Full legislation
s.28
Determination 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, the District
Court or the Court of First Instance for the forfeiture of the article, vessel or
vehicle and shall state in the application the name and address of the claimant or
in the case of a claimant who does not have a permanent address in Hong Kong, the
name and address of the solicitor authorized to accept service as specified in the
notice of the claim.
(Amended
L.N. 294 of 1982
;
62 of 1993 s. 9
;
25 of 1998 s. 2
)
(2)
When an application under subsection (1) 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
)
(2AA)
When an application under subsection (1) is made to the District Court or the
Court of First Instance, it shall be made and proceeded with in accordance with
rules of court, and may be begun by motion.
(Added
1 of 1994 s. 11
. Amended
25 of 1998 s. 2
)
(2A)
Where the claimant is the defendant in criminal proceedings before a court and
there is no other claimant, on an application made in that behalf by the
Commissioner, the court may hear the forfeiture application immediately following
the criminal proceedings and for the purposes of a hearing under this subsection,
any requirement in respect of the issue or service of a summons or any notice of the
hearing under or by virtue of subsection (2) or (2AA), as the case may be, shall not
apply.
(Added
62 of 1993 s. 9
)
(3)
If, upon the hearing of an application under subsection (1), 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 court, the court shall
hear the application.
(3A)
A court may, at the hearing of a forfeiture application, or at an adjourned
hearing, hear a
person—
(a)
who has not been served with a notice of seizure and was not present when
an article, vessel or vehicle was seized; or
(b)
whose identity was not known to the Commissioner at the time of, or
immediately after, seizure; and
(c)
who appears to the court to have a right to claim ownership of, or a legal
or equitable interest in, the article, vessel or vehicle,
on his claim as to why the article, vessel or vehicle should not be
forfeited.
(Added
62 of 1993 s. 9
)
(4)
If, upon the hearing of an application under subsection (1), 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 court and
the court is
satisfied—
(a)
that the summons or the notice of the hearing (if any) required to be
served under or by virtue of subsection (2) or (2AA), as the case may be, was
served;
(b)
that a person at the address for service, including a solicitor nominated
to accept service on behalf of a claimant, has refused to accept service of the
summons or the notice of the hearing referred to in paragraph (a); or
(c)
that the address for service given to the Commissioner is inadequate to
effect service of the summons of the notice of the hearing referred to in
paragraph (a),
the court shall hear and determine the application without requiring further
inquiry as to the whereabouts of the claimant.
(Replaced
1 of 1994 s. 11
)
(5)
Subject to the provisions of this Ordinance, an application under subsection
(1) to a magistrate 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 subsection (1) a court shall order that
the article, vessel or vehicle, as the case may be, be forfeited to the
Government—
(Amended
66 of 2000 s. 3
)
(a)
in the case
where—
(i)
the person who appears before the court fails to satisfy the court 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 court and satisfies it that he was,
or would have been, entitled to make such claim; and
(iii)
the court is satisfied that the article, vessel or vehicle is liable to
forfeiture; or
(b)
in the case where the court is satisfied that the
article—
(i)
is liable to forfeiture; and
(ii)
is such an article as is referred to in
Schedule 1
.
(Amended
30 of 1995 s. 10
)
(7)
Upon the hearing of the application under subsection (1), in any case other than
a case referred to in subsection
(6
)(
a)
or (b) a court may, if it 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
Schedule 1
), vessel or vehicle is liable to forfeiture,
(Amended
30 of 1995 s. 10
)
order that the article, vessel or
vehicle—
(i)
be forfeited to the Government;
(Amended
66 of 2000 s. 3
)
(ii)
be delivered to the claimant subject to any condition which it may specify
in the order; or
(Amended
62 of 1993 s. 9
)
(iii)
be disposed of in such manner and subject to any such condition as it 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
(
核准當局
) 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.
C
).
(Added
22 of 1991 s. 10
)
(10)
If, after a court has ordered that an article, vessel or vehicle be delivered to
a person, that person cannot be found or refuses to accept the article, vessel or
vehicle, the Commissioner may apply to a court which
may—
(a)
order that the article, vessel or vehicle be forfeited; or
(b)
make any other order as it considers fit in the circumstances.
(Added
62 of 1993 s. 9
)