DUTIABLE COMMODITIES ORDINANCE
DUTIABLE COMMODITIES ORDINANCE
(CHAPTER 109)
CONTENTS
Section
PART I PRELIMINARY
1. Short title
2. Interpretation
3. Application
PART II GENERAL
4. Duty
5. Drawback
6. Regulations
7. Grant of licences and permits
8. Applications for licences and permits
9. Register of requisitions and permits
10. Deputy for absent licensee
11. Powers of the Customs and Excise Service
11A. Books and documents
12. Seizure without warrant
13. Ships failing to bring to
14. Search of place or ship with warrant or authority or by police officer
15. Seizure of things used for commission of offences
16. Obstruction of member of the Customs and Excise Service or police
officer
17. Restrictions on dealing with and possession of certain goods
18. (Repealed)
19. Goods embarked for export not to be relanded
20. Restrictions on import and export
21. Penalty on not bringing to at stations; or carrying away officers
22. Import and export statements
23. Removal of goods from ships, vehicles or aircraft
24. Ships' or aircraft stores, etc.
25. Inspection, etc. of goods
26. Assessment of duty and drawback
26A. Value of goods and assessment of ad valorem duty
27. Production of documents necessary for calculating duty
27A. Production of documents as to origin of juice
28. Delivery of imported goods on giving security for duty
28A. Goods imported for processing or repacking for export
29. Liability of licensee of general bonded or licensed warehouse
30. Contracts for sale of duty-paid goods when duties are altered or
repealed
31. Execution and distress against licensees
32. Recovery of duty, etc.
33. Search of baggage and goods
34. Examination of articles (other than baggage) on shore, ship, etc.
35. (Repealed)
36. Misrepresentation, concealment, removal of goods, and defacement of
licence or permit
37. Forging documents, etc.
38. Restrictions on use and transfer of permits and licences
39. (Repealed)
40. Presumptions
41. Import manifests to be evidence of importation
42. Certain certificates to be evidence
43. Magistrate may call in expert
44. Informers
45. Manner of seizure not to be inquired into by court
46. Offences and penalties
46A. Liability for acts of servants
47. Commencement of prosecution
48. Forfeiture
49. Evidence of forfeiture
50. Protection of members of Customs and Excise Service in forfeiture
proceedings
51. Goods abandoned as not worth the duty
52. Sale of perishables
PART III LIQUORS
53. Interpretation
54. Provision for case of death or insolvency of licensee
55. Licensee to exhibit name, etc.
56. Measures or weights for sale of liquor
57. (Repealed)
58. Illegal possession of still or fermented material, etc.
59. Presumptions in proceedings for illicit distillation, etc.
60. Free licences for small stills for registered doctors and pharmacists
61. Distilling, etc. adulterated liquor
62. (Repealed)
63. (Repealed)
64. Denatured spirits to be dutiable goods until certified to the contrary
PART IV TOBACCO
65. Definition of tobacco
66. (Repealed)
67. Manufacture, etc. of adulterated tobacco
68. Restriction on tobacco growing
PART V HYDROCARBON OIL
69. Definition of hydrocarbon oil
69A. (Repealed)
PART VI METHYL ALCOHOL
70. Interpretation
71. Marking of containers
72. Colouring, flavouring or other substance
73. Storage
74. Exemptions
PART VII (Repealed)
PART VIII (Repealed)
Schedule
To amend the law relating to the taxation and control of liquors, tobacco,
hydrocarbon oil, methyl alcohol and other substances, for providing for
the licensing of certain dealings in liquors and for purposes connected
therewith.
(Amended 3 of 1970 s. 2; 40 of 1974 s. 2; 34 of 1976 s. 2; 20 of 1985 s.
2; 66 of 1986 s. 2; 35 of 1992 s. 2; 32 of 1993 s. 2)
[16 October 1963] L. N. 120 of 1963
PART I PRELIMINARY
1. Short title
This Ordinance may be cited as the Dutiable Commodities Ordinance.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires-
"Commissioner" means the Commissioner of Customs and Excise and any Deputy
or Assistant Commissioner of Customs and Excise; (Added L. N. 294 of 1982)
"container" includes any receptacle or vessel and any wrapper, packing,
cover or stopper;
"dutiable goods" means goods to which this Ordinance applies, which are
not exempt from duty and on which the full duty prescribed by law has not
been paid, and includes goods on which duty has been paid if subsequently
reimported; (Amended 3 of 1970 s. 3)
"duty-paid goods" means goods on which the full duty prescribed by law has
been paid;
"export" means to carry or cause to be carried out of Hong Kong by land,
air or water and includes the export of anything carried or sent from any
country and brought into Hong Kong by land, air or water for the sole
purpose of being carried to another country after transshipment into
another conveyance, but does not include transit cargo;
"former Ordinance" means the Dutiable Commodities Ordinance 1931 and also
means any provision thereof which was continued in force under the
repealed section 76 of this Ordinance; (Added 3 of 1970 s. 3)
"gross tonnage" means gross tonnage determined in accordance with the
Merchant Shipping (Registration) (Tonnage) Regulations (Cap. 415 sub.
leg.); (Added 3 of 1970 s. 3)
"import" means to carry or cause to be carried into Hong Kong by land, air
or water;
"licence" means a licence granted or issued under this Ordinance or under
the former Ordinance; (Replaced 3 of 1970 s. 3)
"liquor licence" means a licence for the sale or supply of liquor at any
premises specified therein for consumption on the premises; (Added 3 of
1970 s. 3)
"manifest" means the manifest of a ship or aircraft, and in relation to a
vehicle, the statement referred to in section 22 of goods imported or for
export in such vehicles;
"manufacture" includes every kind of preparation, mixing and treatment
except packing and unpacking;
"master" includes every person, except a pilot, having command or charge
of any ship;
"member of the Customs and Excise Service" means a person holding an
office specified in Schedule 1 to the Customs and Excise Service Ordinance
(Cap. 342); (Amended 46 of 1977 s. 18)
"net register" means register tonnage determined in accordance with the
Merchant Shipping (Registration) (Tonnage) Regulations (Cap. 415 sub.
leg.); (Replaced 3 of 1970 s. 3)
"offence" means an offence against any of the provisions of this
Ordinance, and includes any act or omission declared or deemed by any of
the provisions of this Ordinance to be an offence; (Amended 3 of 1970 s.
36)
"permit" means a permit granted or issued under this Ordinance;
"place" means any area on land or water and includes any ship, aircraft,
vehicle, train, building, structure or enclosure, whether movable or not;
(Added 66 of 1986 s. 3)
"railway" means the Kowloon-Canton Railway, British Section, and "by rail"
means by means of the railway;
"Regional Council area" has the meaning assigned to it in the District
Boards Ordinance (Cap. 366); (Added 39 of 1985 s. 60)
"ship" includes every description of vessel (not being or having the
status of a vessel of war) used, or adapted for use, in navigation or for
the carriage of goods or persons;
"transit cargo" means goods which are destined for a foreign place and are
passing through Hong Kong on the same ship or aircraft without
transshipment;
"Urban Council area" has the meaning assigned to it in the District Boards
Ordinance (Cap. 366); (Added 39 of 1985 s. 60)
"warehouse" means any premises or place or any part thereof specified by
the Commissioner either as a general bonded warehouse or as a licensed
warehouse and set apart for storing only dutiable goods. (Amended L. N.
294 of 1982; 66 of 1986 s. 3)
(2) (Repealed 66 of 1986 s. 3)
(3) For the purposes of subsection (1), where-
(a) duty has been paid on goods by reference to the purpose for which the
goods were intended to be used; and
(b) the goods are used, or are intended to be used, for some other purpose
which attracts a higher rate of duty, then, until duty is paid at that
higher rate, the goods shall be deemed to be goods on which the full duty
prescribed by law has not been paid. (Replaced 3 of 1970 s. 3)
(4) (Repealed 66 of 1986 s. 3)
3. Application
(1) This Ordinance shall apply to alcoholic liquors, tobacco (other than
any smokeless tobacco product within the meaning of section 2 (1) of the
Public Health and Municipal Services Ordinance (Cap. 132), hydrocarbon oil
and methyl alcohol. (Amended 40 of 1974 s. 3; 34 of 1976 s. 3; 20 of 1985
s. 3; 62 of 1986 s. 4; 66 of 1986 s. 4; 35 of 1992 s. 3; 32 of 1993 s. 3)
(2) The Legislative Council may from time to time by resolution published
in the Gazette apply to any substance any of the provisions of this
Ordinance specified in the resolution with such modifications, if any, as
may to them seem desirable, having regard to the nature of the substance
to which the resolution relates.
(3) While any resolution relating to any substance is in force under this
section the provisions of this Ordinance thereby applied shall have effect
as if the substance were goods to which this Ordinance applies, but
subject to such modifications, if any, as may be provided by the
resolution.
(4) Except as provided in section 18, this Ordinance shall not apply to
goods which are the property of or imported or purchased for the Governor
or for the Government of the United Kingdom or of Hong Kong.
(5) Except as may be prescribed by regulations, the provisions of this
Ordinance relating to the importation, exportation and movement of goods
shall not apply to postal packets as defined in the Post Office Ordinance
(Cap. 98).
PART II GENERAL
4. Duty
(1) Duty shall be assessed and payable on dutiable goods and refunded in
respect of such goods at the rates and in the manner set out in the
Schedule.
(2) The Legislative Council may by resolution amend the Schedule and in
particular, may amend it-
(a) to impose any duty on any dutiable goods or any class of dutiable
goods;
(b) to increase, decrease, recast, abolish, vary, waive or remit whether
generally or particularly any duty imposed therein to any extent whatever;
(c) to impose new duties on any dutiable goods or class of dutiable goods,
including goods that are already in Hong Kong at the time such new duties
are imposed; or
(d) to empower the Commissioner-
(i) to make refunds of duty in any particular case or generally;
(ii) to assess duty on any dutiable goods not specified in the Schedule;
or
(iii) to assess duty on a quantity, as specified in the Schedule, of
dutiable goods at a rate so specified.
(Replaced 66 of 1986 s. 5)
5. Drawback
(1) Where it is proved to the satisfaction of the Commissioner that any
duty-paid goods have been used in Hong Kong by qualified persons in the
manufacture or preparation of any goods exported or taken as stores on
board a ship, vehicle, train or aircraft departing from Hong Kong,
drawback shall be payable to such persons in respect of such duty-paid
goods at such rate as may from time to time by regulations be prescribed.
(Amended L. N. 294 of 1982)
(2) In this section, "qualified person" means a person qualified in manner
prescribed by regulations for the purpose of drawback.
6. Regulations
(1) The Governor in Council may by regulation prescribe or provide for-
(a) regulating, restricting, licensing or prohibiting, except by licensed
persons and on, from or to licensed premises, vehicles, trains, ships or
aircraft, as the case may be, the importation, exportation, manufacture,
storage, sale, supply, use and possession of goods to which this Ordinance
applies; (Amended 66 of 1986 s. 6)
(b) standards of quality for and determining the quality and origin of,
and for packing, canning or bottling any goods (to which this Ordinance
applies) to be manufactured, sold or exported under licence; and for
materials to be used in such manufacture;
(c) the form of licences and permits and any conditions to be attached
thereto, the public officers who may grant licences or permits, the
periods for which licences and permits may be issued, the surrender of
permits after issue and exemptions for any requirements prescribed by this
Ordinance in relation to a licence or permit; (Replaced 66 of 1986 s. 6)
(d) the construction, maintenance, management and control of licensed
premises;
(e) books and records to be kept for the purposes of this Ordinance, the
manner in which they are to be kept, and the periods for which they are to
be preserved, and empowering the Commissioner and any member of the
Customs and Excise Service so authorized in writing by him to grant
exemptions from any such requirement; (Amended 66 of 1986 s. 6)
(f) the containers in which goods to which the Ordinance applies may be
imported, exported, kept, sold or supplied and for the labeling or marking
of such goods and containers;
(g) fees other than fees for liquor licences issued by the Urban Council
or the Regional Council; (Replaced 19 of 1973 s. 54. Amended 39 of 1985 s.
60)
(h) the payment of fees, duties and drawback; (Replaced 66 of 1986 s. 6)
(ha) the refund of duty-
(i) on duty-paid goods used in the manufacture of dutiable goods;
(ii) on duty-paid goods destroyed in Hong Kong with the written consent of
the Commissioner;
(iii) on duty-paid goods exported from Hong Kong with the written consent
of the Commissioner;
(iv) on duty-paid goods drawn as samples for analysis by the Government
Chemist;
(iva) on duty-paid fuel for ships of more than 60 tons net register, for
use either outside Hong Kong or partly inside and partly outside Hong
Kong; (Added 35 of 1992 s. 4)
(v) on such other duty-paid goods as the Legislative Council may by
resolution direct; (Added 66 of 1986 s. 6)
(i) dispensing with or relaxing any of the provisions of this Ordinance or
duties imposed thereunder relating to goods- (Amended 3 of 1970 s. 36)
(i) used or intended to be used in the sacrament, or solely for
educational, scientific, medical or charitable purposes;
(ii) used or intended to be used in navigation, air or land traffic
through or outside Hong Kong, or as ships' or aircraft stores;
(iii) imported for their own use and in their baggage by passengers and
crew members of ships, aircraft, trains or vehicles; (Replaced 66 of 1986
s. 6)
(iv) exported and subsequently reimported, or to such other goods as the
Legislative Council may by resolution direct;
(v) used or intended to be used as samples or advertising matter of no
commercial value and not intended for resale;
(vi) which are bona fide gifts sent to residents of Hong Kong and are not
intended for resale;
(vii) used in the blending of fuel oil or marked by means of chemicals and
coloration; (Added 66 of 1986 s. 6)
(viii) drawn as samples for analysis by the Government Chemist; (Added 66
of 1986 s. 6)
(ia) exemptions from or refunds of duty which are required by any
Ordinance as to immunities and privileges of a diplomatic, consular or
similar nature; (Added 40 of 1974 s. 4)
(j) the furnishing of bonds, or cash or other securities, by licensees and
others to secure the due payment of duty and the observance of the
provisions of this Ordinance and the conditions of licences; (Amended 3 of
1970 s. 36)
(k) the examination of the baggage and goods of persons entering or
leaving Hong Kong;
(l) requiring importers and exporters of goods to which this Ordinance
applies to furnish certificates relating to the goods from places outside
Hong Kong;
(m) marking by means of chemicals and coloration of hydrocarbon oil;
(Amended 66 of 1986 s. 6)
(n) the issue, suspension and revocation of liquor licences and the
establishment, functions and procedure of boards appointed for the
purpose; (Added 3 of 1970 s. 4. Amended 4 of 1979 s. 2)
(o) regulating the premises in respect of which a liquor licence is
granted; (Added 3 of 1970 s. 4)
(p) regulating or prohibiting the sale and supply of liquor to minors;
(Added 3 of 1970 s. 4)
(q) regulating or prohibiting the employment and presence of minors on
licensed premises;
(r) the conditions of employment of minors on licensed premises; (Added 3
of 1970 s. 4)
(ra) the issue of certificates as evidence of landing, shortages and
breakages of cargo or relating to entries in official records; (Added 66
of 1986 s. 6)
(s) matters in which the Commissioner may give directions for the
protection of the revenue and the carrying out of the provisions of this
Ordinance, and for empowering him to give such directions; (Amended 3 of
1970 s. 36; L. N. 294 of 1982)
(sa) empowering the Commissioner to grant exemptions in any particular
case or generally from any regulations made under this section; (Added 66
of 1986 s. 6)
(t) anything which is by this Ordinance to be prescribed or provided for
by regulation;
(u) generally, carrying into effect the provisions of this Ordinance.
(2) Without prejudice to subsection (1) (n), regulations made under this
section may provide that a contravention of any regulation shall be an
offence and prescribe a penalty therefor: (Amended 4 of 1979
s. 2)
Provided that no penalty so prescribed shall exceed a fine of $100,000 and
imprisonment for 2 years.
(3) Any regulation made under this Ordinance may provide that in any
criminal proceedings for a contravention thereof-
(a) it shall be for the person charged with such contravention to prove
certain facts; or
(b) facts may be presumed, with or without proof of other facts, until the
contrary is proved.
(4) Any regulation made in exercise of the powers conferred by subsection
(3) shall be subject to the approval of the Legislative Council.
(5) Where by regulations made under subsection (1) (n) the Urban Council
is appointed as a board empowered to issue liquor licences, the Urban
Council may, by notice published in the Gazette, specify the fees payable
in respect of such licences. (Added 19 of 1973 s. 54. Amended L. N. 56 of
1974)
(6) (Repealed 66 of 1986 s. 6)
(7) Where by regulations made under subsection (1) (n) the Regional
Council is appointed as a board empowered to issue liquor licences, the
Regional Council may, by notice published in the Gazette, specify the fees
payable in respect of such licences. (Added 39 of 1985 s. 60)
(8) (Spent)
7. Grant of licences and permits
(1) Subject to the provisions of this Ordinance-
(a) the Commissioner or other officer deputed by him in that behalf may in
his absolute discretion grant and issue licences or permits on payment of
the fees, for the periods prescribed, or if no such period is prescribed
in any case, for periods of one year at a time, and may renew such
licences or permits;
(b) the Commissioner or an officer deputed by him to grant a licence or
permit may-
(i) in granting or renewing the licence or permit impose such special
conditions or restrictions in particular cases as he thinks fit;
(ii) permit the transfer of the licence or permit from one person to
another or, if the licence was issued for certain premises, the
substitution therefor of other premises, or may amend the licence or
permit, on sufficient cause being shown to his satisfaction and on payment
of the fee prescribed for such transfer, substitution or amendment and of
such fee, or such proportionate part of such fee, payable under paragraph
(a) as the change may involve;
(iii) give either personally or by registered post such directions to
licensees or holders of permits in writing in prescribed matters as he may
deem necessary for the protection of the revenue; (Amended 66 of 1986 s.
