released from
Party acquitted or 11.—And be it enacted, if the Justice or Justices, upon the hearing of any complaint convicted and having in a summary manner, shall deem the offence not to have been proved, or to be of so suffered the punish- ment awarded to be trifling a nature as not to merit any punishment, and shall accordingly dismiss such all complaint, he, or they shall forthwith make out a certificate under his or their hands, further proceedings stating the fact of such dismissal, and shall deliver the certificate to the party against whom such complaint was preferred, and the party who shall have obtained such certificate, or having been convicted of any offence shall have paid the whole amount adjudged to have been paid under such conviction, or shall have suffered such other punishment as may have been awarded therein, shall be released from all further proceedings civil or criminal for the same cause.
for the same cause.
Form of Conviction
defects of form not to vitiate any proceeding.
Protection of Justices.
Action against Justices.
Action prosecutor.
12. And be it enacted, that in all cases, except where a particular form of Judgment or conviction shall have been, or shall be, by any such Ordinance, directed to be used in that behalf, a judgment or conviction in the form, or to the effect of the form, (as the case shall happen to be) prescribed by the Schedule to this Ordinance annexed, shall be good valid and effectual to all intents and purposes whatsoever, without setting forth or storing in such conviction, the name of any informer, or witness, or the particular place where the offence was committed, or whether the defendant appeared, or was, or was not summoned to appear, and without setting forth, or stating the evidence or facts in any further or more particular manner, than shall be necessary to show that the offence, was one against the true intent, and meaning of the Law, and no conviction warrant of committal, or distress, or other proceeding whatsoever, (whether under this, or any other Ordinance, and whether a particular form shall have been or shall be in that behalf directed or not) shall be quashed in any case, for any mere error, or mistake in any name, or date, or title, or in any matter of description only, and where any distress shall be made for levying any money, the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser, on account of any defect want of form in the summons, conviction, warrant of distress, or other proceedings relating thereto, nor shall the party distraining, be deemed a trespasser ab initio, on account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity, may recover satisfaction for the special damage, if any, by an action on the case, and in all cases whatsoever, regard shall be had alone to the substantial merits and justice of the case.
against
13.—And for the protection of Justices, and others acting under their authority, be it enacted, that all actions and prosecutions to be commenced against any Justice, or person acting under his authority, shall be commenced within six months after the fact committed, and not otherwise; and notice in writing of such action, and of the cause thereof shall be given to the defendant, one month at least before the commence- ment of the action; and in any such action, the defendant may plead the general issue, and give any statute, or Ordinance, and the special matter in evidence, at any trial to be had thereupon, and no plaintiff shall recover in any such action, if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court, after such action brought by, or on behalf of the defendant, and if a verdict shall pass for the defendant, or the Plaintiff shall become nonsuit, or discontinue any such action after issue joined, or if upon demurrer, or otherwise judgment shall be given against the Plaintiff, the defendant shall recover his full costs, as between Attorney and Client, and have the like remedy for the same as any defendant hath by law in other cases; and though a verdict shall be given for the plaintiff, in any such action, such plaintiff shall not have costs against the defendant, unless the judge, before whom the trial shall be, shall certify his approbation of the action, and of the verdict obtained thereon.
14.—And be it enacted, that no action or suit shall be brought or instituted against any Justice of the Peace, for or on account of any conviction of any person or persons whatever, by reason of any thing done, or commanded to be done, by such Justice, in or about the levying of any penalty, apprehending any party or for or about the carrying of such conviction into full effect, except and unless the Justice by or before whom such conviction shall have been made, shall have convicted such person of some offence, not punishable on summary conviction, by virtue of any Statute, Law, or Ordinance, or unless such Justice shall have convicted such person in some penalty, either pecuniary or otherwise, not authorized to be imposed on the offence or offences of which such offender shall or may have been guilty, or unless it shall be expressly alleged in the bill of complaint, plaint, or declaration in such action and proved on the trial of such cause, that such acts were done maliciously and without probable cause.
15.—And be it enacted that no action or suit shall be brought against any person or persons, by whom, or on whose account, any information shall have been laid or exhibited before any Justice of the Peace, and by such Justice, or Justices, received for or on account of such information, or for, or on account of any matter or thing done under, or in pursuance of such information, unless it shall be expressly alleged in the bill of complaint, plaint, or declaration of such action, and proved on the trial of such cause, that such information was laid and exhibited maliciously, and without probable cause.
16.—And be it enacted, if any question shall arise, as to the right of any person to exercise the office of a Justice of the Peace, that a Government Notification in any Government Noti- fication sufficient public Newspaper, to the effect that such person has taken the oaths, as a Justice of the proof of right to ex- Peace, shall (on the absence of express proof that such Notification was unauthorized)
ercise office of Jus-
be deemed, and held sufficient proof of such right, in all proceedings whatsoever, and it Lice of the Peace, shall not be necessary to produce any commission, appointment, or any oath, affidavit or other document, in proof of such right as aforesaid.
