2.
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42
deprived of the ordinary power of taking any action on
his finding.
In an ordinary trial without a jury
where he finds the facts, he also gives judgment or
may impose a sentence or make an order. The ordinance
deprives him even of the power given to the Secretary
for Chinese Affairs of making a recommendation to Your
Excellency as to whether the accused person should or
should not be deported.
3.
Another objection to the ordinance, and a
still more serious one, is that it makes the judges
part of the machinery of executive action and that it
thus breaks the salutary and fundamental principle of
the isolation of the judiciary from the executive.
The case of an ordinary criminal trial is of course
not analogous, because there the courts have complete
control once they are set in motion.
Obviousl
4. A point on which I fear that difficulty
may at some time arise is as to the nature of the
"evidence" adverse to the accused which may be adduced
in cases under the new section 4 of the principal
Ordinance. No provision seems to be made for placing
any evidence before the judge, but presumably he will
be supplied with the usual "evidence" such as is
supplied to the Secretary for Chinese Affairs.
he is not expected to be bound by the strict rules of evidence applicable to ordinary judicial proceedings, but on what principles is he to guide himself (1) as to the admission of particular evidence and (2) as to
the weight to be given to particular forms of evidence. For example, must he admit any "evidence" tendered, e.g. a statement at second or third hand from a person whose
identity is not disclosed?
Again, should he require
corroboration