CO129-005 - Sir Henry Pottinger - 1844 — Page 387

committed.

Offender to be the Peace, may by warrant commit such offender to one of Her Majesty's Gaols, with or without hard labour, there to remain for a time in proportion to the amount of the penalty inflicted, and not exceeding six months in the whole, unless the said sum to be levied together with the costs shall be sooner paid.

Service of summons

on

others.

2. And be it further enacted, that in all cases in which no other mode of witnesses and proceeding shall have been or shall be in that behalf provided, the directing of any summons to any person whatsoever, whether a defendant, a witness, or otherwise in the name or names by which he is or has been usually known, whether the same be the real or the feigned or assumed name of such person, and the leaving a copy of such summons at his last usual place of abode, or the affixing a copy thereof, on one of the doors, or some other conspicuous part on the outside of such abode, (such service being proved on the Oath of the persons so serving such summons, and being also in like manner proved to the satisfaction of the sitting Justice or Justices at the hearing of the case, that the person so serving such summons hath endeavoured to serve the same on the party without effect,) shall be deemed to be a legal and effectual service on such party, as fully to all intents and purposes, as if the same summons had been personally served on such party, and as if the same had been directed in his proper and real name, and that every summons may direct the party to appear, either before the Justice or Justices issuing the same, or before any one or more Justice or Justices generally, as the case may require, (without naming any Justice). Provided that such summons shall direct the party so to appear, at a time and place certain, to be named in such summons.

Evidence to be

3.--And be it enacted that the Justice, or Justices, before whom any person may taken down and sub- be convicted in manner aforesaid, shall take the evidence upon Oath of the Witnesses, scribed by witness both for, and against the defendant, and also the statement of the defendant himself, and shall put the same, or the material parts thereof into writing, and shall cause the said Witnesses, and the said defendant, to subscribe such depositions or statement, and he or they shall also subscribe the same and return the same in the manner hereinafter directed.

and Justice.

Justice to issue

4. And be it enacted, that it shall and may be lawful for any Justice of the Peace, warrant for appre- when any information shall be exhibited before him, and in the opinion of such Justice hension of defendant it shall be fit and proper so to do, to grant a warrant under his hand, directed to some in certain cases. constable, peace officer, or other proper person, directing such constable, peace officer, or other proper person, to take any offender, against whom such information shall be laid, and to bring him before such Justice or Justices of the Peace, as the case may require, at a time and place to be named in such warrant.

Offenders to be ap- prehended and con- veyed before a Jus

tice of the Peace.

5. And be it enacted, that it shall be lawful for any person whatsoever, to require any person, who shall commit in his presence any offence, which is or shall be punishable in a summary way, to accompany him forthwith to the nearest Justice of the Peace, or to tell his full name and place of abode; and in case such person shall, after being so required, offend by refusing to go before such Justice of the Peace, or to tell his real name, and place of abode, or by giving such a description of his place of abode, as shall be illusory for the purpose of discovery, it shall be lawful for the party so requiring as aforesaid, and also for any person acting in his aid, to apprehend such offender, and to convey him, or cause him to be conveyed, as soon as conveniently may be to the nearest Justice of the Peace, who shall have full power to require security, for the due appearance of such person, and to commit him for want thereof, or shall make such order therein as the case may require. And any person offending against the provisions, of this section (whether so apprehended or not,) shall, on conviction thereof, in a summary way, before any Justice of the Peace, forfeit and pay such sum of money, not exceeding fifty dollars, as to the convicting Justice shall seem meet in addition to any other penalty he may have incurred. Provided always, that no person so apprehended, shall on any pretence whatsoever, be detained for a longer period than twelve hours, and if he cannot on account of the absence, or distance of the residence of any such Justice of the Peace, be brought before a Justice of the Peace, within the time aforesaid, then the person so apprehended shall be discharged, but may nevertheless be proceeded against for his offence, by summons or warrant, as if no such apprehension had taken place.

Justice to return

6. And be it enacted, that every Justice of the Peace, before whom any person convictions to gene- shall be convicted in a summary manner, shall transmit such conviction, with the ral quarter sessions. depositions and examinations hereinbefore directed to be taken, to the next Court of General Sessions of Magistrates which shall be holden in the said Colony of Hongkong, there to be kept by the proper officer, among the Records of the said court. Certiorari to be

And whereas doubts may arise as to the application of divers acts and statutes allowed in all cases of the Imperial Parliament of Great Britain, whereby the removal of convictions, orders, on certain conditions and other proceedings, had or made by or before Justices of the Peace, is denied and Be it enacted, that such acts and statutes aforesaid, as far as they relate to the non-removal of such convictions, orders, and other proceedings, shall be deemed and taken not to extend to this Colony, or its dependencies, nor to be in force within the same. Provided always, and be it enacted, that no writ of certiorari shall be granted,

taken away.

