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Chapter:

578 PDFTitle:CHEMICAL WEAPONS (CONVENTION) ORDINANCEGazette Number:L.N. 62 of 2004
Section:22Heading:Determination of applications for forfeitureVersion Date:18/06/2004


(1) When a notice of claim is given under section 21(7) and the article, vessel or vehicle concerned has not been restored pursuant to section 21(2) or (14), the Commissioner or an authorized officer shall apply to a magistrate, the District Court or the Court of First Instance for the forfeiture of the article, vessel or vehicle and shall state in the application the name and address of the claimant or in the case of a claimant who does not have a permanent address in Hong Kong, the name and address of the solicitor authorized to accept service as specified in the notice of the claim.
(2) When an application under subsection (1) is made to a magistrate, the magistrate shall issue a summons to the claimant, requiring him to appear before a magistrate upon the hearing of the application, and shall cause a copy of such summons to be served upon the Commissioner.
(3) When an application under subsection (1) is made to the District Court or the Court of First Instance, it shall be made and proceeded with in accordance with rules of court, and may be begun by motion.
(4) Where the claimant is the defendant in criminal proceedings before a court and there is no other claimant, on an application made in that behalf by the Commissioner, the court may hear the forfeiture application immediately following the criminal proceedings and for the purposes of a hearing under this subsection, any requirement in respect of the issue or service of a summons or any notice of the hearing under or by virtue of subsection (2) or (3), as the case may be, shall not apply.
(5) If, upon the hearing of an application under subsection (1), the claimant or some other person who, though not the claimant, was, or would have been, entitled to make a claim under section 21(7), appears before a court, the court shall hear the application.
(6) A court may, at the hearing of a forfeiture application, or at an adjourned hearing, hear a person¡X

        (a) who has not been served with a notice of seizure and was not present when an article, vessel or vehicle was seized; or
        (b) whose identity was not known to the Commissioner at the time of, or immediately after, seizure; and
        (c) who appears to the court to have a right to claim ownership of, or a legal or equitable interest in, the article, vessel or vehicle,
on his claim as to why the article, vessel or vehicle should not be forfeited.
(7) If, upon the hearing of an application under subsection (1), neither the claimant nor any other person who, though not the claimant, was, or would have been, entitled to make a claim under section 21(7), appears before a court and the court is satisfied¡X
        (a) that the summons or the notice of the hearing (if any) required to be served under or by virtue of subsection (2) or (3), as the case may be, was served;
        (b) that a person at the address for service, including a solicitor nominated to accept service on behalf of a claimant, has refused to accept service of the summons or the notice of the hearing referred to in paragraph (a); or
        (c) that the address for service given to the Commissioner is inadequate to effect service of the summons or the notice of the hearing referred to in paragraph (a),
the court shall hear and determine the application without requiring further inquiry as to the whereabouts of the claimant.
(8) Subject to the provisions of this Ordinance, an application under subsection (1) to a magistrate shall be deemed to be a complaint for the purposes of section 8 of the Magistrates Ordinance (Cap 227).
(9) Upon the hearing of an application under subsection (1) a court shall order that the article, vessel or vehicle, as the case may be, be forfeited to the Government and disposed of, whether by destruction or otherwise, as the Commissioner thinks fit¡X
        (a) in the case where¡X
          (i) the person who appears before the court fails to satisfy the court that he was, or would have been, entitled to make a claim under section 21(7) in respect of the seized article, vessel or vehicle;
          (ii) no other person appears before the court and satisfies it that he was, or would have been, entitled to make such claim; and
          (iii) the court is satisfied that the article, vessel or vehicle is liable to forfeiture; or
        (b) in the case where the court is satisfied that the article¡X
          (i) is liable to forfeiture; and
          (ii) is such an article as is a chemical weapon.
(10) Upon the hearing of the application under subsection (1), in any case other than a case referred to in subsection (9)(a) or (b) a court may, if it is satisfied¡X
        (a) that a person is, or would have been, entitled to make a claim under section 21(7) in respect of the seized article, vessel or vehicle; and
        (b) that the article (not being a chemical weapon), is liable to forfeiture,
order that the article, vessel or vehicle¡X
        (c) be forfeited to the Government;
        (d) be delivered to the claimant subject to any condition which it may specify in the order; or
        (e) be disposed of in such manner and subject to any such condition as it may specify in the order.
(11) Upon the hearing of the application a certified true copy of the record of the proceedings, including the decision of the court, in any proceedings in respect of an offence under this Ordinance shall be admissible in evidence.
(12) If, after a court has ordered that an article, vessel or vehicle be delivered to a person, that person cannot be found or refuses to accept the article, vessel or vehicle, the Commissioner may apply to a court which may¡X
        (a) order that the article, vessel or vehicle be forfeited; or
        (b) make any other order as it considers fit in the circumstances.