7)
(iv) revoke the licence or permit on proof to his satisfaction of an
offence against this Ordinance, whether any person has been convicted of
such offence or not;
(c) any licence or permit shall be in the prescribed form or, if no form
is prescribed in a particular case, in such form as the Commissioner may
approve; (Added 3 of 1970 s. 5)
(d) a list of general bonded warehouses shall be published in the Gazette
in January of each year and additions thereto or deletions therefrom shall
be similarly published within 1 month of such addition or deletion
becoming necessary. (Amended 3 of 1970 s. 36)
(2) Any person who is aggrieved by the exercise of the powers conferred by
this section by the Commissioner or by any officer deputed by him in that
behalf may appeal by way of petition to the Governor in Council. (Amended
L. N. 294 of 1982)
8. Applications for licences and permits
Any person seeking a licence or permit or the renewal, extension, transfer
or amendment of a licence or permit shall make application-
(a) in accordance with regulations; or
(b) in any case not provided for by regulations, either personally or in
writing to the Commissioner in accordance with a form approved by him and
subject to his directions, and shall furnish such information and evidence
relating to the application as may be prescribed or as the Commissioner
may require.
(Replaced 3 of 1970 s. 6. Amended L. N. 294 of 1982)
9. Register of requisitions and permits
Every requisition for a permit and a copy of every permit issued shall be
entered in a book or books in the office of the officer authorized to
issue the permit, and the absence of a requisition or copy therefrom shall
be prima facie evidence that a permit has not been applied for or, as the
case may be, that a permit has not been issued.
10. Deputy for absent licensee
(1) If a licensee intends to leave Hong Kong for more than 14 days at a
time, or is, by reason of any disability, incapable of acting, he, or in
the case of disability, his legal representative, shall, unless he has
appointed a deputy licensee under subsection (2), appoint a responsible
person, approved by the Commissioner to act on his behalf during his
intended absence or during his disability and shall lodge with the
Commissioner a notice of such appointment endorsed and countersigned by
the person appointed and during the absence or disability of the licensee
the person appointed shall, without prejudice to the responsibility of the
licensee, have the same duties and liabilities as the licensee under this
Ordinance.
(2) A licensee may, subject to the prior approval of the Commissioner
obtained in accordance with subsection (3), appoint a deputy licensee.
(3) An application for the approval of the Commissioner under subsection
(2) shall be made in writing in a form approved by him, signed by both the
licensee and the proposed deputy licensee and giving such information and
evidence relating to the application as the Commissioner may require.
(4) Whenever a licensee who has appointed a deputy licensee intends to
leave Hong Kong, or is, by reason of any disability, incapable of acting,
he, or in the case of disability, his legal representative shall by notice
in writing notify the Commissioner of such intention to leave or of such
disability.
(5) A deputy licensee shall while the licensee is absent from Hong Kong,
or is, by reason of any disability, incapable of acting-
(a) during such absence or disability;
(b) notwithstanding any absence of any notice under subsection (4); and
(c) without prejudice to the responsibility of the licensee, have the same
duties and liabilities as the licensee under this Ordinance.
(6) If a licensee and a deputy licensee leave Hong Kong at the same time
for more than 14 days subsection (1) shall apply as if no deputy licensee
had been appointed under subsection (2).
(7) In this section-
"deputy licensee" means a deputy licensee appointed under subsection (2);
"licensee" means the holder of a licence in respect of any premises in
which dutiable goods are thereby authorized to be stored or manufactured.
(Replaced 66 of 1986 s. 8)
11. Powers of the Customs and Excise Service
(1) Every member of the Customs and Excise Service shall for the purposes
of this Ordinance have power to do all or any of the following things-
(a) to enter at all reasonable times or, if specially authorized in
writing by the Commissioner for the purposes of this section, at any time
by day and night and remain as long as he thinks fit upon any premises or
place in respect of which any person holds a licence and to inspect and
examine the premises or place and every part thereof; (Amended 3 of 1970
s. 7)
(b) to require the production of any licence, permit, and any book or
document kept in pursuance of this Ordinance or any other document which
has a bearing on the quantity, origin, value or nature of any goods to
which this Ordinance applies, and to inspect, remove and detain for the
purpose of examination for so long as the Commissioner may consider
necessary and to examine and copy any such books or documents; (Amended 3
of 1970 s. 36; 34 of 1984 s. 2; 66 of 1986 s. 9)
(c) to make such examination and inquiry as may be necessary to ascertain
whether the provisions of this Ordinance are complied with as respects any
goods to which this Ordinance applies;
(Amended 3 of 1970 s. 36)
(d) without payment, to take such samples of any goods to which this
Ordinance applies as the Commissioner may direct for examination or for
ascertaining the duty payable on such goods, and samples so taken for
examination or for ascertaining the duty payable may be disposed of as the
Commissioner may think fit; and
(e) to exercise such other powers as may be necessary for giving effect to
the provisions of this Ordinance.
(2) The holder of every licence or permit issued under this Ordinance and
his servants or agents shall furnish the means required by a member of the
Customs and Excise Service as necessary for any entry, inspection,
examination, inquiry or the exercise of his powers under this Ordinance in
relation to any goods to which this Ordinance applies and which are or
have been in the possession, custody or control of such licensee or
permittee.
(3) If in pursuance of this section any member of the Customs and Excise
Service, having demanded admission into any premises and declared his name
and business at any entrance thereof, is not immediately admitted, he and
any person acting in his aid may break into and forcibly enter the
premises.
11A. Books and documents
(1) Any book or document kept in pursuance of this Ordinance shall be kept
in a legible form or in a non-legible form capable of being reproduced in
a legible form.
(2) If any book or document is kept otherwise than in a legible form, any
power conferred by this Ordinance to require the production of such book
or document, to remove and detain it for the purpose of examination, to
examine it or to take copies of it shall be construed as including power
to require production of it, to remove it and to detain it for the purpose
of examination, to examine or to take copies of a reproduction of the book
or document or of the relevant part of it in a legible form. (Added 66 of
1986 s. 10)
12. Seizure without warrant
Any member of the Customs and Excise Service may without warrant-
(a) seize, remove and detain any goods to which this Ordinance applies and
in respect of which he finds or has reasonable cause to suspect that an
offence against this Ordinance has been committed, or that the goods are
otherwise liable to forfeiture under this Ordinance; (Amended 3 of 1970 s.
36)
(b) stop and board any ship, aircraft, train or vehicle and search the
same and every part thereof, and may remain thereon as long as it remains
in Hong Kong.
13. Ships failing to bring to
The master of any ship not exceeding 250 tons gross tonnage in the waters
of Hong Kong who shall refuse to stop and receive any member of the
Customs and Excise Service on board such ship or who shall refuse or
neglect, to bring his ship to when hailed by a member of the Customs and
Excise Service in charge of any ship employed in the service of the
Government of Hong Kong having displayed the customary flag or having
exhibited or made a recognition signal shall be guilty of an offence and
shall be liable to a fine of $5,000 in addition to any other penalty to
which he may be liable under the provisions of this Ordinance.
(Amended 3 of 1970 s. 8)
[cf. 1952 c. 44 s. 78 U. K.]
14. Search of place or ship with warrant or authority or by police officer
(1) Where it appears to any magistrate upon the oath of any person that
there is reasonable cause to believe that in any place there are concealed
or deposited any goods subject to forfeiture under this Ordinance, or with
respect to which an offence has been committed or is about to be committed
against the provisions of this Ordinance, the magistrate may, by his
warrant directed to any member of the Customs and Excise Service or to any
police officer, empower such member or officer by day or by night-(Amended
3 of 1970 s. 36)
(a) to enter the place named in the warrant and there to search for and
seize, remove and detain any such goods; and
(b) to arrest any person being in such place in whose possession such
goods may be found, or whom such member or officer may reasonably suspect
of having concealed or deposited any such goods there or thereabout.
(Amended 66 of 1986 s. 11)
(2) Such member or officer may, if necessary-
(a) break open any outer or inner door of the place and enter thereinto;
(b) forcibly enter the place and every part thereof;
(c) remove by force any obstruction to such entry, search, seizure and
removal as he is empowered to effect;
(d) detain every person found in such place and prevent every person from
approaching or entering the same, until the search is complete;
(e) seize, remove and detain any such goods, whether in such place or in
any place whatever within Hong Kong, in the possession, custody or control
of any of the persons against whom his warrant has been issued. (Amended
66 of 1986 s. 11)
(3) Whenever it appears to any member of the Customs and Excise Service
generally or specially authorized in writing by the Commissioner for the
purposes of this section, or to any police officer not below the rank of
inspector, that there is reasonable cause to believe that in any place
there are concealed or deposited goods liable to forfeiture under this
Ordinance, or with respect to which an offence has been committed or is
about to be committed against this Ordinance, and he has reasonable ground
for believing that unless the place is searched forthwith the goods are
likely to be removed, the said officer in virtue of his office may
exercise in, upon and in respect of such place all the powers mentioned in
this section as if he were empowered to do so by warrant. (Amended 66 of
1986 s. 11)
(4) (Repealed 66 of 1986 s. 11)
15. Seizure of things used for commission of offences
(1) Whenever it is lawful under this Ordinance for a member of the Customs
and Excise Service or a police officer to seize, remove and detain any
goods, it shall be lawful for him in a like manner to seize, remove and
detain- (Amended 66 of 1986 s. 12)
(a) any receptacle in which the goods are contained;
(b) any ship not exceeding 250 tons gross tonnage or any vehicle or
aircraft not being a public transport or state aircraft in which the goods
are found; (Amended 3 of 1970 s. 9)
(c) any machinery, implement, utensil or material used or intended to be
used for the commission of an offence against this Ordinance; and
(d) anything which may appear to be or to contain evidence that any
offence against this Ordinance has been or is about to be committed.
(Amended 3 of 1970 s. 36)
(2) For the purposes of this section, "public transport" in relation to
"vehicle" means "taxis" or "public buses" as defined in section 2 of the
Road Traffic Ordinance (Cap. 374). (Amended 75 of 1982 s. 114)
16. Obstruction of member of the Customs and Excise Service or police
officer No person shall-
(a) delay, obstruct, hinder or molest any person duly engaged in the
performance of any duty or in the exercise of any power imposed or
conferred on him by or under this Ordinance or any person acting in his
aid; or (Amended 3 of 1970 s. 36)
(b) rescue, damage or destroy any thing so liable to forfeiture or do
anything calculated to prevent the procuring or giving of evidence as to
whether or not any thing is so liable to forfeiture; or
(c) fail to produce any licence, permit, book or document which he is
required by or in pursuance of this Ordinance to produce; or
(d) fail to comply with the requisition of any person duly engaged in the
performance of any duty or the exercise of any power under this Ordinance.
17. Restrictions on dealing with and possession of certain goods
(1) No person shall import or export or have in his possession, custody or
control, or in any way deal with or dispose of, any goods to which this
Ordinance applies-
(a) except in accordance with the provisions of this Ordinance; or
(Amended 3 of 1970 s. 36)
(b) unless he has discharged all the obligations with respect to the goods
imposed upon him by or under this Ordinance.
(2) No person shall have in his possession, custody or control any goods
knowing that in respect thereof an offence against this Ordinance has been
committed: Provided that no person shall be convicted of an offence
against this subsection if he proves that when such goods came into his
possession, custody or control he had good and sufficient reason to
believe that the provisions of this Ordinance relating to the goods had
been complied with. (Amended 3 of 1970 s. 36)
(3) Subject to subsection (3A), where regulations prohibit the import,
export, production or manufacture of any goods to which this Ordinance
applies except on the authority of a prescribed licence or permit, no
person shall import, export, produce or manufacture such goods except on
the authority of such a licence or permit and in accordance with the terms
thereof. (Replaced 29 of 1989 s. 2)
(3A) Subsection (3) does not apply in the case of goods which are exempt
from duty or in such other cases, in relation to duty-paid goods, as may
be prescribed by regulations, or in the case of transit cargo. (Added 29
of 1989 s. 2)
(3B) Where regulations prohibit the sale or supply of any liquor except on
the authority of a prescribed licence or permit, no person shall sell, or
advertise or expose for sale, or supply, or possess for sale or supply,
such liquor except on the authority of such a licence or permit and in
accordance with the terms thereof. (Added 29 of 1989 s. 2)
(4) No person shall manufacture, make, distil, rectify, purify, refine or
process any spirit except under and in accordance with a licence. (Added 3
of 1970 s. 10)
(5) No person shall sell, advertise or expose for sale, or supply, or
possess for sale or supply, any goods to which this Ordinance applies as
goods of a standard prescribed by regulations, if the goods are not goods
of that standard. (Amended 66 of 1986 s. 13)
(6) No person shall have any dutiable goods in his possession, custody or
control unless-
(a) he is-
(i) the holder, or the servant of the holder, of a removal or export
permit, personally conveying the goods direct from one place, ship,
vehicle, train or aircraft to another place, ship, vehicle, train or
aircraft in accordance with the permit; or
(ii) the licensee, or the servant of the licensee, of a general bonded
warehouse, personally conveying the goods, if imported in a ship, vehicle,
train or aircraft and duly entered in the manifest, direct from the ship,
vehicle, train or aircraft in which they were imported to the warehouse;
or
(b) the goods are-
(i) in a general bonded or a licensed warehouse; or
(ii) in a place licensed for the manufacture of such goods; or
(iii) on railway premises and under the control of the railway
authorities, if the nature of the goods has been disclosed to those
authorities; or
(iv) in a ship, vehicle, train or aircraft, if the goods were imported, or
are to be exported, in that ship, vehicle, train or aircraft and are duly
entered in the manifest; or (Amended 66 of 1986 s. 13)
(v) in a place approved by the Commissioner under section 28A. (Added 66
of 1986 s. 13)
(7) No person, not being authorized so to do by permit or otherwise in
accordance with the provisions of this Ordinance, shall remove, deliver or
send out any dutiable goods from his stock, custody or possession; nor
shall any person take, receive or have in his stock, custody or possession
any dutiable goods removed or delivered thereto in contravention of this
subsection. (Amended 3 of 1970 s. 36) [cf. 1832 c. 16 s. 10 U. K.]
(8) No person shall, on his own account or on behalf of another, sell,
offer for sale or buy any dutiable goods which are in Hong Kong, unless
the goods are-
(a) in a general bonded or licensed warehouse; or
(b) in the place where they were manufactured; or
(c) in the ship, vehicle, train or aircraft in which they were imported;
or
(d) on the railway premises.
(9) The onus of proving that dutiable goods are in course of direct
removal from any place, ship, vehicle, train or aircraft to any other
place, ship, vehicle, train or aircraft shall be upon the accused.
(10) It shall be no defence to any charge under this section that the
possession or control of the accused was a joint possession or control.
(Added 66 of 1986 s. 13)
18. (Repealed 29 of 1989 s. 3)
19. Goods embarked for export not to be relanded
(1) If any goods to which this Ordinance applies are placed on board any
ship, vehicle, train or aircraft for exportation or as stores and, except
with the express permission of the Commissioner in writing, are not duly
exported or are unshipped or removed or relanded in any part of Hong Kong,
the master of the ship, the person in charge of the vehicle, train or
aircraft and any person by whom or by whose orders or means the goods are
so unshipped, removed or relanded, shall be guilty of an offence, and the
ship, if less than 250 tons gross tonnage, vehicle, train or aircraft, not
being a public transport or state aircraft, may by order of a magistrate
be forfeited. (Amended L. N. 294 of 1982)
(2) For the purpose of this section, "public transport" in relation to
"vehicle" means "taxi", "public light bus" or "public bus" as defined in
section 2 of the Road Traffic Ordinance (Cap. 374). (Amended 75 of 1982 s.
114)
(Amended 3 of 1970 s. 12) [cf. 1876 c. 36 s. 120 U. K.]
20. Restrictions on import and export
Except with the written permission of the Commissioner, no goods to which
this Ordinance applies shall-
(a) be imported or exported otherwise than by air, road, rail or sea and
to or from such ports or places and by such routes, or
(b) be landed from or loaded or taken on any ship, aircraft, train or
vehicle elsewhere than at such places, as the Commissioner by notification
in the Gazette may appoint. (Amended L. N. 294 of 1982)
21. Penalty on not bringing to at stations; or carrying away officers
(1) If any ship arriving in or departing from Hong Kong or on which any
goods to which this Ordinance applies are being imported or exported does
not bring to at such stations as may be appointed by the Commissioner for
examination or for the landing of officers from such ships, the master of
the ship shall be guilty of an offence and shall be liable on summary
conviction to a fine of $5,000. (Amended 3 of 1970 s. 13; L. N. 294 of
1982)
(2) If any ship departs from any such station without the knowledge of the
proper member of the Customs and Excise Service or from Hong Kong with any
member of the Customs and Excise Service or other Government officer on
board, without the consent of such member or officer, the master of the
ship shall be guilty of an offence and shall be liable on summary
conviction to a fine of $5,000.
(3) This section shall apply to aircraft and vehicles and persons in
charge thereof as it applies to ships and the masters of ships. [cf. 1876
c. 36 s. 136 U. K.; 1883 c. 55 s. 5 U. K.]
