W(B)L 51-7433
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Saving Despatch
Type 1+5
To:-
From
0.A.G.,
Hong Kong
No 663
Dalid 22 Novembe ich
Telephone No. & Ext.
Department
Mr Smil
Mr. Gaminara
Mr. Carter
In Confidence
13
Sir Arthur Grattan-
D
Bellew
Your Despatch No. 1279 of 1 October.
Criminal Procedure (Amendment)
(No. 2) Ordinance 1968.
Although it is not proposed to recommend the
withholding of notification of Her Majesty's non- disallowance of this Ordinance (notification is being conveyed to you by formal despatch), the two new sections
which it adds to the principal Ordinance depart in
certain respects from fundamental principles inherent
in the British system of justice. Further amending
legislation as indicated below will therefore be required
to restore the situation.
2.
The new section 122. The inveterate rule is that
justice shall be administered in open court apart from
cases of "parental jurisdiction" and powers conferred
by statute. The Supreme Court of Hong Kong has,
however, very wide inherent powers of clearing the court and of punishing for contempt(including contemptuous
interference with judicial proceedings whether in the
court itself or in the precincts of the court) not only in
respect of itself but also in respect of courts subordin-
ate to it. A district judge or a magistrate in Hong
Kong has no such inherent powers. Such powers as they
normally have to deal with contempt are conferred on them
by statute and we are not aware of any British territory
in which the very wide discretion inherent in the
Supreme Court as regards clearing the court and punishing
contempt has been conferred as part of the permanent
law by statute on a judge or a magistrate of a subordinate
court. Although in times of emergency the conferring
of such extensive powers on subordinate courts may be
justified, it is very questionable whether there is
sufficient justification for doing this in normal times,
even in the special circumstances of Hong Kong. It is
one matter for a Supreme Court Judge to have the power
to exercise this wide discretion, he having had many
years of experience in the practice of the law, but it is
/quite another
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