1949-HKRS29-8-16_Part02 — Page 32

Procedure ou bearing appeal.

Ordinance

No. g of 1899.

Ordinance No. 38 of rgja.

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aball re-transmit any such recognizance to the magistrate's clark, and the provisions of sub-sections (1) and (8) of section 60 (except the words from "and paying or giving security to the end of the said sub-section (1)) eball apply in relation to any such recognizance as they apply to such recognizances as are mentioned therein, but any condition for the appearsuce of the appellant at the bearing of the appeal shall be deemed to be performed if he duly sur- renders himself.

(8) The payment of any costs ordered to be paid under sub-section (2) may be enforced as a civil døbt 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 depositiona taken before the mugis- trate or a certified copy thereof shall, without prejudice to any other method of proof, be admissible us 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 beard 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 be may receive such evidence, and for that purpose shall have the like powers under paragraphs (0), (b) and (c) 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 accessary 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 triel;

Jcf. 20 & 21 Vict. 643. 6.6 and 36 & 37 Vict. c.56, 3.45.]

Relense from custody by a magistrate and power of the bulge an appeal.

Firgt Schedule.

Form No. 88,

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(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 such orders we to costa a 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;

(if 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 he beard de novo by a mugistrate and the case shall be so hoard accordingly.

(2) Either party to muy appeal under section 10) or section 108 may be heard in person or by any barrister and in any appeal under sub-sections (1) and (2) of seution 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 so appellant is in custody, any magistrate may, if he thinka fit, release him from custody om his complying with the provisions of sections 105 mul 100 relating to entering into recognizances, if be has not already done so, and on bis either entering into a recog- nizance, with or without sureties and in such reasonable sum as he thinks necessary to fix, conditioned to appear at the hearing of the appeal, or giving with the magia. 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;

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