30
HONG KONG LEGISLATIVE COUNCIL
such effect. It is, however, usual in most Colonies to follow English law that a dismissal does operate as a bar and to enable the Attorney General to enter a nolle prosequi in magisterial proceedings in the same manner and with the same result as in proceedings by indictment before the Supreme Court. This course has accordingly been adopted. (See the new section 11) introduced by clause 8 of the Bill.)
12. Although section 21 of the principal Ordinance is based on section 1 of the Summary Jurisdiction Act, 1848, it contains a most important addition in that it enables the adjudicating magistrate to give judgment upon the substantial merits of the facts of the case as proved before him and to convict the accused of any offence of which he may appear to be guilty. Magistrates have not infrequently asked for guidance as to correct procedure in such cases and have suggested that the section should be expanded. Clause 11 of the Bill accordingly replaces section 21 of the principal Ordinance with a new section.
13. Section 30 of the Magistrates Ordinance, 1932, was taken from section 16 of the Summary Jurisdiction Act, 1879 (42 and 43 Vict. c.49). That section was repealed and replaced by section 1 of the Probation of Offenders Act, 1907 (7 Edw. 7, c.17). Clause 12 of the Bill is an adaptation of the section from the later English Act which gives wider powers to the magistrate of releasing an offender on probation.
14. Section 43(1) of the Magistrates Ordinance, 1932 (the prin- cipal Ordinance) contains no provision enabling a magistrate to order the prompt disposal of perishable goods or property which cannot conveniently be stored, when such goods or property come into the possession of the police in connection with a criminal offence and the owner is unknown or cannot be traced. As a result, unnecessary waste, expense and inconvenience occur. The object of clause 17 of the Bill therefore is to replace section 43 of the principal Ordinance by a new section which authorises magistrates to make orders for the immediate sale of such goods or property, or to order disposal where sale would be unlawful, dangerous or impracticable. The rights of the owner are, in the event of sale, preserved for six months from the date when the property first came into the hands of the police and in the event of disposal for six months from the date of the order.
15. Section 73, which relates to remands has been recast by clause 24 to bring it into line with the Criminal Justice Act, 1914. Sections 76 and 77 have been recast by clauses 25 and 26 respectively so as to bring procedure into line with the Criminal Justice Act, 1925 (United Kingdoin). The result of the amendment will be that accused will be cautioned before he is asked if he wishes to give evidence on oath or to call witnesses and that the recording of such evidence will be subsequent to the recording of any unsworn statement he wishes to make.
163:
No comments yet.
Private notes are available after approval.