Description
LAWS OF HONG KONG
CRIMINAL PROCEDURE ORDINANCE
CHAPTER 221
REVISED EDITION 1988
PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER
HONG KONG
CHAPTER 221
CRIMINAL PROCEDURE ORDINANCE
ARRANGEMENT OF SECTIONS
Section................................... Page
1. Short title ..........................8
2. Interpretation .......................8
PART I
BUSINESS OF THE
COURT
3. Master of Crown Office ...............9
4. [Repealed] ...........................9
5. Bringing of prisoners before the court 9
6. [Repealed] ...........................9
7. Assistance by police .................9
8. [Repealed] ...........................9
9. Rules and orders as to practice and procedure 10
9A.........................Legal aid in criminal cases 10
9B.................Rules for payment of allowance to witnesses 11
PART II
PROCEEDINGS PRELIMINARY To
TRIAL
Referring back of case
10.......................................Power to refer back to be dealt with summarily 11
11.......................................Power to refer back for further inquiry 11
12.......................................Further provisions as to referring back 12
Bail
12A................................Power to bail accused person .............. 12
12B......................................Restriction on multiple bail applications 13
12C................................Application by Attorney General for review .............. 13
13.......................................Custody pending review 14
13A......................................Special conditions of bail 14
13AA..............Cash bail ................................................................................... 14
13B......................................Arrest of persons granted bail 15
Institution of proceedings
14.......................................Institution of proceedings by Attorney General 15
15.......................................Right of Attorney General not to prosecute 16
Discharge of accused
16.......................................Discharge of accused after committal without a hearing 16
Indictment
17.......................................Signing of indictments 17
18.......................................Joinder of charges in the same indictment 17
19.......................................Offence committed on high seas or in foreign parts 18
Section Page
20. Averment as to money or bank note ...18
21. Charge of previous conviction .......18
22. General provision as to matters not necessary to be alleged, etc . 18
23. Orders for amendment of indictment, separate trial and postponement of trial 18
24. [Repealed] ..........................19
24A. When indictment shall be preferred .19
24B. Joint trial of indictments .........20
25. Savings and interpretation ....................... 20
Filing and service of indictment
26. Filing of indictment ................20
27. Endorsement of notice of trial ...... 20
28. Delivery of copies of the indictment for service and for information 20
29. Service .............................21
30. Return of service ...................21
Plea
31. Plea of autrefois convict or autrefois acquit 21
Inspection of property, etc.
32. Inspection of property by party or witnesses 21
33. Rule or order for attendance of jury ................... 22
Witnesses
34. Summons to witness to attend High Court or District Court 22
35. Witness to be notified of date of hearing in High Court 22
36. Punishment for disobedience to witness order or summons 22
37. Further process to secure attendance of witness 23
38. Provisions supplementary to section 37 23
38A. Abolition of subpoenas in certain proceedings 24
39-40. [Repealed] .......................24
PART III
PROCEEDINGS AT TRIAL
Mode of trial
41. General mode of trial ...............24
42. Trial at bar ........................25
43. [Repeated] ..........................25
Default of appearance
44. [Repealed] ..........................25
45. Proceedings on non-appearance of accused person 25
46. Apprehension of accused person not appearing 25
47. Abolition of outlawry ...............25
48. [Repealed] ..........................25
Arraignment
49. Arraignment of accused person .......25
50. Effect of plea of not guilty ........26
51. Trial of offences ...................26
Section Page
51A. Entry of verdict of not guilty by order of judge 27
52. Procedure on indictment containing count charging previous conviction 27
53. Objection of substance to indictment 27
Evidence
54. Competency of witnesses in criminal cases 28
55. Evidence of person charged ..........29
56. Right of reply ......................29
57. Calling of wife or husband ..........29
58. Application .........................30
59. Statements of accused persons .......30
60-62. [Repealed] .......................30
Proof of certain matters
63. Proof of previous convictions .......30
64. Proof on trial of plea of autrefois convict or acquit 31
65. [Repealed] ..........................31
65A. Proof of criminal intent ........... 31
65B. Proof by written statement ......... 31
65C. Proof by formal admission .......... 33
65D. Notice of alibi ....................33
65E. Proof of sexual intercourse ........ 35
Case punishable on summary conviction
66. Procedure where person is committed for trial through error 35
Verdict and judgment
66A. Effect of acquittal of co-conspirator ............. 35
67. Special provision For saving validity of verdict in eases of larceny, etc. 35
67A. Computation of sentences of imprisonment 36
68. Cumulative sentences ................36
69. Abolition of attainder ..............37
70. Limitation on imposition of death penalty 37
71. Calling upon the accused after verdict declared unnecessary 37
Costs and compensation
72. Court may award costs against person convicted of indictable offence 37
73. Power to award compensation .........38
73A. Power to award costs in case of acquittal 38
Arraignment and trial of insane person
74. Acquittal on grounds of insanity ....38
75. Unfitness to plead ..................39
76. Orders for admission to hospital ....39
76A. Evidence by prosecution of insanity or diminished responsibility 40
Pregnancy
77. Proceedings and sentence in case of expectant mother convicted of capital
offence .................................40
78. [Repealed]
................................................................................... 41
Section................................... Page
Record of proceedings
79.............................Record of proceedings 41
PART IV
APPEALS, QUESTIONS OF LAW RESERVED AND REFERRED
AND REVIEW
Interpretation
80................................Meaning of sentence 41
Reservation of question of law
81................................Power to reserve question of law for consideration of Court of Appeal 42
Review of sentence on the application of the Attorney General
81A...........Application by Attorney General for review of sentence 42
81B...................Review of sentence by Court of Appeal 43
8IC...Limitation on review of sentence by Court of Appeal under section 81B 44
Reference of question of law
81D.................................Reference to Court of Appeal of question of law following acquittal ......... 44
Appeal against a discharge
81E...............Appeal to Court of Appeal following discharge 45
Appeal against conviction on indictment
82...............................Right of appeal 45
83...................Grounds for allowing appeal under s. 82 46
83A...........Power to substitute conviction of alternative offence 46
83B...................................Sentence where appeal allowed on part of an indictment 47
83C..........Disposal of appeal against conviction on special verdict 47
83D.........Substitution of finding of insanity or unfitness to plead 47
Retrial
83E...........................Power to order retrial 48
83F...................Supplementary provisions as to retrial 48
Appeal against sentence
83G.........Appeal against sentence following conviction on indictment 49
83H....Appeal against sentence in other cases dealt with at the High Court 49
83I.............................Supplementary provisions as to appeal against sentence 50
Appeal in cases of insanity
83J.............................Appeal against verdict of not guilty by reason of insanity ............ 50
83K......................Disposal of appeal under s. 83J 51
83L....................Hospital order on disposal of appeal 52
Unfitness to stand trial
83M...............Right of appeal against finding of disability 52
83N......................Disposal of appeal under s. 83M 53
Further provisions relating to appeals and questions of law reserved
83O Prohibition of staying or reversal of judgment or allowing appeal on specified
grounds ..............................54
Review by Court of Appeal of cases tried on indictment
83P. Reference by Governor
................................................................................... 54
Section Page
Procedure from notice of appeal to hearing
83Q. Initiating procedure ............... 54
83R. Bail ................................... 56
83S. Disposal of groundless appeal ...... 56
83T. Preparation of case for hearing .... 56
The hearing
83U. Right of appellant to be present ...................... 56
83V. Evidence .........................................................................................57
Other matters depending on result of appeal
83W Effect of appeal on sentence ........ 58
83X. Restitution of property on conviction 58
83XX. Award of costs by Court of Appeal ....... 59
Supplementary
83Y. Powers of Court of Appeal under Part IV which are exercisable by single
judge .......... ...................59
PART IVA
OTHER PROCEEDINGS SUBSEQUENT To TRIAL
Restitution of property
84. Restitution of property in case of conviction 60
Criminal bankruptcy orders
84A. Criminal bankruptcy orders against convicted persons ................ 61
84B. Appeals in the case of criminal bankruptcy orders 61
Calendar of sentences
85. Transmission and effect of calendar of sentences ........ 62
86. Delivery and effect of certificate of sentences after each day 63
Undergoing sentence, etc.
87. Effect of undergoing sentence for felony not punishable with death ..... 63
88. Filing of original documents ........63
PART V
PARTIES
89. Aiders, abettors and accessories .... 63
90. Penalties for assisting offenders ... 64
91. Penalties for concealing offences ... 64
92-94. [Repealed] ....... ..............65
PART VI
MISCELLANEOUS
Negative averments
94A. Negative averments .................65
Ownership of property
95. Mode of stating ownership of property of partners, etc . 65
Section Page
96. Mode of stating ownership of church, etc . 65
97. Mode of stating ownership of public property 66
98-99. [Repealed] ........................66
Coercion by husband
100. Abolition of presumption of coercion of married woman by husband 66
Apprehension of offenders
101. Summary apprehension of offender in certain cases 66
101A. Use of force in making arrest, etc . 67
Disposal of property
102. Disposal of property connected with offences 67
103. Seizure of things intended for use in commission of indictable ofrence 68
104. Search warrant ......................68
105. Report of property found upon person apprehended 68
106. Application of money found upon person apprehended 69
Presumption and determination of age
106A. Presumption and determination of age 69
Probation of first offenders
107. Power to permit conditional release of offenders 69
108. Provision in case of offender failing to observe conditions of release 69
109. Conditions as to abode of sureties .. 70
Imprisonment of young offenders
109A. Restriction on imprisonment of persons between 16 and 21 years of age 70
Supervision of young prisoners on release from prison
109AA. Supervision orders ................70
109AB. Recall orders ..................... 72
109AC. Arrest etc. of persons unlawfully at large 72
Suspended sentences
109B. Suspended sentences of imprisonment 73
109C. Power of court on conviction of further ofrence to deal with suspended
sentence .................................74
109D. Court by which suspended sentence is to be dealt with 75
109E. Discovery of further offences ......75
109F. Breach of condition ................76
109G. Interpretation .....................76
109H. [Repealed] .........................76
Enforcing recognizance
110. Preparation of list of persons making default on recognizance 76
111. Issue of writ of execution ..........76
112. Apprehension and detention of person making default where recognizance is
unsatisfied ..............................77
113. Failure of such person when released to appear on appointed day 77
General power to fine
113A. Power of court to fine .............77
Section.................................... Page
Fines, forfeitures, and contempts
114........Powers of court in relation to fines and forfeited recognizances 78
Pardon
115.......................Power to grant conditional pardon 79
116................................Effect of pardon 79
117..............................Recording of pardon 79
118.........................Saving of prerogative of mercy 80
Error, etc.
119......................Prohibition of proceedings in error 80
120............................Interpretation of reference to information ............. 80
121...........................Repeal of rules and orders 80
122............................Power to exclude public from criminal courts ............................... 80
123 Criminal proceedings may be held in camera and non-disclosure of identity of
witnesses in certain cases ...........81
124..........................Amendment of Third Schedule 82
First Schedule.........................Forms 82
Second Schedule ............................................................................................. 84
Third Schedule...............Excepted offences .................................... 84
Fourth Schedule......Effect of orders for admission to hospital 85
Fifth Schedule. Consequences and effect of order for admission to hospital under
section 83D or 83L ........ ............. 85
Sixth Schedule.Procedural and other provisions applicable on order for retrial 86
Seventh Schedule. Application of Part IV of Mental Health Ordinance where order
made under section 83N------86
To consolidate and amend the laws relating to criminal procedure, evidence and
practice.
(Replaced, 24 of 1950, Schedule)
[7 July 1899]
Originally 13 of 1899, 14 of 1906, 31 of 1911, 17 of 1919, 14 of 1929 (Cap. 221, 1950) 29 of 1901,
5 of 1904, 50 of 1911, 51 of 1911, 1 of 1912, 2 of 1912, 8 of 1912, 21 of 1912, 33 of 1912, 27 of
1913, 10 of 1921, 21 of 1922, 34 of 1923, 5 of 1924, 17 of 1930, 25 of 1930, 17 of 1931, 5 of 1933,
37 of 1934, 51 of 1936, 25 of 1937, 27 of 1937, G.N. 678/38, 2 of 1939, 20 of 1948, 45 of 1949, 24
of 1950, 29 of 1952, 6 of 1954, 52 of 1956, 31 of 1958, 12 of 1960, 11 of 1962, 20 of 1964, 46 of
1967, 66 of 1967, 70 of 1967, 11 of 1968, 29 of 1968, 37 of 1968, 15 of 1969, 21 of 1970, 5 of
1971, 30 of 1971, 56 of 1971, 61 of 1971, 63 of 1971, 18 of 1972, 34 of 1972, 48 of 1972, L.N.
250/72, 37 of 1973, L.N. 238/73, L. N. 38/75, 35 of 1976, 74 of 1976, 46 of 1977, 1 of 1978, 2 of
1978, 25 of 1978, 29 of 1978, L.N. 87178, 40 of 1978, 8 of 1979, 20 of 1979, 33 of 1979, 14 of
1980, 13 of 1981, 50 of 1981, 59 of 1981, 68 of 1981, 69 of 1981, L.N. 346/82, 75 of 1982, 46 of
1983,47of1983,48 of 1983 L.N. 395/83, 63 of 1984, 24 of 1986, 14 of 1988, 20 of 1988, 59 of
198 7, 57of 1988
Short title
1. This Ordinance may be cited as the Criminal Procedure Ordinance.
(Amended, 5 of 1924, s. 6)
Interpretation
2. In this Ordinance, unless the context otherwise requires-
'appellant' includes a person who has given notice of application for leave to
appeal; (Added, 34 of 1972, s. 2)
'bailiff' means the bailiff of the court and includes any deputy of the bailiff;
'Correctional Services Department Psychiatric Centre' means the Correctional
Services Department Psychiatric Centre set apart as a prison under section
4 of the Prisons Ordinance (Cap. 234); (Added, 37 of 1973, s. 7)
'court' means the High Court acting in the exercise of its criminal jurisdiction;
'court of trial' in relation to an appeal means the court from which the appeal
lies; (Added, 34 of 1972, s. 2)
'hospital order' means an order made under section 45, 54 or 54A of the
Mental Health Ordinance (Cap. 136); (Added, 34 of 1972, s. 2. Amended,
37 of 1973, s. 7)
'indictment' includes any criminal information triable by a jury;
'medical superintendent' means the medical superintendent or an assistant
medical superintendent of a mental hospital appointed under section 4 of
the Mental Health Ordinance;(Added, 34 of 1972, s. 2)
'mental hospital' means any place declared to be a mental hospital under section 3
of the Mental Health Ordinance; (Added, 34 of 1972, s. 2)
'property' includes goods, chattels, money, valuable securities, and every other
matter or thing, whether real or personal, upon or with reference to which any
offence may be committed;
'Registrar' means the Registrar of the court;
'under disability', in relation to an accused person, means under any disability
such that apart from this Ordinance it would amount to a bar to his being tried;
(Added, 34 of 1972, s. 2)
'witness order' means an order made under section 84(1) of the Magistrates
Ordinance (Cap. 227) and 'conditional witness order' shall be construed
accordingly; (Added, 59 of 1981, s. 3)
'witness summons' means a summons issued under section 34. (Added, 59 of
1981,s.3)
(Amended, 50 of 1911, s. 4; 1 of 1912, Schedule; 21 of 1912, s. 2 and 5 of
1924, s. 12 and Schedule)
PART I
BUSINESS OF THE COURT
Master of Crown Office
3. The Registrar shall ex officio be Master of the Crown Office.
(Amended, 1 of 1912, Schedule)
4. [Repealed, 63 of 1971, s. 11]
Bringing of prisoners before the court
5. The Commissioner of Correctional Services shall, by himself or his deputy,
bring each prisoner awaiting trial before the court when his case is called for trial,
and during the continuance of the trial shall have him under his charge and
custody, and remand him to prison, by permission or order of the court, during the
progress of the trial or on any adjournment thereof.
(Amended, 1 of 1912, Schedule; 5 of 1924, s. 12; 25 of 1937, s. 3;
G.N. 678138 and 63 of 1971, s. 2)
6. [Repealed, 63 of 1971, s. 11]
Assistance by police
7. The police shall afford such assistance as may be necessary to enable the
Commissioner of Correctional Services to comply with the requirements of section 5.
(Amended, 50 of 1911, s. 4; 5 of 1924, ss. 8 and 12; 25 of 1937, s. 3; G.N.
678138 and 63 of 1971, s. 3)
8.[Repealed, 63 of 1971, s. 11]
Rules and orders as to practice and procedure
9. (1) The Chief Justice may make rules and orders regulating the practice and
procedure under this Ordinance:
Provided that no such rules and orders shall be binding until the same have
been approved by the Legislative Council and have been published in the Gazette.
(2) Such rules and orders may provide for regulating and prescribing forms to
be used, the times for or within which documents must be filed or notices given, the
duties of the various officers of the court, the manner in which cases and arguments
are to be presented, and generally for the better carrying out of the provisions of
this Ordinance. (Amended, 24 of 1950, Schedule and 15 of 1969, s. 2)
(3) Subject to the provisions of this Ordinance and to such rules and orders
and any other enactment (including any enactment relating to juries) applicable
thereto, the practice and procedure in all criminal causes and matters (including
trials for treason or misprision of treason) shall be, as nearly as possible, the same
as the practice and procedure from time to time and for the time being in force for
similar cases in England.
(Replaced, 5 of 1933, s. 2)
Legal aid in criminal cases
9A. (1) The Chief Justice may, with the approval of the Legislative Council,
make rules providing for the granting of legal aid in criminal cases to persons of
limited means which rules, in particular, may
(a)make provision as to the information to be given by a person seeking or
receiving legal aid;
(b)make provision as to the manner in which the rate of a person's
disposable income and the amount of his disposable capital are to be
computed for the purpose of the rules and the person or authority by
whom such computation shall be made;
(c)determine whether any resources are to be treated as disposable income
or disposable capital and for taking into account fluctuations of income
(d)determine the contribution towards costs and expenses to be made by a
person receiving legal aid;
(e)determine the extent to which any resources of a person's husband or
wife shall be treated as that person's resources for the purpose of the
rules;
(f)provide, in relation to infants and in other special cases, for taking into
account the resources of other persons;
(g)prescribe the scale of fees and costs which shall be paid to solicitor or
counsel acting for an aided person (or submitting any opinion for the
purpose of the rules);
(h)prescribe any forms to be used for the purpose of the rules.
(2) The expenses of legal aid granted under such rules shall be met from
moneys provided by the Legislative Council.
(Added, 15 of 1969, s. 3) (See also Cap. 91, s. 28(2))
Rules for payment of allowance to witnesses
9B. (1) The Chief Justice may, with the approval of the Legislative Council,
make rules providing for the payment of an allowance to witnesses in criminal
proceedings before any court, and such rules may, in particular, provide for
(a) the classification of witnesses;
(b) the payment of different rates of allowance to different classes of
witnesses; and
(e) the rate of allowance which may be paid to witnesses in a particular class.
(2) The expenses of the allowances paid under such rules shall be met from
moneys provided by the Legislative Council.
