1972-HKRS28-16-20_Part02 — Page 35

Appeal against

Verdict of

nat guilty

by reason

of insanity.

1968, 4. 19,

2. 12.

14

(3) On an appeal against sentence the Full Court, if it considers that the appellant should be sentencod differently for an offence for which he was dealt with by the court below may-

(a) quash any sentence or order which is the

subject of the appcal; and

(b) in place of it pass such sentence or make such order as it thinks appropriate for the case (whether more or less severe) and as the court below had power to pass or make when dealing with him for the offence.

(4) The power of the Full Court under subsection (3) to pass a sentence which the court below had power to pass for an offence shall, notwithstanding that the court below made no order under subsection (1) of section 109C in respect of a suspended sentence pre- viously passed on the appellant for another offence, include power to deal with him in respect of that suspended sentence where the court below-

(a) could have so dealt with him if it had not passed on him a sentence of detention in a training centre quasbed by the Full Court under paragraph (a) of subsection (3); or (6) did so deal with him in accordance with paragraph (d) of subsection (1) of section 1090 by making no order in respect of the suspended sentence.

Appeal in cases of insanity

837. A person in whose case there is returned a verdict of not guilty by reason of insanity may appeal to the Full Court against the verdict-

(a) on any ground of appeal which involves a

question of law alone; and

(b) with the leave of the Full Court, on any ground which involves a question of fact alone, or question of mixed law and fact, or on any other ground which appears to the Full Court to be a sufficient ground of appeal, but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which in- volves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Full Court.

Disposal of appeal under *. 831. 1968. c. 19. 1. 11.

1.5

83K. (1) Subject to the provisions of this section, the Full Court shall allow an appeal under section 83 if it is of opinion—

(a) that the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (6) that the order of the court giving effect to the verdict should be set aside on the ground of a wrong decision of any question of law: or

(2) that there was a material irregularity in the

course of the trial,

and in any other case shall dismiss the appeal.

(2) The Full Court may dismiss an appeal under section 83J if of opinion that, notwithstanding that the point raised in the appeal might be decided in favour of the appellant, no miscarriage of justice has actually occurred.

(3) Where apart from this subsection-

(a) an appeal under section 83J would fall to be

allowed; and

(b) none of the grounds for allowing it relates to the question of the insanity of the accused person,

the Full Court may dismiss the appeal if it is of opinion that, but for the insanity of the accused person. the proper verdict would have been that he was guilty of an offence other than the offence charged.

(4) Where an appeal under section 831 is allowed, the following provisions apply-

(a) if the ground, or one of the grounds, for allowing the appeal is that the finding of the jury as to the insanity of the accused person ought not to stand and the Full Court is of opinion that the proper verdict would have been that he was guilty of an offence (whether the offence charged or any other offence of which the jury could have found him guilty), the Full Court-

(i) shall substitute for the verdict of not guilty by reason of insanity a verdict of guilty of that offence; and