TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 92

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HONG KONG LEGISLATIVE COUNCIL 1 June 1988

Concern was also expressed about the definition of complex commercial crime and the extent of the obligations on the defence to disclose its case.

Many constructive suggestions were made and improvements to the proposed legislation were discussed. As a result of those discussions amendments to cater for the areas of concern were made to the White Bill.

The Bill before the Council today introduces a new form of court procedure for dealing with complex commercial crime cases.

As is now the case a person charged with an indictable offence will be brought before a magistrate. The magistrate will deal with preliminary matters such as bail or remand in custody, and the appointment of a day when the matter must come back before the court again. This is known as the return day. At present, on the return day the accused is given the option of having a preliminary enquiry, or committal, before the magistrate. The purpose of a preliminary enquiry is to determine whether the evidence establishes a prima facie case. If so the accused will be committed for trial.

Under clause 3 of the Bill, the Attorney General is empowered to apply to the magistrate for an order transferring the proceedings to the High Court. Such an application may not be made if the accused has already elected to have the charge against him heard at a preliminary enquiry. Before making an application for transfer, the Attorney General must be of the opinion that the evidence of the offence would be sufficient for the accused to be committed for trial, and reveals a case of fraud, or dishonesty in a commercial context, of such seriousness and complexity that it is appropriate that it be so transferred. Sir, this provision meets the concern that the White Bill did not adequately limit the ambit of the legislation to commercial crime.

Under clause 4, the magistrate must order that the proceedings be transferred where the Attorney General has applied. Within seven days of making the order it must be delivered to the Registrar of the High Court.

Appeal against the decision of the Attorney General to apply for an order of transfer or the order itself is prohibited under clause 5.

An obligation is placed on the Attorney General under clauses 6 and 8 to deliver a summary of evidence and an indictment to the registrar, also within seven days of the date of the order of transfer. This means that the High Court will have before it documents to enable it to decide what procedure should be adopted to deal with the transferred case.

Clause 9 introduces the element of judicial discretion in the application of the new procedures. Under the White Bill, the preparatory hearing would have been compulsory. Now, where it appears to a judge that the indictment and the summary of evidence reveal a case of fraud, or dishonesty in a commercial context, of such seriousness and complexity that substantial benefits are likely