(3) In this section-
(a) 'court' includes the District Court and a magistrate;
(b) 'witness' means any person properly attending a court to give evidence,
whether or not called to give evidence at the instance of the court
and whether or not he gives evidence, but does not include a person who is
(i) the complainant or defendant; or (ii)
a public officer,
(Added, 56 of 1971, s. 2)
PART II
PROCEEDINGS PRELIMINARY To TRIAL
Referring back of case
Power to refer back to be dealt with summarily
10. If after receipt of the documents referred to in section 86(1) of the
Magistrates Ordinance (Cap. 227) the Attorney General is of opinion that the
accused person should not have been committed for trial but that the case should
have been dealt with summarily, the Attorney General may, at any time after such
receipt, refer back the case to the magistrate with directions to deal with the case
accordingly, and with such other directions as he may think proper.
(Amended, 1 of 1912, Schedule and 6 of 1954, s. 4)
Power to refer back for further inquiry
11. (1) At any time after the receipt of the documents relating to the case and
before the trial of the accused person, the Attorney General may refer back
the case to the magistrate with directions to reopen the inquiry for the purpose
of taking evidence or further evidence on a certain point or points to be
specified, and with such other directions as he may think proper. (Amended,
1 of 1912, Schedule and 6 of 1954, s. 5)
(2) Subject to any express directions which may be given by the Attorney
General, the effect of any such reference back to the magistrate shall be that the
inquiry shall be reopened and dealt with in all respects as if the accused person
had not been committed for trial.
Further provisions as to referring back
12. (1) Any direction given by the Attorney General under section 10
or 11 shall be in writing, signed by him, and shall be complied with by the
magistrate.
(2) The Attorney General may at any time add to, alter, or revoke any
such direction.
(3) The Attorney General shall transmit forthwith copies of any such
direction to the Registrar and to the Commissioner of Correctional Services,
and on receipt of a copy of any such direction, the Registrar shall transmit to
the committing magistrate all documents in the case that are in his possession or
control. (Replaced, 6 of 1954, s. 6)
(4) When the Attorney General directs that a case shall be dealt with
summarily under section 10 or that an inquiry shall be reopened under sec-
tion 11, the following provisions shall have effect-
(a)where the accused person is in custody, the magistrate may, by an
order in writing under his hand, direct the Commissioner of Correc-
tional Services to convey him or cause him to be conveyed to the place
where such proceedings are to be held, for the purpose of being dealt
with as the magistrate may direct;
(b)where the accused person is on bail, the magistrate shall issue a
summons for his attendance at the time and place when and where
such proceedings are to be held; and
(e)thereafter the proceedings shall be continued under the provisions of
Part III or of Part V of the Magistrates Ordinance (Cap. 227), as the
case may be.
(Amended, 50 of 1911, s. 4 and 5 of 1924, s. 8)
Bail
Power to bail accused person
12A. The court or a judge may at any time, on the application of any
accused person, order such person, whether he has been committed for trial or
not, to be admitted to bail, and the recognizance of bail may, if the order so
directs, be taken before any magistrate or justice of the peace or before the
Commissioner of Correctional Services, the Deputy Commissioner of Correc-
tional Services or a senior superintendent or superintendent of Correctional
Services.
(Amended, 11 of 1968, Schedule and 8 of 1979, s. 2)
Restriction on multiple bail applications
12B. If an accused person is refused or denied bail by the court or ajudge, he
shall not thereafter be entitled to make a fresh application for bail
(a)before the commencement of his trial, except to the court or a judge and
only if he satisfies the court or judge that since the refusal or denial there
has been a material change in relevant circumstances; or
(b) during his trial, except to the court conducting his trial.
(Added, 8 of 1979, s. 2)
Application by Attorney General for review
12C. (1) Where a District Judge or magistrate has admitted or directed the
admission of an accused person to bail, or a magistrate has released or directed the
release of an appellant from custody under section 119 of the Magistrates
Ordinance (Cap. 227), the Attorney General may apply to a judge to review the
decision of the District Judge or magistrate.
(2) Subject to section 13(3), an application under subsection (1) shall be made
by summons before ajudge in chambers and supported by affidavit.
(3) The summons may be served on the accused person or appellant at any
time before the time appointed therein for the hearing.
(4) On the hearing of the application the Attorney General shall be entitled to
put before the judge such relevant argument and such relevant matter as he thinks
proper, whether or not the same was before the District Judge or the magistrate who
made the decision, and the accused person or appellant shall also be entitled to be
heard.
(5) Notwithstanding subsection (4), a judge may hear and determine the
application in the absence of the accused person or appellant if he is satisfied that
the accused person or appellant has been served with the summons or has refused
to accept service of the summons or that all reasonable attempts have been made to
serve the summons.
(6) Where a judge has heard an application under this section in the absence
of the accused person or appellant, he may re-hear the application if he is satisfied
that it is just to do so.
(7) Upon hearing the application, a judge may by order confirm, revoke or vary
the decision of the District Judge or magistrate, and may make such other order in
the matter including an order as to costs as he thinks just.
(8) Where in the absence of the accused person or appellant, a judge has
revoked the admission to bail or release from custody of the accused person or
appellant, he shall issue a warrant for the arrest and detention of the accused
person or appellant.
(9) No appeal shall lie from the decision of a judge on an application under this
section.
Custody pending review
13. (1) Where a District Judge or magistrate has admitted or directed the
admission to bail of an accused person, or a magistrate has released or directed the
release of an appellant from custody under section 119 of the Magistrates
Ordinance (Cap. 227), he shall upon application by or on behalf of the Attorney
General and if the accused person or appellant is present or still in custody, remand
the accused person or appellant in custody and order him to be brought before
ajudge at such time and place as the Registrar may direct.
(2) Where a District Judge or magistrate makes an order under subsection (1)
he shall immediately notify the Registrar who shall cause the accused person or
appellant to be brought before a judge as soon as practicable, and in any event
within 48 hours, and inform the Attorney General of the time and place at which that
will be done.
(3) When the accused person or appellant is brought before him under this
section, a judge may, if he thinks fit, dispense with the requirements of section
12C(2) and (3) and proceed to hear an application under section l2C(1).
(4) If the judge declines to dispense with the requirements of section l2C(2)
and (3), he shall order the accused person or appellant to be kept in custody for
such time as he deems sufficient to enable section l2C(2) and (3) to be complied
with, and may make such other order as he thinks just.
(Added, 8 of 1979, s. 2)
Special conditions of bail
13A. (1) The conditions on which any person is admitted to bail may include
conditions appearing to the court to be likely to result in his appearance at the time
and place required or to be necessary in the interests of justice or for the
prevention of crime.
(1A) Without prejudice to the generality of subsection (1) the court may make
it a condition on which a person is admitted to bail that he shall surrender to the
court, or to such person as the court may specify, any passport or travel document
for such period as the court may specify. (Added, 34 of 1972, s. 3)
(2) A court which on admitting, or directing the admission of, any person to
bail imposes a condition under subsection (1) shall not require him to find sureties
in respect of that condition.
(3) In this section, 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 2)
(Added, 5 of 1971, s. 3)
[cf. U.K. 1967 c. 80, s. 21]
Cash bail
13AA. (1) A court may on admitting, or directing the admission of, an accused
person to bail order that such sum of money as the court may specify be deposited
with the court, as a condition of the admission to bail, by the accused person or a
surety or by both the accused person and a surety.
(2) If a person admitted to bail does not appear at the time and place required
by the court, a court may order any sum deposited pursuant to an order under
subsection (1) to be forfeited and may issue a warrant for the arrest of that person.
(3) An order of a court under subsection (1) may be in addition to any
recognizance, with or without sureties, required by or under this or any other
Ordinance.
(4) In this section 'court' includes the District Court and a magistrate.
(Added, 35 of 1976, s. 3)
Arrest of persons granted bail
13B. (1) Any police officer may arrest without warrant any person who has
been admitted to bail
(a)if the police officer has reasonable grounds for believing that any
condition on or subject to which such person was admitted to bail has
been or is likely to be broken; (Replaced, 35 of 1976, s. 4)
(b)on being notified in writing by any surety for that person (including a
surety who has deposited a sum of money pursuant to an order under
section 13AA(1)) that the surety believes that that person is likely to
break the condition that he will appear at the time and place required and
for that reason the surety wishes to be relieved of his obligations as
surety. (Amended, 35 of 1976, s. 4)
(2) Any person arrested under subsection (1) shall be brought within 24 hours
after his arrest or as soon as practicable thereafter before a magistrate, except where
he was so arrested within the period of 24 hours immediately preceding an occasion
on which he is required by virtue of a condition of his bail to appear before any
court, in which case he shall be brought before that court.
(3) If it appears to the court before which a person is brought under subsection
(2) that any condition on or subject to which such person was admitted to bail has
been or is likely to be broken, the court may
(a) remand that person in custody; or
(b)admit that person to bail on the same conditions or on such other
conditions as it thinks fit,
but if it does not so appear to that court the court shall admit that person to bail on
the same conditions. (Replaced, 35 of 1976, s. 4)
(4) In this section, 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 4)
(Added, 5 of 1971, s. 3)
[cf. U.K. 1967 c. 80, s. 23]
Institution of proceedings
Institution of proceedings by Attorney General
14. (1) The Attorney General, if he sees fit to institute criminal proceedings.
shall institute such proceedings in the court against the accused person as to him
may seem legal and proper
(a)in the case of a committal for trial under section 80C(4) of the Magistrates
Ordinance (Cap. 227), within 7 days of such committal; and
(b) in any other case, on receipt of the documents relating to the case.
(2) Subject to section 16, no court shall inquire into whether or not
proceedings have been instituted within the period specified in subsection (1)(a).
(Replaced, 48 of 1983, s. 4)
Right of Attorney General not to prosecute
15. (1) The Attorney General shall not be bound to prosecute an accused
person in any case in which he may be of opinion that the interests of public justice
do not require his interference.
(2) Whenever the Attorney General declines to file an indictment against any
person committed to prison for trial for any indictable offence he may issue a
warrant in Form 1 in the First Schedule to the Registrar, who shall thereupon, unless
the person in question has been admitted to bail, by order under his hand and the
seal of the court, in Form 2 in the First Schedule, direct the person in whose custody
the prisoner may be immediately to discharge him without any fee from
imprisonment in respect of the ofrence mentioned in such order. (5 of 1904, s. 2,
incorporated. Amended, 50 of 1911, s. 4; 51 of 1911; 1 of 1912, Schedule; 2 of
1912, Schedule and 17 of 1930, s. 4)
(Amended, 8 of 1912, s. 52)
Discharge of accused
Discharge of accused after committal without a hearing
16. (1) Where the accused was committed for trial under section 80C(4) of the
Magistrates Ordinance (Cap. 227) he may at any time
(a)if the Attorney General does not institute proceedings within the period
specified in section 14(1)(a), after the expiration of that period; or
(b)after the filling of the indictment and prior to his arraignment thereon,
(Amended, L.N. 395/83)
apply to ajudge for his discharge on the grounds that the evidence disclosed in the
documents handed to the court under section 80C(I) of the Magistrates Ordinance,
as read with any further evidence the Attorney General has notified the accused he
will seek to have admitted at the trial, is insufficient to establish a prima facie case
against him for the offence with which he is charged or for any other offence for
which he might be convicted upon that charge.
(2) If an application is made under subsection (1) in the circumstances
specified in paragraph (a) thereof
(a)the judge may, of his own motion or on the application of the accused,
require the Attorney General to file indictment within such time, and on
such terms (if any) as to costs as may be specified in the order;
(b)subject to any order under paragraph (a), the Attorney General may at
any time after an application is made under subsection (1), and before the
final determination thereof, file an indictment, but the judge may award
costs against him if the applicant has incurred any costs by reason of the
late filing of the indictment.
(3) The judge may after perusal of the documents and after hearing any
representations which the accused and the Attorney General may wish to make,
direct that the accused shall not be arraigned on the charge, and direct that he be
discharged.
(4) Subject to section 81E(3), a discharge under this section shall be deemed to
be an acquittal.
(5) An accused who has made an application under subsection (1) and
thereafter abandons or does not proceed with his application, may not make a
further application or have the application previously made by him reinstated.
(6) Where an indictment has been filed references in this section to the charge
shall be construed as references to the charge as set out in the indictment.
(7) Without derogation from the generality of his powers under section 9 the
Chief Justice may make rules under that section for regulating and restricting
written or broadcast reports of proceedings under this section or section 81E.
(8) Section 87A(8) and (9) of the Magistrates Ordinance shall apply to a
contravention of rules under section 9 as read with subsection (7) of this section as
they do to a report published or broadcast in contravention of section 87A.
(Added, 48 of 1983, s. 4)
Indictment
Signing of indictments
17. (1) Every indictment shall be signed by the Attorney General, and shall
bear date on the day when it is signed.
(2) [Repealed, 35 of 1976, s. 6]
Joinder of charges in the same indictment
18. (1) Subject to the provisions of the rules under this Ordinance, charges for
more than one felony or for more than one misdemeanor, and charges for both
felonies and misdemeanors, may be joined in the same indictment, but where a
felony is tried together with any misdemeanor the jury shall be sworn and the
person accused shall have the same right of challenging jurors as if all the offences
charged in the indictment were felonies.
(2) If one sentence is passed upon any verdict of guilty on an indictment
containing more counts than one, the sentence shall be good if any of the counts
upon which such verdict has been returned would have justified such sentence.
(17 of 1919, s. 5, incorporated)
[cf. U.K. 1915 c. 90, s. 4]
Offence committed on high seas or in foreign parts
19. In any indictment for an offence committed on the high seas or in foreign
parts, an allegation that the person injured was, at the time of the offence charged,
in the peace of the Queen shall be a sufficient allegation of the jurisdiction of the
court to hear and determine the case.
Averment as to money or bank note
20. In any indictment in which it is necessary to make an averment as to any
money or any note of the Bank of England or of any other bank, it shall be sufficient
to describe such money or bank note simply as money without specifying any
particular coin or bank note; and such allegation, so far as regards the description
of the property, shall be sustained by proof of any amount of coin or of any bank
note, although the particular species of coin of which such amount was composed,
or the particular nature of the bank note, is not proved.
(Amended, 34 of 1972, s. 4)
Charge of previous conviction
21. In any court charging the accused person with having been previously
convicted, it shall be sufficient to state that the accused person was, at a certain
time and place, convicted of an offence punishable on summary conviction or of a
felony or misdemeanor, as the case may be, without further describing the offence.
General provision as to matters not necessary to be
alleged, etc.
22. No indictment shall be held insufficient for want of the averment of any
matter unnecessary to be proved, or for that any person mentioned in the
indictment is designated by a name of office or other descriptive appellation instead
of his proper name, or for omitting to state the time at which the offence was
committed in any case where time is not of the essence of the offence, or for stating
the time imperfectly, or for stating the offence to have been committed on a day
subsequent to that of the indictment, or on an impossible day, or on a day that
never happened, or for want of any statement of the value or price of any matter or
thing, or the amount of damage, injury, or spoil, in any case where the value or
price, or the amount of damage, injury, or spoil, is not of the essence of the offence.
Orders for amendment of indictment, separate trial and
postponement of trial
23. (1) Where, before trial or at any stage of a trial, it appears to the court that
the indictment is defective, the court shall make such order for the amendment of
the indictment as the court thinks necessary to meet the circumstances of the case
unless, having regard to the merits of the case, the required amendments cannot be
made without injustice.
(2) Where an indictment is so amended a note of the order for amendment shall
be endorsed on the indictment.
(3) Where, before trial or at any stage of a trial, the court is of opinion that a
person accused may be prejudiced or embarrassed in his defence by reason of being
charged with more than one offence in the same indictment, or that for any other
reason it is desirable to direct that the person should be tried separately for any one
or more offences charged in an indictment, the court may, order a separate trial of
any count or counts of such indictment.
(4) Where, before trial or at any stage of a trial, the court is of opinion that the
postponement of the trial of a person accused is expedient as a consequence of the
exercise of any power of the court under this Ordinance to amend an indictment or
to order a separate trial of a count, the court shall make such order as to the
postponement of the trial as appears necessary.
(5) Where an order of the court is made under this section for a separate trial or
for the postponement of a trial
(a)if such an order is made during a trial the court may order that the jury are
to be discharged from giving a verdict on the count or counts the trial of
which is postponed or on the indictment, as the case may be; and
(b)the procedure on the separate trial of a count shall be the same in all
respects as if the count had been found in a separate indictment, and the
procedure on the postponed trial shall be the same in all respects (if the
jury has been discharged) as if the trial had not commenced; and
(c)the court may make such order as to admitting the accused person to bail
and as to the enlargement of recognizances and otherwise as the court
thinks fit.
(6) Any power of the court under this section shall be in addition to and not in
derogation of any other power of the court for the same or similar purposes.
(17 of 1919, s. 6, incorporated)
[cf. U.K. 1915 c. 90, s. 5]
24. [Repealed, 35 of 1976, s. 7]
When indictment shall be preferred
24A. (1) Subject to subsection (2) no indictment charging any person with an
indictable offence shall be preferred unless
(a) the person charged has been committed for trial for the offence; or
(aa) the proceedings have been transferred to the court pursuant to an order
made under section 4 of the Complex Commercial Crimes Ordinance (Cap.
394); or (Added, 57 of 1988, s. 29)
(b)the indictment is preferred by the direction or with the consent of a judge;
or
(c)the indictment is preferred pursuant to an order made under section 41 of
the Crimes Ordinance (Cap. 200).
(2) Where a person charged with an indictable offence has been committed for trial, the
indictment against hime may include, eithe in substitution for or in addition to counts
charging the offence for which he was committed, any counts founded on facts or evidence
disclosed in any depositions or in any written statements admitted in evidence under section
81A of the Magistrates Ordinance (Cap. 227), being counts which may lawfully be joined in the
same indictment. (Amended, 34 of 1972, s. 5)
(Added, 5 of 1971, s. 4)
[cf. U.K. 1933 c. 36, s. 2(2)]
Joint trial of indictments
24B. Where 2 or more indictments each contain any one count alleging the
same particulars, other than the names of the persons concerned in the commission
of the offence, the court may, on the application of the Attorney General, order that
such indictments be tried together.
(Added, 61 of 1971,s.2)
Savings and interpretation
25. (1) Nothing in sections 18 and 23 or the rules made under section 9 shall
affect the law or practice relating to the jurisdiction of a court or the place where an
accused person can be tried, nor prejudice or diminish in any respect the obligation
to establish by evidence according to law any acts, omissions or intentions which
are legally necessary to constitute the offence with which the person accused is
charged, nor otherwise affect the laws of evidence in criminal cases. (Amended, 35 of
1976, s. 8)
(2) In section 23 and this section 'the courC means the court before which any
indictable offence is tried or prosecuted.
(17 of 1919, s. 7, incorporated. Amended, 20 of 1948, s. 4)
[cf. U.K. 1915 c. 90, s. 8]
Filing and service of indictment
Filing of indictment
26. Every indictment, when so signed as aforesaid, shall be brought to the
Registrar's office and shall be filed by him in the court.
