An Ordinance to give effect in Hong Kong to the Convention for the Protection of Submarine Cables made at Paris on 14 March 1884. (Enacted 1996) [27 December 1996] (Originally 78 of 1996) Cap 497 s 1 Short title This Ordinance may be cited as the Submarine Telegraph Ordinance. (Enacted 1996) [cf. 1885 c. 49 s. 1 U.K.] Cap 497 s 2 Interpretation Remarks: Amendments retroactively made - see 28 of 1998 s. 2(1) In this Ordinance, unless the context otherwise requires- "the Convention" (《公约》) means the Convention for the Protection of Submarine Cables which was made at Paris on 14 March 1884 and which was established in the French language; "master" (船长) includes every person having command or charge of a vessel; "officer" (高级船员) means an officer commanding such a ship as described in Article X of the Schedule; "person" (人) includes a body of persons corporate or unincorporate; "vessel" (船只) means every description of vessel used in navigation in whatever way it is propelled; and any reference to a vessel shall include a reference to a boat belonging to such vessel. (Enacted 1996. Amended 28 of 1998 s. 2(1)) [cf. 1885 c. 49 s. 12 U.K.] Cap 497 s 3 Convention to have the force of law Subject to the provisions of this Ordinance, the Convention as set out in the Schedule, being an English translation of the French original, shall continue to have the force of law in Hong Kong. (Enacted 1996) [cf. 1885 c. 49 s. 2 U.K.] Cap 497 s 4 Contravention of Article II of the Convention (1) A person who unlawfully and wilfully breaks or damages any submarine cable to which the Convention applies, in such manner as might interrupt or obstruct in whole or in part telegraphic communication, commits an offence and is liable on conviction on indictment to a fine of $500000 and to imprisonment for 5 years. (2) A person who by culpable negligence breaks or damages any submarine cable to which the Convention applies, in the manner described in subsection (1), commits an offence and is liable on summary conviction to a fine at level 6 and to imprisonment for 1 year. (3) A person who attempts to break or damage, unlawfully and wilfully, any submarine cable to which the Convention applies, in the manner described in subsection (1), commits an offence and is liable to be punished in like manner as if he had committed an offence under subsection (1). (Enacted 1996) [cf. 1885 c. 49 s. 3(1) & (2) U.K.] Cap 497 s 5 Defences and exceptions (1) Where a person does any act for the purposes of- (a) preserving the life of or preventing injury to himself or any other person; or (b) preserving the vessel to which he belongs or any other vessel,and takes all reasonable precautions to avoid damage to a submarine cable, such person is deemed not to have acted unlawfully and wilfully within the meaning of section 4. (2) If in a bona fide attempt to repair a submarine cable, another cable is broken or damaged, such breakage or damage is deemed not to be unlawful and wilful. (3) Subsection (2) shall not apply so as to exempt any person from any liability under this Ordinance or otherwise to pay the cost of repairing any breakage of or damage to any submarine cable. (Enacted 1996) [cf. 1885 c. 49 s. 3(3) & (4) U.K.] Cap 497 s 6 Accessories Remarks: Amendments retroactively made - see 28 of 1998 s. 2(1) A person who- (a) within Hong Kong; or (b) being a permanent resident of the Hong Kong Special Administrative Region or a body corporate incorporated or established in Hong Kong, in any place outside Hong Kong, (Amended 28 of 1998 s. 2(1))in any manner procures, counsels, aids, abets or is accessory to the commission of an offence under section 4, commits an offence and is liable to be tried and punished for the offence as if he had been a principal. (Enacted 1996) [cf. 1885 c. 49 s. 3(5) U.K.] Cap 497 s 7 Obstruction of officers A person who obstructs an officer in the exercise or performance of the powers and duties vested in and imposed on him by any Article of the Schedule, or who refuses or neglects to comply with any demand or direction lawfully made or given by such officer in pursuance of this Ordinance, commits an offence and is liable on summary conviction to a fine at level 6 and to imprisonment for 1 year. (Enacted 1996) [cf. 1885 c. 49 s. 6(1) & (2) U.K.] Cap 497 s 8 Evidence (1) Any document drawn up in pursuance of Article VII or Article X of the Schedule shall be admissible in any proceeding, civil or criminal, as prima facie evidence of the facts or matters stated in the document. (2) If evidence contained in any document as mentioned in subsection (1) was taken on oath in the presence of the person accused in such evidence, and the person accused had an opportunity of cross-examining the person giving such evidence and of making his reply to such evidence, the master or officer drawing up such document may certify the said facts, or any of them. (3) Any document or certificate mentioned in this section purporting to be signed by a master or officer shall be admissible in evidence without proof of such signature, and, if purporting to be signed by any other person, shall, if certified by any such master or officer to have been so signed, be deemed until the contrary is proved to have been signed by such other person. (4) A person who- (a) forges the signature of any master or officer to any such document or certificate as is mentioned in this section; or (b) makes use of any such document or certificate knowing the signature to it to be forged,commits an offence and is liable on conviction on indictment to a fine of $150000 and to imprisonment for 2 years. (Enacted 1996) [cf. 1885 c. 49 s. 8 U.K.] Cap 497 s 9 Liability of masters of vessels Where an offence against this Ordinance has been committed by means of a vessel, or of any boat belonging to a vessel, the master of such vessel shall, unless some other person is shown to have been in charge of and navigating such vessel or boat, be deemed to have been in charge of and navigating the same, and be liable to be punished accordingly. (Enacted 1996) [cf. 1885 c. 49 s. 9 U.K.] Cap 497 s 10 Savings (1) The provisions of this Ordinance shall be in addition to and not in derogation from any other provisions existing at common law or under any enactment for the protection of submarine cables. (2) Subject to subsection (3)- (a) nothing in this Ordinance shall prevent a person being liable under any Ordinance or otherwise to any indictment, proceeding, punishment, or penalty other than as is provided for by this Ordinance; and (b) nothing in this Ordinance, nor any proceedings with respect to any matter, shall exempt a person from any liability in any action or suit with reference to the same matter.