or allowed, to remove any conviction, judgment, or other proceeding, had or made by any Court of general sessions of Magistrates, or before any Justice or Justices of the Peace in a summary manner, unless the party or parties prosecuting such certiorari, before the allowance thereof, shall enter into a recognizance, with sufficient sureties, before the convicting Justice, or Justices, as the case may be, or before any Judge of such Supreme Court of Judicature as may hereafter be erected at Hongkong, in the sum of Two hundred dollars, in addition to the pecuniary penalty, (if any shall have been inflicted,) with condition to prosecute such certiorari at his or their own charges with effect without any delay, and to pay the party or parties in whose favour, or for whose benefit, such judgment or order was made, within one week after such judgment or order shall be confirmed, their full costs and charges, as between attorney and client; and in case the party or parties, prosecuting such certiorari shall not forthwith enter into such recognizance, or shall not perform the conditions aforesaid, it shall be lawful for the said Justice, or Justices, to proceed and make such further order for the benefit of the party, or parties, for whom such judgment shall be given, in such manner as if no certiorari had been granted, nor shall any writ of certiorari be granted, issued forth, or allowed, unless it shall be moved and applied for on special grounds, within one month next after such conviction, judgment, order, or other proceeding, shall be had or made, nor unless it shall be duly proved that the party or parties suing forth the same, hath, or have given four days notice thereof in writing, to the convicting Justice, or Justices, or any of them, containing the ground of his or their objections, to the end that such Justice or Justices may show cause, if he, or they shall so think fit, against the issuing, or granting of such certiorari; and upon the return of such certiorari, no objections shall be taken by the party suing forth the same, other than such as shall be stated in the said notice.

Witnesses not sp-

8. And be it further enacted, that if any person shall be summoned to appear as a witness, to give evidence before any such Justice or Justices, touching any of the pearing. matters aforesaid, and shall neglect to appear at the time and place for that purpose appointed, without a reasonable excuse for such neglect, every such person shall for every such offence forfeit and pay a penalty of not more than one hundred dollars, which said penalty shall and may be recovered, by proceeding before any one Justice of the Peace, who is hereby authorized to hear and determine such offence in a summary way, and shall be levied and distributed in the manner by this Ordinance provided for other penalties.

Power to appeal

9. And be it further enacted, that in all cases wherein any person shall be convicted in any penalty exceeding fifty dollars, or shall be sentenced to undergo any and manner thereof. imprisonment exceeding one month, by any summary Judgment, or conviction of any Justice or Justices, under or by virtue of any statute or Ordinance, (and no other mode of proceeding shall have been, or shall be in that behalf provided, that it shall be lawful for such person to appeal against such Judgment, or conviction, in the manner hereinafter provided; "that is to say ". if such person (in case a pecuniary penalty shall have been awarded) shall pay into the hands of the convicting Justice, or one of the convicting Justices, double the full amount of such penalty, together with the assessed costs and charges, within one week next after such conviction, or within such time greater or less, as the convicting Justice or Justices shall determine, or (in case no pecuniary penalty shall have been awarded) shall forthwith enter into a Bond to Her Majesty, Her Heirs, and Successors, in such reasonable amount as the convicting Justice or Justices may require with two sufficient sureties, to be approved by such convicting Justice or Justices, conditioned to prosecute such appeal with effect, and to abide the event of the same appeal, and to pay the full amount of all such penalties and costs as shall or may on such appeal be awarded against the appealing party, then it shall be lawful for such person to appeal from such Judgment, or conviction, to such general sessions of Magistrates, as may hereafter be directed to be held from time to time in Hongkong, unless such sessions shall be held within six days next ensuing, and in that case to the general sessions next but one afterwards. And the Justices at such Justices to decide sessions so assembled, shall hear, and thereupon finally determine, the matter of every the matter de novo. such appeal in a summary way, and their Judgment thereon, shall be final and conclusive to all intents and purposes; (unless any writ of certiorari or error shall afterwards be allowed) and such Justices at such sessions so assembled, are upon such appeal hereby authorized to decide upon the matter de novo, and to award in a summary manner such greater, or lesser imprisonment, or penalty, than that appealed against, and such costs to be paid by either party, or to make such other orders therein, as shall appear just and expedient, and the circumstances may require.

10.-And be it enacted that the person or persons to whom such writ of certiorari Depositions to be shall, or may be directed, shall, and he and they are hereby directed to return to the returned with certio- Supreme Court of Judicature aforesaid, with the conviction by such writ ordered to be rari. returned the depositions, and examinations, hereby ordered to be taken by such convicting Justice, or Justices, and upon the hearing of such case it shall, and may be lawful for the said Court, to inspect, and examine such depositions, and examinations, and to make such order thereon, as the substantial merits of the case may require.

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