CO129-542-12 Smuggling from Hong Kong into China 21-1-1933 - 21-8-1933 — Page 62

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that the offender should be given five days' notice of the

Customs' intention to sell the confiscated goods, which the

Consul claimed the offender was entitled to according to the

Rules for Joint Investigation. This led to an exchange of

letters between the Consul and the Commissioner in which the

former cited Article 74 of the British Order in Council of

1925 as bearing on the case and asked whether the Commissioner

intended to take action against Mr. Koh. The Commissioner,

on my instructions, replied that he did not intend to take

such action. Further correspondence ensued between the Consul

and the Commissioner in which the former maintained that he

had not "Been able to find any Treaty stipulation by which

the goods of persons possessing extraterritorial rights can

be confiscated simply by executive action and without recourse

to any kind of legal process".

Both these cases come under the category of confiscation,

the one of contraband and the other of goods under-valued and

undeclared. The right of confiscation of goods in such cases,

quite aside from the nationality of the smuggler, is based on

the interpretation placed in 1862 by certain eminent English

lawyers on the nature and scope of the punitive power of the

Customs in view of Treaty limitations.

According to the se

counsel the Chinese Authorities alone have the right of

adjudication in cases of confiscation; further, that if the

Chinese Authorities exercise this power of confiscation

unjustly redress could be sought only by diplomatic pro-

ceedings; and that confiscable goods on board a British

steamer in Chinese waters may be seized by the Chinese

Authorities without a warrant from the British Consul.

These opinions were communicated in 1863 by the Inspector-

General to the British Minister, who endorsed them and

/en joined