Governor to autho-
17.—And be it enacted, that it shall be lawful for His Excellency the Governor in Council, to authorize the taking of such fees, in any proceedings before any Justice, as rize fees to be taken may be deemed expedient; and it shall be lawful for any Justice to refuse to do any act, by Justice. for which any fee shall be demandable, unless such fee shall be first paid, and that if any such act shall be done, and the fee due thereon shall not be paid, it shall be lawful for any Justice of the Peace, to summon the person from whom such fee shall be due, and to proceed to recover the same, in like manner as any penalty recoverable by summary proceedings.
Table of fees to be
18.—And be it enacted, that in some conspicuous part of each of the public offices of the Justices within the said Colony, there shall be affixed a table of the fees, which hung up in Public may legally be taken at such offices respectively.
Office.
Justice to account
19. And be it enacted, that the Justices at each of the public offices within the said Colony, and their clerks respectively, shall, in books to be provided for that for and pay over fees purpose, keep a full, true, and particular account of all fees taken, and received, at and penalties. each of the said offices, together with all penalties, and forfeitures which shall have been recovered, levied, or received in pursuance of any adjudication, conviction, or order, had or made at any of the said offices, or any process, or warrant, and shall be strictly accountable for such fees, penalties, and forfeitures, to Her Majesty, Her Heirs, and Successors, and shall pay over the same to the Colonial Treasurer, from time to time, as they may be required.
Distribution of
20. And be it further enacted, that in all cases where, by any Ordinance, a pecuniary penalty is or shall be imposed, the amount of every such penalty, within the Penalties. limits prescribed, shall be in the discretion of the convicting Justice, and that every penalty awarded by such Justice, and declared to be payable to Her Majesty, Her Heirs and Successors, shall (except it shall be otherwise specially provided by any Ordinance) be paid one moiety thereof, and such other part thereof as shall not be adjudicated to be paid in the manner hereinafter next mentioned, to the use of Her Majesty, Her Heirs, and Successors, for the public uses of the Colony of Hongkong, and the support of the Government thereof; and the other moiety, or such part thereof as shall be adjudged by the Justice convicting, to the use of the informer, or party prosecuting, or complaining, or who shall have suffered any damage from the act of the offender, and such parties shall, if the convicting Justice shall so order, but not otherwise, also be entitled to their costs and charges, over, and above such penalty, to be ascertained and assessed as aforesaid.
Witnesses not to
21. And be it enacted, that no person shall, by reason of the application of any penalty to his use, or of his being otherwise interested in the event of the cause, di- rectly or indirectly, be deemed to be incompetent as a Witness, before any Court of Justice, petent by interest. or Justice of the Peace, in any proceeding whatsoever, whether civil or criminal.
22.—And be it enacted, that in all cases where any complaint shall be made Justice to take re- against any person, the Justice, by or before whom such complaint shall be heard, may, if cognizance for good he shall so think proper, require the party complained against, and whether such party shall be convicted or not, on such complaint, to enter into a recognizance, with two sufficient sureties for his good behaviour, for such term, and in such sum, as such Justice shall think proper, so as such term do not exceed twelve months, nor such sum two hundred dollars.
23.—And be it enacted, that from and after the taking effect of this Ordinance, no person shall be liable to be convicted by any justice, in a summary manner as aforesaid, unless upon information laid, and had before a Justice of the Peace, authorized to receive the same, within the space of six calendar months, next after the commission of such offence or offences. Provided always, that nothing herein contained shall extend to prevent any person from being indicted for any offence, as if this Ordinance had not been passed.
behaviour.
Limitation of prosecutions.
Interpretation of
24. And be it enacted, that the word “month,” in this and all other Ordinances, the word “month.”
shall be deemed to mean, a calendar, and not a lunar month.
Chinese offenders
25.—And be it enacted, that in lieu of the whole, or any part of any penalty, provided by any law, statute, or Ordinance whatsoever, it shall be lawful for the to be punished ac- Court, or Justice, before whom the matter shall be adjudicated upon, to sentence any cording to Chinese offender, being a native of China, or a native of Hongkong of Chinese origin, to usage. undergo such punishment, in conformity with the usages of China, as has hitherto been usually inflicted on natives of China, committing offences in this Colony.
HENRY POTTINGER,
Governor, &c., &c., &c.
Passed the Legislative Council the 10th day of April, 1844. RICHARD BURGASS, Clerk of the Legislative Council.