Endorsement of notice of trial
27. (1) The Registrar shall endorse on or annex to every indictment and every
copy thereof delivered for service a notice of trial, and such notice shall specify the
date on which the accused person shall attend before the.court to answer to the
indictment. (Amended, 63 of 1971, s. 4)
(2) The notice may be in Form 4 in the First Schedule or as near thereto as
circumstances will admit. (Amended, 50 of 1911,s. 4 and 8 of 1912, s. 52)
Delivery of copies of the indictment for service and for
information
28. The Registrar shall deliver or cause to be delivered to the bailiff, for service
on the accused person, a copy of the indictment, with the notice of trial endorsed
on the same or annexed thereto; and, if there are more accused
persons than one, then as many copies as there are persons. The Registrar shall
also deliver or cause to be delivered to the bailiff another copy for the information
of the Commissioner of Correctional Services.
(Replaced, 17 of 1930, s. 5)
Service
29. (1) The bailiff shall, as soon as may be after having received the same,
deliver to a gaoler the copy and notice for the information of the Commissioner of
Correctional Services and to, the accused himself the copy and notice for service on
the accused. (Replaced, 17 of 1930, s. 6)
(2) In any case where the accused person cannot be found, the bailiff shall
leave the said copy and notice with some one of his household for him at his
dwelling-house, or with some one of his clerks for him at his counting-house or
place of business, and, if none such can be found, shall affix the said copy and
notice to the outer or principal door of his dwelling-house.
(3) The bailiff shall, at the time of service, explain to the accused person, or to
the person, if any, with whom the said copy and notice are left, the nature and
exigency thereof.
Return of service
30. The bailiff shall forthwith transmit to the Registrar a return in writing,
signed by him, of the time and mode of service of the said copy and notice.
Plea
Plea of autrefois convict or autrefois acquit
31. (1) In criminal proceedings in any court on a plea of autrefois convict or
autrefois acquit the accused person may state that he has been previously
convicted or acquitted, as the case may be, of the offence charged.
(2) In this section, 'court' includes the District Court and a magistrate,
(Replaced, 34 of 1972, s. 6)
[cf. U.K. 1851 c. 100, s. 28]
Inspection of property, etc.
Inspection of property by party or witnesses
32. (1) Either party shall be at liberty to apply to the court or a judge for a rule
or order for the inspection, by himself or by his Witnesses, of any real or personal
property, the inspection of which may be material to the proper determination of the
issue; and it shall be lawful for the court or judge, if it or he thinks fit, to make such
rule or order, on such terms as to costs and otherwise as the court or judge may
direct.
(2) In this section, 'court' includes the District Court and a magistrate.
(Added, 34 of 1972, s. 7)
Rule or order for attendance of jury
33. It shall be lawful for the court or a judge to make such rules or orders as
may be necessary to procure the attendance of a special or common jury for the trial
of any case depending in the court, at such time and place and in such manner as
the court or judge may think fit.
Witnesses
Summons to witness to attend High Court or District Court
34. (1) For the purpose of any criminal proceedings before the court a
summons requiring the person to whom it is directed to attend before the court and
give evidence or produce any document or thing specified in the summons may be
issued out of the court.
(2) If any person in respect of whom a witness summons has been issued
applies to the court out of which the summons was issued and satisfied it that he
cannot give any material evidence or, as the case may be, produce any document or
thing likely to be of material evidence the court may direct that the summons shall
be of no effect.
(3) Where on any such application a direction is given that a witness summons
shall be of no effect, the person at whose instance the summons was issued may be
ordered to pay the whole or any part of the costs of the application.
(4) Any costs payable under such an order shall be taxed by the proper officer
of the court and payment of those costs shall be enforceable in the same manner as
an order for payment of costs made by the court in a civil case.
(5) A witness summons shall continue to have effect until the conclusion of
the proceedings at which the attendance of the witness is required.
(6) In this section 'court' includes the District Court.
(Replaced, 59 of 1981, s. 3)
[cf. U.K. 1965 c. 69, s. 2]
Witness to be notified of date of hearing in High Court
35. Where a person is the subject of a witness order and a date is set for the
trial at which his attendance is required, the Registrar shall cause to be served upon
him notice in writing of the date and time, and of the place, at which that person's
attendance is required under the witness order.
(Replaced, 59 of 1981, s. 3)
Punishment for disobedience to witness order or summons
36. (1) Any person who-
(a)without just excuse disobeys a witness order or a witness summons
requiring him to attend before a court; or
(b)refuses to be sworn or to give evidence when duly required to do so,
whether or not he is the subject of a witness order or a witness summons,
shall be guilty of a contempt of that court which shall be punishable by that
court summarily as a contempt committed in the face of the court.
(2) No person shall by reason of such disobedience or refusal be liable to
imprisonment for a period exceeding 2 years.
(3) In this section 'court' includes the District Court.
(Replaced, 59 of 1981, s. 3)
[cf. U.K. 1965 c. 69, s. 3]
Further process to secure attendance of witness
37. (1) If the court is satisfied by evidence on oath that a witness in
respect of whom a witness order or witness summons is in force is unlikely to
comply with the order or summons, the court may issue a warrant to arrest the
witness and bring him before it:
Provided that a warrant shall not be issued under this subsection in the case
of a witness subject to a conditional witness order unless notice has been given
requiring him to attend the trial, nor in the case of a witness subject to a witness
summons unless the judge is satisfied by such evidence as aforesaid that the
witness is likely to be able to give material evidence or produce any document
or thing likely to be material evidence in the proceedings.
(2) Where a witness who is required to attend before a court by virtue of a
witness order or a witness summons fails to attend in compliance with the order
or summons the court may-
(a)in any case, cause to be served on him a notice requiring him to attend
the court forthwith or at such time as may be specified in the notice;
(b)if the court is satisfied that there are reasonable grounds for believing
that he has failed to attend without just excuse, or if he has failed to
comply with a notice under paragraph (a), issue a warrant to arrest
him and bring him before the court.
(3) A witness brought before the court in pursuance of a warrant under
this section may be remanded by the court in custody or on bail (with or without
sureties) until such time as the court may appoint for receiving his evidence or
dealing with him under section 36 and where a witness attends a court in
pursuance of a notice under this section the court may direct that the notice
shall have effect as if it required him to attend at any later time appointed by the
court for receiving his evidence or dealing with him as aforesaid.
(4) In this section 'court' includes the District Court.
(Replaced, 59 of 1981, s. 3)
[cf. U.K. 1965 c. 69, s. 4]
Provisions supplementary to section 37
38. (1) If the court issuing a warrant in respect of any witness under
section 37 is of the opinion that it is appropriate to do so, the court may endorse
the warrant for bail, and in any such case-
(a)on the arrest of the witness under the warrant he shall. unless he can
forthwith be brought before the court specified in the warrant, be
taken to a police station; and
(b)the officer in charge of the station shall release him from custody if the
witness, and any sureties required by the endorsement and approved by
the officer, enter into recognizances of such amount as may be fixed by the
endorsement, conditioned for the appearance of the witness before the
court specified in the warrant.
(2) If a court issuing a warrant in respect of any witness under section 37 is of
the opinion that the evidence of the witness can be dispensed with but that
consideration should be given to dealing with him under section 36 it may endorse
the warrant as issued for the purpose of section 36.
(3) Where a witness appears before a court in pursuance of a recognizance
entered into under section 37 or this section, the court may enlarge his
recognizance and those of his sureties, if any, to any later time appointed by the
court for receiving the evidence of that person or dealing with him under section
36.
(4) Without prejudice to the enforcement of any recognizance entered into as
aforesaid, section 37 shall apply to any witness who fails to attend before a court in
compliance with such a recognizance as it applies to a witness who fails to attend
in obedience to a witness summons.
(5) In this section 'court' includes the District Court.
(Replaced, 59 of 1981, s. 3)
[cf. U.K. 1965 c. 69, s. 5(2), (3), (4) & (5)]
Abolition of subpoenas in certain proceedings
38A. No subpoena ad testificandum or subpoena duces tecum shall issue after
the commencement* of the Criminal Procedure (Miscellaneous Provisions)
Ordinance 1981 (59 of 1981) in respect of any criminal proceedings for the purpose
of which a witness summons may be issued.
(Added, 59 of 1981, s. 3)
[cf. U.K. 1965 c. 69, s. 8]
39-40. [Repealed, 63 of 1971, s. 11]
PART III
PROCEEDINGS AT TRIAL
Mode of trial
General mode of trial
41. (1) Every person to be tried before the court shall be tried on an indictment.
(2) Subject to the provisions of section 42 such trial shall be had by and before
a judge and a jury. (Amended, 50 of 1911, s. 4; 1 of 1912, Schedule and 5 of 1924, s.
8)
(3) Notwithstanding subsection (2), but without prejudice to section 59, where
any issue arises in the trial as to the admissibility of any evidence such issue may
be determined before the jury is empanelled. (Added, 63 of 1984, s. 2)
1. 1. 1982
Trial at bar
42. On motion made by the Attorney General, ajudge shall order that the trial
of any indictment shall be had at bar, that is to say, by and before 2 judges and
a jury, and such trial shall be had accordingly.
(Amended, 50 of 1911 and 1 of 1912, Schedule)
43. [Repealed, 5 of 1971, s. 12]
Default of appearance
44. [Repealed, 63 of 1971, s. II]
Proceedings on non-appearance of accused person
45. (1) Where it appears by the return made by the bailiff that the copy of the
indictment and notice of trial has been duly served, and the accused person, on
being thrice called on the day appointed for trial, does not appear, a motion may be
made on behalf of the prosecution, if the accused person has been admitted to bail,
that he and his sureties, if any, may be called on their recognizances, and, in default
of his appearance, that the same may be estreated.
(2) On any such application the court shall make such order as it may think
just.
Apprehension of accused person not appearing
46. Where any person against whom an indictment has been duly preferred,
and who is then at large, does not appear to plead to such indictment, whether he is
under recognizance to appear or not, the court may issue a warrant for his
apprehension.
Abolition of outlawry
47. Outlawry in criminal cases shall be abolished.
(Amended, 50 of 1911, s. 4)
48. [Repealed, 46 of 1967, s. 4]
Arraignment
Arraignment of accused person
49. (1) The accused person shall be placed at the bar unfettered and not in
prison clothes, unless the court sees cause to direct otherwise.
(2) The indictment shall then be read over to him by the Registrar, and
explained, if necessary, by the Registrar or the interpreter of the court; and he shall
be required to plead instantly thereto, unless he objects to the want of due service
of the indictment and notice of trial, and the court finds that. he has not been duly
served therewith.
(3) Where the accused person is a corporation, a plea in writing may be entered
by its representative, and if either the corporation does not appear by a
representative or, though it does so appear, fails to enter as aforesaid any plea, the
court shall order a plea of not guilty to be entered and the trial shall proceed as
though the corporation had duly entered a plea of not guilty. (Added 11 of
1962,s.2)
(4) In this section and in section 87 of the Magistrates Ordinance (Cap. 227),
the expression 'representative' in relation to a corporation means a person duly
appointed by the corporation to represent it for the purpose of doing any act or
thing which the representative of a corporation is by this section or by section 87 of
the Magistrates Ordinance authorized to do, but a person so appointed shall not, by
virtue only of being so appointed, be qualified to act on behalf of the corporation
before any court for any other purpose. A representative for the purposes of this
section and section 87 of the Magistrates Ordinance need not be appointed under
the seal of the corporation, and a statement in writing purporting to be signed by a
managing director of the corporation, or by any person (by whatever name called)
having, or being one of the persons having, the management of the affairs of the
corporation, to the effect that the person named in the statement has been
appointed as the representative of the corporation for the purposes of this section
or of section 87 of the Magistrates Ordinance shall be admissible without further
proof as prima facie evidence that that person has been so appointed. (Added,
11 of 1962,s.2)
Effect of plea of not guilty
50. The accused person, on being arraigned, by pleading generally the plea of
not guilty, shall, by such plea, without further form, be deemed to have put himself
upon the country for trial.
Trial of offences
51. (1) If a person is arraigned on an indictment-
(a)he shall in all cases be entitled to make a plea of not guilty in addition to
any special plea;
(b)he may plead not guilty to the offence specifically charged in the
indictment but guilty to another offence of which he might be found
guilty on that indictment;
(e)if he stands mute of malice, or will not answer directly to the indictment,
or pleads guilty to a charge of a capital offence, the court may order a
plea of not guilty to be entered on his behalf, and he shall then be treated
as having pleaded not guilty.
(2) If on the trial of any information, charge or indictment for any offence other
than treason it is proved that the accused is not guilty of that offence but the
allegations in the information, charge or indictment amount to or include, whether
expressly or by implication, an allegation of another offence falling within the
jurisdiction of the court of trial, he may be found guilty of that other offence or of
an offence of which he, could be found guilty on an information, charge or
indictment specifically charging that other offence.
(3) For the purposes of subsection (2) any allegation of an offence shall be
taken as including an allegation of attempting to commit that offence; and where a
person is charged with attempting to commit an offence or with any assault or other
act preliminary to an offence but not with the completed offence, then he may be
convicted of the offence charged notwithstanding that he is shown to be guilty of
the completed offence.
(4) Where a person arraigned on an indictment pleads not guilty of an offence
charged in the indictment but guilty of some other offence of which he might be
found guilty on that charge, and he is convicted on that plea of guilty without trial
for the offence of which he has pleaded not guilty then, whether or not the 2
offences are separately charged in distinct counts, his conviction of the one
offence shall be an acquittal of the other.
(5) Any power to bring proceedings for an offence by criminal information is
abolished.
(6) Subsections (1) and (2) shall apply to an indictment containing more than
one count as if each count were a separate indictment.
(7) In subsection (2), 'court of trial' includes the District Court and a
magistrate. (Added, 34 of 1972, s. 8)
(Replaced, 5 of 1971, s. 5)
[cf. U.K. 1967 c. 58, s. 6]
Entry of verdict of not guilty by order of judge
51A. Where an accused person arraigned on an indictment pleads not guilty
and the prosecutor proposes to offer no evidence against him, the court before
which the accused person is arraigned may, if it thinks fit, order that a verdict of not
guilty shall be recorded without the accused person being given in charge to a jury,
and the verdict shall have the same effect as if the accused person had been tried
and acquitted.
Added 5 of 1971, s. 5)
[cf. U.K. 1967 c. 80, s. 17]
Procedure on indictment containing count charging
previous conviction
52. 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 indictment, nor shall
such count be mentioned to the jury when he is given in charge to them or when
they are sworn, nor shall he be tried upon it if he is acquitted on the other counts;
but, if he is convicted on any other part of the indictment, he shall be asked whether
he has been previously 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.
Objection of substance to indictment
53. (1) 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.(Amended, 50 of 1911, s.4)
(2) If such motion is made before the accused person pleads, the court shall
either quash the indictment or amend it. (Amended, 50 of 1911 and 1 of 1912,
Schedule)
(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 either quash the indictment
or leave the objection to be taken in arrest of judgment. (Amended, 50 of 1911 and
1 of 1912, Schedule)
(4) If the indictment is quashed, the court may direct the accused person to be
detained in custody until the termination of the session or to be released on bail, and
may order him to plead to another indictment when called on at same session of the
court (Amended, 50 of 1911 and 1 of 1912, Schedule)
Evidence
Competency of witnesses in criminal cases
54. (1) Every person charged with an offence, and the wife or husband as the
case may be of the person so charged, shall be a competent witness for the defence
at every stage of the proceedings, whether the person so charged is charged solely
or jointly with any other person:
Provided as follows
(a)a person so charged shall not be called as a witness in pursuance of this
section except upon his own application;
(b)the failure of any person charged with an offence, or of the wife or
husband as the case may be of the person so charged, to give evidence
shall not be made the subject of any comment by the prosecution;
(c)the wife or husband of the person charged shall not, save as in this
section mentioned, be called as a witness in pursuance of this section
except upon the application of the person so charged;
(d)nothing in this section shall make a husband compellable to disclose any
communication made to him by his wife during the marriage, or a wife
compellable to disclose any communication made to her by her husband
during the marriage;
(e)a person charged and being a witness in pursuance of this section may
be asked any question in cross-examination notwithstanding that it would
tend to criminate him as to the offence charged;
(f)a person charged and called as a witness in pursuance of this section
shall not be asked, and if asked shall not be required to answer, any
question tending to show that he has committed or been convicted of or
been charged with any offence other than that wherewith he is then
charged, or is of bad character, unless
(i) the proof that he has committed or been convicted of such other
offence is admissible evidence to show that he is guilty of the offence
wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the
witnesses for the prosecution with a view to establish his own good
character, or has given evidence of his good character, or the nature or
conduct of the defence is such as to involve imputations on the character
of the prosecutor or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged in the
same proceedings; (Amended, 50 of 1981, s. 2)
(g)every person called as a witness in pursuance of this section shall, unless
otherwise ordered by the court, give his evidence from the witness box or
other place from which the other witnesses give their evidence. (14 of
1906, s. 2, incorporated. Amended, 20 of 1948, s. 4)
(2) Notwithstanding any rule of law, the right of a person charged to make a
statement without being sworn is hereby abolished. (Added, 34 of 1972,s.9)
[cf. U.K. 1898 c. 36, s.1]
Evidence of person charged
55. Where the only witness to the facts of the case called by the defence is the
person charged, he shall be called as a witness immediately after the close of the
evidence for the prosecution.
(14 of 1906, s. 3, incorporated
[cf. U.K. 1898 c. 36, s.
2]
Right of reply
56. (1) The fact that the person charged has been called as a witness shall not
of itself confer on the prosecution the right of reply. (14 of 1906, s. 4,
incorporated. Amended, 34 of 1972, s. 10)
(2) Upon the trial of any person charged with an offence-
(a)the prosecution shall not be entitled to the right of reply on the ground
only that the Attorney General or the Solicitor General appears for the
Crown at the trial; and
(b)the time at which the prosecution is entitled to exercise the right shall,
notwithstanding any rule of law, be after the close of the evidence for the
defence and before the closing speech (if any) by or on behalf of the
person charged. (Added, 34 of 1972, s. 10) [cf. U.K. 1964 c. 34, s. 1(1)]
[cf. U.K. 1898 c. 36, s.
3]
Calling of wife or husband
57. (1) The wife or husband of a person charged with an offence under any
enactment mentioned in the Second Schedule may be called as a witness either for
the prosecution or defence and without the consent of the person charged.
(Amended, 50 of 1911, s. 4 and 20 of 1948, s.4)
(2) Nothing in section 54 shall affect a case where the wife or husband of a
person charged with an offence may at common law be called as a witness without
the consent of that person. (Amended, 20 of 1948, s. 4)
(14 of 1906, s. 5, incorporated)
[cf. U.K. 1898 c. 36, s.4]
Application
58. Sections 54 to 57 shall apply to all criminal proceedings, notwith-
standing any other provision in force at the time of their enactment.
