quite another matter to confer such a power on a district
judge, and more so on a magistrate who may only have a
few years practice and experience. Moreover, the new
section 122 appears to confer powers, both on the
Supreme Court and on subordinate courts, wider than the
inherent powers of the Supreme Court.
3. Another objection to the new section 122 is that if, as the Attorney General states in his Legal Report, the court is not sitting in camera, then it is objection- able in principle that a law-abiding member of the public should
may have to obtain permission from a public officer, to
whom the power has been delegated by the judge or
magistrate, as the case may be, in order to present in
"an open court".
Criticism
4. The new section 123. Much of the above applies
equally to the new section 123. A judge of the
Supreme Court in Hong Kong has wide inherent powers to
order part of a case to be heard in camera; whereas judges and magistrates of subordinate courts have only
statutory powers, in specific cases, to do so. It is very questionable whether judges or magistrates of
subordinate courts should have conferred upon them by
statute these wide inherent powers of a judge of the
Supreme Court.
5. Both of the new sections 122 and 123 would enable al
members of the public to be excluded from the court
while the decision of the court in the case was being
announced. The conferring of such a power, is, as far
as we know, unprecedented in the British system of law dentally it is also contrary to the principle of Article 6 (1) of
departs from
the European Convention for the Protection of Human
Rights and Fundamental Freedoms (Command 8969), which was ratified by the United Kingdom Government in 1951.)
6. In the circumstances described above, it is
necessary to ask you to arrange for the enactment of a
further amending Ordinance. It is considered that the amending Ordinance should: -
(a) deal with the point raised in para. 5 above
by making it clear that the powers conferred
by the new sections 122 and 123 do not extend
to the clearing of the court whilst the
decision of the court is being announced; (b) provide that the new sections 122 and 123 would be in force only when so ordered by
/the Governor
NOTHING TO BE WRITTEN IN THIS MARGIN
No comments yet.
Private notes are available after approval.