(3) The provisions of subsection (2) shall not apply so that a person- (a) is punished twice for the same offence; or (b) is required to pay compensation twice in respect of the same damage. (Enacted 1996) [cf. 1885 c. 49 s. 10 U.K.] Cap 497 s 11 Repeal of Submarine Telegraph Act 1885 (1) The Submarine Telegraph Act 1885 (1885 c. 49 U.K.), in so far as it is part of the law of Hong Kong, is repealed. (2) Sections 23 to 25 of the Interpretation and General Clauses Ordinance (Cap 1) apply in relation to the repeal of Act referred to in subsection (1) as they apply in relation to the repeal of an Ordinance. (Enacted 1996) Cap 497 SCHEDULE [sections 2, 3, 7 & 8] CONVENTION FOR THE PROTECTION OF SUBMARINE CABLES [Preamble omitted] ARTICLE I The present Convention applies outside territorial waters to all legally established submarine cables landed on the territories, colonies, or possessions of one or more of the High Contracting Parties. ARTICLE II It is a punishable offence to break or injure a submarine cable, wilfully or by culpable negligence, in such manner as might interrupt or obstruct telegraphic communication, either wholly or partially, such punishment being without prejudice to any civil action for damages. This provision does not apply to cases where those who break or injure a cable do so with the lawful object of saving their lives or their ship, after they have taken every necessary precaution to avoid so breaking or injuring the cable. ARTICLE III The High Contracting Parties undertake that, on granting a concession for landing a submarine cable, they will insist, so far as possible, upon proper measures of safety being taken, both as regards the track of the cable and its dimensions. ARTICLE IV The owner of a cable who, on laying or repairing his own cable breaks or injures another cable, must bear the cost of repairing the breakage or injury, without prejudice to the application, if need be, of Article II of the present Convention. ARTICLE V Vessels engaged in laying or repairing submarine cables shall conform to the regulations as to signals which have been, or may be, adopted by mutual agreement among the High Contracting Parties, with the view of preventing collisions at sea. When a ship engaged in repairing a cable exhibits the said signals, other vessels which see them, or are able to see them, shall withdraw to or keep beyond a distance of one nautical mile at least from the ship in question, so as not to interfere with her operations. Fishing gear and nets shall be kept at the same distance. Nevertheless, fishing vessels which see or are able to see a telegraph ship exhibiting the said signals shall be allowed a period of twenty-four hours at most within which to obey the notice so given, during which time they shall not be interfered with in any way. The operations of the telegraph ships shall be completed as quickly as possible. ARTICLE VI Vessels which see, or are able to see, the buoys showing the position of a cable when the latter is being laid, is out of order, or is broken, shall keep beyond a distance of one-quarter of a nautical mile at least from the said buoys. Fishing nets and gear shall be kept at the same distance. ARTICLE VII Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or other fishing gear in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable. In order to establish a claim to such compensation, a statement supported by the evidence of the crew, should, whenever possible, be drawn up immediately after the occurrence; and the master must, within twenty-four hours after his return to, or next putting into port, make a declaration to the proper authorities. The latter shall communicate the information to the consular authorities of the country to which the owner of the cable belongs. ARTICLE VIII The tribunals competent to take cognizance of infractions of the present Convention are those of the country to which the vessel on board of which the offence was committed belongs. It is, moreover, understood that, in cases where the provisions in the previous paragraph cannot apply, offences against the present Convention will be dealt with in each of the Contracting States in accordance, so far as the subjects and citizens of those States respectively are concerned, with the general rules of criminal jurisdiction prescribed by the laws of that particulars State, or by international treaties. ARTICLE IX Prosecutions for infractions provided against by Articles II, V, and VI of the present Convention shall be instituted by the State, or in its name. ARTICLE X Offences against the present Convention may be verified by all means of proof allowed by the legislation of the country of the court. When the officers commanding the ships of war, or ships specially commissioned for the purpose by one of the High Contracting Parties, have reason to believe that an infraction of the measures provided for in the present Convention has been committed by a vessel other than a vessel of war, they may demand from the captain or master the production of the official documents proving the nationality of the said vessel. The fact of such document having been exhibited shall then be endorsed upon it immediately. Further, formal statements of the facts may be prepared by the said officers, whatever may be the nationality of the vessel incriminated. These formal statements shall be drawn up in the form and in the language used in the country to which the officer making them belongs; they may be considered, in the country where they are adduced, as evidence in accordance with the laws of that country. The accused and the witnesses shall have the right to add, or to have added, thereto, in their own language, any explanations they may consider useful. These declarations shall be duly signed. ARTICLE XI The proceedings and trial in cases of infraction of the provisions of the present Convention shall always take place as summarily as the laws and regulations in force will permit. [Articles XII to XVII omitted] (Enacted 1996)
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