HONG KONG
LEGAL REPORT
Enclosure No. Z
THE MERCHANT SHIPPING (AMEND-
MENT) ORDINANCE 1979
(No. 1 of 1979)
This Ordinance has 3 purposes all of which relate to offences under section 34 of the Merchant Shipping Ordinance. That section makes it an offence to have on board a ship in Hong Kong waters passengers in excess of the number allowed by the passenger certificate or excess passengers in an uncertificated ship. The offence may be committed by the owner, agent, charterer, master or comprador of a ship.
2. Hitherto, section 34(1) of the principal Ordinance provided for a penalty of 6 months imprisonment and a fine of $10,000 and an additional fine of $5,000 for each excess passenger. Section 2(a) of this Ordinance increases the maximum term of imprisonment to 4 years on conviction upon indictment and to 2 years on summary conviction.
3. Section 2(b) introduces to the said section 34 two presumptions so as to facilitate prosecutions under that section. Persons on board a vessel, other than crew members and infants under 1, shall be presumed to be passengers and a ship with more than 12 passengers on board shall be presumed to be a passenger ship for the purposes of that section. Thus, if a non-certificated ship brings passengers into Hong Kong waters and the master and owner are prosecuted, the presumptions will apply unless rebutted by evidence satisfying the court. For example, if a master who is prosecuted claims that his passengers are the survivors of a shipwreck, the burden of proving that will lie on him.
4. Section 3 adds 4 new sections to the principal Ordinance providing for the forfeiture of ships of any size where the master or owner (whether convicted or not) commits an offence under section 34 of the principal Ordinance. The first 3 new sections set out in detail the procedure to be followed after seizure by the Director of Marine with the approval of the Attorney General. Pro- vision is made for notice of seizure to be served on the owner and also to be published. In the absence of claims