22. Import and export statements
(1) The owners, charterers or agents of every ship, aircraft or vehicle,
in which goods to which this Ordinance applies are imported or exported,
or the master of every such ship, the person in charge of every such
aircraft or the driver of every such vehicle shall, within 7 days or such
longer period as the Commissioner may specify, after the arrival in or
departure from Hong Kong of such ship, aircraft or vehicle furnish to the
Commissioner at the office of the Commissioner an accurate and complete
statement of all such goods. (Amended L. N. 294 of 1982)
(2) The owners, charterers or agents of every ship or aircraft which
arrives in or departs from Hong Kong having on board no goods to which
this Ordinance applies, or the master of every such ship or the persons in
charge of every such aircraft, shall, within 7 days or such longer period
as the Commissioner may specify, after such arrival or departure furnish
to the Commissioner or other prescribed officer at the office of the
Commissioner a statement that no such goods were carried in the ship or
aircraft. (Amended 3 of 1970 s. 14; L. N. 294 of 1982; 66 of 1986 s. 14)
(3) Every statement furnished in accordance with the provisions of this
section shall be in a form approved by the Commissioner, signed by the
party furnishing it, and shall contain such particulars, if any, as may be
prescribed by regulations and such further particulars as the Commissioner
or other prescribed officer may require. (Amended L. N. 294 of 1982; 66
of 1986 s. 14)
(4) Separate statements shall be furnished in respect of each class of
goods specified in section 3 or by any resolution under that section:
Provided that-
(a) where no goods of a class so specified were carried, it shall be
sufficient to include a statement to that effect in any other statement
made under this section; and
(b) where no goods to which this Ordinance applies were carried, a single
statement to that effect shall suffice.
(Replaced 3 of 1970 s. 14)
(5) If any statement is not furnished in accordance with, or is furnished
in breach of, the provisions of this section, the owners, charterers and
agents of the ship, aircraft or vehicle, the master of the ship, the
person in charge of the aircraft and the driver of the vehicle, in respect
of which the statement is, or should have been, furnished, shall each and
all be guilty of an offence.
(6) The Commissioner may, with respect to any case or class of cases,
grant in writing exemptions from any of the requirements of this section
and may impose conditions with respect to such exemptions. (Added 66 of
1986 s. 14)
23. Removal of goods from ships, vehicles or aircraft
(1) If any goods to which this Ordinance applies are in any ship, vehicle
or aircraft or on the railway premises they shall not be removed therefrom
by, or discharged or delivered therefrom to, any person except the
licensee of a general bonded warehouse or the holder of a valid permit in
that behalf or the servant of such permittee or licensee:
Provided that-
(a) goods put on board any ship, vehicle or aircraft or on the railway
premises under permit shall not be relanded or removed therefrom except
under permit; and
(b) this subsection shall not apply to duty-paid goods after their first
removal within Hong Kong from the ship, vehicle or aircraft on which they
were imported or from the railway premises.
(2) Where an offence of removing, discharging or delivering any goods from
any ship, vehicle or aircraft contrary to subsection (1) is proved to have
been committed, every person being an owner, charterer, agent, master or
other person in charge or comprador of the ship, vehicle or aircraft shall
be deemed guilty of that offence unless he proves that the goods were
removed or discharged without his knowledge and that he had exercised due
diligence to prevent such removal or discharge. (Amended 3 of 1970 s. 15)
(3) Goods thrown overboard from any ship, vehicle or aircraft shall be
deemed to have been unlawfully removed therefrom in contravention of this
section. [cf. 1876 c. 36 s. 179 U. K.]
24. Ships' or aircraft stores, etc.
(1) Goods to which this Ordinance applies and which are imported as
transit cargo or which are to be used as ships' or aircraft stores shall,
while the ship or aircraft is in Hong Kong, be kept in the prescribed
manner or, in the absence of such provision, in a secure place under the
custody and control of the master or person in charge of the ship or
aircraft. Goods so imported shall not be landed in Hong Kong unless the
landing of such goods is specially authorized by the Commissioner in
writing. (Amended 40 of 1974 s. 5)
(2) The issue of permits to export any dutiable commodities as ships' or
aircraft stores shall be at the absolute discretion of the Commissioner or
any person authorized by him.
(3) The master shall use only such quantity of dutiable commodities as
ships' stores as the Commissioner or any person authorized by him shall in
his discretion provide. (Amended L. N. 294 of 1982)
25. Inspection, etc. of goods
(1) The Commissioner or any member of the Customs and Excise Service or
other person authorized by him in writing either generally or in any
particular instance may at all times inspect any goods to which this
Ordinance applies and place locks, marks or seals on any container or
place in which they may be. (Amended L. N. 294 of 1982)
(2) Where in pursuance of any powers conferred by this section the
Commissioner, any member of the Customs and Excise Service or an
authorized officer has placed any lock, mark or seal upon any goods in any
place, ship, vehicle, train or aircraft or upon any container in which
such goods are kept, then if, without the authority of the Commissioner or
such member or officer, at any time or in the case of a ship, vehicle,
train or aircraft, while the ship, vehicle, train or aircraft is within
the limits of Hong Kong, that lock, mark or seal is opened, altered or
broken, or if, before that lock, mark or seal is lawfully removed, any of
the goods are conveyed away, any person so doing and the person who was in
control of the goods, container or place at the time any such lock, mark
or seal was placed upon them or the master of the ship or person in charge
of the vehicle, train or aircraft shall be guilty of an offence and shall
be liable to a fine of $5,000. (Amended 66 of 1986 s. 15) [cf. 1952 c. 44
s. 70 U. K.]
26. Assessment of duty and drawback
(1) Subject to the provisions of sections 4 and 26A, the duty on dutiable
goods or any drawback shall be assessed by the Commissioner or any officer
authorized by him in that behalf, and the duty shall be paid at such times
and to such officer, at the office of the Commissioner or elsewhere, as he
may direct. In assessing the duty or drawback on any goods allowance may
be made for any loss or contraction which may since the goods became
dutiable have occurred therein from unavoidable accident or natural causes
and, in the discretion of the Commissioner, for waste or loss in
manufacture if the loss, contraction or waste has been duly notified and
accounted for to the satisfaction of the Commissioner. The decision of the
Commissioner as to the amount of duty or drawback payable on any goods
shall be final. (Amended 46 of 1980 s. 3; 34 of 1984 s. 3)
(2) Where any notification of duty payable is given under the provision of
subsection (1) such notice shall be deemed to have been duly served on the
person concerned-
(a) if given verbally by the Commissioner or other authorized officer to
the person responsible; or
(b) if delivered to him personally; or
(c) if addressed to him and left or forwarded by registered post to him at
his usual or last known place of abode or business.
(Amended L. N. 294 of 1982)
26A. Value of goods and assessment of ad valorem duty
(1) Subject to subsections (2), (2A), (3), (4) and (5), for the purpose of
assessing and calculating duty by reference to the value of any goods, the
value shall be the normal price which the goods would fetch, at the
relevant time, on their sale in the open market between a buyer and seller
independent of each other. (Replaced 20 of 1985 s. 5)
(2) The normal price of any imported dutiable goods shall be determined on
the assumptions that-
(a) the goods are treated as having been delivered to the buyer at the
place of importation;
(b) the seller will bear freight, insurance, commission and all other
costs, charges and expenses incidental to the sale and the delivery of the
goods at that place;
(c) the buyer will bear any duty payable in Hong Kong.
(2A) The normal price of any dutiable goods manufactured in Hong Kong
shall be determined on the assumptions that-
(a) the goods are treated as having been delivered to the buyer at his
premises;
(b) the seller will bear transport, insurance, commission and all other
costs, charges and expenses incidental to the sale and the delivery of the
goods to the buyer; and
(c) the buyer will bear any duty payable in Hong Kong. (Added 20 of 1985
s. 5) (3) A sale in the open market between a buyer and seller independent
of each other pre-supposes that-
(a) the price is the sole consideration;
(b) the price made is not influenced by any commercial, financial or other
relationship, whether by contract or otherwise, between the seller or any
person associated in business with him and the buyer or any person
associated in business with him (other than the relationship created by
the sale of the goods in question); and
(c) no part of the proceeds of the subsequent re-sale, use or disposal of
the goods will accrue either directly or indirectly to the seller or any
person associated in business with him.
For the purposes of this subsection, 2 persons shall be deemed to be
associated in business with one another if, whether directly or
indirectly, either of them has any interest in the business or property of
the other, or both have a common interest in any business or property, or
some third person has an interest in the business or property of both of
them.
(4) For the purpose of subsection (1), the Commissioner or any officer
authorized by him in that behalf may, subject to subsection (5), accept
the value of the goods as stated in the contract of sale, invoice or other
document, relating to the goods and produced under section 27, if the date
of the contract of sale, invoice or other document precedes the date on
which the duty is assessed by not more than 12 months.
(5) If-
(a) an importer or manufacturer fails to produce any contract of sale,
invoice or other document required to be produced by the Commissioner
under section 27; (Amended 20 of 1985 s. 5)
(b) in the opinion of the Commissioner or any officer authorized by him in
that behalf the information in any contract of sale, invoice or other
document produced under section 27 is insufficient or inaccurate as to the
value of the goods; or
(c) in the opinion of the Commissioner or any officer authorized by him in
that behalf the value of the goods stated in any contract of sale, invoice
or other document produced under section 27 is not the value in accordance
with subsection (1), the Commissioner or such officer may fix a value
which shall be deemed to be the value of the goods for the purpose of
assessing and calculating duty.
(6) If in any contract of sale, invoice or other document produced under
section 27 the value of the goods is stated in any currency other than
Hong Kong dollars, the Hong Kong dollars equivalent of such other currency
shall be calculated at the opening indicative counter exchange selling
rate published by the Hong Kong Association of Banks, in the case of a
person permitted to make monthly returns, on the last date of that return
or, in any other case, on the day the goods are imported, and where no
such rate is published the Hong Kong dollars equivalent shall be
calculated at such rate of exchange as may be determined by the
Commissioner, after consulting the 2 note-issuing banks. (Amended 66 of
1986 s. 16)
(7) Any person who is aggrieved by the exercise of the powers conferred by
subsection (5) or (6) may appeal by way of petition to the Governor.
(8) In this section "relevant time" means-
(a) in the case of imported goods the time such goods are imported;
(b) in the case of goods manufactured in Hong Kong the time such goods are
removed from the premises on which they were manufactured. (Added 20 of
1985 s. 5) (Added 34 of 1984 s. 4)
[cf. 1952 c. 44 s. 258 U. K.]
27. Production of documents necessary for calculating duty
(1) The Commissioner may require the importer or manufacturer of any goods
to which this Ordinance applies to produce contracts of sale, invoices,
books of account and any other documents which the Commissioner considers
are necessary for the purpose of assessing and calculating duties and such
documents may be retained by the Commissioner and disposed of as he may
think fit. (Amended L. N. 294 of 1982; 34 of 1984 s. 5)
(2) Any document required to be produced under subsection (1) shall, if
the Commissioner so requires, be accompanied by a declaration in a form
specified by the Commissioner. (Added 34 of 1984 s. 5)
27A. Production of document as to origin of juice
The Commissioner may require the importer or manufacturer of any juice, or
of anything which purports to be juice, to produce a document in a form
approved by the Commissioner accurately showing the type of fruit or
vegetable from which the juice was obtained, and, in the case of juice
which is a mixture of juices, the proportion of each in the mixture.
(Added 20 of 1985 s. 6)
28. Delivery of imported goods on giving security for duty
(1) Where it is impracticable immediately to ascertain whether any or what
duty is payable in respect of any imported goods which are imported into,
or manufactured in, Hong Kong, the Commissioner or other officer
authorized in accordance with section 26 of 26A may, if he thinks fit and
notwithstanding any other provision of this Ordinance, allow these goods
to be delivered upon the importer giving a security by deposit of money or
otherwise to his satisfaction for the payment of any amount unpaid which
may be payable by way of duty. (Amended 3 of 1970 s. 16; 34 of 1984 s. 6;
20 of 1985 s. 7)
(2) Where goods are allowed to be delivered under this section the
Commissioner or authorized officer shall, when he has determined the
amount of duty which in his opinion is payable, give to the importer a
notice specifying the amount; and the amount so specified or, where any
amount has been deposited under subsection (1), any difference between
those amounts shall forthwith be paid or repaid, as the case may require.
(Amended L. N. 294 of 1982)
[cf. 1952 c. 44 s. 255 (1) & (3) U. K.]
28A. Goods imported for processing or repacking for export
(1) Where the Commissioner is satisfied that any dutiable goods-
(a) were imported solely for the purpose of further processing or
repacking for export; or
(b) which are beer, are solely for export,
he may in writing grant permission for those goods to be delivered to, or
stored in, a place approved by him. (Replaced 16 of 1989 s. 2)
(2) The Commissioner may impose conditions in relation to permission
granted under subsection (1) and may, in addition, require the owner of
such goods to furnish such security, either in cash or by means of a bond,
as the Commissioner requires to ensure-
(a) the due observance of conditions imposed under this section;
(b) the export of the goods; and
(c) the safe and secure keeping of the goods in the place.
(3) Upon any failure to observe any condition imposed under subsection
(2), any security furnished under that subsection shall be forfeited to
the Crown, without prejudice to any other penalty which may be imposed.
(4) Notwithstanding subsection (3), the Governor in Council may entertain
and give effect to any moral claim in respect of any security so
forfeited. (Added 66 of 1986 s. 17)
29. Liability of licensee of general bonded or licensed warehouse
(1) The licensee of every general bonded or licensed warehouse shall be
liable for the duty payable in respect of any goods of which he has, or
has had, the custody, whether the goods are in his warehouse or not, until
the goods are removed from the warehouse in accordance with a permit under
this Ordinance and shall in addition be presumed to have unlawfully and in
contravention of this Ordinance removed any dutiable goods of which he has
had the custody and for which he cannot account; a deficiency shall be
deemed not sufficiently accounted for unless it is shown to the
satisfaction of the Commissioner to have been caused by natural waste,
leakage, breakage or by some other accident or event, other than an error
in accounting, which the licensee could not reasonably have foreseen.
(Amended 3 of 1970 s. 17)
(2) If when assessing duty under the provisions of subsection (1) it is
not possible to ascertain the exact quantity, nature or value of the goods
concerned, the Commissioner may assess duty on the basis of the best
evidence available or where such evidence does not exist or is not
considered to be correct he may decide on the quantity and nature of the
goods or he may fix a value which shall be deemed to be the value of the
goods for the purposes of calculation of duty.
(3) Any person who is aggrieved by a decision of the Commissioner made
under subsection (2) may appeal by way of petition to the Governor in
Council. (Amended L. N. 294 of 1982)
30. Contracts for sale of duty-paid goods when duties are altered or
repealed (1) When any new duty is imposed and when any duty is increased
and any duty-paid goods are delivered on or after the day on which the new
or increased duty takes effect, in pursuance of a contract made before
that day, and the seller has paid such new or increased duty, he may in
the absence of any agreement to the contrary recover as an addition to the
contract price a sum equal to the amount paid by him in respect of the
goods on account of the new duty or the increase of duty, as the case may
be.
(2) When any duty is repealed or decreased and any duty-paid goods are
delivered on or after the day on which the duty ceases or the decrease in
duty makes effect, in pursuance of a contract made before that day, the
buyer, in the absence of any agreement to the contrary, may, if the seller
has had in respect of hose goods the benefit of the repeal or decrease in
the duty, deduct from the contract price a sum equal to the amount of the
duty or the decrease of duty, as he case may be.
(3) When any addition to or deduction from the contract price may be made
under this section on account of any new or repealed duty, such sum as nay
be agreed upon, or in default of agreement as may be determined by the
Commissioner, as representing in the case of a new duty any expenses
incurred and in the case of repealed duty any expenses saved may be
included in the addition to or deduction from the contract price and may
be recovered or deducted accordingly. (Amended L. N. 294 of 1982)
(4) This section shall apply although the goods have undergone some
process of manufacture since the duty was paid.
31. Execution and distress against licensees
(1)Where any sum is owing by any person licensed under the provisions of
this Ordinance in respect of any duty or of any penalty incurred by him
under this Ordinance, all goods on which duty is liable to be paid,
whether or not that duty has been paid, and all materials for
manufacturing or producing any such goods and all apparatus, equipment,
machinery, tools, vessels and utensils for, or for preparing any such
materials for, such manufacture or product or by which the trade in
respect of which the duty is imposed is carried on, which are in the
possession, custody or control of that licensee or of any agent of his or
of any other person on his behalf or which, whether or not still in such
custody or possession, were in such custody or possession-
(a) at the time when the duty was charged or became chargeable or at any
time while it was owing; or
(b) at the time of the commission of the offence for which the penalty was
incurred, shall be liable to be taken in execution in default of the
payment of that sum. (Amended 3 of 1970 s. 36)
(2) Notwithstanding anything in subsection (1), where the Commissioner or
other officer authorized under section 26 or 26A has taken account of and
charged any goods chargeable with duty, and those goods are in the
ordinary course of trade sold for full and valuable consideration to a
bona fide purchaser and delivered into his possession before the issue of
any warrant or process for distress or seizure of the goods, those goods
shall not be liable to be seized under subsection (1): (Amended L. N. 294
of 1982; 34 of 1984 s. 7)
Provided that, where any goods have been so seized, the burden of proof
that the goods are by virtue of this subsection not liable to be so seized
shall lie upon the person claiming that they are not so liable.
(3) Where any duty payable by a licensee remains unpaid after the time
within which it is payable, the Commissioner may authorize in writing any
person to distrain anything liable to be taken in execution under this
section and to sell anything so distrained by public auction after giving
7 day's notice of the sale:
Provided that where the licensee is a distiller, brewer, or manufacturer,
he may, subject in the case of a distiller to the requirements of this
Ordinance as to permits for the removal of spirits, at any time before the
date appointed for the sale, remove the whole or part of any product or
materials for his manufacture which may have been so distrained upon
paying to the Commissioner in or towards payment of the duty the true
value of those products or materials. (Amended 3 of 1970 s. 36; L. N. 294
of 1982)
(4) Any notice required by subsection (3) shall be given by the
Commissioner in writing to any person, who to his knowledge was at the
time of seizure the licensee or the agent or servant of the licensee, and
shall be deemed to have been duly served on the person concerned-(Amended
L. N. 294 of 1982)
(a) if delivered to him personally; or
(b) if addressed to him and left or forwarded by registered post to him at
his usual or last known place of abode or business.
