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(2) The Ship in respect of which any such Offence is committed and her Equipment shall be forfeited to Her Majesty:
Provided that a Person committing any of the Acts prohibited by this Section, in pursuance of a Contract made before the Commencement of this Ordinance, shall not be liable to any of the Penalties imposed by this Section.
Proviso.
V. Any Police Magistrate upon being satisfied that there is reasonable and probable Cause for believing that a Ship within the Waters of the Colony has been, or is being built, altered, repaired or equipped, or is about to be despatched and taken out to Sea contrary to the Provisions of this Ordinance, may issue a Warrant stating that there is reasonable and probable Cause for believing as aforesaid, and upon such Warrant, the said Ship may be seized and searched and detained until it has been either condemned or released by Process of Law or in the Manner hereinafter mentioned.
VI. Any Officer authorized to seize or detain any Ship in respect of any Offence against this Ordinance may, for the Purpose of enforcing such Seizure or Detention, call to his Aid any Constable or Officers of Police, or any Officers of Her Majesty's Army or Navy or Marines, or the Harbor Master, or any Officer having Authority by Law to make Seizures of Ships, and may put on board any Ship so seized or detained any one or more of such Officers to take Charge of the same, and to enforce the Provisions of this Ordinance, and any Officer seizing and detaining any Ship under this Ordinance may use Force, if necessary, for the Purpose of enforcing Seizure or Detention, and if any Person is killed or maimed by Reason of his resisting such Officer in the Execution of his Duties, or any Person acting under his Orders, such Officer so seizing or detaining the Ship, or other Person, shall be freely and fully indemnified as well against the Queen's Majesty, Her Heirs and Successors, as against all Persons so killed, maimed, or hurt.
VII. The Governor may, at any Time, release any Ship seized and detained under this Ordinance, on the Owner giving Security to the Satisfaction of the Governor that the Ship shall not be employed contrary to this Ordinance, or may release the Ship without such Security if the Governor thinks fit so to release the same.
VIII. The Owner of the Ship seized and detained under this Ordinance, or his Agent, may apply by Petition to the Supreme Court for its Release.
IX. The Crown Solicitor shall, upon the Seizure of any Ship as aforesaid, cite the Owners thereof by a Notice which may be in the Form contained in the Schedule to this Ordinance, to appear before the Supreme Court to show Cause why the said Ship should not be condemned and forfeited to Her Majesty for Breach of the Provisions of this Ordinance; and in Case there shall be no Owner of the said Ship in the Colony, the said Notice shall be published twice in the Gazette, and such Publication shall be equivalent to personal Service of the Citation.
X. On the Day appointed for the Hearing of any Petition for the Release of the Ship or for the Appearance of the Owners in obedience to a Citation to show Cause why the same should not be forfeited, the Court shall proceed to enquire into the Matter and to make such Orders as may be necessary to put the Matter of the Seizure and Detention of the Ship in course of Trial between the Owner and the Crown, and for such Purpose, may direct the Trial of any Issue of Fact before the Court, either with or without a Jury; and during or before such Proceedings may grant Warrants for the entering and searching of any Premises and the Seizure of any Papers or Documents in such Premises, or may summon any Person to appear before the Court, and to produce any Papers and Documents, and may interrogate such Persons on Oath touching the subject Matter of the Inquiry.
XI. Whenever any Person shall have been convicted before the Supreme Court of an Offence against this Ordinance, the Evidence taken upon the Trial of such Offender shall be received in Evidence, in any Proceedings instituted for the Condemnation or Release of the Ship in respect of which such Offence shall have been committed.
XII. The Fact of a Ship being apparently fitted and equipped, or in course of being fitted and equipped for the Conveyance of Chinese Emigrants without a License from the Governor shall be prima facie Evidence that such Ship is intended for the Conveyance of Chinese Emigrants to be embarked at some Port or Place out of the Colony.
XIII. If on the Proceedings for the Condemnation or Release of a Ship so detained, the Owner establish to the Satisfaction of the Court that the Ship was not and is not being built, altered, repaired or equipped, or intended to be despatched contrary to this Ordinance, the Ship shall be released and restored.
Memorandum by the Attorney General (The Honorable Julian Pauncefote), to accompany the Draft of “The Hongkong Emigration Ordinance, 1873.”
I have been favored by His Excellency the Governor with a copy of the Earl of Kimberley's Despatch No.173 of the 20th November, 1872, enclosing a copy of "The Kidnapping Act, 1872," and recommending the passing of an Ordinance in Hongkong embodying some of its provisions with the view of removing any pretence for the imputation that "British Subjects in Hongkong partake in and profit by the Macao Coolie Trade."
I believe that every British Subject in the Colony, from the Governor down to the humblest resident, will hail such a measure with the greatest satisfaction, and after a perusal of the Earl of Kimberley's Despatch, I applied myself at once to the task of preparing a Draft Bill, or rather a sketch of a Bill, which, if approved of by His Excellency the Governor, it might be desirable to submit to the Secretary of State before introducing the subject to the Legislative Council, in case its provisions should be deemed too stringent or likely to conflict with Treaty obligations.
"The Kidnapping Act, 1872," is most skilfully drawn, and admirably fitted for the suppression of the fearful traffic carried on in the seas adjoining our Australasian Colonies,-and therefore from that Act and the Foreign Enlistment Act (33 & 34 Vic., c.90), most of the Clauses of my Draft Bill are taken.
The offences of detaining and carrying away by force or fraud any Chinese for the purpose of the Coolie Trade, as will be seen by reference to Section 19 of Ordinance No.12 of 1868, are already provided for by Law and the offender is declared to be guilty of Felony and liable to as severe a punishment as penal servitude for seven years. That enactment, however, appears to apply only to the forcible or fraudulent detention of Chinese for the purpose of Coolie Emigration from this Colony. A perusal of the Hongkong Ordinances relating to Chinese Emigration, must satisfy every one that more stringent laws than those which already exist for the prevention of abuses, in the Colony, can scarcely be devised, and indeed, they are so stringent, that Chinese Emigration under the "Chinese Passengers' Act, 1855," has practically ceased to be carried on in Hongkong, and no case has ever occurred of an offence under Section 19 of Ordinance No.12 of 1868. The efforts of the local Legislature, therefore, can only be usefully directed to the prevention of any participation whatever by British Subjects or other residents of the Colony, in Chinese Emigration from ports or places out of the Colony.
Without entering into the question as to whether the Laws of Macao for the prevention of abuses in relation to Chinese Emigration are as good as our own Laws on that subject, or whether the Laws of Macao are or are not diligently put in force and carefully administered by the public functionaries of that Colony, it is an incontestable fact that instances of great cruelty and injustice towards the Emigrants after they have left Macao, and especially after their arrival at the port of destination, are constantly brought to light, and it seems to me that the Legislature of this Colony is quite justified in passing a measure to prohibit any person, while within this jurisdiction, from taking any part whatever in promoting a system which is attended with such deplorable results, and which has earned for itself so unenviable a notoriety.