116
Addition of
two new sub-sections
to section 12 of the
principal Ordinance.
Substitution
THE HONG KONG GOVERNMENT GAZETTE.
Solicitor General to act in the
absence of
or by
authority
of the Attorney
General and
Crown Counsel to be public prosecutors.
11F. The powers duties and discretions by section 11A, 11B, 11C and 11D conferred on or entrusted to the Attorney General shall during his absence from duty for Provided any cause be exercised by the Solicitor General: that-
(a) the Attorney General may by writing under his hand authorise the Solicitor General to discharge and exercise all or any of the duties discretions and powers entrusted to or conferred upon him by section 110 or section 11D; and
(b) any officer discharging the functions of Crown Counsel shall without any appointment under section 11B be entitled to act as a public prosecutor and to represent the Attorney General on any appeal under section 100 or section 108."
9. Section 12 of the principal Ordinance is hereby amended by the insertion after sub-section (4) thereof of the following additional sub-sections :-
"(5) Notwithstanding the provisions of this section if in the case of any offence, which is declared by the Ordinance creating it or by resolution of Legislative Council to be an offence to which the procedure prescribed by this sub-section is applicable, the defendant pleads guilty to such offence by letter addressed to the magistrate, the magistrate may in his discretion in lieu of pro- ceeding under the other provisions of this section enter a plea of guilty and deal with the case in like manner mutatis mutandis as if the defendant had actually appeared before him and pleaded guilty.
(6) In every case in which the procedure prescribed by the preceding sub-section is applicable the summons shall contain a foot-note or endorsement in the following terms:-
If a
"Under sub-section (5) of section 12 of the Magistrates Ordinance, 1932, a magistrate may in his discretion accept a plea of guilty contained in a letter addressed to the magistrate. defendant decides to take this course he may if he chooses mention in such letter any facts which he considers mitigate the offence. The magistrate has a complete discretion as to whether the defendant should be required to attend personally and if the statement of facts in mitigation is disputed this may lead to personal appearance being required.'
" "
10. The following section is hereby substituted for section 21 of new section of the principal Ordinance:—
for section 21 Defects in of the principal Ordinance.
and alteration
of complaint
information or summons,
21. (1) No objection shall be taken or allowed to any complaint, information or summons for any alleged defect therein in substance or in form, or for any variance between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judgment upon the substantial merits and facts of the case as proved before him, and convict the defendant of the offence with which he was charged with such variation as has been warranted
193
>
SUPPLEMENT NO. 1, MAY 20, 1949.
by the evidence or of any offence which under the pro- visions of paragraph (c) of sub-section (2) of section 10 could have been tried therewith,
(2) Whenever in the opinion of the magistrate there is a defect of substance or there has been any such variance as aforesaid he shall make the necessary amend- ment in the complaint, information or summons and shall read and explain the same to the defendant.
(3) In every case falling within the preceding sub-section parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and to call any further witness: Provided that if the amendment under sub-section (2) is made after the case for the complainant or informant is closed no further witness may be called by the com- plainant or informant other than such and on such matters only as it would, notwithstanding the provisions of this section be permissible to call and put in evidence in rebuttal.
(4) In any case falling within sub-section (2) the magistrate shall grant any adjournment which may
be reasonably necessary to enable the parties to exercise
their rights under sub-section (3) or to enable the defen- dant to reconsider his defence.
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117
11. Section 30 of the principal Ordinance is hereby repealed and Substitution
the following substituted therefor:
"Power to
tional release
of offenders.
7 Edw. 7, c.17, S,I
of new section for section 30 a of the
30. (1) Where any person is charged before permit condi- magistrate with an offence punishable on summary con- principal
viction, and the magistrate thinks that the charge is Ordinance. proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation, the magistrate may without proceeding to conviction make an order either-
(1), (3), (4) [cf. Ord. No. 9 of 1899, 5.96, and No. 32 of 1935, S.59.]
First Schedule. Forms Nos. 26 & 45.
Forms
Nos. 5 & 21.
(a) dismissing the information or charge; or
(b) discharging the offender conditionally on his entering into a recognizance, with or without sureties, in a sum not greater than five hundred dollars, to be of good behaviour and to appear for conviction and sentence when called on at any tiine during such period, not exceeding three years, as may be specified in the order.
(2) The magistrate may, where he makes an order under this section, further order that the offender shall pay such costs of the proceedings or such damages