CO129-616-6 Hotels Ordinance- 1949 21-2-1949 - 21-2-1949 — Page 165

HONG KONG LEGISLATIVE COUNCIL

31

16. The object of clause 37 of the Bill is to widen the scope of section 96 of the principal Ordinance to enable more effective steps to be taken against unlicensed hawkers and against licensed hawkers found contravening any Ordinance relating to markets, or causing obstruction by hawking in a public thoroughfare. The proposed new section 96 will enable a magistrate, on convicting an offender, to order the forfeiture of his stall frames and other hawking paraphernalia in addition to the articles being displayed, hawked and sold by him. It is considered that the great increase in the number of offenders (which shews no sign of abating) justifies this measure.

17. In clause 27 of the Bill, section 79 has been recast so that

it now contains two sub-sections. In sub-section (1), the relevant part of the existing section has been expanded-—

(a) to state what, though clearly law, is often disputed, namely, that a discharge is no bar to a subsequent charge or complaint in respect of the same facts; and

(b) to enable the magistrate to investigate a charge disclosed by the inquiry but not the subject of complaint or information.

18. (1) Under section 14 of the principal Ordinance a magistrate is given power at his discretion to grant bail, whether before or during hearing, on the adjournment of any hearing.

(2) Under section 97 of the principal Ordinance, a magistrate is given a discretion to grant bail, in the case of felonies other than treason or murder, and in the case of certain indictable misdemeanors. In other indictable misdemeanors he is directed to grant bail. This section is based on section 23 of the Indictable Offences Act, 1848 (U.K.), with an important exception that in that Act, the class of cases in which bail was discretionary was extended by the words "any other misdemeanor for the prosecution of which costs may be allowed out of the county rate." These words not being applicable to Hong Kong were omitted, but as by the Criminal Cases Act, 1908 (U.K.), all indictable offences can be made the subject of an order for payment of costs out of county rates, the logical course in Hong Kong after the passing of that Act would have been to have made bail discretionary in all misdemeanors. Moreover, in view of section 85, section 97 would only apply to indictable offences for which the accused had been committed for trial. This would lead to the somewhat curious result that a magistrate could refuse bail if he tried the case himself but not if he committed for trial, in which event the offence would presumably be more serious. In view of the foregoing, clause 38 of the Bill seeks to amend section 97 by making bail discretionary in all cases of felony, save treason and murder, and in all cases of indictable misdemeanor.

19. The rehearing of cases under section 99 of the principal Ordinance is not possible in the United Kingdom and the benefits from such a procedure are very doubtful in view of the rights of appeal

164