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THE HONG KONG GOVERNMENT GAZETTE.
Provision as to entry of appeal,
Jef. 23 & 24 Geo. 5, c.38, 5.3.]
Abandon- pient of
appeal.
[cf. 23 & 24 Ġeo. 5, c.38, 5.4.]
111. (1) So soon as an appellant has complied wit the provisions of sub-section (3) of section 109, with respect to entering into a recognizance or giving other security, the magistrate's clerk shall transmit to the Registrar the notice of appeal, the depositions and such copies thereof as the Registrar may require, and the recognizance, if any, and a statement as to any other security given by the appellant, and the statement by the magistrate of his findings on the facts and other grounds of his decision, and thereupon the Registrar shall enter the appeal, and shall in due course give notice, together with a copy of the depositions, to the appellant, to the respondent and to the Attorney General as to the date, time and place fixed for the hearing of the appeal. (2) Where an appellant has for the purposes of sub-section (4) of section 114 entered into a separate recognizance or given other security for his appearance, the clerk to the magistrate against whose decision the appeal is brought shall, before the date fixed for the hearing of the appeal, transmit to the Registrar the recognizance, if any, and a statement as to any other such security given by the appellant.
(3) Where any recognizance for the purposes of such an appeal as aforesaid is entered into otherwise than before the magistrate against whose decision the appeal is brought, or his clerk, the officer concerned in the taking of the recognizance shall forthwith transmit it to such magistrate's clerk.
112. (1) In the case of an appeal under section 100 or section 108 the appellant may at any time, not less than two clear days before the date fixed for the hearing, abandon the appeal by giving notice in writing to the clerk of the magistrate against whose decision the appeal is brought, and, if he gives such notice, the clerk shall forthwith give notice of the abandonment to the respondent and to the Registrar.
(2) Where an appeal has been abandoned-
(a) any magistrate may issue process for enforcing the decision against which the appeal was brought, subject to anything already suffered or done thereunder by the appellant; and
(b) any magistrate may, on the applica- tion of the respondent, order the appellant to pay to him such costs as the Registrar shall determine to be just and reasonable in respect of expenses properly incurred by him in connection with the appeal before notice of the abandonment was given to him; and
(c) any recognizance entered into in con- nection with the appeal shall be dealt with by a magistrate instead of by the judge, and accordingly the Registrar
267
1
Procedure on
hearing appeal.
Ordinance No. 9 of 1899.
Ordinance No. 38 of 1932.
SUPPLEMENT NO. 1, MAY 20, 1949.
shall re-transmit any such recognizance to the magistrate's clerk, and the provisions of sub-sections (1) and (3) of section 59 (except the words from "and paying or giving security" to the end of the said sub-section (1)) shall apply in relation to any such recognizance as they apply to such recognizances as are mentioned therein, but any condition for the appearance of the appellant at the hearing of the appeal shall be deemed to be performed if he duly sur- renders himself.
(3) The payment of any costs ordered to be paid under sub-section (2) may be enforced as a civil debt recoverable on a magistrate's summons by the party to whom they are ordered to be paid, and shall not be enforced in any other manner.
113. (1) In the case of any appeal to which section 100 or section 108 applies-
(a) the depositions taken before the magis- trate or a certified copy thereof shall, without prejudice to any other method of proof, be admissible as evidence of the evidence which was given and of the statements which were made before the magistrate, and generally that the proceedings therein recorded took place;
(b) when the appeal comes on for hearing the appellant shall be first heard in support of the appeal, the respondent if present and if he so desires shall be heard against it and the appellant thereafter shall be entitled to reply. If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under paragraphs (a), (b) and (c) of sub-section (8) of section 78A of the Criminal Procedure Ordinance, 1899, that the Full Court would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers;
(c) except in the case of whipping, which. shall be stayed pending appeal, the appeal shall not operate as a stay of execution, but the magistrate or a judge may on motion stay execution or sentence pending the appeal on such terms as to security for the payment of any money or the suffering of any punishment ordered by or in such conviction or sentence as to the magistrate or judge shall seem necessary: Provided that if the appellant is in prison, no such security shall be required, and on such stay as aforesaid the appellant shall be treated, pending the determination of his appeal, in such manner as may be directed by the rules made under the Prisons Ordinance, 1932, for the case of persons awaiting trial;
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