1949-HKRS28-8-16_Part02 — Page 36

Procedure ou bearing appeal.

Ordinance

No. g of

1999

Ordinance No. 38 of

1933.

20

aball re-transmit any such recognizance to the mingistrate's clark, and the provisions of sub-sections (1) and (8) of section 50 (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 bearing of the appeal shall be deemed to be performed if he duly sur. renders himself.

(a) The payment of any costs ordered to be paid under aub-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 out 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 mugiz- trute or a certified copy thereof shall, without prejudice to any other method of proof, be admissible us uvidence of the evidence which was given and of the statements which were roade 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 beard 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 (8), (6) and (e) of sub-section (8) of section 78A of the Criminal Procedure Ordinance, 1999, 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 oporate as a stay of execution, but the magistrate or u judge inay on motion stay execution or sentence pending the appeal on auch 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 snob 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, 1982, for the case of persons awaiting trial;

K

cf. 20 & 21 Vict. 6430 6.6 and 36 &

37 Vicc. c.66, 5.46.]

Relene from) custody by a magistrate and power of the judge an appeal.

First Schedule.

Form No. 88,

21

(d) the judge may reserve the appeal, or any point in the appeal for the consideration of the Full Court, or may direct the appeal, or point in the appeal. to be argued before the Full Court, and the Full Court shall have power to hear and determine any such appeal or point do reserved or so directed to be argued and may in connection therewith exercise all or any of the powers conferred on a judge of the court by this Part or may remit the matter to the judge with the opinion or decision of the Full Court and may also make any such other order in relation to the matter and auch orders us to costa ag to the Full Court shall seem fit;

(s) the powers and duties of a judge shall be exercised and performed by the Chief Justice or by such one of the judges of the court as the Chief Justice sball from time to time appoint;

( it any step in or in connection with any appeal or intended appeal is rendered impossible by the death, absence or incapacity of a magistrate, a judge of the court upon motion shall have power for good cause to order that the case be beard de novo by a magistrate und the case shall be so heard accordingly.

(2) Either party to muy appeal under section 1th or section 108 may be heard in person or by any barrister aud in any appeal under sub-sections (1) and (2) of section 108, not being appeals reserved for learing or directed to be argued before the Full Court, either party may be heard by any Counsel.

114. In the case of any appeal to which section 100 or section 108 applies-

(a) where an appellant is in custody, any magistrate may, if he thinks fit, release him from custody on bis complying with the provisions of sections 105 mm) 100 relating to entering into recognizances, if he has not already done so, and on his either entering into a recog- nizance, with or without aureties and in such reasonable sum as he thinks necessary to fix, conditioned to appear at the hearing of the appeal, or giving with the magis. trate's consent other security for his appearance;

(b) recognizances for the purpose of section 105 or section 109 and this section may, if it be convenient, be cornbined in one recognizance;

(c) the judge may from time to time adjourn the bearing of any appeal;

(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard do novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter

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