(14 of 1906, s, 6, incorporated. Amended, 20 of 1948, s. 4)
[cf. U.K. 1898 c. 36, s. 6]
Statements of accused persons
59. If on a trial by jury of a person accused of an offence, a statement
alleged to have been made by such accused person is admitted in evidence, all
evidence relating to the circumstances in which the alleged statement was made
shall be admissible for the purpose of enabling the jury to decide upon the
weight (if any) to be given to the statement; and, if any such evidence has been
taken in the absence of the jury before the admission of the statement, the
Crown and such accused person shall have the right to have any such evidence
retaken in the presence of the jury.
(Added, 45 of 1949, s. 2. Amended, 20 of 1948, s. 4)
60-62. [Repealed, 5 of 1971, s. 12]
Proof of certain matters
Proof of previous convictions
63. (1) In any criminal proceedings a previous conviction against any
person may be proved in the manner prescribed in this section in addition to any
other method of proving such conviction.
(2) There shall be produced to the court or magistrate the following-
(a) a certificate in Form 6 in the First Schedule signed by a police officer
authorized in that behalf by the Commissioner of Police certifying the
particulars of any previous convictions extracted from the criminal
records kept by him, and certifying that copies of the finger-prints
exhibited to the certificate are copies of the finger-prints appearing
from such records;
(b) a certificate in Form 7 in the First Schedule signed by the police officer
present at the taking of the finger-prints from the person before the
court or magistrate in exercise of the powers conferred by section 59
of the Police Force Ordinance (Cap. 232), or by order of the court
or magistrate under this section, certifying that the finger-prints ex-
hibited to the certificate are those of such person;
(c) a certificate in Form 8 in the First Schedule signed by a police officer
authorized in that behalf by the Commissioner of Police certifying that
the copies of the finger-prints exhibited to Form 6 and the finger-prints
exhibited to Form 7 are those of the same person.
(3) Any certificate issued under this section and purporting to be signed
by a police officer shall until the contrary is proved be deemed to have been
signed by such police officer and shall be evidence of the facts stated therein.
(4) Where no certificate in Form 7 is available the court or magistrate may
order that the person before the court shall have his finger-prints taken and that
such a certificate shall be prepared.
(5) Where it is desired to prove a conviction in any other part of the
Commonwealth, the court or magistrate may accept a certificate in Form 6
purporting to be signed by the person stated therein to be the person having
control of the relevant criminal records, and such certificate shall be evidence of
the facts stated therein.
(Replaced, 31 of 1958, s. 2)
Proof on trial of plea of autrefois convict or acquit
64. On the trial of an issue on a plea of autrefois convict or autrefois acquit,
the depositions transmitted to the Registrar or Attorney General on the former
trial, together with the judge's notes, if available, and the depositions transmit-
ted to the Registrar on the subsequent charge, shall be admissible in evidence to
prove or disprove the identity of the charges.
(Amended, 6 of 1954, s. 7)
65. [Repealed, 5 of 1971, s. 12]
Proof of criminal intent
65A. (1) A court or jury, in determining whether a person has committed
an offence-
(a)shall not be bound in law to infer that he intended or foresaw a result
of his acts or omissions by reason only of its being a natural and
probable consequence of those acts or omissions; but
(b)shall decide whether he did intend or foresee that result by reference to
all the evidence, drawing such inferences from the evidence as appear
proper in the circumstances.
(2) In this section, 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 9)
(Added, 5 of 1971, s. 6)
[cf. U.K. 1967 c. 80, s. 8]
Proof by written statement
65B. (1) In any criminal proceedings, other than committal proceedings,
a written statement by any person shall, subject to the conditions contained in
subsection (2), be admissible as evidence to the like extent as oral evidence to the
like effect by that person.
(2) A statement may be tendered in evidence under subsection (1) if-
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it
is true to the best of his knowledge and belief,
(c) before the hearing at which the statement is tendered in evidence, a
copy of the statement is served, by or on behalf of the party proposing
to tender it, on each of the other parties to the proceedings; and
(d)none of the other parties or their solicitors, within 14 days from the
service of the copy of the statement, serves a notice on the party so
proposing objecting to the statement being tendered in evidence under
this section:
Provided that paragraphs (c) and (d) shall not apply if the parties agree
before or during the hearing that the statement shall be so tendered.
(3) If a statement tendered in evidence under subsection (1)-
(a) is made by a person under the age of 21, it shall give his age;
(b)is made by a person who cannot read it, it shall be read to him before
he signs it and shall be accompanied by a declaration by the person
who so read the statement to the effect that it was so read;
(c)is made in a language other than English, it shall be accompanied by
an English translation thereof and, unless otherwise agreed by or on
behalf of the prosecutor and defendant (or, if more than one, all the
defendants), the translation shall be certified by the court translator;
(Amended, 20 of 1988, s. 2)
(d)refers to any other document as an exhibit, the copy served on any
other party to the proceedings under subsection (2)(c) shall be
accompanied by a copy of that document or by such information as
may be necessary in order to enable the party on whom it is served to
inspect that document or a copy thereof.
(4) Notwithstanding that a written statement made by any person may be
admissible as evidence by virtue of this section-
(a)the party by whom or on whose behalf a copy of the statement was
served may call the person making the statement to give evidence; and
(b)the court may, of its own motion or on the application of any party to
the proceedings either before or during the hearing, require the person
making the statement to attend before the court and give evidence.
(5) So much of any statement as is admitted in evidence by virtue of this
section shall, unless the court otherwise directs, be read aloud at the hearing and
where the court so directs an account shall be given orally of so much of any
statement as is not read aloud.
(6) Any document or object referred to as an exhibit and identified in a
written statement admitted in evidence under this section shall be treated as if
it had been produced as an exhibit and identified in court by the maker of the
statement.
(7) A document required by this section to be served on any person may
be served-
(a) by delivering it to him or to his solicitor; or
(b)in the case of a body corporate, by delivering it to the secretary or
clerk of the body at its registered or principal office or by sending it by
registered post addressed to the secretary or clerk of that body at that
office.
(8) In this section, 'court' includes the District Court and a magistrate.
(Added, 34 of 1972, s. 11)
(Added, 5 of 1971, s. 6)
[cf. U.K. 1967 c. 80, s. 9]
Proof by formal admission
65C. (1) Subject to the provisions of this section, any fact of which oral
evidence may be given in any criminal proceedings may be admitted for the
purpose of those proceedings by or on behalf of the prosecutor or defendant
and the admission by any party of any such fact under this section shall as
against that party be conclusive evidence in those proceedings of the fact
admitted.
(2) An admission under this section-
(a) may be made before or during the proceedings;
(b) if made otherwise than in court, shall be in writing;
(c)if made in writing by an individual, shall purport to be signed by the
person making it and, if so made by a body corporate, shall purport to
be signed by a director or manager, or the secretary or clerk, or some
other similar officer of the body corporate;
(d)if made on behalf of a defendant who is an individual, shall be made
by his counsel or solicitor;
(e)if made at any stage before the trial by a defendant who is an
individual, must be approved by his counsel or solicitor (whether at
the time it was made or subsequently) before or during the proceed-
ings in question.
(3) An admission under this section for the purpose of proceedings
relating to any matter shall be treated as an admission for the purpose of any
subsequent criminal proceedings relating to that matter (including any appeal
or retrial).
(4) An admission under this section may with the leave of the court be
withdrawn in the proceedings for the purpose of which it is made or any
subsequent criminal proceedings relating to -the same matter.
(5) In this section, 'court' includes the District Court and a magistrate.
(Added, 34 of 1972, s. 12)
(Added, 5 of 1971, s. 6)
[cf. U.K. 1967 c. 80, s. 10]
Notice of alibi
65D. (1) On a trial on indictment the defendant shall not without the
leave of the court adduce evidence in support of an alibi unless, before the end
of the prescribed period, he gives notice of particulars of the alibi.
(2) Without prejudice to subsection (1), on any such trial the defendant
shall not without the leave of the court call any other person to give evidence in
support of an alibi unless-
(a)the notice under subsection (1) includes the name and address of the
witness or, if the name and address is not known to the defendant at the
time he gives the notice, any information in his possession which might
be of material assistance in finding the witness;
(b)if the name or the address is not included in that notice, the court is
satisfied that the defendant, before giving the notice, took and thereafter
continued to take all reasonable steps to secure that the name or address
would be ascertained;
(c)if the name or the address is not included in that notice, but the defendant
subsequently discovers the name or address or receives other information
which might be of material assistance in finding the witness, he forthwith
gives notice of the name, address or other information, as the case may
be;
(d)if the defendant is notified by or on behalf of the prosecutor that the
witness has not been traced by the name or at the address given, he
forthwith gives notice of any such information which is then in his
possession or, on subsequently receiving any such information,
forthwith gives notice of it.
(3) The court shall not refuse leave under this section if it appears to the court
that the defendant was not informed in accordance with the provisions of section
85A of the Magistrates Ordinance (Cap. 227) or section 4 of the Complex
Commercial Crimes Ordinance (Cap. 394), as the case may be, of the requirements of
this section. (Amended, 57 of 1988, s. 30)
(4) Any evidence tendered to disprove an alibi may, subject to any directions
by the court as to the time it is to be given, be given before or after evidence is
given in support of the alibi.
(5) Any notice purporting to be given under this section on behalf of the
defendant by his solicitor shall, unless the contrary is proved, be deemed to be
given with the authority of the defendant.
(6) A notice under subsection (1) shall either be given in court during, or at the
end of, the committal proceedings or upon the making of an order of transfer under
section 4 of the Complex Commercial Crimes Ordinance (Cap. 394), as the case may
be, or be given in writing to the prosecutor, and a notice under subsection (2)(c) or
(d) shall be given in writing to the prosecutor. (Amended, 57 of 1988, s. 30)
(7) A notice required by this section to be given to the prosecutor may be
given by delivering it to the Attorney General or by leaving it at the Attorney
General's office, or by sending it by registered post addressed to the Attorney
General at his office.
(8) In this section-
'evidence in support of an alibi' means evidence tending to show that by reason of
the presence of the defendant at a particular place or in a particular area at a
particular time he was not, or was unlikely to have been, at the place where the
offence is alleged to have been committed at the time of its alleged
commission;
'the prescribed period' means the period expiring not less than 10 days prior to the
commencement of the trial or in relation to proceedings transferred to the court
under section 4 of the Complex Commercial Crimes Ordinance (Cap. 394), such
period as may be prescribed by the judge at the trial. (Amended, 57 of 1988, s.
30)
(9) In computing the prescribed period there shall be disregarded any day
which is a general holiday under the Holidays Ordinance (Cap. 149).
(Added, 5 of 1971, s. 6)
[cf. U.K. 1967 c. 80, s. 11]
Proof of sexual intercourse
65E. Where in any criminal proceedings it is necessary to prove sexual
intercourse, it shall not be necessary to prove the completion of the intercourse by
the emission of seed, but intercourse shall be deemed complete upon proof of
penetration only.
(Added, 1 of 1978, s. 8)
Case punishable on summary conviction
Procedure where person is committed for trial through error
66. (1) If, either before or during the trial of an accused person, it appears to
the court that such person has been guilty of an offence punishable only on
summary conviction, the court may either order that the case shall be remitted to a
magistrate with such directions as it may think proper or allow the case to proceed,
and, in case of conviction, impose such punishment upon the person so convicted
as might have been imposed by a magistrate and as the court may deem proper.
(Amended, 5 of 1924, Schedule)
(2) It shall be the duty of the magistrate to whom any such directions are
addressed to obey the same.
Verdict and judgment
Effect of acquittal of co-conspirator
66A. A person shall not be entitled to be acquitted of the offence of
conspiracy for the reason only that the only other person or persons with whom he
is alleged, in the indictment or charge sheet, to have entered into that conspiracy
are or have been acquitted.
(Added, 47 of 1983, s. 2)
Special provision for saving validity of verdict in cases of
larceny, etc.
67. (1) No verdict of any jury against any person, and no sentence of the court
on any person, who is found guilty of larceny, embezzlement, fraudulent application
or disposition of anything or obtaining anything by false pretences
shall be set aside or reversed, if on the trial there was evidence to prove that such
person committed any one of such offences.
(2) The punishment awarded against such person shall not exceed the
punishment which could have been awarded for the offence actually committed,
according to the proper legal designation thereof, and no person so convicted shall
be liable to be afterwards prosecuted for any such ofrence on the same facts.
Computation of sentences of imprisonment
67A. (1) The length of any sentence of imprisonment imposed on a person by
a court shall be treated as reduced by any period during which he was in custody
by reason only of having been committed to custody by an order of a court made in
connection with any proceedings relating to the sentence or the offence for which
it was passed, or with any proceedings from which those proceedings arose, but
where the person was, in respect of the offence for which the sentence of
imprisonment was imposed, subject to an earlier order made under
(a) section 3 of the Probation of Offenders Ordinance (Cap. 298);
(b) section 36 of the Magistrates Ordinance (Cap. 227); or
(c) section 109B of this Ordinance,
any such period of custody falling before the earlier order was made shall be
disregarded for the purposes of this section.
(2) For the purposes of this section a suspended sentence shall be treated as a
sentence of imprisonment when it takes effect under section 109C and as being
imposed by the order under which it takes effect.
(3) No period of custody, other than a period which would have been taken
into account immediately before the commencement of the Criminal Procedure
(Amendment) Ordinance 1983 (46 of 1983) for the purpose of reducing a term of
imprisonment, shall be taken into account for the like purpose under this section
unless it falls after the commencement of the Criminal Procedure (Amendment)
Ordinance 1983.
(4) Any reference in this or any other Ordinance to the length of any sentence
of imprisonment shall, unless the context otherwise requires, be construed as a
reference to the sentence pronounced by the court and not the sentence as
reduced by this section.
(5) In this section 'court' includes the District Court and a magistrate.
(Replaced, 46 of 1983, s. 2)
[cf. U.K. 1967 c. 80, s. 67]
Cumulative sentences
68. Where the court sentences any person to undergo a term of imprison-ment
for an offence, and such person is already undergoing, or has been at the session of
same session of the court sentenced to undergo imprisonment for another offence, it shall be lawful
for the court to direct that such imprisonment shall commence at any time during or
at the expiration of the term of imprisonment which such person is then undergoing
or has been so previously sentenced to undergo, as aforesaid. (Amended, 46 of 1983,
s. 3)
[cf. U.K. 1827 c. 28, s. 10]
Abolition of attainder
69. No confession, verdict, inquest, conviction, or judgment of or for any
treason or felony or felo de se shall cause any attainder or corruption of blood or
any forfeiture or escheat.
[cf. U.K. 1870 c. 23, s. 1]
Limitation on imposition of death penalty
70. (1) Sentence of death shall not be pronounced on or recorded against a
person convicted of an offence if it appears to the court at the time the offence was
committed he was under the age of 18 years; but the court shall direct the finding of
the jury to be recorded, and thereupon the court shall order such person to be
detained in safe custody in such place and manner as the court thinks fit, until Her
Majesty's pleasure shall be known.
(2) The judge shall immediately report the finding of the jury and the detention
of such person to the Governor who shall order such person to be detained in such
place and under such conditions as he may direct.
(3) The Governor at any time may order that a person so detained shall be
released on licence, in such form and subject to such conditions as the Governor
may direct and a licence so issued may be revoked at any time and on such
revocation, the person may be arrested without warrant.
(Added, 29 of 1952, s. 2. Replaced, 52 of 1956, s. 2)
[cf. U.K. 1948 c. 58, s. 16]
Calling upon the accused after verdict declared unnecessary
71. It shall not be necessary in any case whatsoever when a verdict of guilty
has been returned by the jury to ask the accused whether he has anything to say
why judgment should not be given against him, but upon a verdict of guilty being
returned by the jury in any case it shall be lawful for the judge, failing any motion in
arrest of judgment, forthwith to pass sentence upon the accused.
(10 of 1921, s. 3, incorporated. Amended, 5 of 1924, s. 26)
Costs and compensation
Court may award costs against person convicted of
indictable ofrence
72. (1) It shall be lawful for the court, on the conviction of any person for an
indictable offence, in addition to such sentence as may otherwise by law be passed,
to condemn such person to the payment of the whole or any part of the costs or
expenses incurred in and about the prosecution and conviction for the offence of
which he is convicted.
(2) The payment of such costs and expenses or any part thereof may be
ordered by the court to be made out of any moneys taken from such person on his
apprehension, or may be enforced at the instance of any person liable to pay or
who may have paid the same in such and the same manner as the payment of any
costs ordered to be paid by judgment or order of the High Court in any civil action
or proceeding may be enforced:
Provided that in the meantime and until the recovery of such costs and
expenses from the person so convicted as aforesaid or from his estate, the same
shall be paid and provided for in the same manner as if this Ordinance had not been
passed; and any money which may be recovered in respect thereof from the person
so convicted, or from his estate, shall be applicable to the reimbursement of any
person or fund by whom or out of which such costs and expenses may have been
paid or defrayed.
(Amended, 50 of 1911 and 1 of 1912, Schedule)
[cf. U.K. 1870 c. 23, s. 3]
Power to award compensation
73. (1) Where a person is convicted of an offence, the court may, in addition to
passing such sentence as may otherwise by law be passed or making an order
under section 107(1), order the person so convicted to pay to any aggrieved person
such compensation for
(a) personal injury;
(b) loss of or damage to property; or
(c) both such injury and loss or damage,
as it thinks reasonable.
(2) The amount ordered as compensation under subsection (1) shall be deemed
a judgment debt due to the person entitled to receive the same from the person so
convicted, and the order for payment of compensation may be enforced in such and
the same manner as in the case of any costs or expenses ordered by the court to be
paid under section 72.
(Replaced, 48 of 1972, s. 4)
Power to award costs in case of acquittal
73A. (1) Where after trial in the court a person is acquitted, the court may
order the payment out of the public revenue of the costs of the defence, including
the costs of any proceedings before a magistrate.
(2) The costs payable to any person under this section shall be such sums as
appear to the court reasonably sufficient to compensate that person for any
expenses properly incurred by him in or about the defence.
(3) The amount of costs ordered to be paid under this section shall, except
where the amount is fixed by the court, be ascertained b(4) In this section, 'court' means the High Court and the District Court.
(Added, 2 of 1978, s. 2)
[cf. U.K. 1973 c. 14, ss. 3 & 4]
Arraignment and trial of insane person
Acquittal on grounds of insanity
74. Where in an indictment any act or omission is charged against any person
as an offence and it is given in evidence on trial of such person for that offence that
he was insane, so as not to be responsible according to law for his actions at the
time when the act was done or the omission made, then, if it
appears to the jury before whom such person is tried that he did the act or made the
omission charged, but was insane as aforesaid at the time when he did or made the
same, the jury shall return a special verdict that the accused person is not guilty by
reason of insanity.
(Replaced, 34 of 1972, s. 13)
[cf. U.K. 1964 c. 84, s. 1; 1883 c. 38, s. 2]
Unfitness to plead
75. (1) Where on the trial of a person the question arises (at the instance of the
defence or otherwise) whether the accused person is under disability, the following
provisions shall have effect.
