1949-HKRS28-8-16_Part02 — Page 28

Power for public prosecur

to withdraw каж.

Rights of parties to conduct casc personally ar by

counsel.

but the Attorney General may at any stage of the pro- ceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 99 for applying for a review interveno for the purpose of applying for or being made a party to any review,

(2) As from the date of any such intervention the Attorney General shall be deemed to be a party bo the proceedings or the review in lieu of such complainant or informant.

(8) Buch intervention may be effected by oral intimation given to the magistrate by a public prosecutor acting under the instructions of the Attorney General or by notice in writing under the hand of the Attorney General of his intervention lodged with the magistrate's clark. In the event of oral intimation as aforesaid having been given the Attorney General shall as soon as con- veniently may be cause notice in writing of his intention to be lodged as aforesaid,

11. (1) In any case before a magistrate in which a defendant is being tried for any offence and at any stage thereof before judgment and in any case in which an inquiry is being held by a magistrate for the purpose of determining whether an accused should be committed for trial, the Attorney General may enter a molle prosequi by informing the magistrate in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused eball be at once discharged in respect of the charge for which the nolle prosequi ia entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subaequent proceedings against him on account of the same facts.

(2) If the scensed shall not be before the magistrate when such nolle prosequi is entered the mugie- trate's clerk shall forthwith cause notice in writing of the entry of such molle prosequi to be given to the keeper of the prison in which such accused may be detained.

11. (1) The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf.

(2) Without prejudice to the rights of the Attorney General every complainant or informant shall be at Überty to conduct the complaint or information respectively and to have the witnesses examined and cross-examined by him or by counsel on his behalf.

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 sections 11A, 1B, 110 and 11D conferred on or entrusted to the Attorney General shall during his absence from duty for any cause be exercised by the Solicitor General: Provided that

(a) the Attorney General may by writing under his head 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 ID; and

(b) any officer discharging the functions of Crown Counsel shall without any appointment under section 11B be entitled to act as a publio 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 Addition of the insertion after sub-section (4) thereof of the following additional two new sub-sections-

sub-sections

to section 12

"(5) Notwithstanding the provisions of this section if in the of the case of any offence, which is declared by the Ordinance creating principal

Ordinance. it or by resolution of Legislative Council to be an offence to which the procedure prescribed by this sub-section is applicable, the defendent pleads guilty to such offence by letter addressed to the magistrate, the magistrate may in his discretion in lieu of pro- ceading under the other provisions of this section enter a plea of guilty and deal with the case in like manner mutatių mútandis 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 & foot-note or endorsement in the following terma :-

It

"Inder sub-section (5) of section 12 of the Magistrates Ordinance, 1092, a magistrate may in his discretion nucept a ples of guilty contained in a letter addressed to the magistrate. defendant decides to take this course be may if he chooses mention in such letter any facts which he considers mitigate the offence. The magistrate has a complete diseration 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."

of new section

10. The following section is hereby substituted for section 91 Substitution of the principal Ordinance :- "Defect in

and alteration of complaint information

or summaUDED.

for section 21

21. (1) No objection shall be taken or allowed to af the any complaint, information or suramons for any alleged principal defeat therein in substance or in form, or for any variance Ordinance. between such complaint, information or summons and the evidence adduced in support thereof, and the adjudicating magistrate shall in all cases give judginent upon the substantial merits and facta 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