With reference to Note on Section 11, I should mention that the proposed alteration in the Monthly Sittings of the Court for Criminal Business from the 18th to the 1st was abandoned owing to a representation from the Captain Superintendent of Police, that the attendance of the Constables at the Supreme Court during the first week of each month would be attended with great inconvenience to the Force.
(Signed) Julian Tannerfote,
(True Copy) Signed Hasting Colonial Secretary,
NOTES.
SECTION 2. This Section is inserted to enable the period of the Criminal Sittings of the Court to be occasionally changed without the necessity of the Sessions being formally opened and adjourned. The recent alteration in the time of departure and arrival of the Mails is found to interfere very much with the Sessions owing to their commencing on the 18th. That date has therefore been changed to the 1st.
SECTION 3.
At Common Law Felonies cannot be tried upon an Information by the Attorney General, but only upon an Indictment presented by a Grand Jury.
In this and other Colonies, the Legislature has made provision whereby Grand Juries are dispensed with altogether and the Attorney General exercises his discretion upon a consideration of the Depositions taken before the Magistrate as to whether the facts warrant a Prosecution at the Supreme Court. His signing an Information is analogous to a Grand Jury finding a "True Bill."
Section 2 restores the Provision of the repealed Ordinance No. 8 of 1845, which originally established this mode of Procedure in the Colony and which is preferable to that now in use (Sec. 4 of No. 3 of 1845) as it dispenses in express terms with a Grand Jury instead of leaving it to implication.
SECTION 5.
This Section alters the Form now in use under Section 5 of Ordinance No. 3 of 1865, so as to make it more consistent with the usual language of an Information and with the Provisions of the same Ordinance which relate to Private Prosecutions. (See Sections 15 to 19.)
In Indictments which are founded on a Presentment by a Grand Jury, the words used are "It is presented," but in "ex Officio Informations by the Attorney General on behalf of the Crown, and in Criminal Informations by the Master of the Crown Office at the instance of Private Parties" the Court is "informed" on behalf of the Queen of the Offence committed.
The new Form proposed is simply an abbreviation of the language of an Indictment at Quarter Sessions in England, substituting the words "the Court is informed," which are applicable to an Information in the place of the words "It is presented," which are only applicable to an Indictment.
SECTIONS 6 AND 7.
These Sections are substantially reprints of Section 18 and a portion of Section 20 of Lord Campbell's Act 14 and 15 Vic. c. 100.
The principal provisions of that Act, including the above Sections, were brought into force in this Colony by Ordinance No. 4 of 1852. When the consolidation of the Criminal Statutes took place in England, Lord Campbell's Act was repealed with the exception of the above portions of it, which are therefore still in force in England. (See 24 and 25 Vic. c. 95.)
In Hongkong, those same portions of Lord Campbell's Act which are unrepealed in England were in force here by Sections 12 and 17 of No. 4 of 1852, but the whole of that Ordinance having been repealed by Ordinance No. 3 of 1865, it is proposed to remedy that defect by re-enacting those provisions so that our Law may be on the same footing in this respect as the Law in England.
SECTION 8.
This Section gives to the Chief Justice the powers of the Court for the consideration of Crown Cases reserved, established in England by 11 and 12 Vic. c. 78.
The Law in Hongkong at present stands as it did in England before the passing of that Act, when there was no power to quash a conviction but only to "pardon" in case of some legal objection prevailing.
SECTION 9.
This Section is necessary under the system of Criminal Procedure by which the Attorney General discharges the functions of a Grand Jury and at the same time prosecutes on behalf of the Crown in the absence of Private Prosecutors. If he considers that additional evidence should be required, it is obvious that the same should be taken before the Magistrate in the usual way and added to the Depositions, as it would be very inconvenient for the Attorney General to be taking evidence, and he has no power to take evidence on Oath.
SECTION 10.
By an Imperial Statute (22 and 23 Vic. c. 38), not extended to this Colony, Coroners may admit to Bail. Every case of Committal by a Coroner's Jury in this Colony goes before the Magistrate for Committal to the Supreme Court, and although the Magistrate may admit the Defendant to Bail, the Coroner cannot do so, and the Prisoners are compelled to make an application to the Chief Justice, which is a more lengthy process and entails legal expense. This Section is intended to provide a simple remedy and to avoid the necessity of passing an Ordinance founded on the Imperial Act.
SECTION 11.
This Section is inserted to remove doubts as to the Power of the Registrar of the Supreme Court to discharge in this Colony the functions of Master of the Crown Office in relation to the filing of Criminal Informations for Libel upon a Rule of Court.
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