1972-HKRS28-16-20_Part02 — Page 37

(Cwp. 136.1

Seventh Schedule,

Prohibition

of staying

or reversal

of judgment Or allowing appeal on specified grounds.

18

(c) that there was a material irregularity in the course of the determination of the question of fitness to be tried;

and in any other case (except one to which subsection (2) of this section applies) shall dismiss the appeal; but it may dismiss the appeal if of opinion that, not- withstanding that the point raised in the appeal might be decided in favour of the appellant, no miscarriage of justice has actually occurred.

(2) An appeal under section 83M may, in a case where the question of fitness to be tried was determined later than on arraignment, be allowed by the Full Court (notwithstanding that the finding was properly come to) if the Full Court is of opinion that the case is one in which the accused person should have been acquitted before the question of fitness to be tried was considered; and, if an appeal is allowed under this subsection, the Full Court shall, in addition to quash- ing the finding, direct a verdict of acquittal to be recorded (but not a verdict of not guilty by reason of insanity).

(3) Subject to subsection (2) of this section, where an appeal under section 83M is allowed, the appellant may be tried accordingly for the offence with which he was charged, and the Full Court may make such orders as appears to it to be necessary or expedient pending any such trial for his custody, admission to bail or continued detention under the Mental Health Ordinance; and the Seventh Schedule shall have effect for applying provisions in Part IV of that Ordinance to persons in whose case an order is made by the Full Court under this subsection.

Further provisions relating to appeals

and questions of law reserved

830. Except where, in the opinion of the Fell Court, a miscarriage of justice has actually occurred, no judgment shall be stayed or reversed under section 81 and no appeal shall be allowed under section 83, 83K or 83N-

(a) on the ground of any defect which, if

pointed out before the jury were empanelled or during the progress of the trial, might have been amended by the court of trial; or

Reference

Governor.

by

1968, © 19 * 17.

Initiating procedure. 1968, G. 19,

■. 18.

19

(b) because of any error committed in summOD-

ing or swearing a juror; or

(c) because of any objection which might have been slated as a ground of challenge of a juror; or

(d) because of any informality in the swearing

of a witness.

Review by Full Court of cases tried on indictmeni

83P. (1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Governor may, if he thinks fit. at any time either-

(a) refer the whole case to the Full Court and the case shall then be treated for all purposes as an appeal to the Full Court by that person; or

(b) if he desires the assistance of the Full Court on any point arising in the case, refer that point to the Full Court for its opinion there- on, and the Full Court shall consider the point so referred and furnish the Governor with its opinion thereon accordingly.

(2) A reference by the Governor under this sec- tion may be made by him either on an application by the person referred to in subsection (1), or without any such application.

Procedure from notice of appeal to hearing

83Q. (1) A person who wishes to appeal under this Part to the Full Court, or to obtain the leave of that Court to appeal, shall give notice of appeal or, as the case may be, notice of application for leave to appeal, in such manner as may be provided by rules and orders made under section 9.

(2) Notice of appeal, or of application for leave to appeal, shall be given within twenty-eight days from the date of the conviction, verdict or finding appealed against, or, in the case of appeal against sentence, from the date on which sentence was passed, or, in the case of an order made or treated as made on convic- tion, from the date of the making of the order: