than the inherent powers of the Supreme Court.
3. Another objection to the new section 122 is that if, an the Attorney General states in his Legal Report, the court is not sitting in camera, then it is objectionable in princi ple that a law-abiding member of the public should have to obtain permission from a public officer, to whom the power has been delegated by the judge or magistrate, as the case may be, in order to be present in "an open court".
4.
The new section 123. Much of the above criticism applies equally to the new section 123. A judge of the Supreme Court in Hong Kong has wide inherent powers to order part of a case to be heard in cameraj whereas judges and magistrates of subordinate courts have only statutory powers, in specific cases, to do so. It is very questionable whether judges or magistrates of subordinate courts should have conferred upon them by statute these wide inherent powers of a judge of the Supreme Court.
5. Both of the new sections 122 and 123 would enable all members of the public to be excluded from the court while the decision of the court in the case was being announced. The conferring of such a power, is, as far as we know, unprecedented in the British system of law. (Incidentally it also departs from the principle of Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Command 8969), which was ratified by the United Kingdom Government in 1951).
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6. In the circumstances described above, it is necessary to ask you to arrange for the emotment of a further amending Ordinance, It is considered that the amending Ordinance should: --
7.
(a)
deal with the point raised in para. 5 above by making it clear that the powers conferred by the new sections 122 and 123 do not extend to the clearing of the court whilst the decision of the court is being announced;
(b) provided that the new sections 122 and 123 would be in
force only when so ordered by the Governor and then only during the period between the making of the Order and the rescinding of it. The two new sections would then not be part of the substantive law but could be brought into force, even though no emergency had been declared, when it was apprehended that there might be disorder or tumult in the courts resulting from polition or other tensions.
Thereafter, in order to meet the special circumstances existing in Hong Kong, consideration could be given to amending section 17 of the District Court Ordinance (Cap.5) and section 99 of the Magistrate Courts Ordinance (Cap.227) so as to give district
/judges and