(2) The court, if having regard to the nature of the supposed disability is of
opinion that it is expedient so to do and in the interests of the accused person, may
postpone consideration of the said question (hereinafter referred to as 'the
question of fitness to be tried') until any time up to the opening of the case for the
defence, and if before the question of fitness to be tried falls to be determined the
jury return a verdict of acquittal on the count or each of the counts on which the
accused person is being tried that question shall not be determined.
(3) Subject to subsection (2), the question of fitness to be tried shall be
determined as soon as it arises.
(4) The question of fitness to be tried shall be determined by a jury; and-
(a)where it falls to be determined on the arraignment of the accused person,
then if the trial proceeds the accused person shall be tried by a jury other
than that which determined that question;
(b)where it falls to be determined at any later time it shall be determined by a
separate jury or by the jury by whom the accused person is being tried, as
the court may direct.
(5) Where in accordance with subsection (2) or (3) it is determined that the
accused person is under disability, the trial shall not proceed or further proceed.
(6) In this section 'verdict or acquittal' does not include a special verdict that
the accused person is not guilty by reason of insanity. [cf. U.K. 1964 c. 84, s.8(2)]
(Replaced, 34 of 1972, s. 13)
[cf. U.K. 1964 c. 84, s. 4]
Orders for admission to hospital
76. (1) Where-
(a) a special verdict that the accused person is not guilty by reason of
insanity is returned; or
(b) a finding is recorded that the accused person is under disability, the court
shall make an order that the accused person be admitted to the Correctional
Services Department Psychiatric Centre or such mental hospital as may be specified
by the Governor.
(2) The provisions in that behalf of the Fourth Schedule shall have effect in
relation to orders for admission to the Correctional Services Department Psychiatric
Centre or a mental hospital made under this section.
(3) Subject to the provisions of the Fourth Schedule, if while a person is
detained in a mental hospital in pursuance of an order under subsection (1)(b) the
Governor, after consultation with the medical superintendent, is satisfied that the
said person can properly be tried, the Governor may by order direct that such
person be remitted to prison or to a training centre established under section 3 of
the Training Centres Ordinance (Cap. 280) for trial at the court where but for the
order he would have been tried; and on his arrival at the prison or training centre
the order under subsection (1)(b) shall cease to have effect.
(Replaced, 34 of 1972, s. 13. Amended, 37 of 1973, s. 7)
(4) Subject to the provisions of the Fourth Schedule, if the Governor, after
consultation with the Commissioner of Correctional Services, is satisfied that a
person detained in the Correctional Services Department Psychiatric Centre in
pursuance of an order under subsection (1)(b) can properly be tried
(a)the Governor may by order direct that such person be detained in the
custody of the Commissioner of Correctional Services for trial at the court
where but for the order under subsection (1)(b) he would have to be tried;
and
(b)the order under subsection (1)(b) shall cease to have effect if the Governor
makes an order under paragraph (a). (Added, 37 of 1973, s. 7)
[cf. U.K. 1964 c. 84, s. 5]
Evidence by prosecution of insanity or diminished
responsibility
76A. Where on a trial for murder the accused person contends
(a)that at the time of the alleged offence he was insane so as not to be
responsible according to law for his actions; or
(b)that at that time he was suffering from such abnormality of mind as is
specified in section 3(1) of the Homicide Ordinance (Cap. 339) (diminished
responsibility),
the court shall allow the prosecution to adduce or elicit evidence tending to. prove
the other of those contentions, and may give directions as to the stage of the
proceedings at which the prosecution may adduce such evidence.
(Added, 34 of 1972, s. 13)
[cf. U.K. 1964 c. 84, s. 6]
Pregnancy
(Amended, 13 of 1981, s. 7)
Proceedings and sentence in case of expectant mother
convicted of capital offence
77. (1) Where a woman convicted of an offence punishable with death is found
in accordance with the provisions of this section to be pregnant, the sentence to be
passed on her shall be sentence of imprisonment for life instead of sentence of
death.
(2) Where any such woman alleges that she is pregnant, or where the court
before whom she is convicted thinks fit so to direct, before sentence is passed 2 or
more medical practitioners shall be sworn and shall examine the woman in some
private place, either together or successively, and shall inquire whether she is
pregnant or not. If on the report of any of such medical practitioners it appears to
the court that the woman is pregnant sentence of death shall not be passed upon
her.
(3) No jury de ventre inspiciendo shall be empanelled or sworn in any such
case.
(4) Where on proceedings under subsection (2) the court finds that the woman
in question is not pregnant, and passes sentence of death, the woman may appeal
to the Court of Appeal under section 81, and that court, if satisfied for any reason
that the finding should be set aside, shall quash the sentence passed on such
woman and shall pass instead sentence of imprisonment for life.
(5) The rights conferred by this section on a woman convicted of an ofrence
punishable with death shall be in substitution for the right of such a woman to
allege in stay of execution that she-is quick with child.
(Replaced, 37 of 1934, s. 2)
[cf. U.K. 1931 c. 24]
78. [Repealed, 13 of 1981, s. 7]
Record of proceedings
Record of proceedings
79. (1) A record (whether by means of shorthand notes, by mechanical means
or otherwise) kept in accordance with rules made under section 9, or such other
record as the trial judge may direct, shall be taken of the proceedings at the trial of
any person on indictment who, if convicted, is entitled or may be authorized to
appeal to the Court of Appeal, and on any appeal or application for leave to appeal,
a transcript of the record or any part thereof shall be made if the Registrar so directs,
and furnished to the Registrar for the use of the Court of Appeal or any judge
thereof, and a copy of such transcript if so made shall be furnished to any party
interested on his application in accordance with such conditions as may be
prescribed by rules made under section 9. (Amended, 63 of 1984, s. 3)
(2) For the purposes of this section 'a party interested' shall mean the
prosecutor or the person convicted or any person named in, or immediately
affected by, any order made by the trial judge or any other person authorized to act
on behalf of any such person.
(Added, 52 of 1956, s. 3)
PART IV
APPEALS, QUESTIONS OF LAW RESERVED AND REFERRED AND REVIEW
(Amended, 20 of 1979, s. 2)
Interpretation
Meaning of sentence
80. (1) In this Part
'sentence', in relation to an offence, includes any order made by a court in
dealing with an offender, including a hospital order. (Amended, 20 of
1979,s.3)
(2) Any power of the Court of Appeal to pass a sentence includes a
power to make a recommendation for deportation under section 21 of the
Immigration Ordinance(Cap. 115).
(Replaced, 34 of 1972, s. 15)
[cf. U.K. 1968 c. 19, s. 50]
Reservation of question of law
Power to reserve question of law for consideration of Court
of Appeal
81. (1) The judge of the court of trial may reserve for the considera-
tion of the Court of Appeal any question of law which may arise on the
trial of any indictment.
(2) In exercising his power under subsection (1), the judge may act
either of his own motion or on the application of the Attorney General or
the defence.
(3) A judge may, if he reserves a question of law under subsection (1)
and the accused person has been convicted-
(a)postpone judgment until the question has been considered and decided;
and
(b)commit the person convicted to prison or admit him to bail, with or
without one or more sufficient sureties, and in such sum as he may
think fit, conditioned to appear at such time or times as the judge may
direct and receive judgment.
(4) Upon consideration of a question reserved under subsection (1), the
Court of Appeal may-
(a) affirm or quash the conviction or order a new trial; and
(b)make such other orders as may be necessary to give effect to its
decision:
Provided that the Court of Appeal may, notwithstanding that it is of
opinion that the question so reserved might be decided in favour of the
convicted person, affirm the conviction if it considers that no miscarriage of
justice has actually occurred.
(Replaced, 34 of 1972, s. 15)
Review of sentence on the application of the Attorney General
Application by Attorney General for review of sentence
81A. (1) The Attorney General may, with the leave of the Court of
Appeal, apply to the Court of Appeal for the review of any sentence (other than
a sentence which is fixed by law) passed by any court, other than the Court of
Appeal, on the grounds that the sentence is not authorized by law, is wrong in
principle or is manifestly excessive or manifestly inadequate.
(2) An application under subsection (1) shall-
(a) be in writing signed by the Attorney General;
(b)be accompanied by the documents, or copies of the documents, specified
in subsection (2A);
(c)be filed with the Registrar within 21 days, or within such further time as the
Court of Appeal may allow, after the date on which the sentence was
passed or any proceedings for the review, under section 104 of the
Magistrates Ordinance (Cap. 227), of the sentence or of the conviction on
which the sentence was passed, were withdrawn or disposed of.
(Amended, 20 of 1979, s. 4)
(2A) The following documents are specified for the purpose of subsection
(2)(b)
(a)in the case of a sentence passed by a magistrate, a statement of the facts
found by him or admitted before him and of the reasons for the sentence;
(b)in the case of a sentence passed by a District Judge, the statement of the
reasons for the verdict placed on record in accordance with section 80 of
the District Court Ordinance (Cap. 336) and a statement of the reasons for
the sentence;
(c)in the case of a sentence passed by a judge of the Supreme Court, the
record of the whole of the proceedings before him other than the evidence
given in any trial that took place in those proceedings;
(d)in any case, any report concerning the respondent which was before the
court which passed the sentence. (Added, 20 of 1979, s. 4)
(2B) The documents, or copies of the documents, specified in subsection (2A)
shall be delivered to the Attorney General within 7 days of a request therefor being
made in writing to the magistrate or District Judge who passed the sentence or, if
the sentence was passed by a judge of the Supreme Court, to the Registrar.
(Added, 20 of 1979, s. 4)
(3) The Court of Appeal may order a respondent to be detained in custody
until an order has been made under section 8 113(1).
(4) The Court of Appeal may, if it seems fit, on the application of a respondent,
admit the respondent to bail pending the hearing of the application.
(5) The Court of Appeal may, if it refuses an application, award against the
Attorney General such amount of costs as it may determine, save that the amount
shall not, if the respondent is legally aided, exceed the total of the contributions
which he is liable to make.
(6) In this section and sections 81B and 81C-
'respondent' means a person on whom a sentence has been passed.
(Added, 18 of 1972, s. 2. Amended, 20 of 1979, s. 4)
[cf. N.Z Crimes Act 1961, s. 383]
Review of sentence by Court of Appeal
81B. (1) Upon the hearing of the application the Court of Appeal may, by order
(a)if it thinks that the senten ce was not authorized by law, was wrong in
principle or was manifestly excessive or manifestly inadequate, quash
the sentence passed by the court and pass such other sentence (whether
more or less severe) warranted in law in substitution therefor as it thinks
ought to have been passed;
(b) in any other case, refuse to alter the sentence.
(2) The Attorney General and the respondent shall have the right to be heard
on the hearing of the review of a sentence.
(2A) The Court of Appeal may hear and determine an application for the review
of a sentence notwithstanding that the respondent is not present, if the respondent
has been served with an application or notice of it. (Added, 20 of 1979,s.5)
(3) For the purposes of this section the Court of Appeal may exercise any of
the powers conferred by section 83V.
(Added, 18 of 1972, s. 2. Amended, 34 of 1972, s. 16)
Limitation on review of sentence by Court of Appeal under
section 81B
81C. (1) The Court of Appeal shall not review a sentence under section 81B if
the respondent has
(a)appealed against the conviction in respect of which the sentence was
passed, unless the appeal has been withdrawn or disposed of, (Replaced,
20 of 1979, s. 6)
(b)applied under section 104 of the Magistrates Ordinance (Cap. 227) to a
magistrate to review his decision, unless the application has been
withdrawn or disposed of; or
(e)applied under section 105 of the Magistrates Ordinance to a magistrate to
state a case, unless the application has been withdrawn or disposed of.
(2) Nothing in section 81B shall prejudice the exercise of a right of appeal
conferred on a convicted person by this or any other Ordinance, but the Court of
Appeal may hear together an application for the review of a sentence and an appeal
by the respondent under this Part against the sentence. (Amended, 20 of 1979, s. 6)
(Added, 18 of 1972,s.2. Amended, 34of 1972, s. 17 and 40 of 1978, s.2)
Reference of question of law
Reference to Court of Appeal of question of law following
acquittal
81D. (1) Where a person tried on indictment has been acquitted (whether in
respect of the whole or part of the indictment) the Attorney General may, if he
desires the opinion of the Court of Appeal on a question of law which has arisen in
the case, refer that question to the Court of Appeal which shall, in accordance with
this section, consider the point and give its opinion on it.
(2) For the purpose of its consideration of a question referred to them under
this section the Court of Appeal shall hear argument
(a) by, or by counsel on behalf of, the Attorney General;
(b)if the acquitted person desires to present any argument, by counsel on his
behalf or, with the leave of the Court of Appeal, by the acquitted person
himself; and
(c)if the Court of Appeal so directs, by counsel appointed as amicus curiae
by the Registrar.
(3) Where, on a question being referred to the Court of Appeal under this
section, the acquitted person appears by counsel for the purpose of presenting any
argument to the Court of Appeal, he shall be entitled to his costs, that is to say to
the payment out of the general revenue of such sums as are reasonably sufficient
to compensate him for any expenses properly incurred by him for the purpose of
being represented on the reference; and any amount recoverable under this
subsection shall be ascertained as soon as practicable by the Registrar.
(4) A reference under this section shall not affect the trial in relation to which
the reference is made or any acquittal in that trial.
(Added, 20 of 1979, s. 7)
[cf. U.K. 1972 c. 71, s. 36]
Appeal against a discharge
(Amended, 57 of 1988, s. 31)
Appeal to Court of Appeal following discharge
81E. (1) Where any person has been discharged under section 16 or under
section 22 of the Complex Commercial Crimes Ordinance (Cap. 394), the Attorney
General may appeal to the Court of Appeal against that person's discharge.
(Amended, 57 of 1988, s. 32)
(2) The appeal may be-
(a) on any ground which involves a question of law;
(b)on the ground that the documents and evidence before the court were
sufficient to establish a prima facie case against the accused for the
offence set out in the charge or for any other offence for which he might
be convicted upon that charge.
(3) The Court of Appeal may, if it allows an appeal under this section, quash
the acquittal of the accused and order him to be tried.
(4) The Court of Appeal may, in ordering a trial, make such orders as appear to
it to be necessary for the custody, or admission to bail, of the person ordered to be
tried.
(5) The provisions of section 81D(2) and (3) shall apply to an appeal under
this section as they do to an appeal under section 81D(1).
(Added, 48 of 1983, s. 4)
Appeal against conviction on indictment
Right of appeal
82. (1) A person convicted of an offence on indictment may appeal to the
Court of Appeal against his conviction.
(2) The appeal may be-
(a) on any ground which involves a question of law alone; and
(b)with the leave of the Court of Appeal, on any ground which involves a
question of fact alone, or a question of mixed law and fact, or on any
other ground which appears to the Court of Appeal to be a sufficient
ground of appeal;
but if the judge of the court of trial grants a certificate that the case is fit for
appeal on a ground which involves a question of fact, or a question of mixed law
and fact, an appeal lies under this section without the leave of the Court of
Appeal.
(Replaced, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 1]
Grounds for allowing appeal under s. 82
83. (1) Except as provided by this Ordinance, the Court of Appeal shall
allow an appeal against conviction if it thinks-
(a)that the conviction should be set aside on the ground that under all the
circumstances of the case it is unsafe or unsatisfactory; or (Amend-
ed, 50 of 1981, s. 3)
(b)that the judgment of the court of trial should be set aside on the
ground of a wrong decision on any question of law; or
(c) that there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of
opinion that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if it considers that no miscarriage of justice has
actually occurred.
(2) In the case of an appeal against conviction the Court of Appeal shall,
if it allows the appeal, quash the conviction.
(3) An order of the Court of Appeal quashing a conviction shall, except
when under section 83E the appellant is ordered to be retried, operate as a
direction to the court of trial to enter, instead of the record of conviction, a
judgment and verdict of acquittal.
(Replaced, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 2]
Power to substitute conviction of alternative ofrence
83A. (1) This section applies on an appeal against conviction, where the
appellant has been convicted of an offence and the jury could on the indictment
have found him guilty of some other offence, and on the finding of the jury it
appears to the Court of Appeal that the jury must have been satisfied of facts
which proved him guilty of the other offence.
(2) The Court of Appeal may, instead of allowing or dismissing the
appeal, substitute for the verdict found by the jury a verdict of guilty of the
other offence, and pass such sentence in substitution for the sentence passed at
the trial as may be authorized by law for the other offence, not being a sentence of
greater severity.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 3]
Sentence where appeal allowed on part of an indictment
83B. (1) This section applies where on an appeal against conviction on an
indictment containing 2 or more counts, the Court of Appeal allows the appeal in
respect of part of the indictment.
(2) The Court of Appeal may in respect of any count on which the appellant
remains convicted pass such sentence, in substitution for any sentence passed
thereon at the trial, as it thinks proper and is authorized by law for the offence of
which he remains convicted on that count.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 4(1), (2)]
Disposal of appeal against conviction on special verdict
83C. (1) This section applies on an appeal against conviction by a person in
whose case the jury has found a special verdict.
(2) If the Court of Appeal considers that a wrong conclusion has been arrived
at by the court of trial on the effect of the jury's verdict it may, instead of allowing
the appeal, order such conclusion to be recorded as appears to it to be in law
required by the verdict, and pass such sentence in substitution for the sentence
passed at the trial as may be authorized by law.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 5]
Substitution of finding of insanity or unfitness to plead
83D. (1) Where, on an appeal against conviction, the Court of Appeal is of
opinion
(a)that the proper verdict would have been one of not guilty by reason of
insanity; or
(b)that the case is not one where there should have been a verdict of
acquittal, but that there should have been a finding that the accused
person was under disability,
the Court of Appeal shall make an order that the appellant be admitted to the
Correctional Services Department Psychiatric Centre or such mental hospital as may
be specified by the Governor. (Amended, 37 of 1973, s. 7)
(2) The Fifth Schedule shall apply with respect to the consequences and effect
of an order made by the Court of Appeal under this section.
(3) On making an order under this section in the case of any person, the Court
of Appeal may give such directions as it thinks fit for his conveyance to a place of
safety and his detention there pending his admission to the Correctional Services
Department Psychiatric Centre or the mental hospital within the
relevant period specified by the Fifth Schedule.(Amended, 37 of 1973, s. 7)
(4) In section 52 of the Mental Health Ordinance (Cap. 136) (which relates to
the removal to a mental hospital of persons serving sentences of imprisonment and
is applied by subsection (5) of the section to other forms of detention) references to
a person serving a sentence of imprisonment shall be construed as not including
references to a person subject to an order of the Court of Appeal under this section.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 6]
Retrial
Power to order retrial
83E. (1) Where the Court of Appeal allows an appeal against conviction and it
appears to the Court of Appeal that the interests of justice so require, it may order
the appellant to be retried.
