ATEND
Compensation
Legal Background
4
FOR MUIM ADMUN
10
Liability for damages for the
wrongful exercise of statutory powers exists only if the actions taken are proved to be outside the permissive powers granted under an Ordinance. Consequently, under new section 37E(2), provided the Director bona fide was of the belief that the ship was liable to forfeiture, there would almost certainly be no liability however misguided that belief or however wrong proved to be the assumptions upon which that belief was based.
Biseria
UK Position
5
400
..
In the limited time available certain English statutes have been examined. It appears that whilst most frequently no compensation is provided for wrongful seizure (e. g. of gambling equipment, intoxicating liquor, coinage, wild creatures and wild plants, fire- arms) there are a significant number of statutes under which it is provided. Thus, under the Merchant Shipping Act 1894 if a ship has been provisionally detained as "unsafe" then compensation "for loss or damage sustained" may be payable to the owner where it transpires that (viewed objectively) "the condition of the ship or the act or default of the owner" did not provide reasonable and probable cause for the seizure". Similarly, under the Trade Descriptions Act 1968 where goods are seized or detained and the owner suffers loss thereby then
'unless the owner is convicted of an offence under the Act, committed in relation to the goods, the authority or department shall be liable to compensate him for the loss so suffered". Any dispute as to the right to or the amount of compensation is determined by a statutory arbitration. te but bidang
Hong Kong Position
6
basogo"
ftemuo.
The general pattern is that compensation is usually not payable; but in certain Ordinances where private property has been seized (especially where prosecution is facilitated by presumptions and reversed burdens of proof) although legal rights to compensation are not provided, there is provision instead for "moral claims" to be made to the Governor in respect of the return of articles lawfully seized (e.g. Dutiable Commodities, Dangerous Drugs, Import and Export Ordinances). The Immigration Ordinance itself has provision for a "moral claim" to the Governor in respect of ships seized but this provision does not apply to the new offences created in respect of unauthorised entrants.
CONFIDENTIAL