
(t) requiring importers, exporters, carriers, owners and manufacturers to furnish to the Director or any other specified public officer information for the purpose of compiling statistics of overseas trade;
(u) prohibiting or controlling the publication or disclosure of information or particulars furnished to the Commissioner or the Director, an authorized officer, an appointed officer or a member of the Customs and Excise Service under this Ordinance;
(v) providing for the verification of any particulars or information required to be furnished by any person under this Ordinance;
(w) providing that any person who fails to submit any document or furnish any information to the Commissioner or the Director or other specified public officer within a prescribed period of time shall be liable to pay a prescribed sum of money, which sum shall be a civil debt due to and recoverable by the Crown;
(x) prescribing fees to be collected by the Commissioner or the Director in respect of any matter arising under this Ordinance and generally to prescribe the mode and time of payment of such fees;
(y) empowering the Director to determine the form of any licence and any undertaking required under this Ordinance;
(z) providing that the Director-General of Trade may, by notice published in the Gazette, amend the Schedule to any regulation made under this Ordinance; (Amended L. N. 292 of 1989)
(za) requiring any person to whom a licence has been issued to keep such records or documents as may be prescribed or as the Director may determine; (Added 3 of 1973 s. 3)
(aa) levying, with or without exception or exemption, a charge on persons or any category or persons who furnish particulars pursuant to any regulation made under this section, and prescribing the amount or method of ascertaining the amount of such charge and the mode and time of payment thereof;
(ab) imposing or providing for the imposition of a pecuniary penalty, recoverable civilly, on any person who, being required under any regulation made under this Ordinance to lodge a declaration with the Commissioner in connexion with the import or export of any article, fails to lodge such a declaration or fails to lodge such a declaration within a prescribed period of time;
(ac) empowering the Commissioner to waive the payment of any pecuniary penalty imposed under regulations made under paragraph
(ab) and to refund any such pecuniary penalty which has been paid;
(ad) empowering the Director to require an applicant for a licence to deposit with him, before the issue of a licence, such sum of money as the Director may specify;
(ae) providing for the forfeiture to the Crown by a magistrate of all or any of the sum of money deposited under regulations made under paragraph (ad);
(af) prescribing any thing which is to be or may be prescribed under this Ordinance; and
(ag) generally for the better carrying out of the provisions and purposes of this Ordinance. (Amended L. N. 294 of 1982) (2) Subject to subsection (3), regulations made under this section may provide that a contravention of any such regulation shall be an offence and may prescribe penalties therefor.
(3) Regulations made under this section may prescribe that a contravention or breach thereof shall be punishable by a fine not exceeding 0,000 and imprisonment for a term not exceeding 2 years. (Amended 60 of 1980 s. 5)
(4) No regulation made under paragraph (aa), (ad), (ac), (ad) or (ae) shall come into operation until it has been approved by resolution of the Legislative Council.
32. Power to levy by resolution of Legislative Council The Legislative Council may by resolution provide for the imposition of a levy upon any person required under this Ordinance to furnish information for the purpose of compiling statistics of overseas trade and to provide for the method of determination of the levy and the mode and time of payment thereof.
PART VIII MISCELLANEOUS
33. Evidentiary provisions
(1) In any proceedings under this Ordinance it shall, unless the contrary is proved, be presumed that any cargo recorded in an import manifest furnished by--
(a) the master of a vessel;
(b) the commander of an aircraft;
(c) the person in charge of a vehicle; or
(d) the owner of such vessel, aircraft or vehicle, has been imported in or on such vessel, aircraft or vehicle.
(2) In any proceedings under this Ordinance it shall, unless the contrary is proved, be presumed that any cargo recorded in an export manifest furnished by--
(a) the master of a vessel;
(b) the commander of an aircraft;
(c) the person in charge of a vehicle; or
(d) the owner of such vessel, aircraft or vehicle, at any time before or after the departure from Hong Kong of the vessel, aircraft or vehicle, has been exported, or is intended to be exported, in or on such vessel, aircraft or vehicle.
(3) Any copy of an import manifest or an export manifest produced to the Director, an authorized officer or a member of the Customs and Excise Service under any provision of this Ordinance shall be admissible as evidence of the contents of the import manifest or export manifest of which it is a copy in any proceedings under this Ordinance; and the cargo referred to in the copy of such manifest shall be presumed until the contrary is proved, to have been imported or exported as the case may be in or on the vessel, aircraft or vehicle to which the copy of the manifest relates.
(4) Any copy of a licence or other document produced to the Director, an authorized officer of a member of the Customs and Excise Service under any provision of this Ordinance shall be admissible as evidence of the contents of the licence or other document of which it is a copy in any proceedings under this Ordinance before a court or magistrate.