380
released from
Party acquitted or 11- And be it enacted,if the Justice or Justices, upon the hearing of any complaint convicted and having in a summary manner, shall deem the offence not to have been proved, or to be of so suffered the punish. ment awarded to be trifling a mature as not to merit any punishment, and shall accordingly dismiss such all complaint, he, or they shall forthwith make out a certificate under his or their hands, further proceedings stating the fact of such dismissal, and shall deliver the certificate to the party against whom such complaint was preferred, and the party who shall have obtained such certificate, or having been convicted of any offence shall have paid the whole amount adjudged to have been paid under such conviction, or shall have suffered such other punishment as may have been awarded therein, shall be released from all further proceedings civil or criminal for the same cause.
for the same cause.
Form of Conviction
defects of form not to vitiate any proceed ing.
Protection of Justices.
Action against Justices.
Action prosecutor.
12. And be it enacted, that in all cases, except where a particular form of Judgment or conviction shall have been, or shall be, by any such Ordinance, directed to be used in that behalf, a judgment or conviction in the form, or to the effect of the form, (as the case shall happen to be) prescribed by the Schedule to this Ordinance annexed, shall be good valid and effectual to all intents and purposes whatsoever, without setting forth or storing in such conviction, the name of any infarmer, or witness, or the particular place where the offence was committed, or whether the defendant appeared, or was, or was not summoned to appear, and without setting forth, or stating the evidence or facts in any further or more particular manner, than shall be necessary to show that the offence, vas one against the true intent, and meaning of the Law, and no conviction warrant of committal, or distress, or other proceeding whatsoever, (whether under this, or any other Ordinance, and whether a particular form shall have been or shall be in that behalf directed or not) shall be quashed in any case, for any mere error, or mistake in any name, or date, or title, or in any matter of description only, and where any distress shall be made for levying any money, the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser, on account of any defect want of form in the summons, conviction, warrant of distress, or other proceedings relating thereto, nor shall the party distraining, be deemed a trespasser ab initio, ou account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity, may recover satisfaction for the special damage, if any, by an action on the case, and in all cases whatsoever, regard shall be had alme to the substantial merits and justice of the case.
against
13-And for the protection of Justices, and others acting under their authority, he it enacted, that all actions and prosecutions to be commenced against any Justice, ar person acting under his authority, shall be commenced within six months after the fact committed, and aut on herwise; and notice in writing of such action, and of the cause thereof shall be given to the defendam, one month at least before the commence- ment of the action. and in any such action, the defendant may plead the general issue, and give any statute, or Ordinance, and the special matter in evidence, at any trial to be had thereupon, and no plaintiff shall recover in any such action, if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court, after such action brought by, or on behalf of the defendant, and if a verdict shall pass for the defendant, or the Plaintiff shall become nonsuit, or discoutinge any such action atter issue joined, or if upon demurrer, or other wise judgment shall be given against the Plaintiff, the defendant shall recover his full costs, as between Attorney and Client, and have the like remedy for the same as any defendant hath by law in other cases; and though a verdict shall be given for the plaintiff, in any such action, such plaintiff shall not have costs against the defendant, unless the judge, before whom the trial shall be,shall certify his approbation of the action, and of the verdict obtained thereon.
14.- And be it enacted, that no action or suit shall be brought or instituted against any Justice of the Peace, for or on account of any conviction of any person or persons whatever, by reason of any thing done, or commanded to be done, by such Justice, in or about the levying of any penalty, apprehending any party or for or about the carrying of such conviction into full effect, except and unless the Justice by or before whom such conviction shall have been maile, shall hare onvicted such person of some offence,not punishable on summary conviction, by virtue of any Statute,Law,orOrdinance, or unless such Justice shall have convicted such person in some penalty, either pecuniary or otherwise, not authorized to be imposed on the offence or offences of which such offender shall or may have been guilty, or unless it shall be expressly alleged in the bill of complaint, plaint, or declaration in such action and proved on the trial of suchcause, that such acts were done maliciously and without probable cause,
15.--And be it enacted that no action or suit shall be brought against any person or persons, by whom, or on whose account, any information shall have been laid or exhibited before any Justice of the Peace, and by such Justice, or Justices, received for or on account of such information, or for, or on account of any matter or thing done under, or in pursuance of such information, unless it shall be expressly alleged in the bill of complaint, plains, or declaration of such action, and proved ou the trial of such cause, that such information was laid and exhibited maliciously, and without probable
cause.
16-And be it enacted, if any question shall arise, as to the right of any person to exercise the office of a Justice of the Peace, that a Government Notification in any
Government Noti- fication sufficient public Newspaper, to the effert that such person has taken the oaths, as a Justice of the proof of right to ex- Peace, shall on the absence of express proof that such Notification was unauthorized)
ercise office of Jus-
be deemed, and held sufficient proof of such right, in all proceedings whatsoever, and it Lice of the Peace, shall not be necessary to produce any commission, appointment, or any oath, affidavit or other document, in proof of such right as aforesaid.
