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8. The question of law arising in the above statement for the opinion of the Honourable the Supreme Court is whether the Magistrate has power under section 38 of Ordinance No. 21 of 1891 to order the forfeiture of "Any opium seized on board a steamship bound or about to proceed to the ports of Canton or Macao which does not appear on the manifest of such vessel" though the holder of the opium may have a valid Certificate for the possession thereof.
Dated this 4th day of July, 1893.
[Police seal.]
W. C. H. HASTINGS,
Acting Police Magistrate,
Extract from the Hongkong Daily Press of 9th August, 1893.
The case in question was first heard before the Sitting Magistrate (Commander HASTINGS) and the opium confiscated on 9th June, 1893.
A SEIZURE OF OPIUM.
This was an appeal by LAM YIK and LAM SIU against a decision given by Commander W. C. H. HASTINGS, ordering the forfeiture of a certain quantity of opium found on board the Hongkong, Canton and Macao Steamboat Company's steamer Fatshan and not upon the manifest of the vessel.
Mr. J. J. FRANCIS, Q.C. (instructed by Mr. H. I. DENNYS), represented the appellants, and the respondent, Mr. JAMES HENRY LOGAN, chief preventive officer of the Company, appeared in person.
Mr. FRANCIS said-The respondent is not represented, my lords, by counsel, and we have a notice from the Attorney-General that he does not intend to appear at the hearing. In the absence of any defence, therefore, I suppose the course is to show that the procedure has been regular.
Mr. FRANCIS then proved that due notice had been given, and the petition filed within the time prescribed by the Ordinance.
Mr. LOGAN said that he had no objection to offer in the case; in fact, he thought that the Attorney-General was to be the respondent.
The Chief Justice asked whether the respondent was a Government officer. Mr. FRANCIS-No, my lord. He is simply employed by the Steamboat Company.
On June 5th he went on board the steamer Fatshan, which was lying alongside her wharf, and in pursuance of his duty he searched the vessel and found two packages containing 125 taels of prepared opium.
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The section under which the Magistrate who tried the case, Commander W. C. H. HASTINGS, proceeded is section 38 of Ordinance 21 of 1891 which reads as follows:- "Notwithstanding anything in this Ordinance contained any opium seized on board any steamer bound or about to proceed to the ports of Canton or Macao and which does not appear on the manifest of such vessel shall if forfeited by a Magistrate be detained by him until the disposal thereof has been determined by the Governor in Council."
Mr. FRANCIS continued: Your lordships are aware that this Opium Ordinance is, we might say, almost wholly for the protection of the Opium Farmer, who pays the Government a large sum of money yearly and is the sole person licensed to prepare and sell opium within the Colony, and all persons having opium in their possession in the Colony are bound by the provisions of the Ordinance to have a licence from the Opium Farmer, and all prepared opium found in the possession of any person in the Colony who does not hold a licence is liable to be seized and forfeited.
Your lordships will also see that under the Ordinance there is a special provision by which all the opium so forfeited shall be returned to the Opium Farmer. The provisions of the Ordinance are expressly in favour of the Opium Farmer and it has always been ruled that the opium should be delivered to him. Opium, however, was frequently found on board the Macao steamers and it was suggested that the Opium Farmer himself might possibly be a party to the sending away of prepared opium out of the Colony to Canton and Macao.
Of course if that were so he would get back his opium though some small penalty would be imposed on his servants who were attempting to carry the opium across. The Opium Farmer would suffer no serious loss because the opium would be returned to him. Section 38 was therefore introduced into the Ordinance and provided that notwithstanding anything in the Ordinance contained any opium seized on a steamer and not appearing on the steamer's manifest shall if forfeited by a Magistrate be detained by him until the Governor in Council has decided what should be done with it. But there was no power in that section to forfeit any description of property found on a steamer which did not appear on the manifest.
The Chief Justice-No, there is nothing in that section.
Mr. FRANCIS-The Magistrate has read this section as though it read "shall be forfeited." I submit to you that the Magistrate has misread this section and that he had no power to deal with this opium in any way as it was covered by a valid certificate. That is admitted.
The Chief Justice-Have you anything to say, Mr. LOGAN? You are the respondent, you know.
Mr. LOGAN-No, my lord, I have nothing to say.
The Chief Justice-Mr. FRANCIS, you have read through this Ordinance, I have no doubt, with great care; can you tell me if there is any mention of any provision about putting opium on the ship's manifest?
Mr. FRANCIS-None whatever. This section was only introduced into the Ordinance comparatively recently-during the last two or three years--in consequence of certain charges made against the Opium Farmer. It was not in the Ordinance during the last Opium Farm, and that is within three years.
The Chief Justice-I think this case is clear. It seems that the Magistrate has read this section as though the language of it implied that sentence of forfeiture should be passed if any opium seized on one of these steamers was not on the steamer's manifest. That, however, does not appear to be the language of the section. It does not allege the non-appearance of the opium on the manifest as a cause of forfeiture, and that being the case it could not be forfeited unless there was a valid cause of forfeiture, which it appears in this case there was not, because it is an admitted fact that the opium in question was covered by a certificate. Therefore I think that the Magistrate has made a mistake in reading this section and the appeal must be allowed.
Mr. FRANCIS-I would ask for costs, my lord.
The Chief Justice-I think that you are entitled to costs.
The Puisne Judge concurred.
The decision of the Magistrate was accordingly reversed with costs against the respondent.