Hong Kong Ordinances

COPYRIGHT ORDINANCE - SECT 133

Determination of application for forfeiture

(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) Where a notice of claim is given under section 131, 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, aircraft,
vehicle or thing unless the Commissioner is satisfied, within a reasonable
period after the receipt of the notice of claim, that, on the basis of the
evidence of the case, the article, vessel, aircraft, vehicle or thing
concerned should be delivered to the claimant. (Amended 25 of 1998 s. 2)

(2) The Commissioner or authorized officer shall state in the application the
name and address of the claimant.

(3) Where 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.

(4) Where an application under subsection (1) is made to the District Court or
the Court of First Instance, it may be begun by motion. (Amended 25 of 1998 s.
2)

(5) Where the claimant is the defendant in criminal proceedings under
section 118, 119A or 120 in connection with the seized or detained article,
vessel, aircraft, vehicle or thing 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 (3) or (4), as the case may be, does not apply. (Amended
4 of 2004 s. 6)

(6) Where there is more than one claimant and one of them is the defendant in
criminal proceedings under section 118, 119A or 120 in connection with the
seized or detained article, vessel, aircraft, vehicle or thing, on an
application made in that behalf by the Commissioner, the court may hear the
forfeiture application immediately following the criminal proceedings.
(Amended 4 of 2004 s. 6)

(7) 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 131(5), appears before a court, the
court shall hear the application.

(8) A court may, at the hearing of a forfeiture application, or at an
adjourned hearing, hear a person-

   (a)  who has not been served with a notice of seizure or detention and was
        not present when an article, vessel, aircraft, vehicle or thing, was
        seized or detained or whose identity was not known to the Commissioner
        at the time of, or immediately after, seizure or detention; and

   (b)  who appears to the court to have a right to claim ownership of, or a
        legal or equitable interest in, the article, vessel, aircraft, vehicle
        or thing, on his claim as to why it should not be forfeited.

(9) If, upon the hearing of an application under subsection (1), neither the
claimant nor any person who, though not the claimant, was, or would have been,
entitled to make a claim under section 131(5), appears before a court and the
court is satisfied-

   (a)  that the summons or the notice of the hearing (if any) required to be
        served under subsection (3) or (4), as the case may be, was served;

   (b)  that a person at the address for service or a solicitor nominated to
        accept service on behalf of a claimant has refused to accept service
        of the summons or notice of the hearing referred to in paragraph

   (a)  ; or

   (c)  that the address for service given to the Commissioner is inadequate
        for the purpose of effecting service of the summons or the notice of
        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.

(10) An application under subsection (1) to a magistrate is deemed to be a
complaint for the purposes of section 8 of the Magistrates  Ordinance (
Cap 227).

(11) Without prejudice to section 132, upon the hearing of an application
under subsection (1) a court shall order that the article, vessel, aircraft,
vehicle or thing, as the case may be, be forfeited to the Government where the
court is satisfied that it is liable to forfeiture, and, if appropriate, that-
(Amended 22 of 1999 s. 3)

   (a)  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 131(5) in respect of the seized or detained article, vessel,
        aircraft, vehicle or thing; and

   (b)  no other person appears before the court and satisfies that he was, or
        would have been, entitled to make such claim.

(12) Without prejudice to section 132, upon the hearing of an application
under subsection (1), in any case other than a case referred to in subsection
(11) a court may, if it is satisfied-

   (a)  that a person is, or would have been, entitled to make a claim under
        section 131(5) in respect of the seized or detained article, vessel,
        aircraft, vehicle or thing; and

   (b)  that the article, vessel, aircraft, vehicle or thing is liable to
        forfeiture, order that the article, vessel, aircraft, vehicle or
        thing-

        (i)    be forfeited to the Government; (Amended 22 of 1999 s. 3)

        (ii)   subject to subsection (13), be delivered to the claimant
               subject to any condition which it may specify in the order; or

        (iii)  be disposed of in such manner and subject to such condition as
               it may specify in the order.

(13) The court shall not make an order under subsection (12)(ii) in respect of
an article unless the claimant satisfies the court that the article is not an
infringing copy of any copyright work or, as the case may be, is not an
article specifically designed or adapted to make copies of any particular
copyright work which article is used or is intended to be used, for making
infringing copies of any such work.

(14) If, after a court has ordered that an article, vessel, aircraft, vehicle
or thing be delivered to a person, that person cannot be found or refuses to
accept it, the Commissioner may apply to a court which may-

   (a)  order that the article, vessel, aircraft, vehicle or thing be
        forfeited to the Government; or (Amended 22 of 1999 s. 3)

   (b)  make any such other order as the court considers fit in the
        circumstances.

(15) Unless the context otherwise requires, a reference to a court in this
section or section 132 includes a reference to a magistrate.