(2) A person shall not under this section be ordered to be retried for any
offence other than
(a)the offence of which he was convicted at the original trial and in respect
of which his appeal is allowed as mentioned in subsection (1);
(b)an offence of which he could have been convicted at the original trial on
an indictment for the first-mentioned offence; or
(c)an offence charged in an alternative count of the indictment in respect of
which the jury were discharged from giving a verdict in consequence of
convicting him of the first-mentioned ofrence.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 7]
Supplementary provisions as to retrial
83F. (1) A person who is to be retried for an offence in pursuance of an order
under section 83E shall be tried on a fresh indictment preferred by direction of the
Court of Appeal, and shall be tried before such court as the Court of Appeal may
direct (being the High Court or, if the offence is within the jurisdiction of the
District Court, the District Court) or, if no such direction is given, before the court
by which he was originally tried.
(2) The Court of Appeal may, on ordering a retrial, make such orders as appear
to it to be necessary or expedient
(a)for the custody or admission to bail of the person ordered to be retried
pending his retrial; or
(b)for the retention pending retrial of any property or money forfeited,
restored or paid by virtue of the original conviction or any order made on
that conviction.
(3) If the person ordered to be retried was, immediately before the
determination of his appeal, liable to be detained in pursuance of an order under
Part IV of the Mental Health Ordinance (Cap. 136)
(a)that order shall continue in force pending the retrial as if the appeal had
not been allowed; and
(b)any order made by the Court of Appeal under this section for his custody
or admission to bail shall have effect subject to the said order.
(4) The Sixth Schedule shall have effect with respect to the procedure in the
case of a person ordered to be retried and the sentence which may be passed if the
retrial results in his conviction.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 8]
Appeal against sentence
Appeal against sentence following conviction on indictment
83G. A person who has been convicted of an offence on indictment may
appeal to the Court of Appeal against any sentence (not being a sentence fixed by
law) passed on him for the offence, whether passed on his conviction or in
subsequent proceedings.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
9]
Appeal against sentence in other cases dealt with at the
High Court
83H. (1) This section has effect for providing rights of appeal against
sentence when a person is dealt with by the High Court (otherwise than on appeal
from a magistrate) for an offence of which he was not convicted on indictment.
(2) The proceedings from which an appeal against sentence lies under this
section are those where an offender
(a)is committed by a magistrate under section 81B(3) of the Magistrates
Ordinance (Cap. 227); or
(b)having been made the subject of a probation order or an order for
conditional discharge or given a suspended sentence, appears or is
brought before the court to be further dealt with for his offence.
(3) An offender dealt with for an offence in the High Court in a proceeding to
which subsection (2) applies may appeal to the Court of Appeal in any of the
following cases
(a)where either for that offence alone or for that offence and other offences
for which sentence is passed in the same proceeding, he is sentenced to
imprisonment for a term of 6 months or more; or
(b)where the sentence is one which the court convicting him had not power
to pass; or
(c)where the court in dealing with him for the offence makes in respect of
him
(i) a recommendation for deportation; or
(ii) an order disqualifying him from holding or obtaining a driving
licence to drive a motor vehicle under Part VIII of the Road Traffic
Ordinance (Cap. 374); or (Amended, 75 of 1982, s. 114)
(iii) an order under section 109C.
(4) For the purposes of subsection (3)(a), any 2 or more sentences are to be
treated as passed in the same proceeding if
(a) they are passed on the same day; or
(b)they are passed on different days but the court in passing any one of
them states that it is treating that one together with the other or others as
substantially one sentence;
and consecutive terms of imprisonment and terms which are wholly or partly
concurrent are to be treated as a single term.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
10]
Supplementary provisions as to appeal against sentence
83I. (1) An appeal against sentence, whether under section 83G or 83H, lies
only with the leave of the Court of Appeal.
(2) Where the court, in dealing with an offender on his conviction on
indictment, or in a proceeding to which section 83H(2) applies, has passed on him
2 or more sentences in the same proceeding (which expression has the same
meaning in this subsection as it has for the purposes of section 83H), being
sentences against which an appeal lies under section 83G or 83H, an appeal or
application for leave to appeal against any one of those sentences shall be treated
as an appeal or application in respect of both or all of them.
(3) On an appeal against sentence the Court of Appeal, if it considers that the
appellant should be sentenced differently for an ofrence for which he was dealt
with by the court below, may
(a) quash any sentence or order which is the subject of the appeal; and
(b)in place of it pass such sentence or make such order as it thinks
appropriate for the case (whether more or less severe) and as the court
below had power to pass or make when dealing with him for the ofrence.
(4) The power of the Court of Appeal under subsection (3) to pass a sentence
which the court below had power to pass for an offence shall, notwithstanding that
the court below made no order under section 109C(1) in respect of a suspended
sentence previously passed on the appellant for another offence, include power to
deal with him in respect of that suspended sentence where the court below
(a)could have so dealt with him if it had not passed on him a sentence of
detention in a training centre quashed by the Court of Appeal under
subsection (3)(a); or
(b)did so deal with him in accordance with section 109C(1)(d) by making no
order in respect of the suspended sentence.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
11]
Appeal in cases of insanity
Appeal against verdict of not guilty by reason of insanity
83J. A person in whose case there is returned a verdict of not guilty by reason
of insanity may appeal to the Court of Appeal against the verdict
(a) on any ground of appeal which involves a question of law alone; and
(b)with the leave of the Court of Appeal, on any ground which involves a
question of fact alone, or question of mixed law and fact, or on any other
ground which appears to the Court of Appeal to be a sufficient ground of
appeal,
but if the judge of the court of trial grants a certificate that the case is fit for appeal
on a ground which involves a question of fact, or a question of mixed law and fact,
an appeal lies under this section without the leave of the Court of Appeal.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 12]
Disposal of appeal under s. 83J
83K. (1) Subject to the provisions of this section, the Court of Appeal shall
allow an appeal under section 83J if it is of opinion
(a)that the verdict should be set aside on the ground that under all the
circumstances of the case it is unsafe or unsatisfactory; or
(b)that the order of the court giving effect to the verdict should be set aside
on the ground of a wrong decision of any question of law; or
(c) that there was a material irregularity in the course of the trial, and in any
other case shall dismiss the appeal.
(2) The Court of Appeal may dismiss an appeal under section 83J if of opinion
that, notwithstanding that the point raised in the appeal might be decided in favour
of the appellant, no miscarriage of justice has actually occurred.
(3) Where apart from this subsection-
(a) an appeal under section 83J would fall to be allowed; and
(b)none of the grounds for allowing it relates to the question of the insanity
of the accused person,
the Court of Appeal may dismiss the appeal if it is of opinion that, but for the
insanity of the accused person, the proper verdict would have been that he was
guilty of an offence other than the offence charged.
(4) Where an appeal under section 83J is allowed, the following provisions
apply
(a)if the ground, or one of the grounds, for allowing the appeal is that the
finding of the jury as to the insanity of the accused person ought not to
stand and the Court of Appeal is of opinion that the proper verdict would
have been that he was guilty of an offence (whether the offence charged
or any other offence of which the jury could have found him guilty), the
Court of Appeal
(i) shall substitute for the verdict of not guilty by reason of insanity a
verdict of guilty of that offence; and
(ii) shall have the like powers of punishing or otherwise dealing with
the appellant, and other powers, as the court of trial would have had if the
jury had come to the substituted verdict; and
(b)in any other case, the Court of Appeal shall substitute for the verdict of
the jury a verdict of acquittal.
(5) An order of the Court of Appeal allowing an appeal in accordance with this
section shall operate as a direction to the court of trial to amend the record to
conform with the order.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 13]
Hospital order on disposal of appeal
83L. (1) Where, on an appeal under section 83J, the Court of Appeal is of
opinion that the case is not one where there should have been a verdict of acquittal
but that there should have been a finding that the accused person was under
disability, the Court of Appeal shall make an order that the appellant be admitted to
the Correctional Services Department Psychiatric Centre or such mental hospital as
may be specified by the Governor. (Amended, 37 of 1973, s. 7)
(2) Where in accordance with section 83K(4)(b) the Court of Appeal
substitutes a verdict of acquittal, and it is of opinion
(a)that the appellant is suffering from mental disorder of a nature or degree
which warrants his detention in a mental hospital under observation (with
or without medical treatment) for at least a limited period; and
(b)that he ought to be so detained in the interests of his own health or
safety or with a view to the protection of other persons,
the Court of Appeal shall make an order that the appellant be admitted for
observation to such mental hospital as may be specified by the Governor.
(3) The Fifth Schedule shall apply with respect to the consequences and effect
of an order made by the Court of Appeal under this section.
(4) On making an order under this section in the case of any person, the Court
of Appeal may give such directions as it thinks fit for his conveyance to a place of
safety and his detention there pending his admission to the Correctional Services
Department Psychiatric Centre or a mental hospital within the relevant period
specified in the Fifth Schedule. (Amended, 37 of 1973, s. 7)
(5) In section 52 of the Mental Health Ordinance (Cap. 136) (which relates to
the removal to a mental hospital of persons serving sentences of imprisonment and
is applied by subsection (5) of that section also to persons in other forms of
detention) references to a person serving a sentence of imprisonment shall be
construed as not including references to a person subject to an order of the Court
of Appeal under subsection (1).
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 14]
Unfitness to stand trial
Right of appeal against finding of disability
83M. (1) Where there has been a determination under section 75 of the
question of a person's fitness to be tried, and the jury has returned a finding that he
is under disability, the person may appeal to the Court of Appeal against the
finding.
(2) An appeal under this section may be-
(a) on any ground of appeal which involves a question of law alone; and
(b)with the leave of the Court of Appeal, on any ground which involves a
question of fact alone, or a question of mixed law and fact, or on any
other ground which appears to the Court of Appeal to be a sufficient
ground of appeal;
but if the judge of the court of trial grants a certificate that the case is fit for
appeal on a ground which involves a question of fact, or a question of mixed law
and fact, an appeal lies under this section without the leave of the Court of
Appeal.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 15]
Disposal of appeal under s. 83M
83N. (1) The Court of Appeal shall allow an appeal under section 83M
if it is of opinion-
(a)that the finding of the court of trial should be set aside on the ground
that under all the circumstances of the case it is unsafe or unsatisfac-
tory; or
(b)that the order of the court giving effect to the finding should be set
aside on the ground of a wrong decision of any question of law; or
(c)that there was a material irregularity in the course of the determina-
tion of the question of fitness to be tried;
and in any other case (except one to which subsection (2) of this section applies)
shall dismiss the appeal; but it may dismiss the appeal if of opinion that,
notwithstanding that the point raised in the appeal might be decided in favour
of the appellant, no miscarriage of justice has actually occurred.
(2) An appeal under section 83M may, in a case where the question of
fitness to be tried was determined later than on arraignment, be allowed by the
Court of Appeal (notwithstanding that the finding was properly come to) if the
Court of Appeal is of opinion that the case is one in which the accused person
should have been acquitted before the question of fitness to be tried was
considered; and, if an appeal is allowed under this subsection, the Court of
Appeal shall, in addition to quashing the finding, direct a verdict of acquittal to
be recorded (but not a verdict of not guilty by reason of insanity).
(3) Subject to subsection (2) of this section, where an appeal under section
83M is allowed, the appellant may be tried accordingly for the offence with
which he was charged, and the Court of Appeal may make such orders as
appear to it to be necessary or expedient pending any such trial for his custody,
admission to bail or continued detention under the Mental Health Ordinance
(Cap. 136); and the Seventh Schedule shall have effect for applying provisions in
Part IV of that Ordinance to persons in whose case an order is made by the
Court of Appeal under this subsection.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 16]
Further provisions relating to appeals and questions of law reserved
Prohibition of staying or reversal of judgment or allowing
appeal on specified grounds
83O. Except where, in the opinion of the Court of Appeal, a miscarriage of
justice has actually occurred, no judgment shall be stayed or reversed under
section 81 and no appeal shall be allowed under section 83, 83K or 83N
(a)on the ground of any defect which, if pointed out before the jury were
empanelled or during the progress of the trial, might have been amended
by the court of trial; or
(b) because of any error committed in summoning or swearing a juror; or
(c)because of any objection which might have been stated as a ground of
challenge of a juror; or
(d) because of any informality in the swearing of a witness.
(Added, 34 of 1972, s. 18)
Review by Court of Appeal of cases tried on indictment
Reference by Governor
83P. (1) Where a person has been convicted on indictment or been tried on
indictment and found not guilty by reason of insanity, or been found by a jury to be
under disability, the Governor may, if he thinks fit, at any time either
(a)refer the whole case to the Court of Appeal and the case shall then be
treated for all purposes as an appeal to the Court of Appeal by that
person; or
(b)if he desires the assistance of the Court of Appeal on any point arising in
the case, refer that point to the Court of Appeal for its opinion thereon,
and the Court of Appeal shall consider the point so referred and furnish
the Governor with its opinion thereon accordingly.
(2) A reference by the Governor under this section may be made by him either
on an application by the person referred to in subsection (1), or without any such
application.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 17]
Procedure from notice of appeal to hearing
Initiating procedure
83Q. (1) A person who wishes to appeal under this Part to the Court of Appeal,
or to obtain the leave of that Court to appeal, shall give notice of appeal or, as the
case may be, notice of application for leave to appeal, in such manner as may be
provided by rules and orders made under section 9.
(2) Notice of appeal, or of application for leave to appeal, shall be given within
28 days from the date of the conviction, verdict or finding appealed
against, or, in the case of appeal against sentence, from the date on which
sentence was passed, or, in the case of an order made or treated as made on
conviction, from the date of the making of the order:
Provided that, where sentence was passed more than 7 days after the date
of conviction, verdict or finding, notice of appeal, or of application for leave to
appeal, against the conviction, verdict or finding may be given within 28 days
from the date on which sentence was passed.
(3) The time for giving notice under this section may be extended, either
before or after it expires, by the Court of Appeal.
(4) In the case of a conviction involving sentence of death the power of the
Court of Appeal under subsection (3) to extend the time for giving notice of
appeal or notice of application for leave to appeal, shall not be exercisable.
[cf. U.K. 1968 c. 19, Sch. 4, Para. 1]
(5) In the case of a conviction involving sentence of death or corporal
punishment-
(a)the sentence shall not in any case be executed until after the expiration
of the time within which notice of appeal or of application for leave to
appeal may be given under this Ordinance; and
(b)if notice is so given, the appeal or application shall be heard and
determined with as much expedition as is practicable, and the sentence
shall not be executed until after the determination of the appeal, or, in
cases where an application for leave to appeal is finally refused, of the
application. [cf. U.K. 1968 c. 19, Sch. 4, Para. 2(a), (b)]
(6)(a) Where a protected prisoner of war or protected internee has been
sentenced to death or to imprisonment for a term of 2 years or more,
the time within which he must give notice of appeal or of an
application for leave to appeal shall, notwithstanding the provisions
of subsection (1), be the period from the date of his conviction or, in
the case of an appeal against sentence, of his sentence to the expiration
of 10 days after the date on which he received a notice given-
(i) in the case of a protected prisoner of war, by an officer of Her
Majesty's forces;
(ii) in the case of a protected internee, by or on behalf of the
Commissioner of Correctional Services,
that the protecting power has been notified of his conviction and
sentence. (Replaced, L.N. 346/82)
(b)For the purposes of this subsection, the expression 'protected prisoner
of war', 'protected internee' and 'the protecting power' have the
meanings assigned to them by the Geneva Conventions Act, 1957,
as applied to Hong Kong by the Geneva Conventions Act (Colonial
Territories) Order in Council 1959*. [cf. U.K. 1968 c. 19, Sch. 5,
Part I].
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 18]
Bail
83R. The Court of Appeal may, if it thinks fit, on the application of an
appellant, admit him to bail pending the determination of his appeal.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 19]
Disposal of groundless appeal
83S. If it appears to the Registrar that a notice of an appeal purporting to
be a ground of appeal which involves a question of law alone does not show any
substantial ground of appeal, he may refer the appeal to the Court of Appeal for
summary determination; and where the case is so referred the Court of Appeal
may, if it considers that the appeal is frivolous or vexatious, and can be
determined without adjourning it for a full hearing, dismiss the appeal sum-
marily, without calling on anyone to attend the hearing or to appear for the
Crown thereon.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 20]
Preparation of case for hearing
83T. (1) The Registrar shall-
(a)take all necessary steps for obtaining a hearing of any appeal or
application of which notice is given to him and which is not referred
and dismissed summarily under section 83S; and
(b)obtain and lay before the Court of Appeal in proper form all
documents, exhibits and other things which appear necessary for the
proper determination of the appeal or application.
(2) Rules and orders made under section 9 may enable an appellant to
obtain from the Registrar any documents or things, including copies or
reproductions of documents, required for his appeal.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 21]
The hearing
Right of appellant to be present
83U. (1) Except as provided by this section, an appellant shall be entitled
to be present, if he wishes it, on the hearing of his appeal, although he may be in
custody.
(2) A person in custody shall not be entitled to be present-
(a)where his appeal is on some ground involving a question of law alone;
or
(b) on an application by him for leave to appeal; or
(c) on any proceedings preliminary or incidental to an appeal; or
(d)where he is in custody in consequence of a verdict of not guilty by
reason of insanity or of a finding of disability; or
(e)where a question of law in a case in which he is the accused person has
been reserved for the consideration of the Court of Appeal under
section 81,
unless the Court of Appeal gives him leave to be present.
(3) The power of the Court of Appeal to pass sentence on a person may
be exercised although he is for any reason not present.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s. 22]
Evidence
83V. (1) For the purposes of this Part, the Court of Appeal may, if it
thinks it necessary or expedient in the interests of justice-
(a)order the production of any document, exhibit or other thing con-
nected with the proceedings, the production of which appears to it
necessary for the determination of the case;
(b)order any witness who would have been a compellable witness in the
proceedings from which the appeal lies to attend for examination and
be examined before the Court of Appeal whether or not he was called
in those proceedings; and
(c)subject to subsection (3), receive the evidence, if tendered, of any
witness.
(2) Without prejudice to subsection (1), where evidence is tendered to the
Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that
the evidence, if received, would not afford any ground for allowing the appeal,
exercise its powers of receiving it if-
(a)it appears to it that the evidence is likely to be credible and would have
been admissible in the proceedings from which the appeal lies on an
issue which is the subject of the appeal; and
(b)it is satisfied that it was not adduced in those proceedings but there is a
reasonable explanation for the failure to adduce it.
(3) Subsection (1)(c) applies to any witness (including the appellant) who
is competent but not compellable, and applies also to the appellant's husband or
wife where the appellant makes an application for that purpose and the evidence
of the husband or wife could not have been given in the proceedings from which
the appeal lies except on such an application.
(4) For the purposes of this Part, the Court of Appeal may, if it thinks it
necessary or expedient in the interests of justice, order the examination of any
witness whose attendance might be required under subsection (1)(b) to be
conducted, in manner provided by rules and orders made under section 9,
before any judge or officer of the Court of Appeal or other person appointed by
the Court of Appeal for the purpose, and allow the admission of any deposi-
tions so taken as evidence before the Court of Appeal.
(5) In no case shall any sentence be increased by reason of or in consideration
of any evidence which was not given at the trial.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
23]
Other matters depending on result of appeal
Effect of appeal on sentence
83W. (1) The time during which an appellant is in custody pending the
determination of his appeal shall, subject to any direction which the Court of
Appeal may give to the contrary, be reckoned as part of the term of any sentence to
which he is for the time being subject.
