14
15
Liability to forfeiture.
Order for forfeiture.
Procedure in relation to forfeiture.
39. (1) Any article which is-
(a) obscene; or
(b) classified, other than by virtue only of an interim classification, as a Class III
article,
shall be liable to forfeiture.
(2) Subject to subsection (3), any--
(a) machinery or apparatus used for projecting or showing; or
(b) machinery, plate, implement, utensil, photographic film or material used for
the purpose of printing copies of,
any article mentioned in subsection (1) shall be liable to forfeiture.
(3) Where an article submitted under section 13(1) is classified as a Class III article, nothing mentioned in subsection (2)(b) shall be liable to forfeiture under this section by reason only that it was used to print, manufacture or reproduce that article or copies of that article for the purpose of that submission.
40. (1) Subject to subsection (2) and section 41, where an application is made to a magistrate for an order for forfeiture-
(a) he shall, in the case of an article that is before him and is liable to forfeiture
under section 39(1), order it to be forfeited;
(b) he may, in the case of a thing that is before him and is liable to forfeiture
under section 39(2), order it to be forfeited.
(2) An order for forfeiture shall not be made under subsection (1) if any ground of defence under section 21(2)(b), (c), (d) or (e), or section 28 in respect of the publication of an article is proved.
(3) An order for forfeiture of an article or thing may be made under subsection (1) notwithstanding that no person is convicted of any offence in connexion with that article or thing.
(4) Any article or thing which is ordered to be forfeited under subsection (1) shall be disposed of in such manner as the magistrate shall direct.
41. (1) Subject to subsections (3) and (4), before making an order for forfeiture of any article or thing under section 40 the magistrate shall issue a summons to-
(a) the occupier of any premises or, in the case of a stall, the owner of the stall,
in or from which the article or thing was seized;
(b) the owner of any vessel, aircraft or vehicle in or from which the article or
thing was seized;
(c) the owner of the article or thing seized,
to appear on a day specified in the summons to show cause why the article or thing should not be forfeited.
(2) In addition to any person mentioned in subsection (1), any other person being the author or manufacturer of any article seized or a person into whose hands any such article may have passed before seizure, or a person who has an interest in any article or thing seized, may appear before the magistrate on the day specified in the summons to show cause why the article or thing should not be forfeited.
(3) If the magistrate is satisfied that any person specified in subsection (1) cannot for any reason be found or ascertained, he may dispense with the issue of a summons to that person.
(4) If any summons issued under subsection (1) has not for any reason been served and the magistrate is satisfied that all reasonable efforts were made to serve the summons on the person named in the summons he may make an order of forfeiture under section 40 notwithstanding that the summons was not served and that the person named in the summons is not given an opportunity to show cause why the article or thing should not be forfeited.
(5) An order for forfeiture of any article shall, unless the magistrate considers that there are special reasons for directing otherwise, apply to the whole of the article.
(6) In this section "owner"-
(a) in the case of a stall includes any occupier of that stall;
(b) in the case of a vessel includes any charterer and the master of that vessel;
(c) in the case of an aircraft includes any operator of that aircraft; and
(d) in the case of a vehicle includes the driver of that vehicle.
42. (1) Subject to subsection (2) and section 43, if, upon the application of any Obliteration of public officer, a magistrate is satisfied that any indecent matter is publicly displayed indecent matter. on any building or other structure he may order the owner of the building or structure
to remove or efface that indecent matter.
(2) An order shall not be made under subsection (1) if the ground of defence under section 28 is proved in respect of the public display of any matter.
(3) If a person against whom an order is made under subsection (1) fails to comply with the order within the time specified in the order, or if no time is specified, within a reasonable time, the magistrate may by warrant empower any police officer, with such assistance as may be necessary, to enter and if necessary to break into or forcibly enter such premises or place and execute that order.
(4) A police officer in executing an order under subsection (3) shall have all the powers of a police officer acting in the execution of a warrant under section 34.
(5) The Commissioner of Police may apply to a magistrate for an order that a person who has failed to comply with an order made against him under subsection (1) shall pay any expenses reasonably incurred by a police officer in the execution of the order under subsection (3) and the magistrate may make an order for such payment under section 69 of the Magistrates Ordinance notwithstanding that it may exceed the (Cap. 227.) amount mentioned in that section.
43. (1) Before making an order to remove or efface any indecent matter under section 42 the magistrate shall, unless he is satisfied that the owner of the building or other structure mentioned in that section 42 cannot for any reason be found or ascertained, issue a summons to him to appear on a day specified in the summons to show cause why an order should not be made to remove or efface that indecent
matter.
(2) In addition to the person mentioned in subsection (1) any other person being the owner or manufacturer of the indecent matter mentioned in section 42 may appear before the magistrate on the day specified in the summons to show cause why the order to remove or efface that indecent matter should not be made.
(3) Subsections (4) and (6) of section 41 shall apply in relation to an order to remove or efface indecent matter under section 42 as they apply in relation to an order for forfeiture under section 40.
PART VIII
RULES, REGULATIONS AND THE POWERS OF THE REGISTRAR
Procedure in relation to
obliteration.
44. The Chief Justice may make rules relating to the practice and procedure to Chief Justice may apply to proceedings before a Tribunal, or magistrate, or in any court, under this make rules. Ordinance and to appeals under this Ordinance and, in particular, may make rules to provide for-
(a) the manner of making application under this Ordinance;
(b) the reference of questions from a court or magistrate to a Tribunal;
(c) the method of recording a classification or determination of a Tribunal; (d) the service of documents;