(5) Where such notice cannot be served as provided in subsection (4) then
a notice that anything has been seized in default of any payment in
accordance with the provisions of subsection (1) shall be exhibited in a
place available to the public at the office of the Commissioner for a
period of 7 days, such period to commence 7 days before anything is sold.
(Amended L. N. 294 of 1982)
(6) The proceeds of sale of any such distress as aforesaid shall be
applied in or towards payment of the cost and expenses of the distress and
sale and in or towards payment of the duty due from the licensee, and the
surplus, if any, shall be paid to the licensee.
[cf. 1952 c. 44 s. 253 U. K.]
32. Recovery of duty, etc.
Without prejudice to any other mode of recovery provided in this
Ordinance, any duty payable or sum forfeited or deemed to be forfeited
under this Ordinance shall be deemed to be a debt due to the Crown.
33. Search of baggage and goods
(1) Any person landing from or proposing to embark in any ship or aircraft
or entering or leaving Hong Kong by land shall on demand by any member of
the Customs and Excise Service or police officer either permit his person,
goods and baggage to be searched by such member or officer or together
with his goods and baggage accompany such member or officer to a place
appointed by the Commissioner or to the office of the Commissioner or to a
police station and there permit his person, goods and baggage to be
searched by any member of the Customs and Excise Service or police officer
in the presence or under the supervision of a member of the Customs and
Excise Service not below the rank of revenue inspector or a police officer
not below the rank of inspector: (Amended 46 of 1977 s. 17; L. N. 294 of
1982)
Provided that-
(a) no female person shall be searched except by a female; and
(b) the goods and baggage of any person who wishes to be present when they
are searched shall not be searched except in his presence.
(2) Any member of the Customs and Excise Service or police officer may
make the searches authorized by this section and any person who refuses to
comply with any lawful demand under this section may be arrested without
warrant by the officer making the demand.
34. Examination of articles (other than baggage) on shore, ship, etc.
Any box, chest, package or other article, other than passenger's baggage
accompanied by the owner thereof, which is being landed from or is being
embarked on any ship, aircraft, vehicle or train or has been landed
therefrom or is in or on board thereof, or which is on or is being removed
from or on to any island, landing place, wharf, warehouse, platform or
place adjoining thereto or used in connection therewith, or which is being
brought into or which is being taken out of or has been brought into Hong
Kong by land, sea or air-
(a) may be examined and searched by any member of the Customs and Excise
Service and may be detained until any person in charge thereof has opened
the same for such examination and search, and if not so opened may be
removed by such member of the Customs and Excise Service to such place as
the Commissioner may direct;
(b) may be broken open by the orders of any member of the Customs and
Excise Service authorized by the Commissioner in that behalf either
generally or for a particular occasion, or of any police officer not below
the rank of inspector, for such examination and search:
Provided that any person in charge or possession of such box, chest,
package or other article shall be given every reasonable facility for
being present at such breaking, examination and search.
(Amended L. N. 294 of 1982)
35. (Repealed 66 of 1986 s. 18)
36. Misrepresentation, concealment, removal of goods, and defacement of
licence or permit
(1) No person shall make any incomplete statement or declaration or
furnish any incorrect information, whether or not such statement,
declaration or information is made verbally or in writing, or apply any
incorrect description or supply any incorrect particulars in any document
made or furnished for the purposes of this Ordinance or in connection with
any application for any drawback or for any licence or permit to be issued
under this Ordinance.
(2) Any person who-
(a) with intent unduly to obtain any drawback or any greater drawback than
that to which he is entitled or who attempts to evade payment of duty on
any goods to which this Ordinance applies, embarks or causes to be
embarked for exportation on any ship or aircraft, or produces or causes to
be produced to any member of the Customs and Excise Service to be so
embarked-
(i) any goods to which this Ordinance applies and which are not entitled
to drawback or not intended for export; or
(ii) any goods, matter or thing as goods to which this Ordinance applies,
the same not being goods to which this Ordinance applies or which are
different in type, nature, quantity or quality from the goods shown on any
export permit or statement which is presented and which purports to cover
such goods; or
(b) with any such intent fraudulently removes, deposits or conceals any
goods, matter or thing; or
(c) after any goods to which this Ordinance applies have been embarked for
exportation on any ship or aircraft, without the consent of the
Commissioner opens the packages in which the goods are contained or
cancels, or obliterates, or alters the marks, letter or devices thereon,
shall on summary conviction, in addition to all other penalties which he
may thereby incur, pay or forfeit either treble the amount of duty payable
on any goods involved or such drawback as the case may be or the sum of
$5,000, at the election of the Commissioner (which election shall be
certified by the Commissioner in writing under his hand), and all such
goods, matters or things shall be forfeited and may be seized by any
member of the Customs and Excise Service. (Amended L. N. 294 of 1982)
(3) No person shall without lawful authority alter, deface or make any
erasure on a licence or permit, or have in his possession a licence or
permit on which such an erasure has been made or which has been so defaced
or altered.
[cf. 1840 c. 18 s. 15 U. K.; 1918 c. 15 s. 15 (5) U. K.]
37. Forging documents, etc.
(1) No person shall-
(a) forge or falsify any document which is required by or under the
provisions of this Ordinance or which is used in the transaction of any
business relating to any trade involving goods to which this Ordinance
applies; or
(b) knowingly accept, receive, or use any such document so forged or
falsified; or
(c) without lawful authority alter or deface any such document after it is
officially issued; or (Amended 66 of 1986 s. 19)
(d) forge any seal, signature, initials or other mark of or used by any
officer for the verification of such a document or for the security of
goods or for any other purpose relating to the provisions of this
Ordinance. (Amended 3 of 1970 s. 36; 49 of 1992 s. 5) [cf. 1952 c. 44 s.
302 U. K.]
(2) In this section, "forge" has the meaning assigned to that term by Part
IX of the Crimes Ordinance (Cap. 200). (Added 49 of 1992 s. 5)
38. Restrictions on use and transfer of permits and licences
(1) No person shall without the consent of the Commissioner or an officer
authorized in accordance with section 7-
(a) transfer; or
(b) supply, permit or allow any other person to use, any licence or permit
issued under this Ordinance.
(2) No person shall, without the consent of the Commissioner or an officer
authorized in accordance with section 7, receive, obtain or use any permit
or licence issued to any other person under this Ordinance.
(Amended 3 of 1970 s. 36; L. N. 294 of 1982)
39. (Repealed 66 of 1986 s. 20)
40. Presumptions
In all proceedings under this Ordinance and in all proceedings for the
recovery of any duties imposed by or under this Ordinance, it shall be
presumed until the contrary is proved-
(a) that any goods to which this Ordinance applies are dutiable goods;
(b) that dutiable goods on any premises are in the possession of the
licensee, tenant, lessee, occupier or person in charge of such premises;
(c) that every person employed in or about any licensed premises is
employed by the person named in the licence or in charge of the premises,
as the case may be;
(d) that goods delivered or supplied are goods sold;
(e) that goods are of the weight and measure described in any bill of
lading, air waybill, permit or other document accompanying or relating to
the goods. (Amended 66 of 1986 s. 21)
41. Import manifests to be evidence of importation
In any proceedings in respect of or involving any matter, civil or
criminal, arising from or in connection with this Ordinance, if any cargo
appears on any import manifest furnished to the Commissioner by the
owners, charterers or agents of any ship or aircraft, or by the master of
a ship or person in charge of an aircraft, at any time before or after the
arrival of such ship or aircraft in Hong Kong, it shall be presumed in
favour of the Crown against any other party that such cargo was imported
into Hong Kong on board such ship or aircraft unless any such other party
proves affirmatively that such cargo was not in fact carried into Hong
Kong on board such ship or aircraft. (Amended 3 of 1970 s. 36; L. N. 294
of 1982)
42. Certain certificates to be evidence
In all proceedings under this Ordinance and in all proceedings for the
recovery of any duty on goods to which this Ordinance applies, copies of
or extracts from the records of the Commissioner or the officer authorized
to grant any licence or permit, purporting to be certified by him, shall
be prima facie evidence of the facts stated or appearing therein or to be
inferred therefrom.
(Amended 31 of 1969 Schedule; L. N. 294 of 1982)
43. Magistrate may call in expert
The magistrate hearing any charge under this Ordinance may, at the request
of the accused, employ an analyst or other expert to report on any matter
of a technical nature.
44. Informers
Save where, in the opinion of the court or magistrate, justice so
requires, the name or identity of any informer and the information given
by such informer shall not be disclosed in any civil or criminal
proceedings and the court or magistrate may make any order and adopt any
procedure necessary to prevent any such disclosure.
45. Manner of seizure not to be inquired into by court
On any trial before any magistrate and in any proceedings on appeal in the
High Court relating to the seizure of anything under this Ordinance, the
magistrate or the court shall proceed to such trial and to the hearing of
such appeal on the merits of the case only, without reference to matters
or form and without inquiring into the manner of form of making any
seizure except in so far as the manner of form of seizure may be evidence
on such merits.
46. Offences and penalties
(1) Except as otherwise expressly provided, any person who contravenes the
provisions of sections 16. 17, 19, 20, 22, 23, 24, 36, 37, 38, 55, 56, 58,
61, 68, 71 and 73 shall commit an offence and shall, in addition to any
forfeiture which may be ordered, be liable on summary conviction to a fine
of $100,000 and to imprisonment for 2 years. (Amended 3 of 1970 s. 19; 40
of 1974 s. 7; 34 of 1976 s. 5; 66 of 1986 s. 22)
(2) Any person who contravenes any condition, restriction, requirement or
direction lawfully imposed, made or given under this Ordinance shall be
guilty of an offence and, in addition to any forfeiture which may be
ordered, shall be liable on summary conviction to a fine of $10,000 and to
imprisonment for 1 year.
(Added 3 of 1970 s. 19. Amended 34 of 1984 s. 8)
(3) In any case where a magistrate is of the opinion that an offence was
committed with intent to avoid payment of duty, he may in addition to any
fine imposed under subsection (1) or (2) inflict a fine not exceeding 10
times the amount of duty payable on the goods in respect of which the
offence was committed. (Amended 3 of 1970 s. 19)
46A. Liability for acts of servants
(1) Where an offence against this Ordinance is committed by a servant of a
licensee, the licensee shall, without prejudice to the liability of any
other person, also be guilty of that offence but shall not be liable to
any term of imprisonment.
(2) Where a prosecution is brought against a licensee by virtue of this
section in respect of an offence committed by a servant, it shall be a
defence-
(a) in the case of an offence against section 61, 71, 72 or 73, if the
licensee shows that he exercised such control over the servant as would
ensure that the servant was not likely to act in contravention of that
section; or (Amended 40 of 1974 s. 8; 34 of 1976 s. 6)
(b) in the case of any other offence, if the licensee shows that he took
all practicable steps to prevent the commission of the offence.
(3) Where a licence is granted to any person wholly or partly for the
benefit of a company references to "licensee" in this section shall be
read as including references to the company.
(Added 3 of 1970 s. 20)
47. Commencement of prosecution
Any prosecution of any person for any offence against the provisions of
this Ordinance shall be commenced within 12 months from the date of such
offence or 6 months from the discovery of the offence whichever is the
later.
(Amended 3 of 1970 s. 36)
48. Forfeiture
(1) Wherever there occurs a contravention or an attempted contravention of
any provision of this Ordinance in respect of any goods, such goods shall
be liable to forfeiture whether or not any person is convicted of any
offence. (Amended 3 of 1970 s. 36)
(2) Wherever there occurs a contravention or an attempted contravention of
any provision of this Ordinance, any thing which is mentioned in section
15 (1) (a), (b), (c) and (d) and which is made use of in such
contravention or attempted contravention shall be liable to forfeiture
whether or not any person is convicted of any offence. (Amended 3 of 1970
s. 36)
(3) The Commissioner shall within 21 days of seizure give notice of the
seizure of any such goods or thing as liable to forfeiture to any person
who to his knowledge was at the time of the seizure the owner or one of
the owners thereof: (Amended L. N. 294 of 1982)
Provided that where there appears to be more than one owner notice given
to any one such owner shall satisfy the provisions of this section.
(4) Notice under subsection (3) shall be given in writing and shall be
deemed to have been duly served on the person concerned-
(a) if delivered to him personally; or
(b) if addressed to him and left or forwarded by registered post to him at
his usual or last known place of abode or business.
(5) Where a notice under subsection (3) cannot be given, then a notice of
the seizure together with the date and place thereof shall be exhibited in
a place available to the public at the office of the Commissioner for a
period of 7 days, such period to commence within 21 days after the
seizure. (Amended L. N. 294 of 1982)
(6) Any person claiming that any goods or thing seized as liable to
forfeiture is not so liable shall, within 1 month of the date of notice of
seizure, give notice of his claim in writing by registered post or by
delivery by hand of the same to the office of the Commissioner. (Amended
L. N. 294 of 1982)
(7) If on the expiration of the relevant period aforesaid for the giving
of notice of claim in respect of any goods or thing no such notice has
been given to the Commissioner, the goods or thing in question shall be
deemed to have been duly condemned as forfeited. (Amended L. N. 294 of
1982)
(8) When notice of claim in respect of any goods or thing is duly given in
accordance with subsection (6), the Commissioner shall apply to a
magistrate for the condemnation of such goods or thing and if the
magistrate finds that the goods or thing was at the time of seizure liable
to forfeiture he shall condemn them or it as forfeited. (Amended L. N. 294
of 1982)
(9) In any application to a magistrate as aforesaid-
(a) the claimant shall first satisfy the magistrate that at the time of
the seizure the claimant had a proprietary interest in the goods or thing
so seized;
(b) a certified true copy of the record of evidence and proceedings,
including the decision of the court in any criminal trial relating to such
goods or thing, shall be admissible in evidence;
(c) a certificate purporting to be issued under the hand of the Director
of Marine certifying the gross tonnage of any ship shall be admissible in
evidence upon production of the certificate and without proof of the
signature thereon;
(d) a certificate purporting to be issued under the hand of the Director
of Marine certifying that the gross tonnage of any ship does not exceed
250 gross tons shall upon production of the certificate and without proof
of the signature thereon be conclusive evidence as to the facts stated
therein.
(10) If no claimant satisfies the magistrate that at the time of seizure
he had a proprietary interest in the article or thing so seized, such
article or thing shall be deemed to be forfeited.
(11) Where proceedings as aforesaid are taken for condemnation of a ship,
vehicle or aircraft the magistrate may order delivery to the claimant of
the ship, or vehicle or aircraft seized until the hearing of the case on
security being given by payment into court of a sum of money equivalent to
the value of the ship, vehicle or aircraft as assessed by the Commissioner
and if the ship, vehicle or aircraft is not surrendered to the
Commissioner before or at the hearing of the case the security shall be
deemed to be forfeited: (Amended L. N. 294 of 1982)
Provided that nothing in this subsection shall prevent an order for
forfeiture being made in respect of such ship, vehicle or aircraft.
(12) Notwithstanding the earlier provisions of this section, it shall be
lawful for the Governor in Council in his absolute discretion after the
conclusion of legal proceedings, if any, to entertain and to give effect
to any moral claim to or in respect of any article or thing liable to
forfeiture if, within 6 weeks after the article or thing is condemned as
forfeited, notice in writing of such moral claim is given either
personally or by registered post to the Clerk of Councils. (Amended 3 of
1970 s. 21)
49. Evidence of forfeiture
Forfeiture by order of a magistrate under this Ordinance may be proved in
any court, or before any competent tribunal, by the production of a
certificate of such forfeiture purporting to be signed by the magistrate
or by an examined copy of the record of such forfeiture certified by the
magistrate's clerk.
50. Protection of members of Customs and Excise Service in forfeiture
proceedings (1) Where in any proceedings which may involve the
condemnation of anything seized as liable to forfeiture judgement is given
for the claimant the magistrate may certify that there were reasonable
grounds for the seizure.
(2) Where any proceedings, civil or criminal, are brought against the
Commissioner, any member of the Customs and Excise Service or other public
officer in respect of anything seized or forfeited which has subsequently
been restored to any person under the provisions of this Ordinance, then
if the court is satisfied that there were reasonable grounds for the
seizure and for the restoration of such thing, the plaintiff or the
prosecutor shall not be entitled to recover any damages or costs and the
defendant shall not be liable to any punishment. (Amended 3 of 1970 s. 22;
L. N. 294 of 1982)
51. Goods abandoned as not worth the duty
(1) Dutiable goods abandoned by the importer or proprietor as not worth
the duty may be destroyed or disposed of within such time and in such
manner as the Commissioner may direct.
(2) Dutiable goods unclaimed by the importer or proprietor after a period
of 7 days from the time of notice being given by the Commissioner that the
goods had been received into his custody shall be deemed to have been
abandoned as not worth the duty and may be disposed of in the manner
prescribed in subsection (1).
(Amended L. N. 294 of 1982)
52. Sale of perishables
If any article seized under the provisions of this Ordinance is, in the
opinion of the Commissioner, of a perishable nature or of such nature that
it may deteriorate if stored for any length of time, such article may, by
direction of the Commissioner, be sold and the proceeds thereof retained
to abide the result of any claim that may legally be made in respect
thereof.
