629809-1899-Ordinances-13-to-16-of-1899-assented-to — Page 9

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THE HONGKONG GOVERNMENT GAZETTE, 8TH JULY, 1899.

Procedure on indictment containing

count

charging previous conviction.

B. G. Ordi- nauce, . 136.

Objection of

substance to indictment.

B. G. Ordi- nance, s. 103.

Variances and amendments

B. G. Ordi- nance, s. 94. See also H &

12 Vict, e, 46,

8. 4; 14 & 15

Vict. c. 100,

.1; and No. 3 of 1865, s. 24.

Proceedings on making of amendment.

B. G. Ordi- nance, . 95. 14 & 15 Vict. e. 100, s. 2.

No. 5 of 182,

a. 1.

53. Where an indictment contains a count charging the accused person with having been previously convicted, he shall not, at the time of his arraignment, be required to plead to it unless he pleads guilty to the rest of the indict- ment, nor shall such count be mentioned to the jury when he is given in charge to thom when they are sworn, nor shall he be tried ---:་ ་

acquitted on the other counts; but, if he is conve

a any other part of the indictment, he shall be asked whether he has been pre- viously convicted as alleged or not; and if he says that he has not, or does not say that he has, been so convicted, the jury shall be charged to inquire into the matter as in other

cases.

54.-(1.) After the commencement of this Ordinance, no objection to an indictment shall be taken by way of demurrer, but if an indictment does not state in substance an indictable offence or states an offence not triable by the Court, the accused person may move the Court to quash it or in arrest of judgment.

(2.) If such motion is made before the accused person pleads, the Court shall either quash the indictment or ainend it, if it thinks that it ought to be amended.

(3.) If the defect in the indictment appears to the Court during the trial, and the Court does not think fit to amend the indictment, it may, in its discretion, either quash the indictment or leave the objection to be taken in arrest of judgment.

(4.) If the indictment is quashed, the Court may, if it thinks fit, direct the accused person to be detained in custody until the termination of the session or to be released ou bail, and may order him to plead to another indictment when called on at the same session of the Court.

Amendment.

55.-(1.) If, on the trial of any indictment, there appears to be a variance between the proof and the charge in the indictment or in any count in it, either as preferred or as amended, the Court may amend the indictment or any count in it, so as to make it conformable with the proof. If the Court is of opinion that the accused person has not been misled or prejudiced in his defence by such variance, it shall make such amendment.

(2.) If it appears that there is in the indictment, or in any count in it, an omission to state or a defective statement of anything requisite to constitute the offence, or an omission to negative any exception which pught to have been nega- tived, but that the matter omitted or deficient is proved by the evidence, the Court shall, if it is of opinion that the accused person has not been misled or prejudiced in his defence by such omission, or defective statement, amend the indictment or count by inserting in it the matter omitted or deficient.

(3.) The trial in either of these cases may then proceed in all respects as if the indictment or count had been origin- ally framed as amended: Provided that, if the Court is, of opinion that the accused person has been misled or pre- judiced in his defence by any such variance, or omission, or defective statement as aforesaid, but that the effect of such misleading or prejudice might be removed by adjourn- ing or postponing the trial, the Court may, in its discretion, make the amendment and adjourn the trial to a future day, or discharge the jury and postpone the trial, on such terms as it may think just.

(4.) In determining whether the accused person has been misled or prejudiced in his defence or not, the Court shall consider the contents of the depositions, as well as the other circumstances of the case.

56.-(1.) In any case where an amendment is made, the order for the amendment shall be endorsed on the indiet- ment and be entered in the Minute Book of the Court.

(2.) Every verdict and judgment which may be given after the making of any amendment shall be of the same force and effect in all respects as if the indictment had been originally in the same form in which it was after such amendment was made.

(3.) If it becomes necessary at any time for any purpose to draw up a formal record in any case where an amend- ment has been made, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made.