XN000022-1992-05-27 — Page 17

WEDNESDAY, MAY 27, 1992

15

BILL TO HELP ADMINISTRATION OF JUSTICE

* * * * *

THE MAGISTRATES (AMENDMENT) (NO. 2) BILL 1992 INTRODUCED INTO THE LEGISLATIVE COUNCIL TODAY WOULD ASSIST IN THE BETTER ADMINISTRATION OF JUSTICE BY ALLOWING AN APPEAL JUDGE ΤΟ REJECT A CRIMINAL APPEAL FROM A MAGISTRATE WHICH WAS MADE ON TECHNICAL GROUNDS ONLY.

MOVING THE SECOND READING OF THE BILL, THE ATTORNEY THE HON JEREMY MATHEWS SAID THE CRIMINAL PROCEDURE ORDINANCE

GENERAL, PROVIDED

ORDERS WHICH MIGHT BE MADE BY THE COURT OF APPEAL UPON CRIMINAL APPEAL FROM HIGH COURT OR DISTRICT COURT TRIALS.

WHERE AN APPELLANT SUCCEEDED UPON A TECHNICAL POINT ONLY, COURT OF APPEAL MIGHT AFFIRM THE CONVICTION IF IT CONSIDERED THAT MISCARRIAGE OF JUSTICE HAD ACTUALLY OCCURRED.

THE

NO

IN A CASE OF CRIMINAL APPEALS FROM A MAGISTRATE, MAGISTRATES ORDINANCE GAVE THE APPEAL JUDGE A RESIDUAL DISCRETION

'MAKE SUCH OTHER ORDER AS HE THINKS JUST'.

THE то

MR MATHEWS POINTED OUT THAT FOR MANY YEARS IT WAS ASSUMED THAT THIS PERMITTED THE JUDGE TO REFUSE APPEALS WHERE THERE WAS NO MISCARRIAGE OF JUSTICE, ON A SIMILAR BASIS TO THAT ALLOWED IN THE CASE OF DISTRICT COURT AND HIGH COURT CRIMINAL APPEALS.

HOWEVER, IN A CASE IN DECEMBER 1988, THE COURT OF APPEAL HELD THAT THIS ASSUMPTION WAS WRONG.

THE COURT REACHED ITS CONCLUSIONS RELUCTANTLY, AND RECOMMENDED THAT THE LAW BE AMENDED SO AS TO PERMIT THE REJECTION OF APPEALS MADE ON TECHNICAL GROUNDS.

THE COURT SAID THE EXPEDITIOUS AND FAIR DISPATCH OF APPEALS FROM MAGISTRATES IN HONG KONG WOULD GREATLY BE FACILITATED THEREBY.

"THE CURRENT LAW ALLOWS APPEALS TO BE BROUGHT AND SUCCEED ON TECHNICAL ISSUES, AND COMPELS JUDGES TO ORDER NEW TRIALS WITH THE ATTENDANT COSTS OF TIME AND MONEY," MR MATHEWS SAID.

AS SUGGESTED BY THE COURT OF APPEAL, HE SAID, THE PROPOSED BILL WOULD ADD THE PROVISO CONTAINED IN SECTION 83(1) OF THE CRIMINAL PROCEDURE ORDINANCE TO SECTION 119(1)(D) OF THE MAGISTRATES ORDINANCE.

HE SAID HIGH COURT JUDGES ENGAGED IN CRIMINAL WORK HAD BEEN CANVASSED AND CONSIDERED THAT THERE WAS A PRESSING NEED FOR AMENDMENT.

THE CHIEF MAGISTRATE AND DIRECTOR OF LEGAL AID ALSO SUPPORTED THE PROPOSAL.

THE BAR ASSOCIATION AND LAW SOCIETY HAD EXPRESSED CONCERN THAT SUCH A PROVISO COULD OPERATE UNFAIRLY AGAINST AN ACCUSED PERSON.

/THEY FELT