(Amended L. N. 294 of 1982)
PART III LIQUORS
53. Interpretation
(1) In the application of this Ordinance to liquor- (Amended 66 of 1986
s. 23) "adulterated liquor" means any liquor mixed or coloured with any
ingredient whatever or with water, so as to increase the bulk and measure
of the liquor, to impair its quality or to conceal its inferior quality,
and any liquor, whether injurious to health or not, which is in nature and
quality not virtually as labelled, but does not include-
(a) whisky or rum mixed with water only so as not to reduce the strength
below 42% of ethyl alcohol by volume; (Amended 34 of 1982 s. 2; 35 of 1984
s. 2)
(b) brandy, gin or vodka mixed with water only so as not to reduce the
strength below 40% of ethyl alcohol by volume; (Amended 34 of 1982 s. 2)
(c) brandy which in the opinion of the Commissioner is very old liqueur
brandy; (Amended L. N. 294 of 1982)
(d) beer mixed with water in course of its manufacture by a person
licensed under section 17 to manufacture such beer; (Added 46 of 1980 s.
4)
(Replaced 83 of 1976 s. 2)
"alcoholic strength" in relation to-
(a) any liquor means the volume of ethyl alcohol (also known as ethanol)
contained in the liquor in percentage proportion to the volume of the
liquor at the standard temperature of 20 C as determined by a method
approved by the Government Chemist; and
(b) a mixture containing methyl alcohol (also known as methanol) means the
volume of methyl alcohol contained in the mixture in percentage proportion
to the volume of the mixture at the standard temperature of 20 C as
determined by a method approved by the Government Chemist; (Added 34 of
1982 s. 2)
"beer" includes ale, porter, stout, spruce beer, black beer and any other
kind of beer and extends to any liquor made or sold as beer or as a
substitute for beer; (Amended 66 of 1986 s. 23)
"Chinese type spirits" means any intoxicating liquor-
(a) obtained by the distillation of the fermented mash of rice, molasses,
sugar, millet or an admixture of molasses and sugar up to and including a
strength of alcohol by volume at 20 C of 58% for spirit made from rice or
from molasses or sugar or both, and 70% for spirit made from millet; and
(b) commonly consumed by Chinese and not by Europeans; (Replaced 66 of
1986 s. 23) "cider" means any intoxicating liquor obtained from the
fermentation of apple juice; (Added 66 of 1986 s. 23)
"denatured spirits" means-
(a) liquor to which has been added crude pyridine, of a quality approved
by the Government Chemist, in the proportion of half a litre of such
pyridine to each 100L of liquor, and which has been coloured to the
satisfaction of the Government Chemist with methyl violet; (Amended L. N.
189 of 1982)
(b) liquor which has been mixed with an equal volume of Chinese vinegar,
if such vinegar contains not less than 2% by weight of acetic acid;
(ba) liquor which has been mixed with a substance or substances approved
by the Government Chemist and which the Commissioner is satisfied is for
industrial use; and (Added 61 of 1972 s. 2. Amended L. N. 294 of 1982)
(c) any other liquor which the Government Chemist certifies cannot
practicably be converted to an intoxicating liquor by dilution,
distillation, flavouring, or any other process or processes; (Replaced 3
of 1970 s. 23. Amended 61 of 1972 s. 2; 20 of 1985 s. 8)
"industrial type liquor" means a liquor not intended for use as a
beverage; (Added 66 of 1986 s. 23)
"intoxicating liquors" includes spirits, liqueurs, wines, beer, Chinese
type spirits and all other liquors fit or intended for use as a beverage;
"liquor", "alcoholic liquor", "spirituous liquor" or "spirit" means any
liquid which contains more than 1.2% of ethyl alcohol by volume except-
(a) denatured spirits;
(b) any such liquid that is an ingredient in any goods, if that liquid
cannot be converted to pure ethyl alcohol or to an intoxicating liquor or
if such a conversion would not be economical; (Replaced 29 of 1989 s. 4)
"perry" means any intoxicating liquor obtained from the fermentation of
pear juice; (Added 66 of 1986 s. 23)
"sparkling wine" means wine which, when the receptacle containing the
beverage is opened, releases carbon dioxide and having, when contained in
the receptacle prior to such opening, an excess pressure of not less than
300 kPa at a temperature of 20 C; (Added 66 of 1986 s. 23)
"still wine" means wine other than sparkling wine; (Added 66 of 1986 s.
23) "wine" means a liquor obtained from the fermentation of fresh grapes
or fruit, or of the must of fresh grapes or fruit, whether or not that
liquor is fortified with spirits or flavoured with aromatic extracts.
(Added 66 of 1986 s. 23)
(2) Where the Schedule provides for different rates of duty in respect of
European-type liquors and Non-European-type liquors for the purpose of
assessing the duty to be paid in respect of liquor the Commissioner may,
if he is of the opinion that a liquor is of a type commonly consumed by
Chinese but not by Europeans, treat that liquor as Non-European-type
liquor. (Added 66 of 1986 s. 23)
54. Provision for case of death or insolvency of licensee
In case of the death or insolvency of the holder of a licence issued under
this Ordinance, his executor or administrator or trustee may carry on the
business on the licensed premises until the expiration of the licence,
subject in every respect to the same regulations and conditions as the
licensee.
(Amended 66 of 1986 s. 24)
55. Licensee to exhibit name, etc.
Every holder of a liquor licence or canteen licence shall have his full
name, the nature and number of his licence, and such other particulars as
may be prescribed by regulations, painted legibly and permanently in
letters at least 75 mm high on some conspicuous part of his licensed
premises; and no person who is not the holder of a liquor licence or
canteen licence shall exhibit any sign, writing, painting or other mark
reasonably calculated to suggest that his premises are licensed for the
sale or supply of intoxicating liquors for consumption on the premises, or
that such liquors are sold or supplied for consumption on the premises.
(Replaced 29 of 1989 s. 5)
56. Measures or weights for sale of liquor
Every person licensed under this Ordinance to sell liquor shall sell and
dispose of his liquors by measures or weights of the standards in use in
Hong Kong and not otherwise, except when the quantity is less than 250mL,
or except when the liquor is sold in bottles; he shall also measure or
weigh such liquors in the presence of any customer who may require him to
do so.
(Amended L. N. 189 of 1982)
57. (Repealed 66 of 1986 s. 25)
58. Illegal possession of still or fermented material, etc.
(1) No person shall, except under and in accordance with a licence, or
except with the specific approval in writing of the Commissioner or
officer authorized by him in that behalf- (Amended L. N. 294 of 1982)
(a) knowingly keep or have in his possession, custody or control any still
or part of a still or other utensil or apparatus suitable and intended for
manufacturing, making, purifying, refining, distilling, rectifying or
processing spirits; (Amended 29 of 1989 s. 6)
(b) have in his possession, custody or control any fermenting or fermented
material. (Amended 3 of 1970 s. 25)
(2) No person shall remove any denaturants from any denatured spirits
without the specific authority in writing of the Commissioner, (Amended L.
N. 294 of 1982)
(3) Where there is insufficient evidence to convict a person of an offence
under subsections (1) and (2), but it is proved that such an offence has
been committed on some part of the premises belonging to or occupied by
that person in such circumstances that it could not have been committed
without his knowledge, that person shall be liable on summary conviction
to a penalty of $1,000. [cf. 1952 c. 44 s. 106 (2) -
(5) U. K.]
(4) Any person found on premises on which spirits are being unlawfully
manufactured, made, distilled, rectified, purified, refined or processed
may be detained. (Amended 3 of 1970 s. 25)
(5) All spirits and all stills, apparatus, vessels, utensils, fermenting
or fermented materials or other materials for manufacturing, making,
distilling, rectifying, purifying, refining or processing spirits-
(Amended 3 of 1970 s. 25)
(a) found in the possession of any person who commits an offence under
subsection (1); or
(b) found on any premises on which such offence has been committed,
shall be liable to forfeiture.
(6) Notwithstanding any other provisions of this Ordinance relating to
goods seized as liable to forfeiture, any member of the Customs and Excise
Service by whom anything is seized as liable to forfeiture under this
section may at his discretion forthwith spill, break up or destroy that
thing.
59. Presumptions in proceedings for illicit distillation, etc.
(1) In any proceedings under this Ordinance relating to illicit
distillation, all spirits and all stills, apparatus suitable for
distilling, vessels, utensils, fermenting and fermented materials or any
chattels or things, whether fixed to the premises or not, found in or upon
any land or other premises shall be deemed to have been in the possession,
custody or control of the occupier of the premises unless he proves that
he did not know, and could not with reasonable diligence have known, that
such spirits, stills, apparatus, vessels, utensils, materials or other
such chattels or things were in or upon the premises.
(Amended 3 of 1970 s. 26) [cf. 1923 c. 14 s. 13 (5) U. K.]
(2) Every person found in or escaping from any room or place where, in
contravention of this Ordinance, materials are being fermented or
fermenting materials or intoxicating liquors are being made or prepared or
in which any stills, apparatus suitable for distilling, vessels, utensils
or other materials for manufacturing, distilling, rectifying, purifying,
refining or processing spirits are found or are being made or prepared
shall, until the contrary is proved, be deemed to have been unlawfully
making, distilling, rectifying, purifying, refining or processing spirits.
(Amended 3 of 1970 ss. 26 & 36; 66 of 1986 s. 26) [cf. 1831 c. 55 s. 19 U.
K.]
60. Free licences for small stills for registered doctors and pharmacists
The Commissioner may in his discretion issue a licence free of charge to
any practitioner registered under the Medical Registration Ordinance (Cap.
161), or to any pharmacist registered under the Pharmacy and Poisons
Ordinance (Cap. 138), to keep and use on any specified premises a still of
not more than 40L capacity for the purposes only of his profession or
business. (Amended L. N. 189 of 1982; L. N. 294 of 1982)
61. Distilling, etc. adulterated liquor
(1) Any person who imports, distils, makes, manufactures, sells, exposes
for sale or has in his possession for sale, supplies or deals in, or puts
in any container for any such purpose, any adulterated liquor shall be
guilty of an offence and shall, if such adulterated liquor is proved to
the satisfaction of a magistrate to be injurious to health, be liable to
imprisonment for 2 years, in addition to any other penalty to which he may
be liable under this Ordinance. (Amended 3 of 1970 s. 27; 34 of 1976 s. 7)
(1A) Where a person is convicted under this section and it is proved to
the satisfaction of a magistrate that an adulterant in any adulterated
liquor in respect of which that person has been convicted is a denaturant
which is present in such quantities as not to render the liquor being a
denatured spirit within the meaning of this Ordinance, that person shall,
in addition to any other penalty to which he is liable under this
Ordinance, be liable to imprisonment for 2 years. (Added 34 of 1976 s. 7)
(1B) For the purposes of subsection (1), any adulterated liquor found in
licensed premises shall be presumed until the contrary is proved, to be in
the possession of the licensee for the purpose of sale. (Added 34 of 1976
s. 7)
(2) In the case of any conviction under this section the magistrate may
order that any liquor to which the conviction relates and any similar
liquor, whether the same be proved to have been adulterated or not, which
was on the defendant's premises or in his possession or under his control
at the time of the commission of the offence, or which has been seized
under this Ordinance, shall be forfeited:
Provided that no such liquor shall be forfeited if it is proved to the
satisfaction of the magistrate by the defendant, or by any person into
whose possession such liquor may have come, that the same has not been
adulterated or was not for sale.
(3) Any liquor forfeited under this section shall be disposed of as the
Commissioner directs. (Amended L. N. 294 of 1982)
62. (Repealed 66 of 1986 s. 27)
63. (Repealed 16 of 1989 s. 4)
64. Denatured spirits to be dutiable goods until certified to the contrary
(1) All the provisions of this Ordinance relating to dutiable goods shall
apply to any denatured spirits unless and until the Government Chemist has
certified in writing in each case that such spirits are denatured spirits,
and upon the issue of such certificate the liquor to which it relates
shall be deemed to be not dutiable. (Amended 3 of 1970 s. 28)
(2) Any fee prescribed by the Governor in Council for such certificate may
be proportionate to the duty which would have been payable had the liquor
not been denatured: but no such fee (except a minimum fee) shall exceed
one-tenth of the duty.
PART IV TOBACCO
65. Definition of tobacco
In the application of this Ordinance to tobacco-
"Chinese prepared tobacco" (Suk Yin) is tobacco prepared in the
traditional Chinese manner from tobacco leaf grown in China, and comprises
7 main types, namely-Sang Chit
Ting Sook
Yee Sook
Chai See
Kan Yip
Sheung Sook
and Jing Chit
and may include any other traditional Chinese prepared tobacco which, in
the opinion of the Commissioner, is of a type and quality approximate to
any of the 7 types of Chinese prepared tobacco specified above; (Amended 3
of 1970 s. 29; L. N. 294 of 1982) "cigar" means any roll of tobacco
capable of being smoked by itself and which-
(a) has an outer wrapper of natural tobacco; or
(b) predominately contains broken or threshed leaf and has a binder of
reconstituted tobacco and an outer wrapper of reconstituted tobacco fitted
spirally; (Added 66 of 1986 s. 29)
"cigarette" means any roll of tobacco capable of being smoked by itself
not being a cigar; (Added 66 of 1986 s. 29)
"manufacture" means the conversion of tobacco into manufactured tobacco;
"manufactured tobacco" includes cigarettes, cigars, snuff, hand-rolling
tobacco, smoking tobacco, cigar cuttings, reconstituted tobacco and
Chinese prepared tobacco; (Added 66 of 1986 s. 29)
"manufacturer" includes any person who owns or controls any factory or
other place wherein tobacco is manufactured;
"tobacco" includes manufactured and unmanufactured tobacco of every
description and tobacco stalks, tobacco refuse, tobacco seedlings and
tobacco plants; "unmanufactured tobacco" means tobacco which has undergone
no process of manufacture except curing, stripping or drying or any of
them.
66. (Repealed 10 of 1988 s. 2)
67. Manufacture, etc. of adulterated tobacco
(1) A tobacco manufacturer shall not in manufacturing tobacco use any
substance other than water or steam, except to such extent as may be
permitted by the Commissioner and subject to such conditions as the
Commissioner may impose. (Amended L. N. 294 of 1982)
(2) Save where their use by him is permitted by or under this section, a
tobacco manufacturer shall not receive or have in his possession any of
the following substances, namely-
(a) sugar or any other saccharine substance or extract, except such as he
proves to be for domestic use;
(b) leaves or plants of any description other than tobacco leaves or
plants;
(c) any substance for use, or capable of being used, as a substitute for
or to increase the weight of tobacco.
(3) Any tobacco manufacturer who contravenes any of the provisions of this
section shall be liable to a fine of $5,000 and the tobacco or other
substance in respect of which the offence was committed shall be liable to
forfeiture.
68. Restriction on tobacco growing
No person shall plant or cultivate tobacco (on any land of any category)
without the written approval of the Commissioner or other officer deputed
by him in that behalf. (Amended 3 of 1970 s. 30; 29 of 1989 s. 7)
PART V HYDROCARBON OIL
(Amended 66 of 1986 s. 30)
69. Definition of hydrocarbon oil
In the application of this Ordinance to hydrocarbon oil-
"aircraft spirit" means any hydrocarbon oil suitable and intended for use
as fuel in any aircraft; (Amended 84 of 1991 s. 2)
"heavy oil" means any hydrocarbon oil other than light oil; (Replaced 66
of 1986 s. 31) "hydrocarbon oil" means petroleum oil, coal tar, and oil
produced from coal, shale, peat, or any other bituminous substances, and
all hydrocarbons that are in a liquid form at a temperature of 15 C and
under a pressure of 101 kPa, except any such hydrocarbons that are an
ingredient in any goods that do not have the usual characteristics of
hydrocarbon oil; (Replaced 29 of 1989 s. 8)
"kerosene" means heavy oil of which more than 50% by volume distils at a
temperature not exceeding 240 C; (Added 66 of 1986 s. 31)
"leaded petrol" has the same meaning as in section 26B of the Air
Pollution Control Ordinance (Cap. 311); (Added 2 of 1991 s. 10)
"light diesel oil", commonly known as "gas oil", means a heavy oil of
which not more than 50% by volume distils at a temperature not exceeding
240 C and of which more than 50% by volume distils at a temperature not
exceeding 340 C; (Added 44 of 1978 s. 2. Amended L. N. 189 of 1982) "light
oil" means hydrocarbon oil of which not less than 50% by volume distils at
a temperature not exceeding 185 C, or of which not less than 95% by volume
distils at a temperature not exceeding 240 C, or which gives off an
inflammable vapour at a temperature of less than 23 C when tested in the
manner prescribed by the Commissioner of Customs and Excise of the United
Kingdom; (Amended L. N. 189 of 1982) "marked oil" means light diesel oil
to which a marker and a colouring substance have been added as provided by
regulations made under section 6; (Added 66 of 1986 s. 31) "motor spirit"
or "petrol" means any light oil suitable for use as fuel in any internal
combustion engine, but does not include aircraft spirit;
(Replaced 2 of 1991 s. 10) "unleaded petrol" has the same meaning as in
section 26B of the Air Pollution Control Ordinance (Cap. 311). (Added 2 of
1991 s. 10)
(Amended 66 of 1986 s. 31)
69A. (Repealed 66 of 1986 s. 32)
PART VI METHYL ALCOHOL
70. Interpretation
In the application of this Ordinance to methyl alcohol-
"denatured methyl alcohol" means methyl alcohol certified by the
Government Chemist to have been mixed with a substance or substances
approved by the Government Chemist, in such manner that it cannot
practicably be returned to its original form; (Added 66 of 1986 s. 33)
"methyl alcohol" means the substance also known as methanol, but does not
include methyl alcohol that is an ingredient in any goods, if that methyl
alcohol cannot be converted to pure methyl alcohol or if such a conversion
would not be economical. (Amended 29 of 1989 s. 9)
71. Marking of containers
No person shall place or cause to be placed or keep or cause to be kept in
any container any methyl alcohol unless such container is conspicuously
marked in English and Chinese with the word "poison".