(2) Where the Court of Appeal gives a contrary direction under subsection (1),
it shall state its reasons for doing so; and it shall not give any such direction where
(a) leave to appeal has been granted; or
(b)a certificate has been given by the judge of the court of trial under section
82; or
(c) the case has been referred to it by the Governor under section 83P.
(3) Where an appellant is admitted to bail under section 83R, the time during
which he is at large after being so admitted shall be disregarded in computing the
term of any sentence to which he is for the time being subject.
(4) The term of any sentence passed by the Court of Appeal under section
83A, 83B, 83C, 831 or 83K(4) shall, unless the Court of Appeal otherwise directs,
begin to run from the time when it would have begun to run if passed in the
proceedings from which the appeal lies.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
29]
Restitution of property on conviction
83X. (1) The operation of an order for the restitution of property to a person
made on a conviction on indictment shall (unless the court of trial direct to the
contrary in any case in which, in its opinion, the title to the property is not in
dispute) be suspended
(a)in any case until the expiration of 28 days from the date of conviction;
and
(b)where notice of appeal or of application for leave to appeal is given within
28 days from the date of conviction, until the determination of the appeal.
(2) In cases where the operation of such an order is suspended until the
determination of the appeal, the order shall not take effect as to the property in
question if the conviction is quashed on appeal.
(3) Provision may be made by rules and orders made under section 9 for
securing the safe custody of any property, pending the suspension of the
operation of any such order.
(4) The Court of Appeal may by order annul or vary any order made by the
court of trial for the restitution of property to any person, although the conviction
is not quashed; and the order, if annulled, shall not take effect and, if varied, shall
take effect as so varied.
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
30]
Award of costs by Court of Appeal
83XX. (1) This section applies to any appeal
(a) under section 82 against conviction;
(b) under section 83J against a verdict of not guilty by reason of insanity;
(c)under section 83M against a finding under section 75 that the appellant is
under disability.
(2) Where an appeal to which this section applies is allowed, the Court of
Appeal may, subject to subsection (3), order the payment out of the public revenue
of the costs of the appellant.
(3) No order shall be made under this section where-
(a)in the case of an appeal referred to in subsection (1)(a), the appellant is
ordered under section 83E to be retried;
(b)in the case of an appeal referred to in subsection (1)(b), the provisions of
section 83K(4)(a) apply; or
(c)in the case of an appeal referred to in subsection (1)(c), the provisions of
section 83N(3) apply.
(4) The costs payable under this section shall be such sums as appear to the
Court of Appeal reasonably sufficient to compensate the appellant for any
expenses properly incurred by him in the appeal, including any proceedings
preliminary or incidental thereto or in the court of trial or before a magistrate.
(5) The amount of costs ordered to be paid under this section shall, except
where the amount is fixed by the Court of Appeal, be ascertained by the Registrar.
(Added, 2 of 1978, s. 3)
[cf. U.K. 1973 c. 14, s. 7]
Supplementary
Powers of Court of Appeal under Part IV which are
exercisable by single judge
83Y. (1) The powers of the Court of Appeal under this Part which are specified
in subsection (2) and the power to give directions under section 156(5) of the
Crimes Ordinance (Cap. 200) may be exercised by a single judge in the same manner
as they may be exercised by the Court of Appeal and subject to the same
provisions. (Amended, 25 of 1978, s. 5)
(2) The said powers are the following-
(a) to give leave to appeal;
(b)to extend the time with in which notice of appeal or of application for
leave to appeal may be given;
(e) to allow an appellant to be present at any proceedings;
(d) to order a witness to attend for examination;
(e) to admit an appellant to bail;
(f) to make orders under section 83F(2) and discharge or vary such orders;
(g) to give directions under section 83W(1);
(h) to give leave to apply for the review of a sentence under section 81A;
(i)to make orders under section 83XX for the payment of costs; (Added, 2 of
1978, s. 4)
(j)to order a respondent to be detained in custody under section 81A(3).
(Added, 20 of 1979, s. 8)
(3) If the single judge refuses an application on the part of an appellant or
applicant to exercise in his favour any of the powers above specified, the appellant
or applicant shall be entitled to have the application determined by the Court of
Appeal.
(4) The references in this section to a single judge are to a single judge of the
Court of Appeal or of the High Court. (Added, 29 of 1978, s. 2)
(Added, 34 of 1972, s. 18)
[cf. U.K. 1968 c. 19, s.
31]
PART IVA
OTHER PROCEEDINGS SUBSEQUENT To TRIAL
(Added, 34 of 1972, s. 19)
Restitution of property
Restitution of property in case of conviction
84. (1) Subject to the provisions of the Pawnbrokers Ordinance (Cap. 166),
where any person is convicted of an indictable offence, any property found in his
possession, or in the possession of any other person for him, may be ordered by
the court or magistrate to be delivered to the person who appears to the court or
magistrate to be entitled thereto. (Replaced, 17 of 1930, s. 8)
(2) Nothing in this section shall prevent any magistrate or the court from
ordering the return to any person charged with an indictable offence, or to any
person named by the magistrate or the court, of any property found in the
possession of the person so charged or in the possession of any other person for
him, or of any portion thereof, if the magistrate or the court is of opinion that such
property or portion thereof can be returned consistently with the interests of justice
and with the safe custody or otherwise of the person so charged. (Amended, 5 of
1924, Schedule and 17 of 1930, s. 8)
Criminal bankruptcy orders
Criminal bankruptcy orders against convicted persons
84A. (1) Where a person is convicted of an offence before the court and it
appears to the court that-
(a)as a result of the offence, or of that offence taken together with any
other relevant offences, loss or damage (not attributable to personal
injury) has been suffered by one or more persons whose identity is
known to the court; and
(b)the amount, or aggregate amount, of the loss or damage exceeds
$150,000,
the court may, in addition to dealing with the offender in any other way (but not
if it makes a compensation order against him under section 73), make an order,
to be called a criminal bankruptcy order, against him in respect of the offence
or, as the case may be, that offence and any other relevant offences.
(2) In subsection (1) 'relevant offences' means offences-
(a) of which the person in question is convicted in the same proceedings;
(b)which the court takes into consideration in determining its sentence;
or
(c)which, whether or not they are specifically charged or admitted, a
judge of the court is satisfied are proved by the evidence adduced by
the prosecution in the same proceedings.
(3) A criminal bankruptcy order shall specify-
(a)the amount of the loss or damage appearing to the court to have
resulted from the offence or, if more than one, the total amount
appearing to have resulted from all the offences;
(b)the person or persons appearing to the court to have suffered that loss
or damage;
(c)the amount of that loss or damage which it appears to the court that
person, or each of those persons, has suffered; and
(d)the date which appears to the court to be the earliest date on which the
offence or, if more than one, the earliest of the offences, was committed.
(4) A criminal bankruptcy order may be made against 2 or more offenders
in respect of the same loss or damage.
(5) The Governor in Council may by order amend subsection (1)(b) by
substituting, for the amount specified therein, such amount as may be specified
in the order.
(6) In this section 'court' includes the District Court.
(Added, 20 of 1979, s. 9)
[cf. U.K. 1973 c. 62, s. 39]
Appeals in the case of criminal bankruptcy orders
84B. (1) No appeal shall lie against the making of a criminal bankruptcy
order.
(2) Where a person successfully appeals to the Court of Appeal against his
conviction of an offence by virtue of which such an order was made, the Court
of Appeal shall rescind the order unless he was convicted in the same
proceedings of another offence of which he remains convicted and a criminal
bankruptcy order could have been made without reference to loss or damage
caused by the first-mentioned offence; and where, accordingly, the Court of
Appeal does not rescind the order it shall amend it by striking out so much of
it as relates to loss or damage caused by the offence in respect of which the
conviction is quashed.
(3) Where on an appeal by a person against his conviction of an offence
by virtue of which a criminal bankruptcy order was made the Court of Appeal
substitutes a verdict of guilty of another offence, the Court of Appeal shall-
(a)rescind the order if a criminal bankruptcy order could not have been
made against that person if he had originally been convicted of that
other offence;
(b)in any other case, amend the order so far as may be required in
consequence of the substitution of a verdict of guilty of the other
ofrence.
(4) Where the Court of Appeal rescinds or amends a criminal bankruptcy
order, the rescission or amendment shall not take effect-
(a)in any case until the expiration of 14 days from the date of the decision
of the Court of Appeal;
(b)if within that period an application is made for special leave to appeal
to the Privy Council against the Court of Appeal's decision on the
appeal against conviction, so long as the appeal is pending; and
(c) if on such an appeal the conviction is restored by the Privy Council,
(5) For the purposes of subsection (4) an appeal to the Privy Council
shall be treated as pending until any application for special leave to appeal is
disposed of and, if special leave to appeal is granted, until the appeal is disposed
of., and if no application for special leave to appeal is made before the expiration
of 14 days from the date of the decision of the Court of Appeal, the rescission or.
amendment shall take effect at the end of that time.
(Added, 20 of 1979, s. 9)
[cf. U.K. 1973 c. 62, s. 40]
Calendar of sentences
Transmission and effect of calendar of sentences
85. (1) At the end of each month or as soon as conveniently may be
thereafter, a copy of the calendar of sentences, under the hand of a judge
and the seal of the court, shall be transmitted by the Registrar to the Chief
Secretary. (Amended, 63 of 1971, s. 5)
(2) A similar copy shall also be transmitted by the Registrar to the
Commissioner of Correctional Services, who shall record the same, and such
calendar shall be a sufficient warrant for receiving and detaining all prisoners
named therein, and for carrying into effect all sentences set forth therein, other
than sentences of death. (Amended, 5 of 1924, s. 12; 25 of 1937, s. 3 and
G.N. 678138)
(3) In the event of the copy of a calendar kept by the Commissioner of
Correctional Services being lost or destroyed, a fresh copy, signed and sealed as
above mentioned, shall be delivered by the Registrar to the Commissioner of
Correctional Services and shall have the same effect as the copy first given to that
officer. (Amended, 5 of 1924, s. 12; 25 of 1937, s. 3 and G.N. 678/38)
Delivery and effect of certificate of sentences after each day
86. (1) At the end of each day's sitting of the court, the Registrar shall deliver
to the Commissioner of Correctional Services or his deputy a certificate, in Form 5 in
the First Schedule, of all sentences passed by the court during that day. (Amended,
50 of 1911, s. 4; 8 of 1912, s. 52; 5 of 1924, s. 12; 25 of 1937, s. 3; G.N. 678/38 and 63
of 1971, s. 6)
(2) Such certificate shall be a sufficient warrant to the Commissioner of
Correctional Services for receiving into his custody all prisoners named therein, and
for carrying into effect all sentences described therein, other than sentences of
death, until the calendar of sentences for that month is received by him. (Amended, 5
of 1924, s. 12, 25 of 1937, s. 3; G.N. 678/38 and 63 of 1971, s. 6)
Undergoing sentence, etc.
Effect of undergoing sentence for felony not punishable
with death
87. Where any person convicted of any felony not punishable with death has
endured the punishment to which he has been sentenced for the same, the
punishment so endured shall have the like effects and consequences as a pardon
under the public seal as to the felony whereof the offender was so convicted:
Provided that nothing herein contained, nor the enduring of such punishment,
shall prevent or mitigate any punishment to which the offender might otherwise be
lawfully sentenced on a subsequent conviction for any other felony.
(Amended, 50 of 1911; 21 of 1912, s. 2 and 27 of 193 7, Schedule)
[cf. U.K. 1828 c. 32, s. 3]
Filing of original documents
88. When a case has been finally disposed of, the Registrar shall file in his
office or otherwise deal with as the court may direct, all the original documents in
that case which have been transmitted to him by the committing magistrate.
(Replaced, 6 of 1954, s. 8)
PART V
PARTIES
Alders, abettors and accessories
89. Any person who aids, abets, counsels or procures the commission by
another person of any offence shall be guilty of the like offence.
(Replaced, 5 of 1971, s. 7)
[cf. U.K. 1861 c. 94, s. 8; 1952 c. 55, s. 35]
Penalties for assisting offenders
90. (1) If a person has committed an arrestable offence, any other person who,
knowing or believing him to be guilty of the offence or of some other arrestable
offence, does, without lawful authority or reasonable excuse, any act with intent to
impede his apprehension or prosecution shall be guilty of an offence.
(2) If on the trial of an indictment for an arrestable offence the jury are satisfied
that the offence charged (or some other offence of which the accused might on that
charge be found guilty) was committed, but find the accused not guilty of it, they
may find him guilty of any offence under subsection (1) of which they are satisfied
that he is guilty in relation to the offence charged (or that other offence).
(3) A person guilty of an offence under subsection (1) shall be liable-
(a) on conviction on indictment, to imprisonment for 10 years; or
(b)on summary conviction, to a fine of $5,000 and to imprisonment for 2
years.
(4) No proceedings shall be instituted for an offence under subsection (1)
except with the consent of the Attorney General.
(5) Nothing in subsection (4) shall prevent the arrest, or the issue of a warrant
for the arrest, of any person for an offence under subsection (1), or the remand in
custody or on bail of a person charged with such an offence.
(Replaced, 5 of 1971, s. 7)
[cf. U.K. 1967 c. 58, s. 4]
Penalties for concealing offences
91. (1) If a person has committed an arrestable offence, any other person who,
knowing or believing that the offence or some other arrestable offence has been
committed, and that he has information which might be of material assistance in
securing the prosecution or conviction of an offender for it, accepts or agrees to
accept for not disclosing that information any consideration shall be guilty of an
offence and shall be liable on conviction on indictment to imprisonment for 2 years.
(2) If a person causes any wasteful employment of the police by knowingly
making to any person a false report tending to show that an offence has been
committed, or to give rise to apprehension for the safety of any person or property,
or tending to show that he has information material to any police inquiry he shall be
guilty of an offence and shall be liable on conviction to a fine of $2,000 and to
imprisonment for 6 months.
(3) No prosecution shall be instituted for an offence under subsection (1)
except with the consent of the Attorney General.
(4) The compounding of an offence other than treason shall not be an offence
otherwise than under this section.
(5) The offence of misprision of felony is hereby abolished.
(Replaced, 5 of 1971, s. 7)
[cf. U.K. 1967 c. 58, s. 5]
92-94. [Repealed, 5 of 1971, s. 7]
PART VI
MISCELLANEOUS
Negative averments
Negative averments
94A. (1) It shall not be necessary in an indictment, charge, complaint or
information alleging an offence to negative any exception or exemption from or
qualification to the operation of the law creating the offence.
(2) For the avoidance of doubt it is hereby declared that in criminal
proceedings
(a)it is not necessary for the prosecution to negative by evidence any matter
to which this subsection applies; and
(b)the burden of proving the same lies on the person seeking to avail himself
thereof.
(3) This section applies to criminal proceedings in the District Court or a
magistrate's court.
(4) The matters to which subsection (2) applies are any licence, permit,
certificate, authorization, permission, lawful or reasonable authority, purpose, cause
or excuse, exception, exemption, qualification or other similar matter.
(Added, 5 of 1971, s. 8)
Ownership of property
Mode of stating ownership of property of partners, etc.
95. (1) Where, in any document in any proceeding under this Ordinance, it is
necessary to state the ownership of any property which belongs to or is in
possession of more than one person, it shall be sufficient to name one of such
persons and to state such property to belong to the person so named and another
or others, as the case may be.
(2) Where, in any such document, it is necessary to mention, for any purpose
whatsoever, any partners or other joint owners or possessors, it shall be sufficient
to describe them in manner aforesaid.
(3) The provisions of this section shall be construed to extend to all joint-
stock companies and associations, societies, and trustees.
[cf. U.K. 1826 c. 64, s. 14]
Mode of stating ownership of church, etc.
96. Where, in any such document, it is necessary to state the ownership of any
church, chapel, or building set apart for religious worship, or of anything belonging
to or being in the same, it shall be sufficient to state that such church, chapel, or
building, or such thing is the property of the clergyman, or of the
officiating minister, or of the church body or the church-wardens of such church,
chapel or building, without its being necessary to name him or them.
(Amended, 51 of 1911 and 2 of 1912, Schedule)
Mode of stating ownership of public property
97. Where, in any such document, it is necessary to state the ownership of any
work or building made, erected, or maintained, either in whole or in part, at the
expense of the Government, or of any city, town, or village, or of anything
belonging to or being in or used in relation to the same, or of anything provided for
the use of the poor or of any public institution or establishment, or of any materials
or tools provided or used for making, altering, or repairing any such work or
building or any public road or highway, or of any other property whatsoever of the
Government it shall be sufficient to state that such property is the property of the
Government, or of the city, town, or village, as the case may be, without naming any
of the inhabitants thereof.
(Amended, 50 of 1911; 51 of 1911; 1 of 1912, Schedule; 2 of 1912,
Schedule and 21 of 1912, s. 2)
[cf. U.K. 1826 c. 64, ss. 15, 16]
98-99. [Repealed, 21 of 1970, Second Schedule]
Coercion by husband
Abolition of presumption of coercion of married woman
by husband
100. Any presumption of law that an offence committed by a wife in the
presence of her husband is committed under the coercion of the husband is hereby
abolished, but on a charge against a wife for any offence other than treason or
murder it shall be a good defence to prove that the offence was committed in the
presence of, and under the coercion of. the husband.
(Added, 17 of 1930, s. 9)
[cf. U.K. 1925 c, 86, s.
47]
Apprehension of offenders
Summary apprehension of offender in certain cases
101. (1) [Deleted, 5 of 1971, s. 9]
(2) Any person may arrest without warrant any person whom he may
reasonably suspect of being guilty of an arrestable offence. (Replaced, 70 of
1967,s.2)
(3) Any person to whom any property is offered to be sold, pawned, or
delivered, and who has reasonable ground to suspect that any arrestable ofrence
has been or is about to be committed on or with respect to such property, may, and,
if he can, shall, without warrant, apprehend the person offering the same and take
possession of the property so offered. (Amended, 70 of 1967, s. 2)
(4) Every person who finds any person in possession of any property which
he, on reasonable grounds, suspects to have been obtained by means of an
arrestable offence may arrest such last-mentioned person without warrant
and take possession of the property.(Amended, 70 of 1967, s. 2)
(5) Every person who arrests any person under any of the provisions herein
contained shall (if the person making the arrest is not himself a police officer)
deliver the person so arrested, and the property, if any, taken possession of by him,
to some police officer in order that he may be conveyed as soon as reasonably may
be before a magistrate, to be by him dealt with according to law, or himself convey
him before a magistrate, as soon as reasonably may be, for that purpose. (Amended,
51 of 1911 and 2 of 1912, Schedule)
(6) Nothing in this section shall affect the powers of apprehension conferred
upon constables or other persons by any other enactment. (Amended, 51 of 1911
and 2 of 1912, Schedule)
Use of force in making arrest, etc.
101A. (1) A person may use such force as is reasonable in the circumstances in
the prevention of crime or in effecting or assisting in the lawful arrest of offenders
or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) shall replace the rules of the common law on the question
when force used for a purpose mentioned in the subsection is justified by that
purpose.
