TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 94

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HONG KONG LEGISLATIVE COUNCIL — 1 June 1988

to serve notice of those documents which ought, in the prosecutor's view, be admitted and any other matters which ought to be agreed. The judge may then order the accused to reply stating what he admits or agrees and the reasons for any refusal to admit or agree. The accused may give, as a reason for refusing to admit or agree, any matter, that it is central to a fact on which he takes issue with the prosecution, as indicated in his defence response.

Clause 18 of the Bill gives the judge a discretion to allow a witness to give his evidence before the jury is empanelled. This power can only be exercised where it would be unreasonable because of expense or inconvenience to require attendance before the jury and the nature of the evidence makes such attendance unnecessary. Witnesses who are to give purely technical or procedural evidence could come into this category. For example, a bank clerk, who was about to leave Hong Kong and was merely to testify that a cheque was deposited and recorded on a particular day, could be permitted to give his evidence under this provision.

Restrictions are placed on the reporting of preparatory hearings by clause 19 of the Bill. These merely reflect the current reporting restrictions on committals.

When the preparatory hearing is concluded, the judge will order, under clause 20, that the jury be empanelled. And the trial will then proceed in the usual way.

Clause 22 contains an important safeguard for the accused. He may apply at any time before the jury is empanelled for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him. Thus, while the pre-existing right to a committal will be lost, the accused may still avoid a full trial before the jury if the prosecution case does not stand up.

Clause 23 enables the accused to file a balancing defence case statement to the prosecution case statement. But this is a purely optional document which will indicate the main lines of his defence.

Under the preparatory hearing procedure, many explanatory documents may be prepared to assist the jury. Under clause 25, these and other aids to their understanding, such as transcripts, the speeches of counsel and the judges summing up, may be given to the jury.

The sanction for unnecessary or improper acts or admissions by any party (including the prosecutor) during the proceedings is costs. The party at fault may be ordered under clause 26 to pay costs at any time during the proceedings. Costs may be awarded on a solicitor and own client basis, in other words to reimburse the costs actually being paid by the client.

The Bill enables rules to be made if necessary to regulate practice and procedure and also makes a number of consequential amendments to other Ordinances.

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