Governor to autho-
17.- And be it acted, that it shall be lawful for Ii- Es llency the Governor in Council, to authorize the taking of such tees, in any proceedings before any Justice, as rize fes to be taken may be deemed expedient; and it shall be lawful for any Justi & to refuse to do any act, by Justice. for which any fee shall be demandable, unless such fee shall be first paid, and that if any such act shall be done, and the fee due thereon shall not be paid, it shall be lawful for any Justice of the Peace, to summon the person from whom such fee shall be due, and to proceed to recover the same, in like manner as any penalty recoverable by summary proceedings.
Table of fees to be
18.—And be it enacted, that in some conspicuous part of each of the public of ces of the Justices within the said Colony, there shall be affixed a table of the fees, which hung up in Public may legally be taken at such offices respectively.
Office.
Justice to account
19. And be it enacted, that the Justices at each of the public offices within the said Colony, and their clerks respetively, shall, in books to be provided for that for and pay o rives purpose, keep a full, true, and particular account of all fees taken, and received, at and penalties. each of the said offices, together with all penalties, and forfeitures which shall have been recovered, levied, or received in pursuance of any adjudication, conviction, or order, had or made at any of the said offices, or any process, or warrant, and shell be strictly accountable for such fees, penalties, and forfeitures, to Her Majesty, Her Heirs, and Successors, and shall pay over the same to the Colonial Treasurer, from time to time, as they may be required.
Distribution of
20. And be it further enacted, that in all cases where, by any Ordinance, a pecuniary penalty is or shall be imposed, the amount of every such penalty, within the Panaites. limits prescribed, shall be in the discretion of the convicting Justice, and that every penalty awarded by such Justice, and declared to be payable to Her Majesty, Her Heirs and Successors, shall (except it shall be otherwise specially provided by any Ordinance) be paid one moiety thereof, and such other part thereof as shall not be djudicated to be paid in the manner hereinafter next mentioned, to the use of Her Majesty, Her Heirs, and Successors, for the public uses of the Colony of Hongkong, and the support of the Government thereof; and the other moiety, or such part thereof as shall be adjudged by the Justice convicting, to the use of the informer. or party prosecuting, or complaining, or who shall have suffered any damage from the act of the offer der, and such parties shall, if the convicting Justice shall so order, but not otherwise, also be entitled to their costs and charges, over, and above such penalty, o be ascertained and assessed as aforesaid.
Witnesses not to
21. And be it enacted, that no person shall, by reason of the application of any penalty to his use, or of his being otherwise interested in the event of the cause, dire. tly bendered incom- or indirectly, be deemed to be incompetent as a Witness, before any Court of Juice, petent by interest. or Justice of the Peace, in any proceeding whatsoever, whether civil or criminal,
22.--And be it enacted, that in all cases where any complaint shall be made Justice to take re- against any person, the Justice, by or before whom such complaint shall be heard, may, if cognizance for good he shall so think proper, require the party complained against, and whether such party shall be convicted or not, on such complaint, to enter into a recognizance, with two sufficient sureties for his good behaviour, for such term, and in such sum, as such Justice shall think proper, so as such term do not exceed twelve months, nor such sum two hundred dollars.
23-And be it enacted, that from and after the taking effect of this Ordinance, no person shall be liable to be convicted by any justice, in a summary manner as aforesaid, unless upon information laid, and had before a Justice of the Peace, authorized to receive the same, within the space of six ealcudar months, next after the commission of such offence or offences. Provided always, that nothing herein contained shall extend to prevent any person from being indicted for any offence, as if this Ordinance had not been passed.
behaviour.
Limitation of prosecutions.
Interpretation of
24. And be it enacted, that the word month, in this and all other Ordinances, the word month.
shall be deemed to mean, a calendar, and not a lunar month.
Chinese offenders
25--And be it enacted, that in lieu of the whole, or any part of any penalty, provided by any law, statute, or Ordinance whatsoever, it shall be lawful for the to be punished ac- Court, or Justice, before whom the matter shall be adjudicated upon, to sentence any cording to Chinese offender, being a native of China, or a native of Hongkong of Chinese origin, to usage. undergo such punishment, in conformity with the usages of China, as has hitherto been usually inflicted on natives of China, committing offences in thes Colony.
HENRY POTTINGER,
Governor, &c., &c., &c.
Passed the Legislative Council the 10th day of April, 1844. RICHARD BURGASS,-Clerk of the Legislative Council.
380
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