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HONGKONG LEGISLATIVE COUNCIL
it is due to a resolution passed by the Imperial Conference in 1911. An Act has been passed in England to provide for the mutual enforcement of maintenance orders in England and in the Colonies, and that Act contains a section that, if any particular Colony makes a reciprocal condition, His Majesty will apply the Act to that particular Colony. When this Ordinance is passed here an Order in Council will follow applying the English Act to Hongkong, and it will be possible to enforce English maintenance orders here, and Hongkong orders in England. The Bill is mainly concerned with ma- chinery, but it gives power to make maintenance order against a person who is not resident here. It may be made in the absence of the defendant, but before it can be enforced in England-assuming that he lives there the order has to be re- gistered in England, and he has to be given the opportunity of showing cause against it. In the same way, if an order
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C
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The Objects and Reasons attached to the Bill state:
1. The object of this Bill is to effect three improvements in the criminal pro- cedure of the Supreme Court.
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2.-Clause 2 effects two alterations in the law. In the first place it gives the Full Court power to order a new trial upon a question of law being reserved by the trial judge. It is true that the Court of Criminal Appeal in England has no power to order a new trial, but the Judges have frequently expressed the opinion that that Court ought to have such a power. A
For instance, in R. v. Bloom, 4 Cr. App. R., at p. 35, the Lord Chief Justice (Lord Alverstone) said, "In this case we have a strong illustra- tion of what we have had to observe many times, riz: the importance that this Court should have power to order a new trial. It is impossible for the Court pro- perly to perform its duties without that made in England against a person
power. And in R. v. Bloom, 7 Cr. resident here it can be enforced here only App. R. at p. 8. Darling J in delivering after notice to the defendant in this judgment of the Court, which consisted of Colony. The only power in this Colony Lord Alverstone C. J. and Darling and to make maintenance orders is under the Hamilton JJ. said. "In this case we de- Married Women's Desertion Ordinance.sire to repeat and emphasise what the 1905. The scope of that Ordinance has Lord Chief Justice has said on several been a matter of doubt for a good many occasions, that it appears to us after some years because of the definition of the term years' experience of the working of this married wonkun. It has been thought Act, to be a matter of great regret that in some quarters that it refers only to
we have no power to order a new trial, persons
of Asiatic race. Whatever it
as can be done on appeal in a civil case does meani it is thought better to make it clear that it applies irrespec- grounds as those on which we feel bound where a verdict, is set aside on such tive of race. That is the effect of clause to act to-day. In this Court if a suffi-
The Ordinance in question has also cient legal reason is advanced been amended so as to give power to in the conclusion of a judge and jury, we against crease the amount which may be awarded have no alternative but to quash the for maintenance. At present, the sum conviction, and no further proceedings which may be awarded for maintenance can be taken. This is a case, like many inust not exceed 20 dollars and that seems others which have come before us, where a very small sum. It is proposed to do it is clearly desirable that all the facts lete that restriction and to give the should be submitted again to a jury with magistrate discretion to fix any sum thinks reasonable in the particular case. hope that what we are now saying will an adequate and proper direction. We I beg to move the first reading.
be considered by those who have power to amend the law in this respect."
12.
now
he
THE COLONIAL SECRETARY seconded, and the Bill was read a first time.
Amendment of the Criminal Procedure Ordinances, 1899-1913
THE ATTORNEY-GENERAL moved the first reading of a Bill intituled, An Ordinance to amend the law relating to criminal procedure in the Supreme Court.
3. In the second place Clause 2 pro- vides that even if the question reserved might be decided in favour of the accused the Full Court may affirm the conviction if it considers that no substantial miscarriage of justice has actual- ly occurred. from section 4 (1) of the Crimnial Appeal This provision is taken Act, 1807, 7 Edward 7, c. application of this provision in England 23. The chief
occurs where the ground alleged is mis-
HONGKONG LEGISLATIVE COUNCIL
direction as to the law or wrongful ad- mission or rejection of evidence. The rule adopted by the Court of Criminal Ap- peal with regard to evidence wrongfully admitted has been that it will not act upon the above proviso in any case in which it appears to it clear that the jury may have been influenced by the evidence wrongfully admitted: see R. v. Rodley (1913) 3 K.B. 468.
4.--Clause 3 proposes to abolish the necessity of calling upon the accused after a verdict of guilty has been return ed by the jury. The only object of call ing upon the accused in this way is to give him an opportunity of moving in arrest of judgment. Motions in arrest of judgment are seldom made and they are very rarely successful. They are of necessity made upon technical grounds. If any such grounds are open to a de- fended prisoner his counsel may be trusted to bring them forward at the proper time, and an undefended prisoner is extremely unlikely to discover any Buch grounds. The clause still leaves it open to the accused to move in arrest of judgment after verdict and before
Under the present rule of prac
Bentence.
tice, by which the accused is called upon after verdict in cases of felony, the ex- perience of those conversant with the Courts is that the accused either does not know what to say or else enters once more upon his general defence. This is mere waste of time, and is sometimes distress- ing, especially in capital cases.
THE ATTORNEY-GENERAL said The Bill is intended to effect two main improve ments in the criminal procedure of the Supreme Court. At present, if a point of law is reserved, after the conviction of a prisoner at the Sessions, and the Full Court is of opinion that the point raised is a good one, there is no option but to quash the conviction, however clear the rest of the evidence. and however is proposed now to give the Full Court clear the guilt of the prisoner may be. It
power to confirm the conviction even if the point raised is a good one, provided that the Full Court considers that no sub- stantial miscarriage of justice has occur- red.
Sometimes it is impossible for the Court to say whether the jury might or might not have been influenced by the evidence im- properly admitted-assuming it to be a case of that kind-and the Bill therefore proposes to give the Full Court power, on the point reserved, to order a new trial.
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The Court of Criminal Appeal has no power to order a new trial, but members of that Court have asked for that power and have gone so far as to say that it is in- possible to perform their duties properly without it.
abolishi
use-
The Bill also
to proposes the necessity of calling upon the prisoner after conviction. At present he is called upon to say whether he wishes to say any thing why judgment should not be passed upon him. Very few prisoners understand that, even European. It is intended to give the man the opportunity of moving in arrest of judgment, which is rather a less privilege to give the prisoner. Most prisoners say nothing or else try to re- It is often very distress- open their case. ing to juries who have just found a man guilty to hear him re-opening his case. I have never known a case where calling on the prisoner, after the verdict. has been of the slightest use. beg to move the first reading.
THE COLONIAL SECRETARY seconded, and the Bill was read a first time.
The Non-Ferrous Metal Industry
Ordinance
The ATTORNEY-GENERAL moved the first reading of a Bill intituled, An Ordinance to repeal the Non-Ferrous Metal Industry Ordinance, 1919, and the Non-Ferrous Metal Industry Amendment Ordinance.
1920.
The
Objects and Reasons" attached to the Bill state: It is recognised that the licence system introduced by the Non- Ferrous Metal Industry Ordinance, 1919, is of no practical use in Hongkong, which, as regards the metal industry, is transhipping centre and not a producing country.
of the war-
THE ATTORNEY-GENERAL said- The principal Ordinance was introduced shortly after the termination
enemies from obtaining control of essen- shortly after the Armistice as part of a general measure to prevent former
tial materials. The Government, sir,
were
not very enthusiastic about the introduction of the measure, at the time, but introduced it in deference to public opinion. It has been tried and it is now generally realised that it is not really of any use in Hongkong, which is not metal producing country but 咒 trans-shipping centre.
a
THE COLONIAL SECRETARY seconded, and the Bill was read a first time.