72. Colouring, flavouring or other substance
The Commissioner may direct an importer to add such colouring, flavouring
or other substances, and in such quantities, as the Commissioner may from
time to time specify, to any methyl alcohol in his possession.
(Amended L. N. 294 of 1982; 29 of 1989 s. 10)
73. Storage
A distiller or importer of intoxicating liquor shall not bring onto or
have in any premises used for holding intoxicating liquor any methyl
alcohol. (Amended 29 of 1989 s. 11)
74. Exemptions
No duty shall be payable on denatured methyl alcohol.
(Replaced 66 of 1986 s. 34)
(Part VI added 34 of 1976 s. 9)
PART VII (Repealed 35 of 1992 s. 5)
PART VIII (Repealed 32 of 1993 s. 4)
SCHEDULE
[ss. 4 (1), (2) & 53 (2)]
PART I DUTY ON LIQUOR
1. Duty shall be payable on the following types of European-type liquor at
the rate of 35% of the value of the liquor (in accordance with section 26A
of the Ordinance) and, in addition, at the rate specified against that
type of liquor, per litre measured at a temperature of 20 C-
Type of Liquor
$
Brandy......80.00
Liqueurs, Whisky, Gin, Rum, Vodka and other spirituous liquors ......80.00
Champagne and other sparkling wines (Added L. N. 218 of 1990)......49.00
Intoxicating liquors in this Part above the strength of 45% alcohol by
volume, for every 1% above such strength in addition to the duties
specified above......2.29 (Replaced L. N. 158 of 1988. Amended 16 of 1989
s. 5; L. N. 218 of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s.
5)
1A. Duty shall be payable on the following type of European-type liquor at
the rate of 20% of the value of the liquor (in accordance with section 26A
of the Ordinance) and, in addition, at the rate specified against that
type of liquor, per litre measured at a temperature of 20 C Celsius-
Type of Liquor
$
Still wines......34.00
(Replaced L. N. 218 of 1990. Amended L. N. 194 of 1991; 35 of 1992 s. 6;
32 of 1993 s. 5)
2. Duty shall be payable on the following types of European-type liquor at
the following rate per hectolitre measured at a temperature of 20 C-
Type of Liquor
Cider and Perry and other similar beverages $ ......221.00
Beer (Added 16 of 1989 s. 5)......336.00
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
3. (Repealed 16 of 1989 s. 5)
4. Duty shall be payable on the following types of Non-European-type
liquor at the following rates per hectolitre measured at a temperature of
20 C-
Type of Liquor
$
Non-European-type wines......1,448.00
Chinese-type spirits and other spirituous liquors, Sake,
Arrack......747.00 and in addition for every 1% by which the alcoholic
strength by volume exceeds 30%......25.00
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
5. Duty shall be payable on the following types of Industrial-type liquor
at the following rates per he ctolitre measured at a temperature of 20 C-
Type of Liquor
Ethyl alcohol, and admixtures containing $ ethyl alcohol......747.00
and in addition for every 1% by which the alcoholic strength exceeds
30%......25.00 (Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989
s. 5; L. N. 218 of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993
s. 5)
6. The Commissioner may assess the duty on-
(a) intoxicating liquors not specified in this Part at the rate prescribed
for liquor which in his opinion most nearly approximates to the liquor on
which duty is to be assessed; and
(b) any quantity of liquor of less than 12L imported at any time in one
consignment at $85.00 per litre.
PART II DUTY ON TOBACCO
1. Duty shall be payable on tobacco at the following rates-
$
(a) for each 1000 cigarettes......580.00
(b) cigars......745.00/kg
(c) Chinese prepared tobacco......142.00/kg
(d) all other manufactured tobacco
except tobacco intended for the manufacture of cigarettes......701.00/kg
(Amended L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218 of 1990; L. N. 194
of 1991; L. N. 195 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
2. For the purpose of applying the duty under paragraph 1 (a) a cigarette
more than 90 mm long, excluding any filter or mouthpiece, shall be treated
as if each additional 90 mm or portion of 90 mm were a separate cigarette.
(Replaced 10 of 1988 s. 3)
PART III DUTY ON HYDROCARBON OIL
1. Duty shall be payable on hydrocarbon oil at the following rates per
litre-$
(a) aircraft spirit......4.53
(b) light diesel oil......2.26
(c) motor spirit (leaded petrol) (Added 2 of 1991 s. 10)......5.03
(d) motor spirit (unleaded petrol) (Added 2 of 1991 s. 10)......4.48
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; 2 of 1991 s. 10; L. N. 99 of 1991; L. N. 194 of 1991; 35 of 1992
s. 6; 32 of 1993 s. 5)
2. Where it is proved to the satisfaction of the Commissioner that light
diesel oil on which duty has been paid under paragraph 1 (b) has been used
in road vehicles owned and operated by the grantee of a franchise under
section 5 of the Public Bus Services Ordinance (Cap. 230) in maintaining
public bus services on specified routes as defined by section 2 of that
Ordinance, a refund of duty paid on the light diesel oil so used may be
granted by the Commissioner and subject to such conditions as the
Commissioner may specify. (Amended 35 of 1992 s. 6)
3. Where it is proved to the satisfaction of the Commissioner that light
diesel oil on which duty has been paid under paragraph 1 (b) has been used
in road vehicles owned and operated by the Kowloon-Canton Railway
Corporation under section 4 (1) (d) of the Kowloon-Canton Railway
Corporation Ordinance (Cap. 372) in maintaining bus services within the
North-west Transit Service Area, a refund of duty paid on the light diesel
oil so used may be granted by the Commissioner and subject to such
conditions as the Commissioner may specify. (Amended 35 of 1992 s. 6)
4. Subject to such conditions as the Commissioner may impose for the
protection of the revenue, duty payable on hydrocarbon oil for use by a
disabled person within the meaning of section 2 of the Road Traffic
Ordinance (Cap. 374) in a private car, invalid carriage, motor cycle or
motor tricycle owned and driven by him shall be waived, such waiver to be
subject-
(a) in the case of a private car or an invalid carriage, to a limit of 200
litres per month; and
(b) in the case of a motor cycle or motor tricycle, to a limit of 100
litres per month, for each such person. (Replaced 32 of 1993 s. 5)
(Added L. N. 203 of 1987)
PART IV DUTY ON METHYL ALCOHOL
1. Duty shall be payable on methyl alcohol and any admixture containing
methyl alcohol at the rate of $747.00 per hectolitre measured at a
temperature of 20 C and in addition, for every 1% by which the alcoholic
strength by volume exceeds 30%, $25.00 per hectolitre.
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
PART V (Repealed 35 of 1992 s. 6)
PART VI (Repealed 32 of 1993 s. 5)
ng, which the licensee could not reasonably have foreseen.
(Amended 3 of 1970 s. 17)
(2) If when assessing duty under the provisions of subsection (1) it is
not possible to ascertain the exact quantity, nature or value of the goods
concerned, the Commissioner may assess duty on the basis of the best
evidence available or where such evidence does not exist or is not
considered to be correct he may decide on the quantity and nature of the
goods or he may fix a value which shall be deemed to be the value of the
goods for the purposes of calculation of duty.
(3) Any person who is aggrieved by a decision of the Commissioner made
under subsection (2) may appeal by way of petition to the Governor in
Council. (Amended L. N. 294 of 1982)
30. Contracts for sale of duty-paid goods when duties are altered or
repealed (1) When any new duty is imposed and when any duty is increased
and any duty-paid goods are delivered on or after the day on which the new
or increased duty takes effect, in pursuance of a contract made before
that day, and the seller has paid such new or increased duty, he may in
the absence of any agreement to the contrary recover as an addition to the
contract price a sum equal to the amount paid by him in respect of the
goods on account of the new duty or the increase of duty, as the case may
be.
(2) When any duty is repealed or decreased and any duty-paid goods are
delivered on or after the day on which the duty ceases or the decrease in
duty makes effect, in pursuance of a contract made before that day, the
buyer, in the absence of any agreement to the contrary, may, if the seller
has had in respect of hose goods the benefit of the repeal or decrease in
the duty, deduct from the contract price a sum equal to the amount of the
duty or the decrease of duty, as he case may be.
(3) When any addition to or deduction from the contract price may be made
under this section on account of any new or repealed duty, such sum as nay
be agreed upon, or in default of agreement as may be determined by the
Commissioner, as representing in the case of a new duty any expenses
incurred and in the case of repealed duty any expenses saved may be
included in the addition to or deduction from the contract price and may
be recovered or deducted accordingly. (Amended L. N. 294 of 1982)
(4) This section shall apply although the goods have undergone some
process of manufacture since the duty was paid.
31. Execution and distress against licensees
(1)Where any sum is owing by any person licensed under the provisions of
this Ordinance in respect of any duty or of any penalty incurred by him
under this Ordinance, all goods on which duty is liable to be paid,
whether or not that duty has been paid, and all materials for
manufacturing or producing any such goods and all apparatus, equipment,
machinery, tools, vessels and utensils for, or for preparing any such
materials for, such manufacture or product or by which the trade in
respect of which the duty is imposed is carried on, which are in the
possession, custody or control of that licensee or of any agent of his or
of any other person on his behalf or which, whether or not still in such
custody or possession, were in such custody or possession-
(a) at the time when the duty was charged or became chargeable or at any
time while it was owing; or
(b) at the time of the commission of the offence for which the penalty was
incurred, shall be liable to be taken in execution in default of the
payment of that sum. (Amended 3 of 1970 s. 36)
(2) Notwithstanding anything in subsection (1), where the Commissioner or
other officer authorized under section 26 or 26A has taken account of and
charged any goods chargeable with duty, and those goods are in the
ordinary course of trade sold for full and valuable consideration to a
bona fide purchaser and delivered into his possession before the issue of
any warrant or process for distress or seizure of the goods, those goods
shall not be liable to be seized under subsection (1): (Amended L. N. 294
of 1982; 34 of 1984 s. 7)
Provided that, where any goods have been so seized, the burden of proof
that the goods are by virtue of this subsection not liable to be so seized
shall lie upon the person claiming that they are not so liable.
(3) Where any duty payable by a licensee remains unpaid after the time
within which it is payable, the Commissioner may authorize in writing any
person to distrain anything liable to be taken in execution under this
section and to sell anything so distrained by public auction after giving
7 day's notice of the sale:
Provided that where the licensee is a distiller, brewer, or manufacturer,
he may, subject in the case of a distiller to the requirements of this
Ordinance as to permits for the removal of spirits, at any time before the
date appointed for the sale, remove the whole or part of any product or
materials for his manufacture which may have been so distrained upon
paying to the Commissioner in or towards payment of the duty the true
value of those products or materials. (Amended 3 of 1970 s. 36; L. N. 294
of 1982)
(4) Any notice required by subsection (3) shall be given by the
Commissioner in writing to any person, who to his knowledge was at the
time of seizure the licensee or the agent or servant of the licensee, and
shall be deemed to have been duly served on the person concerned-(Amended
L. N. 294 of 1982)
(a) if delivered to him personally; or
(b) if addressed to him and left or forwarded by registered post to him at
his usual or last known place of abode or business.
(5) Where such notice cannot be served as provided in subsection (4) then
a notice that anything has been seized in default of any payment in
accordance with the provisions of subsection (1) shall be exhibited in a
place available to the public at the office of the Commissioner for a
period of 7 days, such period to commence 7 days before anything is sold.
(Amended L. N. 294 of 1982)
(6) The proceeds of sale of any such distress as aforesaid shall be
applied in or towards payment of the cost and expenses of the distress and
sale and in or towards payment of the duty due from the licensee, and the
surplus, if any, shall be paid to the licensee.
[cf. 1952 c. 44 s. 253 U. K.]
32. Recovery of duty, etc.
Without prejudice to any other mode of recovery provided in this
Ordinance, any duty payable or sum forfeited or deemed to be forfeited
under this Ordinance shall be deemed to be a debt due to the Crown.
33. Search of baggage and goods
(1) Any person landing from or proposing to embark in any ship or aircraft
or entering or leaving Hong Kong by land shall on demand by any member of
the Customs and Excise Service or police officer either permit his person,
goods and baggage to be searched by such member or officer or together
with his goods and baggage accompany such member or officer to a place
appointed by the Commissioner or to the office of the Commissioner or to a
police station and there permit his person, goods and baggage to be
searched by any member of the Customs and Excise Service or police officer
in the presence or under the supervision of a member of the Customs and
Excise Service not below the rank of revenue inspector or a police officer
not below the rank of inspector: (Amended 46 of 1977 s. 17; L. N. 294 of
1982)
Provided that-
(a) no female person shall be searched except by a female; and
(b) the goods and baggage of any person who wishes to be present when they
are searched shall not be searched except in his presence.
(2) Any member of the Customs and Excise Service or police officer may
make the searches authorized by this section and any person who refuses to
comply with any lawful demand under this section may be arrested without
warrant by the officer making the demand.
34. Examination of articles (other than baggage) on shore, ship, etc.
Any box, chest, package or other article, other than passenger's baggage
accompanied by the owner thereof, which is being landed from or is being
embarked on any ship, aircraft, vehicle or train or has been landed
therefrom or is in or on board thereof, or which is on or is being removed
from or on to any island, landing place, wharf, warehouse, platform or
place adjoining thereto or used in connection therewith, or which is being
brought into or which is being taken out of or has been brought into Hong
Kong by land, sea or air-
(a) may be examined and searched by any member of the Customs and Excise
Service and may be detained until any person in charge thereof has opened
the same for such examination and search, and if not so opened may be
removed by such member of the Customs and Excise Service to such place as
the Commissioner may direct;
(b) may be broken open by the orders of any member of the Customs and
Excise Service authorized by the Commissioner in that behalf either
generally or for a particular occasion, or of any police officer not below
the rank of inspector, for such examination and search:
Provided that any person in charge or possession of such box, chest,
package or other article shall be given every reasonable facility for
being present at such breaking, examination and search.
(Amended L. N. 294 of 1982)
35. (Repealed 66 of 1986 s. 18)
36. Misrepresentation, concealment, removal of goods, and defacement of
licence or permit
(1) No person shall make any incomplete statement or declaration or
furnish any incorrect information, whether or not such statement,
declaration or information is made verbally or in writing, or apply any
incorrect description or supply any incorrect particulars in any document
made or furnished for the purposes of this Ordinance or in connection with
any application for any drawback or for any licence or permit to be issued
under this Ordinance.
(2) Any person who-
(a) with intent unduly to obtain any drawback or any greater drawback than
that to which he is entitled or who attempts to evade payment of duty on
any goods to which this Ordinance applies, embarks or causes to be
embarked for exportation on any ship or aircraft, or produces or causes to
be produced to any member of the Customs and Excise Service to be so
embarked-
(i) any goods to which this Ordinance applies and which are not entitled
to drawback or not intended for export; or
(ii) any goods, matter or thing as goods to which this Ordinance applies,
the same not being goods to which this Ordinance applies or which are
different in type, nature, quantity or quality from the goods shown on any
export permit or statement which is presented and which purports to cover
such goods; or
(b) with any such intent fraudulently removes, deposits or conceals any
goods, matter or thing; or
(c) after any goods to which this Ordinance applies have been embarked for
exportation on any ship or aircraft, without the consent of the
Commissioner opens the packages in which the goods are contained or
cancels, or obliterates, or alters the marks, letter or devices thereon,
shall on summary conviction, in addition to all other penalties which he
may thereby incur, pay or forfeit either treble the amount of duty payable
on any goods involved or such drawback as the case may be or the sum of
$5,000, at the election of the Commissioner (which election shall be
certified by the Commissioner in writing under his hand), and all such
goods, matters or things shall be forfeited and may be seized by any
member of the Customs and Excise Service. (Amended L. N. 294 of 1982)
(3) No person shall without lawful authority alter, deface or make any
erasure on a licence or permit, or have in his possession a licence or
permit on which such an erasure has been made or which has been so defaced
or altered.
[cf. 1840 c. 18 s. 15 U. K.; 1918 c. 15 s. 15 (5) U. K.]
37. Forging documents, etc.
(1) No person shall-
(a) forge or falsify any document which is required by or under the
provisions of this Ordinance or which is used in the transaction of any
business relating to any trade involving goods to which this Ordinance
applies; or
(b) knowingly accept, receive, or use any such document so forged or
falsified; or
(c) without lawful authority alter or deface any such document after it is
officially issued; or (Amended 66 of 1986 s. 19)
(d) forge any seal, signature, initials or other mark of or used by any
officer for the verification of such a document or for the security of
goods or for any other purpose relating to the provisions of this
Ordinance. (Amended 3 of 1970 s. 36; 49 of 1992 s. 5) [cf. 1952 c. 44 s.
302 U. K.]
(2) In this section, "forge" has the meaning assigned to that term by Part
IX of the Crimes Ordinance (Cap. 200). (Added 49 of 1992 s. 5)
38. Restrictions on use and transfer of permits and licences
(1) No person shall without the consent of the Commissioner or an officer
authorized in accordance with section 7-
(a) transfer; or
(b) supply, permit or allow any other person to use, any licence or permit
issued under this Ordinance.
(2) No person shall, without the consent of the Commissioner or an officer
authorized in accordance with section 7, receive, obtain or use any permit
or licence issued to any other person under this Ordinance.
