Consideration has therefore been given to the provisions of the Merchant Shipping Ordinance, the Shipping and Port Control Ordinance and the Immigration Ordinance and amending bills have been prepared (see Annexes A, B and C attached).
6
The Merchant Shipping (Amendment) Bill seeks to increase the sanction of imprisonment attached to a breach of section 34 from 6 months imprisonment to 2 years imprisonment. The proposed increase in the penalty should act as some deterrent to masters. It may be noted that the section already contains a very substantial power to fine, i. e. $10,000 plus $5,000 per unlawful passenger. The period of 2 years has been chosen for two reasons. First, so that a prosecution can continue to be taken in a Magistrates Court. If a longer period of imprisonment had been included this would have exceeded the magistrates sentencing power and it would have normally been necessary for cases to be prosecuted in a District Court with consequent delay. As it is most desirable to be seen to be dealing with and concluding all such cases quickly it seemed preferable not to increase the penalty to more than 2 years. Secondly the law officers consider that 2 years imprisonment offers an appropriate and credible level of deterrent. A greater maximum would not result in higher sentences.
7
The draft bill also includes two rebuttable presumptions facilitating the prosecution of offences under section 34.
8
The first relates to the burden of proving that persons on board a ship are "passengers" within the meaning of section 34. Such persons are unlikely to be willing to give evidence to that effect and other direct evidence such as evidence of payment is unlikely to be available. Therefore, it is proposed that persons, other than the crew or infants, will be presumed to be passengers. If the defence of the master or owner is that he picked up survivors of a shipwreck, it will be up to him to prove it. Of course, if the Crown accepts that his story is true there would be no prosecution under section 34. The second presumption presumes a ship other than a ferry to be a "passenger ship" within the meaning of section 34. This presumption is desirable because the Crown may not easily be able to produce direct evidence of the nature of the ship's voyage from a place outside Hong Kong.
9
Consideration was given to a proposal that any crew of a vessel engaged in the unlawful carriage of passengers risked prosecution. No way has been found to give effect to this proposed bearing in mind the conditions of employment of crews and the articles under which they are engaged.
C.S. 166
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