34. Onus of proof in court proceedings
(1) In any proceedings under this Ordinance the onus of proving--
(a) the place--
(i) from which an article has been imported; or
(ii) to which an article is intended to be exported; or
(b) that an article--
(i) has been imported in accordance with the terms of a licence;
(ii) is intended to be exported in accordance with the terms of a licence;
(iii) has been imported for the sole purpose of exporting the article;
(iv) has been lawfully placed in or on any vessel, aircraft or vehicle for the purpose of exporting the article;
(v) has been lawfully removed from any vessel, aircraft or vehicle in or on which it was imported;
(vi) has been lawfully delivered to or placed in any premises or place after it has been imported; or
(vii) has been recorded in the manifest of the vessel, aircraft or vehicle in or on which it has been imported or is intended to be exported, shall lie upon the defendant in any such criminal proceedings and the claimant in any forfeiture proceedings.
(2) For the purposes of this section, the provisions of Part IV of the Evidence Ordinance (Cap. 8) (which relates to the admissibility of hearsay evidence in civil proceedings) shall apply as if proceedings under this Ordinance were civil proceedings.
35. Application of Ordinance to postal packets
(1) The provisions of this Ordinance shall apply to any article contained in a postal packet.
(2) Notwithstanding the provisions of subsection (1), a postal packet contained in a sealed mail bag shall, if the mail bag is listed in the manifest of the vessel, aircraft or vehicle in or on which it is imported or exported, not be construed as cargo for the purposes of this Ordinance.
(3) Any authorized officer or any member of the Customs and Excise Service may, in the presence of and under the directions of an officer of the Post Office, open and examine any postal packet held in the custody of the Post Office.
(4) For the purposes of this section, the terms "mail bag", "Post Office", "officer of the Post Office" and "postal packet" shall have the meanings assigned to such terms, respectively, under section 2 of the Post Office Ordinance (Cap. 98).
35A. Assisting, etc. in carriage of prohibited, etc., articles
(1) Any person who knowingly--
(a) has possession of any article, the carriage of which is restricted under regulations made under this Ordinance;
(b) has possession of any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance;
(c) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the carriage of which is restricted under regulations made under this Ordinance;
(d) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance;
(e) otherwise deals with any article, the carriage of which is restricted under regulations made under this Ordinance; or
(f) otherwise deals with any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance, with intent to evade the restriction or prohibition or to assist another person to evade the restriction or prohibition is guilty of an offence and liable on conviction to a fine of 0,000 and to imprisonment for 2 years.
(2) Any person who--
(a) has possession of any article, the carriage of which is restricted under regulations made under this Ordinance;
(b) has possession of any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance;
(c) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the carriage of which is restricted under regulations made under this Ordinance;
(d) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance;
(e) otherwise deals with any article, the carriage of which is restricted under regulations made under this Ordinance; or
(f) otherwise deals with any article, the export of which is prohibited under any law in force in Hong Kong or is prohibited other than in accordance with a licence issued under this Ordinance, in circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to evade a restriction or prohibition or to assist another person to evade a restriction or prohibition, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary. (Added 22 of 1991 s. 12)
36. Offences in respect of licences
(1) Any person who, in respect of--
(a) an application for the issue of a licence;
(b) an application for registration under this Ordinance; or
(c) any declaration, document or article required to be lodged with the Director, an authorized officer or member of the Customs and Excise Service pursuant to the provisions of this Ordinance, makes or causes to be made any statement or furnishes or causes to be furnished any information orally or in writing which is false or misleading in a material particular or omits any material particular shall be guilty of an offence and shall be liable on conviction to a fine of 0,000 and to imprisonment for 2 years, unless he satisfies the court or magistrate that he did not know and had no reason to believe the statement or information to be false or misleading or the omission to be material.
(Amended 3 of 1984 s. 3)
(2) Any person who--
(a) forges any licence;
(b) without the authority of the Director makes any alteration to any licence; or
(c) knowingly utters or makes use of any licence that has been forged or, without the authority of the Director, altered, commits an offence and is liable on conviction to a fine or 0,000 and to imprisonment for 2 years.
(Replaced 3 of 1984 s. 3)
36A. Offences by directors, etc. of corporations
Where an offence under section 36 is committed by a body corporate, every person who, at the time of the commission of the offence, was a director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, shall be guilty of the like offence unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.
(Added 3 of 1984 s. 4)
37. Time limitation for criminal proceedings
A complaint may be made or an information laid in respect of an offence under this Ordinance within 2 years from the time when the matter of such complaint or information respectively arose.
38. Informers
Save where, in the opinion of the court, justice so requires, the name or identity of any informer and the information given by such informer shall not be disclosed in any civil or criminal proceedings and the court may make any order and adopt any procedure necessary to prevent any such disclosure.
39. Amendment of Schedule
The Governor may amend the Schedule by notice published in the Gazette.
[ss. 27, 28 & 39]
SCHEDULE ARTICLES IN RESPECT OF WHICH, IF THEY ARE LIABLE TO FORFEITURE, AN ORDER FOR THEIR FORFEITURE IS MANDATORY
1. (Repealed L. N. 257 of 1973)
2. (Repealed L. N. 210 of 1975)
3. Any article prescribed in Schedules 1, 2 and 3 to the Import and Export
(Strategic Commodities) Regulations (Cap. 60 sub. leg. ).
(Amended 65 of 1991 s. 4; L. N. 28 of 1993) |