(Amended 3 of 1970 s. 36; L. N. 294 of 1982)
39. (Repealed 66 of 1986 s. 20)
40. Presumptions
In all proceedings under this Ordinance and in all proceedings for the
recovery of any duties imposed by or under this Ordinance, it shall be
presumed until the contrary is proved-
(a) that any goods to which this Ordinance applies are dutiable goods;
(b) that dutiable goods on any premises are in the possession of the
licensee, tenant, lessee, occupier or person in charge of such premises;
(c) that every person employed in or about any licensed premises is
employed by the person named in the licence or in charge of the premises,
as the case may be;
(d) that goods delivered or supplied are goods sold;
(e) that goods are of the weight and measure described in any bill of
lading, air waybill, permit or other document accompanying or relating to
the goods. (Amended 66 of 1986 s. 21)
41. Import manifests to be evidence of importation
In any proceedings in respect of or involving any matter, civil or
criminal, arising from or in connection with this Ordinance, if any cargo
appears on any import manifest furnished to the Commissioner by the
owners, charterers or agents of any ship or aircraft, or by the master of
a ship or person in charge of an aircraft, at any time before or after the
arrival of such ship or aircraft in Hong Kong, it shall be presumed in
favour of the Crown against any other party that such cargo was imported
into Hong Kong on board such ship or aircraft unless any such other party
proves affirmatively that such cargo was not in fact carried into Hong
Kong on board such ship or aircraft. (Amended 3 of 1970 s. 36; L. N. 294
of 1982)
42. Certain certificates to be evidence
In all proceedings under this Ordinance and in all proceedings for the
recovery of any duty on goods to which this Ordinance applies, copies of
or extracts from the records of the Commissioner or the officer authorized
to grant any licence or permit, purporting to be certified by him, shall
be prima facie evidence of the facts stated or appearing therein or to be
inferred therefrom.
(Amended 31 of 1969 Schedule; L. N. 294 of 1982)
43. Magistrate may call in expert
The magistrate hearing any charge under this Ordinance may, at the request
of the accused, employ an analyst or other expert to report on any matter
of a technical nature.
44. Informers
Save where, in the opinion of the court or magistrate, justice so
requires, the name or identity of any informer and the information given
by such informer shall not be disclosed in any civil or criminal
proceedings and the court or magistrate may make any order and adopt any
procedure necessary to prevent any such disclosure.
45. Manner of seizure not to be inquired into by court
On any trial before any magistrate and in any proceedings on appeal in the
High Court relating to the seizure of anything under this Ordinance, the
magistrate or the court shall proceed to such trial and to the hearing of
such appeal on the merits of the case only, without reference to matters
or form and without inquiring into the manner of form of making any
seizure except in so far as the manner of form of seizure may be evidence
on such merits.
46. Offences and penalties
(1) Except as otherwise expressly provided, any person who contravenes the
provisions of sections 16. 17, 19, 20, 22, 23, 24, 36, 37, 38, 55, 56, 58,
61, 68, 71 and 73 shall commit an offence and shall, in addition to any
forfeiture which may be ordered, be liable on summary conviction to a fine
of $100,000 and to imprisonment for 2 years. (Amended 3 of 1970 s. 19; 40
of 1974 s. 7; 34 of 1976 s. 5; 66 of 1986 s. 22)
(2) Any person who contravenes any condition, restriction, requirement or
direction lawfully imposed, made or given under this Ordinance shall be
guilty of an offence and, in addition to any forfeiture which may be
ordered, shall be liable on summary conviction to a fine of $10,000 and to
imprisonment for 1 year.
(Added 3 of 1970 s. 19. Amended 34 of 1984 s. 8)
(3) In any case where a magistrate is of the opinion that an offence was
committed with intent to avoid payment of duty, he may in addition to any
fine imposed under subsection (1) or (2) inflict a fine not exceeding 10
times the amount of duty payable on the goods in respect of which the
offence was committed. (Amended 3 of 1970 s. 19)
46A. Liability for acts of servants
(1) Where an offence against this Ordinance is committed by a servant of a
licensee, the licensee shall, without prejudice to the liability of any
other person, also be guilty of that offence but shall not be liable to
any term of imprisonment.
(2) Where a prosecution is brought against a licensee by virtue of this
section in respect of an offence committed by a servant, it shall be a
defence-
(a) in the case of an offence against section 61, 71, 72 or 73, if the
licensee shows that he exercised such control over the servant as would
ensure that the servant was not likely to act in contravention of that
section; or (Amended 40 of 1974 s. 8; 34 of 1976 s. 6)
(b) in the case of any other offence, if the licensee shows that he took
all practicable steps to prevent the commission of the offence.
(3) Where a licence is granted to any person wholly or partly for the
benefit of a company references to "licensee" in this section shall be
read as including references to the company.
(Added 3 of 1970 s. 20)
47. Commencement of prosecution
Any prosecution of any person for any offence against the provisions of
this Ordinance shall be commenced within 12 months from the date of such
offence or 6 months from the discovery of the offence whichever is the
later.
(Amended 3 of 1970 s. 36)
48. Forfeiture
(1) Wherever there occurs a contravention or an attempted contravention of
any provision of this Ordinance in respect of any goods, such goods shall
be liable to forfeiture whether or not any person is convicted of any
offence. (Amended 3 of 1970 s. 36)
(2) Wherever there occurs a contravention or an attempted contravention of
any provision of this Ordinance, any thing which is mentioned in section
15 (1) (a), (b), (c) and (d) and which is made use of in such
contravention or attempted contravention shall be liable to forfeiture
whether or not any person is convicted of any offence. (Amended 3 of 1970
s. 36)
(3) The Commissioner shall within 21 days of seizure give notice of the
seizure of any such goods or thing as liable to forfeiture to any person
who to his knowledge was at the time of the seizure the owner or one of
the owners thereof: (Amended L. N. 294 of 1982)
Provided that where there appears to be more than one owner notice given
to any one such owner shall satisfy the provisions of this section.
(4) Notice under subsection (3) shall be given in writing and shall be
deemed to have been duly served on the person concerned-
(a) if delivered to him personally; or
(b) if addressed to him and left or forwarded by registered post to him at
his usual or last known place of abode or business.
(5) Where a notice under subsection (3) cannot be given, then a notice of
the seizure together with the date and place thereof shall be exhibited in
a place available to the public at the office of the Commissioner for a
period of 7 days, such period to commence within 21 days after the
seizure. (Amended L. N. 294 of 1982)
(6) Any person claiming that any goods or thing seized as liable to
forfeiture is not so liable shall, within 1 month of the date of notice of
seizure, give notice of his claim in writing by registered post or by
delivery by hand of the same to the office of the Commissioner. (Amended
L. N. 294 of 1982)
(7) If on the expiration of the relevant period aforesaid for the giving
of notice of claim in respect of any goods or thing no such notice has
been given to the Commissioner, the goods or thing in question shall be
deemed to have been duly condemned as forfeited. (Amended L. N. 294 of
1982)
(8) When notice of claim in respect of any goods or thing is duly given in
accordance with subsection (6), the Commissioner shall apply to a
magistrate for the condemnation of such goods or thing and if the
magistrate finds that the goods or thing was at the time of seizure liable
to forfeiture he shall condemn them or it as forfeited. (Amended L. N. 294
of 1982)
(9) In any application to a magistrate as aforesaid-
(a) the claimant shall first satisfy the magistrate that at the time of
the seizure the claimant had a proprietary interest in the goods or thing
so seized;
(b) a certified true copy of the record of evidence and proceedings,
including the decision of the court in any criminal trial relating to such
goods or thing, shall be admissible in evidence;
(c) a certificate purporting to be issued under the hand of the Director
of Marine certifying the gross tonnage of any ship shall be admissible in
evidence upon production of the certificate and without proof of the
signature thereon;
(d) a certificate purporting to be issued under the hand of the Director
of Marine certifying that the gross tonnage of any ship does not exceed
250 gross tons shall upon production of the certificate and without proof
of the signature thereon be conclusive evidence as to the facts stated
therein.
(10) If no claimant satisfies the magistrate that at the time of seizure
he had a proprietary interest in the article or thing so seized, such
article or thing shall be deemed to be forfeited.
(11) Where proceedings as aforesaid are taken for condemnation of a ship,
vehicle or aircraft the magistrate may order delivery to the claimant of
the ship, or vehicle or aircraft seized until the hearing of the case on
security being given by payment into court of a sum of money equivalent to
the value of the ship, vehicle or aircraft as assessed by the Commissioner
and if the ship, vehicle or aircraft is not surrendered to the
Commissioner before or at the hearing of the case the security shall be
deemed to be forfeited: (Amended L. N. 294 of 1982)
Provided that nothing in this subsection shall prevent an order for
forfeiture being made in respect of such ship, vehicle or aircraft.
(12) Notwithstanding the earlier provisions of this section, it shall be
lawful for the Governor in Council in his absolute discretion after the
conclusion of legal proceedings, if any, to entertain and to give effect
to any moral claim to or in respect of any article or thing liable to
forfeiture if, within 6 weeks after the article or thing is condemned as
forfeited, notice in writing of such moral claim is given either
personally or by registered post to the Clerk of Councils. (Amended 3 of
1970 s. 21)
49. Evidence of forfeiture
Forfeiture by order of a magistrate under this Ordinance may be proved in
any court, or before any competent tribunal, by the production of a
certificate of such forfeiture purporting to be signed by the magistrate
or by an examined copy of the record of such forfeiture certified by the
magistrate's clerk.
50. Protection of members of Customs and Excise Service in forfeiture
proceedings (1) Where in any proceedings which may involve the
condemnation of anything seized as liable to forfeiture judgement is given
for the claimant the magistrate may certify that there were reasonable
grounds for the seizure.
(2) Where any proceedings, civil or criminal, are brought against the
Commissioner, any member of the Customs and Excise Service or other public
officer in respect of anything seized or forfeited which has subsequently
been restored to any person under the provisions of this Ordinance, then
if the court is satisfied that there were reasonable grounds for the
seizure and for the restoration of such thing, the plaintiff or the
prosecutor shall not be entitled to recover any damages or costs and the
defendant shall not be liable to any punishment. (Amended 3 of 1970 s. 22;
L. N. 294 of 1982)
51. Goods abandoned as not worth the duty
(1) Dutiable goods abandoned by the importer or proprietor as not worth
the duty may be destroyed or disposed of within such time and in such
manner as the Commissioner may direct.
(2) Dutiable goods unclaimed by the importer or proprietor after a period
of 7 days from the time of notice being given by the Commissioner that the
goods had been received into his custody shall be deemed to have been
abandoned as not worth the duty and may be disposed of in the manner
prescribed in subsection (1).
(Amended L. N. 294 of 1982)
52. Sale of perishables
If any article seized under the provisions of this Ordinance is, in the
opinion of the Commissioner, of a perishable nature or of such nature that
it may deteriorate if stored for any length of time, such article may, by
direction of the Commissioner, be sold and the proceeds thereof retained
to abide the result of any claim that may legally be made in respect
thereof.
(Amended L. N. 294 of 1982)
PART III LIQUORS
53. Interpretation
(1) In the application of this Ordinance to liquor- (Amended 66 of 1986
s. 23) "adulterated liquor" means any liquor mixed or coloured with any
ingredient whatever or with water, so as to increase the bulk and measure
of the liquor, to impair its quality or to conceal its inferior quality,
and any liquor, whether injurious to health or not, which is in nature and
quality not virtually as labelled, but does not include-
(a) whisky or rum mixed with water only so as not to reduce the strength
below 42% of ethyl alcohol by volume; (Amended 34 of 1982 s. 2; 35 of 1984
s. 2)
(b) brandy, gin or vodka mixed with water only so as not to reduce the
strength below 40% of ethyl alcohol by volume; (Amended 34 of 1982 s. 2)
(c) brandy which in the opinion of the Commissioner is very old liqueur
brandy; (Amended L. N. 294 of 1982)
(d) beer mixed with water in course of its manufacture by a person
licensed under section 17 to manufacture such beer; (Added 46 of 1980 s.
4)
(Replaced 83 of 1976 s. 2)
"alcoholic strength" in relation to-
(a) any liquor means the volume of ethyl alcohol (also known as ethanol)
contained in the liquor in percentage proportion to the volume of the
liquor at the standard temperature of 20 C as determined by a method
approved by the Government Chemist; and
(b) a mixture containing methyl alcohol (also known as methanol) means the
volume of methyl alcohol contained in the mixture in percentage proportion
to the volume of the mixture at the standard temperature of 20 C as
determined by a method approved by the Government Chemist; (Added 34 of
1982 s. 2)
"beer" includes ale, porter, stout, spruce beer, black beer and any other
kind of beer and extends to any liquor made or sold as beer or as a
substitute for beer; (Amended 66 of 1986 s. 23)
"Chinese type spirits" means any intoxicating liquor-
(a) obtained by the distillation of the fermented mash of rice, molasses,
sugar, millet or an admixture of molasses and sugar up to and including a
strength of alcohol by volume at 20 C of 58% for spirit made from rice or
from molasses or sugar or both, and 70% for spirit made from millet; and
(b) commonly consumed by Chinese and not by Europeans; (Replaced 66 of
1986 s. 23) "cider" means any intoxicating liquor obtained from the
fermentation of apple juice; (Added 66 of 1986 s. 23)
"denatured spirits" means-
(a) liquor to which has been added crude pyridine, of a quality approved
by the Government Chemist, in the proportion of half a litre of such
pyridine to each 100L of liquor, and which has been coloured to the
satisfaction of the Government Chemist with methyl violet; (Amended L. N.
189 of 1982)
(b) liquor which has been mixed with an equal volume of Chinese vinegar,
if such vinegar contains not less than 2% by weight of acetic acid;
(ba) liquor which has been mixed with a substance or substances approved
by the Government Chemist and which the Commissioner is satisfied is for
industrial use; and (Added 61 of 1972 s. 2. Amended L. N. 294 of 1982)
(c) any other liquor which the Government Chemist certifies cannot
practicably be converted to an intoxicating liquor by dilution,
distillation, flavouring, or any other process or processes; (Replaced 3
of 1970 s. 23. Amended 61 of 1972 s. 2; 20 of 1985 s. 8)
"industrial type liquor" means a liquor not intended for use as a
beverage; (Added 66 of 1986 s. 23)
"intoxicating liquors" includes spirits, liqueurs, wines, beer, Chinese
type spirits and all other liquors fit or intended for use as a beverage;
"liquor", "alcoholic liquor", "spirituous liquor" or "spirit" means any
liquid which contains more than 1.2% of ethyl alcohol by volume except-
(a) denatured spirits;
(b) any such liquid that is an ingredient in any goods, if that liquid
cannot be converted to pure ethyl alcohol or to an intoxicating liquor or
if such a conversion would not be economical; (Replaced 29 of 1989 s. 4)
"perry" means any intoxicating liquor obtained from the fermentation of
pear juice; (Added 66 of 1986 s. 23)
"sparkling wine" means wine which, when the receptacle containing the
beverage is opened, releases carbon dioxide and having, when contained in
the receptacle prior to such opening, an excess pressure of not less than
300 kPa at a temperature of 20 C; (Added 66 of 1986 s. 23)
"still wine" means wine other than sparkling wine; (Added 66 of 1986 s.
23) "wine" means a liquor obtained from the fermentation of fresh grapes
or fruit, or of the must of fresh grapes or fruit, whether or not that
liquor is fortified with spirits or flavoured with aromatic extracts.
(Added 66 of 1986 s. 23)
(2) Where the Schedule provides for different rates of duty in respect of
European-type liquors and Non-European-type liquors for the purpose of
assessing the duty to be paid in respect of liquor the Commissioner may,
if he is of the opinion that a liquor is of a type commonly consumed by
Chinese but not by Europeans, treat that liquor as Non-European-type
liquor. (Added 66 of 1986 s. 23)
54. Provision for case of death or insolvency of licensee
In case of the death or insolvency of the holder of a licence issued under
this Ordinance, his executor or administrator or trustee may carry on the
business on the licensed premises until the expiration of the licence,
subject in every respect to the same regulations and conditions as the
licensee.
(Amended 66 of 1986 s. 24)
55. Licensee to exhibit name, etc.
Every holder of a liquor licence or canteen licence shall have his full
name, the nature and number of his licence, and such other particulars as
may be prescribed by regulations, painted legibly and permanently in
letters at least 75 mm high on some conspicuous part of his licensed
premises; and no person who is not the holder of a liquor licence or
canteen licence shall exhibit any sign, writing, painting or other mark
reasonably calculated to suggest that his premises are licensed for the
sale or supply of intoxicating liquors for consumption on the premises, or
that such liquors are sold or supplied for consumption on the premises.
(Replaced 29 of 1989 s. 5)
56. Measures or weights for sale of liquor
Every person licensed under this Ordinance to sell liquor shall sell and
dispose of his liquors by measures or weights of the standards in use in
Hong Kong and not otherwise, except when the quantity is less than 250mL,
or except when the liquor is sold in bottles; he shall also measure or
weigh such liquors in the presence of any customer who may require him to
do so.
(Amended L. N. 189 of 1982)
57. (Repealed 66 of 1986 s. 25)
58. Illegal possession of still or fermented material, etc.
(1) No person shall, except under and in accordance with a licence, or
except with the specific approval in writing of the Commissioner or
officer authorized by him in that behalf- (Amended L. N. 294 of 1982)
(a) knowingly keep or have in his possession, custody or control any still
or part of a still or other utensil or apparatus suitable and intended for
manufacturing, making, purifying, refining, distilling, rectifying or
processing spirits; (Amended 29 of 1989 s. 6)
(b) have in his possession, custody or control any fermenting or fermented
material. (Amended 3 of 1970 s. 25)
(2) No person shall remove any denaturants from any denatured spirits
without the specific authority in writing of the Commissioner, (Amended L.
N. 294 of 1982)
(3) Where there is insufficient evidence to convict a person of an offence
under subsections (1) and (2), but it is proved that such an offence has
been committed on some part of the premises belonging to or occupied by
that person in such circumstances that it could not have been committed
without his knowledge, that person shall be liable on summary conviction
to a penalty of $1,000. [cf. 1952 c. 44 s. 106 (2) -
(5) U. K.]
