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IMMIGRATION (AMENDMENT) (NO. 3) BILL
Explanatory Memorandum
The object of this Bill is to enable more effective action to be taken to prevent and to penalize trafficking in unlawful immigration. This is provided for almost entirely in the new Parts VIIA and VIIB con- tained in clauses 3 and 4.
New sections 37A and 37B in new Part VIIA enable the Governor in Council to designate classes of unauthorized entrants. Under new section 37C if a ship enters Hong Kong with unauthorized entrants on board, the owner, captain, crew and agent, and the persons who organized the voyage, are all guilty of an offence and liable to the very substantial penalties specified, unless they can prove they come within the specific defences provided in the section.
In addition, under new section 37D, persons who arrange or do any act preparatory to arranging the passage to Hong Kong of unau- thorized entrants, also commit an offence, are liable to the same sub- stantial penalties and are provided with similar defences.
New sections 37E and 37F provide for forfeiture of ships used in the commission of offences under new section 37C or 37D. New section 37G provides for forfeiture of other property used in the commission of or to facilitate the commission of such offences and the proceeds of such offences.
New section 37H provides for compensation for ships or other pro- perty seized but not in the event forfeited.
New section 371 provides for the entry, subject to specified conditions, of ships where unauthorized entrants carried have been genuinely rescued, or where such entry is necessary for the safety of the ships or of the lives of persons on board.
New section 37J provides that persons in Hong Kong may be pro- secuted for offences under Part VIIA committed outside Hong Kong.
New section 37K facilitates the proof in proceedings under Part VIIA by presuming for that purpose that any person alleged to be such, is an unauthorized entrant unless the contrary is proved. It also provides that a certificate issued by a police officer of or above the rank of Superintendent that the accused person was the owner, agent, captain or member of the crew shall be evidence of that fact until the contrary is proved.
Because of the nature of the offences, the severe penalties and the evidentiary presumptions, new sections 37L and 37M provide the safe- guard that no prosecution shall be brought under new Part VIIA with- out the consent of the Attorney General, and that Part VIIA shall expire on 31 December 1980 unless otherwise determined by the Legislative Council.
New Part VIIB in clause 4, is almost identical in effect to new Part VIIA, except that it relates to the bringing of unauthorized entrants not to Hong Kong itself, but to the waters outside Hong Kong's terri- torial limits, in circumstances in which they are likely to enter Hong Kong. The penalties, defences, liability to forfeiture, provision for ex- piration on 31
31 December 1980, etc. are the same, subject only to necessary modification.
Section 47 of the principal Ordinance already provides for the forfeiture of ships and vehicles used to transport illegal immigrants. But the Ordinance does not provide for the forfeiture of other property, especially money, which is used for the commission, or constitutes the
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