(4) Any person found on premises on which spirits are being unlawfully
manufactured, made, distilled, rectified, purified, refined or processed
may be detained. (Amended 3 of 1970 s. 25)
(5) All spirits and all stills, apparatus, vessels, utensils, fermenting
or fermented materials or other materials for manufacturing, making,
distilling, rectifying, purifying, refining or processing spirits-
(Amended 3 of 1970 s. 25)
(a) found in the possession of any person who commits an offence under
subsection (1); or
(b) found on any premises on which such offence has been committed,
shall be liable to forfeiture.
(6) Notwithstanding any other provisions of this Ordinance relating to
goods seized as liable to forfeiture, any member of the Customs and Excise
Service by whom anything is seized as liable to forfeiture under this
section may at his discretion forthwith spill, break up or destroy that
thing.
59. Presumptions in proceedings for illicit distillation, etc.
(1) In any proceedings under this Ordinance relating to illicit
distillation, all spirits and all stills, apparatus suitable for
distilling, vessels, utensils, fermenting and fermented materials or any
chattels or things, whether fixed to the premises or not, found in or upon
any land or other premises shall be deemed to have been in the possession,
custody or control of the occupier of the premises unless he proves that
he did not know, and could not with reasonable diligence have known, that
such spirits, stills, apparatus, vessels, utensils, materials or other
such chattels or things were in or upon the premises.
(Amended 3 of 1970 s. 26) [cf. 1923 c. 14 s. 13 (5) U. K.]
(2) Every person found in or escaping from any room or place where, in
contravention of this Ordinance, materials are being fermented or
fermenting materials or intoxicating liquors are being made or prepared or
in which any stills, apparatus suitable for distilling, vessels, utensils
or other materials for manufacturing, distilling, rectifying, purifying,
refining or processing spirits are found or are being made or prepared
shall, until the contrary is proved, be deemed to have been unlawfully
making, distilling, rectifying, purifying, refining or processing spirits.
(Amended 3 of 1970 ss. 26 & 36; 66 of 1986 s. 26) [cf. 1831 c. 55 s. 19 U.
K.]
60. Free licences for small stills for registered doctors and pharmacists
The Commissioner may in his discretion issue a licence free of charge to
any practitioner registered under the Medical Registration Ordinance (Cap.
161), or to any pharmacist registered under the Pharmacy and Poisons
Ordinance (Cap. 138), to keep and use on any specified premises a still of
not more than 40L capacity for the purposes only of his profession or
business. (Amended L. N. 189 of 1982; L. N. 294 of 1982)
61. Distilling, etc. adulterated liquor
(1) Any person who imports, distils, makes, manufactures, sells, exposes
for sale or has in his possession for sale, supplies or deals in, or puts
in any container for any such purpose, any adulterated liquor shall be
guilty of an offence and shall, if such adulterated liquor is proved to
the satisfaction of a magistrate to be injurious to health, be liable to
imprisonment for 2 years, in addition to any other penalty to which he may
be liable under this Ordinance. (Amended 3 of 1970 s. 27; 34 of 1976 s. 7)
(1A) Where a person is convicted under this section and it is proved to
the satisfaction of a magistrate that an adulterant in any adulterated
liquor in respect of which that person has been convicted is a denaturant
which is present in such quantities as not to render the liquor being a
denatured spirit within the meaning of this Ordinance, that person shall,
in addition to any other penalty to which he is liable under this
Ordinance, be liable to imprisonment for 2 years. (Added 34 of 1976 s. 7)
(1B) For the purposes of subsection (1), any adulterated liquor found in
licensed premises shall be presumed until the contrary is proved, to be in
the possession of the licensee for the purpose of sale. (Added 34 of 1976
s. 7)
(2) In the case of any conviction under this section the magistrate may
order that any liquor to which the conviction relates and any similar
liquor, whether the same be proved to have been adulterated or not, which
was on the defendant's premises or in his possession or under his control
at the time of the commission of the offence, or which has been seized
under this Ordinance, shall be forfeited:
Provided that no such liquor shall be forfeited if it is proved to the
satisfaction of the magistrate by the defendant, or by any person into
whose possession such liquor may have come, that the same has not been
adulterated or was not for sale.
(3) Any liquor forfeited under this section shall be disposed of as the
Commissioner directs. (Amended L. N. 294 of 1982)
62. (Repealed 66 of 1986 s. 27)
63. (Repealed 16 of 1989 s. 4)
64. Denatured spirits to be dutiable goods until certified to the contrary
(1) All the provisions of this Ordinance relating to dutiable goods shall
apply to any denatured spirits unless and until the Government Chemist has
certified in writing in each case that such spirits are denatured spirits,
and upon the issue of such certificate the liquor to which it relates
shall be deemed to be not dutiable. (Amended 3 of 1970 s. 28)
(2) Any fee prescribed by the Governor in Council for such certificate may
be proportionate to the duty which would have been payable had the liquor
not been denatured: but no such fee (except a minimum fee) shall exceed
one-tenth of the duty.
PART IV TOBACCO
65. Definition of tobacco
In the application of this Ordinance to tobacco-
"Chinese prepared tobacco" (Suk Yin) is tobacco prepared in the
traditional Chinese manner from tobacco leaf grown in China, and comprises
7 main types, namely-Sang Chit
Ting Sook
Yee Sook
Chai See
Kan Yip
Sheung Sook
and Jing Chit
and may include any other traditional Chinese prepared tobacco which, in
the opinion of the Commissioner, is of a type and quality approximate to
any of the 7 types of Chinese prepared tobacco specified above; (Amended 3
of 1970 s. 29; L. N. 294 of 1982) "cigar" means any roll of tobacco
capable of being smoked by itself and which-
(a) has an outer wrapper of natural tobacco; or
(b) predominately contains broken or threshed leaf and has a binder of
reconstituted tobacco and an outer wrapper of reconstituted tobacco fitted
spirally; (Added 66 of 1986 s. 29)
"cigarette" means any roll of tobacco capable of being smoked by itself
not being a cigar; (Added 66 of 1986 s. 29)
"manufacture" means the conversion of tobacco into manufactured tobacco;
"manufactured tobacco" includes cigarettes, cigars, snuff, hand-rolling
tobacco, smoking tobacco, cigar cuttings, reconstituted tobacco and
Chinese prepared tobacco; (Added 66 of 1986 s. 29)
"manufacturer" includes any person who owns or controls any factory or
other place wherein tobacco is manufactured;
"tobacco" includes manufactured and unmanufactured tobacco of every
description and tobacco stalks, tobacco refuse, tobacco seedlings and
tobacco plants; "unmanufactured tobacco" means tobacco which has undergone
no process of manufacture except curing, stripping or drying or any of
them.
66. (Repealed 10 of 1988 s. 2)
67. Manufacture, etc. of adulterated tobacco
(1) A tobacco manufacturer shall not in manufacturing tobacco use any
substance other than water or steam, except to such extent as may be
permitted by the Commissioner and subject to such conditions as the
Commissioner may impose. (Amended L. N. 294 of 1982)
(2) Save where their use by him is permitted by or under this section, a
tobacco manufacturer shall not receive or have in his possession any of
the following substances, namely-
(a) sugar or any other saccharine substance or extract, except such as he
proves to be for domestic use;
(b) leaves or plants of any description other than tobacco leaves or
plants;
(c) any substance for use, or capable of being used, as a substitute for
or to increase the weight of tobacco.
(3) Any tobacco manufacturer who contravenes any of the provisions of this
section shall be liable to a fine of $5,000 and the tobacco or other
substance in respect of which the offence was committed shall be liable to
forfeiture.
68. Restriction on tobacco growing
No person shall plant or cultivate tobacco (on any land of any category)
without the written approval of the Commissioner or other officer deputed
by him in that behalf. (Amended 3 of 1970 s. 30; 29 of 1989 s. 7)
PART V HYDROCARBON OIL
(Amended 66 of 1986 s. 30)
69. Definition of hydrocarbon oil
In the application of this Ordinance to hydrocarbon oil-
"aircraft spirit" means any hydrocarbon oil suitable and intended for use
as fuel in any aircraft; (Amended 84 of 1991 s. 2)
"heavy oil" means any hydrocarbon oil other than light oil; (Replaced 66
of 1986 s. 31) "hydrocarbon oil" means petroleum oil, coal tar, and oil
produced from coal, shale, peat, or any other bituminous substances, and
all hydrocarbons that are in a liquid form at a temperature of 15 C and
under a pressure of 101 kPa, except any such hydrocarbons that are an
ingredient in any goods that do not have the usual characteristics of
hydrocarbon oil; (Replaced 29 of 1989 s. 8)
"kerosene" means heavy oil of which more than 50% by volume distils at a
temperature not exceeding 240 C; (Added 66 of 1986 s. 31)
"leaded petrol" has the same meaning as in section 26B of the Air
Pollution Control Ordinance (Cap. 311); (Added 2 of 1991 s. 10)
"light diesel oil", commonly known as "gas oil", means a heavy oil of
which not more than 50% by volume distils at a temperature not exceeding
240 C and of which more than 50% by volume distils at a temperature not
exceeding 340 C; (Added 44 of 1978 s. 2. Amended L. N. 189 of 1982) "light
oil" means hydrocarbon oil of which not less than 50% by volume distils at
a temperature not exceeding 185 C, or of which not less than 95% by volume
distils at a temperature not exceeding 240 C, or which gives off an
inflammable vapour at a temperature of less than 23 C when tested in the
manner prescribed by the Commissioner of Customs and Excise of the United
Kingdom; (Amended L. N. 189 of 1982) "marked oil" means light diesel oil
to which a marker and a colouring substance have been added as provided by
regulations made under section 6; (Added 66 of 1986 s. 31) "motor spirit"
or "petrol" means any light oil suitable for use as fuel in any internal
combustion engine, but does not include aircraft spirit;
(Replaced 2 of 1991 s. 10) "unleaded petrol" has the same meaning as in
section 26B of the Air Pollution Control Ordinance (Cap. 311). (Added 2 of
1991 s. 10)
(Amended 66 of 1986 s. 31)
69A. (Repealed 66 of 1986 s. 32)
PART VI METHYL ALCOHOL
70. Interpretation
In the application of this Ordinance to methyl alcohol-
"denatured methyl alcohol" means methyl alcohol certified by the
Government Chemist to have been mixed with a substance or substances
approved by the Government Chemist, in such manner that it cannot
practicably be returned to its original form; (Added 66 of 1986 s. 33)
"methyl alcohol" means the substance also known as methanol, but does not
include methyl alcohol that is an ingredient in any goods, if that methyl
alcohol cannot be converted to pure methyl alcohol or if such a conversion
would not be economical. (Amended 29 of 1989 s. 9)
71. Marking of containers
No person shall place or cause to be placed or keep or cause to be kept in
any container any methyl alcohol unless such container is conspicuously
marked in English and Chinese with the word "poison".
72. Colouring, flavouring or other substance
The Commissioner may direct an importer to add such colouring, flavouring
or other substances, and in such quantities, as the Commissioner may from
time to time specify, to any methyl alcohol in his possession.
(Amended L. N. 294 of 1982; 29 of 1989 s. 10)
73. Storage
A distiller or importer of intoxicating liquor shall not bring onto or
have in any premises used for holding intoxicating liquor any methyl
alcohol. (Amended 29 of 1989 s. 11)
74. Exemptions
No duty shall be payable on denatured methyl alcohol.
(Replaced 66 of 1986 s. 34)
(Part VI added 34 of 1976 s. 9)
PART VII (Repealed 35 of 1992 s. 5)
PART VIII (Repealed 32 of 1993 s. 4)
SCHEDULE
[ss. 4 (1), (2) & 53 (2)]
PART I DUTY ON LIQUOR
1. Duty shall be payable on the following types of European-type liquor at
the rate of 35% of the value of the liquor (in accordance with section 26A
of the Ordinance) and, in addition, at the rate specified against that
type of liquor, per litre measured at a temperature of 20 C-
Type of Liquor
$
Brandy......80.00
Liqueurs, Whisky, Gin, Rum, Vodka and other spirituous liquors ......80.00
Champagne and other sparkling wines (Added L. N. 218 of 1990)......49.00
Intoxicating liquors in this Part above the strength of 45% alcohol by
volume, for every 1% above such strength in addition to the duties
specified above......2.29 (Replaced L. N. 158 of 1988. Amended 16 of 1989
s. 5; L. N. 218 of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s.
5)
1A. Duty shall be payable on the following type of European-type liquor at
the rate of 20% of the value of the liquor (in accordance with section 26A
of the Ordinance) and, in addition, at the rate specified against that
type of liquor, per litre measured at a temperature of 20 C Celsius-
Type of Liquor
$
Still wines......34.00
(Replaced L. N. 218 of 1990. Amended L. N. 194 of 1991; 35 of 1992 s. 6;
32 of 1993 s. 5)
2. Duty shall be payable on the following types of European-type liquor at
the following rate per hectolitre measured at a temperature of 20 C-
Type of Liquor
Cider and Perry and other similar beverages $ ......221.00
Beer (Added 16 of 1989 s. 5)......336.00
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
3. (Repealed 16 of 1989 s. 5)
4. Duty shall be payable on the following types of Non-European-type
liquor at the following rates per hectolitre measured at a temperature of
20 C-
Type of Liquor
$
Non-European-type wines......1,448.00
Chinese-type spirits and other spirituous liquors, Sake,
Arrack......747.00 and in addition for every 1% by which the alcoholic
strength by volume exceeds 30%......25.00
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
5. Duty shall be payable on the following types of Industrial-type liquor
at the following rates per he ctolitre measured at a temperature of 20 C-
Type of Liquor
Ethyl alcohol, and admixtures containing $ ethyl alcohol......747.00
and in addition for every 1% by which the alcoholic strength exceeds
30%......25.00 (Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989
s. 5; L. N. 218 of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993
s. 5)
6. The Commissioner may assess the duty on-
(a) intoxicating liquors not specified in this Part at the rate prescribed
for liquor which in his opinion most nearly approximates to the liquor on
which duty is to be assessed; and
(b) any quantity of liquor of less than 12L imported at any time in one
consignment at $85.00 per litre.
PART II DUTY ON TOBACCO
1. Duty shall be payable on tobacco at the following rates-
$
(a) for each 1000 cigarettes......580.00
(b) cigars......745.00/kg
(c) Chinese prepared tobacco......142.00/kg
(d) all other manufactured tobacco
except tobacco intended for the manufacture of cigarettes......701.00/kg
(Amended L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218 of 1990; L. N. 194
of 1991; L. N. 195 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
2. For the purpose of applying the duty under paragraph 1 (a) a cigarette
more than 90 mm long, excluding any filter or mouthpiece, shall be treated
as if each additional 90 mm or portion of 90 mm were a separate cigarette.
(Replaced 10 of 1988 s. 3)
PART III DUTY ON HYDROCARBON OIL
1. Duty shall be payable on hydrocarbon oil at the following rates per
litre-$
(a) aircraft spirit......4.53
(b) light diesel oil......2.26
(c) motor spirit (leaded petrol) (Added 2 of 1991 s. 10)......5.03
(d) motor spirit (unleaded petrol) (Added 2 of 1991 s. 10)......4.48
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; 2 of 1991 s. 10; L. N. 99 of 1991; L. N. 194 of 1991; 35 of 1992
s. 6; 32 of 1993 s. 5)
2. Where it is proved to the satisfaction of the Commissioner that light
diesel oil on which duty has been paid under paragraph 1 (b) has been used
in road vehicles owned and operated by the grantee of a franchise under
section 5 of the Public Bus Services Ordinance (Cap. 230) in maintaining
public bus services on specified routes as defined by section 2 of that
Ordinance, a refund of duty paid on the light diesel oil so used may be
granted by the Commissioner and subject to such conditions as the
Commissioner may specify. (Amended 35 of 1992 s. 6)
3. Where it is proved to the satisfaction of the Commissioner that light
diesel oil on which duty has been paid under paragraph 1 (b) has been used
in road vehicles owned and operated by the Kowloon-Canton Railway
Corporation under section 4 (1) (d) of the Kowloon-Canton Railway
Corporation Ordinance (Cap. 372) in maintaining bus services within the
North-west Transit Service Area, a refund of duty paid on the light diesel
oil so used may be granted by the Commissioner and subject to such
conditions as the Commissioner may specify. (Amended 35 of 1992 s. 6)
4. Subject to such conditions as the Commissioner may impose for the
protection of the revenue, duty payable on hydrocarbon oil for use by a
disabled person within the meaning of section 2 of the Road Traffic
Ordinance (Cap. 374) in a private car, invalid carriage, motor cycle or
motor tricycle owned and driven by him shall be waived, such waiver to be
subject-
(a) in the case of a private car or an invalid carriage, to a limit of 200
litres per month; and
(b) in the case of a motor cycle or motor tricycle, to a limit of 100
litres per month, for each such person. (Replaced 32 of 1993 s. 5)
(Added L. N. 203 of 1987)
PART IV DUTY ON METHYL ALCOHOL
1. Duty shall be payable on methyl alcohol and any admixture containing
methyl alcohol at the rate of $747.00 per hectolitre measured at a
temperature of 20 C and in addition, for every 1% by which the alcoholic
strength by volume exceeds 30%, $25.00 per hectolitre.
(Amended L. N. 128 of 1987; L. N. 158 of 1988; 16 of 1989 s. 5; L. N. 218
of 1990; L. N. 194 of 1991; 35 of 1992 s. 6; 32 of 1993 s. 5)
PART V (Repealed 35 of 1992 s. 6)
PART VI (Repealed 32 of 1993 s. 5)
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