(Added, 5 of 1971, s. 10)
[cf. U.K. 1967 c. 58, s.
3]
Disposal of property
Disposal of property connected with offences
102. (1) Where
(a)any property has come into the possession of a court, the police or the
Customs and Excise Service in connection with any offence;
(b)it appears to a court that an offence has been committed in respect of any
property in the possession of the court, the police or the Customs and
Excise Service; or
(c)it appears to a court that any property in the possession of the court, the
police or the Customs and Excise Service has been used in the
commission of an offence,
then, whether or not the offence was committed or appears to have been committed
in Hong Kong, a court may dispose of such property in the manner provided in this
section. (Amended, 46 of 1977, s. 16)
(2) Of its own motion or upon application, a court may-
(a) in respect of property to which subsection (1)(a) applies-
(i) make an order for the delivery of any such property to the person
who appears to the court to be entitled thereto;
(ii) where the person so entitled is unknown or cannot be found, make
an order that the property be sold or retained in the possession of the
court, the police or the Customs and Excise Service; and (Amended, 46 of
1977, s. 16)
(b) in respect of property to which subsection (1)(b) or (c) applies-
(i) deal with such property under paragraph(a) in the like manner as
property to which subsection (1)(a) applies; or
(ii) make an order for the forfeiture of the property.
(3) Save where the property is perishable, no order for the delivery, sale or
forfeiture of property shall be made under subsection (2) unless the court is
satisfied that the property will not be required as an exhibit in any proceedings
before a court.
(4) Where under subsection (2) a court orders the sale or retention of property,
and no person establishes a claim to the property or the proceeds of sale thereof
within 6 months from the date such order is made, the property or the proceeds of
sale shall become the property of the Crown.
(5) An order made under subsection (2), other than an order for the retention
of property, shall not, except when the property is a live animal, bird or fish or is
perishable, be carried out until the period allowed for making an appeal against the
order has expired or, where such an appeal is duly made, until the appeal has been
finally determined or abandoned.
(6) Where by any other Ordinance it is provided that any particular property
or class of property shall or may be forfeited, destroyed or disposed of, then the
provisions of such Ordinance shall prevail.
(7) The power conferred on a court by subsection (2)(b)(ii) to order the
forfeiture of property shall not apply in respect of immovable property or any
aircraft, motor vehicle or ship.
(8) In this section 'court' includes a magistrate.
(Replaced, 70 of 1967, s. 4)
Seizure of things intended for use in commission
of indictable offence
103. Any magistrate or the court may order the seizure of any instruments,
materials or things which there is reason to believe are provided or prepared, or
being prepared, with a view to the commission of any indictable offence, and the
same may be del with under section 102 as though it were property to which
subsection (1)(c) of that section applies.
(Amended, 50 of 1911, s. 4; 5 of 1924, s. 8 and 70 of 1967, s. 5)
Search warrant
104. An order made under section 103 may be enforced by a search warrant.
(Amended, 50 of 1911, s. 4; 5 of 1924, s. 8 and 70 of 1967, s. 6)
Report of property found upon person apprehended
105. If, on the apprehension of any person charged with an indictable offence,
any property is taken from him, a report shall be made by the police to the
magistrate or the court of the fact of such property having been taken from such
person and of the particulars of such property.
Application of money found upon person apprehended
106. If, on the apprehension of any person charged with an indictable offence,
any money is taken from him, the court may, in its discretion, in case of the
conviction of such person, order such money or any part thereof to be applied to
the payment of any costs, or costs and compensation, directed to be paid by such
person.
Presumption and determination of age
Presumption and determination of age
106A. (1) Where the age of any person at any time is material for the purposes
of any provision in this Ordinance or any other Ordinance regulating the powers of
a court in relation to offenders, his age at the material time shall be deemed to be or
to have been that which appears to the court, after considering any available
evidence, to be or to have been his age at that time.
(2) In this section, 'court' includes the District Court and a magistrate.
(Added, 33 of 1979, s. 2)
[cf. U.K. 1948 c. 58, s. 80 (3)]
Probation of first offenders
Power to permit conditional release of offenders
107. (1) Where any person has been convicted on indictment of any offence
punishable with imprisonment, and the court is of opinion that, having regard to the
character, antecedents, age, health, or mental condition of the person charged, or to
the trivial nature of the offence, or to the extenuating circumstances under which
the offence was committed, it is inexpedient to inflict any punishment or any other
than a nominal punishment, the court may, in lieu of imposing a sentence of
imprisonment, make an order discharging the offender conditionally on his entering
into a recognizance, with or without sureties, to be of good behaviour and to appear
for sentence when called on at any time during such period, not exceeding 3 years,
as may be specified in the order. (Amended, 12 of 1960, s. 3)
(2) The court may, where it makes an order under this section, further order
that the offender shall pay such costs of the proceedings as the court thinks
reasonable. (Amended, 48 of 1972, s. 4)
(Replaced, 27 of 1937, Schedule)
[cf. U.K. 1907 c. 17, s. 1(2) & (3)]
Provision in case of offender failing to observe conditions
of release
108. (1) In any such case the court or a magistrate, if satisfied by information on
oath that the offender has failed to observe any of the conditions of his
recognizance, may issue a warrant for his apprehension, or may, if it or he thinks fit,
instead of issuing a warrant in the first instance, issue a summons to the offender
and his sureties (if any) requiring him or them to attend at such court as may be
specified in the summons.
(2) The offender, when apprehended, shall, if not brought forthwith before the
court, be brought before a magistrate.
(3) The magistrate before whom an offender on apprehension is brought, or
before whom he appears in pursuance of such summons as aforesaid, may remand
him in custody or on bail until he can be brought before the court.
(4) An offender so remanded to custody may be committed during remand to a
prison, or, if he is a child or young person under the age of 16, to a place of
detention provided under the Juvenile Offenders Ordinance (Cap. 226).
(5) The court, on being satisfied that a person bound by his recognizance to
appear for conviction and sentence has failed to observe any condition of his
recognizance, may forthwith, without further proof of his guilt, convict and
sentence him for the original offence.
(Replaced, 2 of 1937, Schedule) [cf.
U.K. 1907 c. 17, s. 6]
Conditions as to abode of sureties
109. The court, before directing the release of an offender under section 107,
shall be satisfied that the sureties, if any, have fixed places of abode or regular
occupation in the Colony.
[cf. U.K. 1887 c. 25, s. 3]
Imprisonment of young offenders
Restriction on imprisonment of persons between 16 and
21 years of age
109A. (1) No court shall sentence a person of or over 16 and under 21 years of
age to imprisonment unless the court is of opinion that no other method of dealing
with such person is appropriate; and for the purpose of determining whether any
other method of dealing with any such person is appropriate the court shall obtain
and consider information about the circumstances, and shall take into account any
information before the court which is relevant to the character of such person and
his physical and mental condition.
(IA) This section shall not apply to a person who has been convicted of any
offence which is declared to be an excepted offence by the Third Schedule. (Added,
5 of 1971, s. 10A)
(2) In this section 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 11)
(Added, 66 of 1967, Schedule)
[cf. U.K. 1948 c. 58, s. 17(2)]
Supervision of young prisoners on release from prison
Supervision orders
109AA. (1) In the case of a person who, before attaining the age of 25 years, is
released from imprisonment or completes after such release a period of supervision
ordered under section 7(2) of the Prisoners (Release under Supervi-
sion) Ordinance (Cap. 325), the Commissioner of Correctional Services shall, subject
to subsections (IA) and (2) of this section, make a supervision order under this
section if the sentence of imprisonment which that person has served, or in respect
of which the order under section 7(2) of that Ordinance was made, was for a term
(a) of 3 months or more;
(b) other than in default of payment of a sum of money; and
(c) which that person began to serve-
(i) before he attained the age of 21 years; and
(ii) after 1 May 1980. (Replaced, 59 of 1987, s. 21)
(IA) No supervision order shall be made under subsection (1) on the release of
a person from imprisonment where he is so released subject to supervision under
section 7(1) of the Prisoners (Release under Supervision) Ordinance. (Added, 59 of
1987, s. 21)
(2) No supervision order shall be made under subsection (1) on the release
of a person in respect of whom there is revived upon his release (Amended,
24 of 1986, s. 6)
(a) a detention order, supervision order, or recall order, that was suspended
under section 6A of the Drug Addiction Treatment Centres Ordinance
(Cap 244); or
(b) a sentence of detention in a training centre, a supervision notice, or an
order of recall, that was suspended under section 5A of the Training
Centres Ordinance (Cap. 280).
(3) A supervision order under subsection (1) shall contain conditions that the
person against whom it is made shall
(a)subject to subsections (4) and (5), be subject to supervision by such
organization or person as may be specified therein for a period
commencing on the date of his release from prison and expiring not more
than 12 months thereafter; and
(b)while under supervision, comply with such requirements, including
requirements as to residence, as may be specified therein.
(4) The Commissioner of Correctional Services may at any time cancel or vary
the terms of a supervision order under subsection (1).
(5) A supervision order under subsection (1) shall-
(a)be suspended in its operation for any period during which the person
against whom it was made
(i) is detained pursuant to a recall order under section 109AB; or
(ii) is serving a term of imprisonment of less than 3 months,
but shall not by reason of any such suspension expire more than 12
months after the date on which it was made;
(b) cease to have effect where the person against whom it was made-
(i) is ordered to serve a term of imprisonment of 3 months or more;
(ii) is ordered to be detained in an addiction treatment centre under the
Drug Addiction Treatment Centres Ordinance;
(iii) is ordered to be detained in a training centre under the Training
Centres Ordinance;
(iv) is made the subject of a probation order under section 3 of the
Probation of Offenders Ordinance (Cap. 298); or
(v) attains the age of 26.
(6) A person who fails to comply with a supervision order under subsection (1)
shall be guilty of an offence and liable on conviction to a fine of $5,000 and to
imprisonment for 12 months.
(Added, 14 of 1980, s. 2)
Recall orders
109AB. (1) Where the Commissioner of Correctional Services is satisfied that a
person against whom a supervision order under subsection (1) of section 109AA is
in force has failed to comply with the order, he may, if such person earned
remission under rule 69 of the Prison Rules (Cap. 234, sub. leg.) in respect of the
period of imprisonment which ended on his release from prison referred to in that
subsection, make a recall order against him requiring him to return to prison.
(2) Subject to subsections (3) and (4), a person against whom a recall order is
made under subsection (1) may be detained in prison for a period equivalent to the
amount of the remission that was earned by him.
(3) The Commissioner of Correctional Services may at any time release a
person who is detained pursuant to a recall order under subsection (1).
(4) A recall order under subsection (1) shall cease to have effect where the
person against whom it was made
(a) is ordered to serve a term of imprisonment;
(b)is ordered to be detained in an addiction treatment centre under the Drug
Addiction Treatment Centres Ordinance (Cap. 244);
(c)is ordered to be detained in a training centre under the Training Centres
Ordinance (Cap. 280);
(d)is made the subject of a probation order under section 3 of the Probation
of Offenders Ordinance (Cap. 298); or
(e) attains the age of 26.
(Added, 14 of 1980, s. 2)
Arrest etc. of persons unlawfully at large
109AC. (1) If a person against whom a recall order is made under section
109AB(1) is at large at the time it is made, he shall be deemed to be unlawfully at
large.
(2) A police officer may, if he reasonably suspects that a recall order under
section 109AB(1) is in force against a person and that that person is unlawfully at
large, arrest him and take him to a prison.
(2A) An officer of the Correctional Services Department specified in a
supervision order made under section 109AA in respect of a person against whom
a recall order has been made under section 109AB(1) or such other officer
of that Department as the Commissioner of Correctional Services may substitute for
the officer so specified by a variation of the terms of that supervision order may, if
he reasonably suspects that that recall order is in force against that person and that
that person is unlawfully at large, arrest him and take him to a prison. (Added, 14 of
1988, s. 2)
(3) Any period during which a person against whom a recall order under
section 109AB(1) is in force is unlawfully at large shall be disregarded in calculating
the period for which he may be detained under the recall order, unless the Governor
otherwise directs in a particular case.
(Added, 14 of 1980, s. 2)
Suspended sentences
Suspended sentences of imprisonment
109B. (1) A court which passes a sentence of imprisonment for a term of not
more than 2 years for an offence, other than an excepted offence, may order that the
sentence shall not take effect unless, during a period specified in the order, being
not less than 1 year nor more than 3 years from the date of the order, the offender
commits in the Colony another offence punishable with imprisonment and thereafter
a court having power to do so orders under section 109C that the original sentence
shall take effect.
(2) A court which passes a suspended sentence on any person for an offence
shall not make a probation order in his case in respect of another offence of which
he is convicted by or before the court or for which he is dealt with by the court.
(3) On passing a suspended sentence the court-
(a) may impose such conditions as it thinks fit;
(b)shall explain to the offender in ordinary language his liability under
section 109C if during the operational period he commits an offence
punishable with imprisonment or breaks any condition imposed under
paragraph (a).
(4) If a court has passed a suspended sentence on any person, and that
person is subsequently sentenced to detention in a training centre, he shall cease
to be liable to be dealt with in respect of the suspended sentence unless the
subsequent sentence or any conviction or finding on which it was passed is
quashed on appeal.
(5) Subject to any provision to the contrary contained in this or any other
Ordinance
(a)a suspended sentence which has not taken effect under section 109C
shall be treated as a sentence of imprisonment for the purposes of all
Ordinances except any Ordinance which provides for disqualification for
or loss of office, or forfeiture of pensions, of persons sentenced to
imprisonment; and
(b)where a suspended sentence has taken effect under section 109C, the
offender shall be treated for the purposes of the said excepted
Ordinances as having been convicted on the ordinary date on which
the period allowed for making an appeal against an order under section
109C expires or, if such an appeal is made, the date on which it is finally
disposed of or abandoned or fails for non-prosecution.
(Added, 5 of 1971, s. 11)
[cf. U.K. 1967 c. 80, s. 39]
Power of court on conviction of further offence to deal with
suspended sentence
109C. (1) If an offender is convicted of an offence punishable with
imprisonment committed during the operational period of a suspended sentence or
if, during such period, he breaks a condition imposed under section 109B(3)(a) and
either he is so convicted by or before a court having power under section 109D to
deal with him in respect of the suspended sentence or he subsequently appears or
is brought before such a court, then, unless the sentence has already taken effect,
that court shall consider his case and deal with him by one of the following
methods
(a)the court may order that the suspended sentence shall take effect with the
original term unaltered;
(b)it may order that the sentence shall take effect with the substitution of a
greater or lesser term for the original term;
(c)it may by order vary the original order under section 109B(1) by
substituting for the period specified therein a period expiring not later
than 3 years from the date of the variation; or
(d) it may make no order with respect to the suspended sentence,
and a court shall make an order under paragraph (a) of this subsection unless the
court is of opinion that it would be unjust to do so in view of all the circumstances
which have arisen since the suspended sentence was passed, including the facts of
the subsequent offence, and where it is of that opinion the court shall state its
reasons.
(2) Where a court orders that a suspended sentence shall take effect, with or
without any variation of the original term, the term of such sentence shall
commence on the expiration of another term of imprisonment passed on the
offender by that or another court, unless the court is of opinion that, by reason of
special circumstances, the sentence should take effect immediately,
(3) In proceedings for dealing with an offender in respect of a suspended
sentence which take place before the High Court any question whether the offender
has been convicted of an offence punishable with imprisonment committed during
the operational period of the suspended sentence shall be determined by the court
and not by the verdict of a jury.
(4) Where a court deals with an offender under this section in respect of a
suspended sentence the clerk of the court shall notify the clerk of the court which
passed the sentence of the method adopted.
(5) Where on consideration of the case of an offender a court makes no order
with respect to a suspended sentence, the clerk of the court shall record that fact.
(6) For the purposes of any Ordinance conferring rights of appeal in
criminal cases any such order made by a court shall be treated as a sentence
passed on the offender by that court for the offence for which the suspended
sentence was passed.
(Added, 5 of 1971, s. 11)
[cf. U.K. 1967 c. 80, s. 40]
Court by which suspended sentence is to be dealt with
109D. (1) An offender may be dealt with in respect of a suspended
sentence by any court before which he appears or is brought.
(2) Where an offender is convicted by a magistrate of an ofrence punish-
able with imprisonment and the magistrate is satisfied that the offence was
committed during the operational period of a suspended sentence passed by the
High Court or the District Court-
(a)the magistrate may, if he thinks fit, commit him in custody or on bail
to the court having power to deal with him in respect of the suspended
sentence; and
(b)if he does not, shall give written notice of the conviction to the clerk of
the court by which the suspended sentence was passed.
(3) The court to which a magistrate commits an offender under subsec-
tion (2) shall be the court by which the suspended sentence was passed, except
that the magistrate may commit him to some other court if, having regard to
the time when and the place where he is likely to be dealt with in respect of
the suspended sentence by the court by which that sentence was passed, it
would be more convenient that he should be dealt with by that other court.
(4) For the purpose of this section and section 109E a suspended sentence
passed on an offender on appeal shall be treated as having been passed by the
court by which he was originally sentenced.
(Added, 5 of 1971, s. 11)
[cf. U.K. 1967 c. 80, s. 41]
Discovery of further offences
109E. (1) If it appears to a judge, a District Judge or a magistrate that
an offender has been convicted in the Colony of an offence punishable with
imprisonment committed during the operational period of a suspended sentence
and that he has not been dealt with in respect of the suspended sentence, the
judge, District Judge or magistrate may issue a summons requiring the offender
to appear at the place and time specified therein, or may, subject to the
following provisions of this section, issue a warrant for his arrest.
(2) A magistrate shall not issue a summons under this section except
on information and shall not issue a warrant under this section except on
information in writing and on oath.
(3) A summons or warrant issued under this section shall direct the
offender to appear or to be brought before the court by which the suspended
sentence was passed, but if a warrant is so issued requiring him to be brought
before the High Court or the District Court and he cannot forthwith be brought
before that court because that court is not being held, the warrant shall have effect
as if it directed him to be brought before a magistrate and the magistrate shall
commit him in custody or on bail to the High Court or District Court.
(Added, 5 of 1971, s. 11)
[cf. U.K. 1967 c. 80, s. 42]
Breach of condition
109F. If, during the operational period of a suspended sentence, an offender is
guilty of the breach of any condition imposed on him by a court under section
109B(3)(a), he shall be liable to be dealt with as if, during such period, he had been
convicted of an offence punishable with imprisonment.
(Added, 5 of 1971, s. 11)
Interpretation
109G. In sections 109B, 109C, 109D, 109E and 109F
'court' includes the District Court and a magistrate; (Amended, 35 of 1976, s. 12)
'excepted offence' means an offence declared to be an excepted offence by the
Third Schedule;
,,operational period', in relation to a suspended sentence, means the period
specified in an order made under section 109B(1).
(Added, 5 of 1971, s. 11)
109H. [Repealed, 74 of 1976, s. 2]
Enforcing recognizance
Preparation of list of persons making default on recognizance
110. (1) The Registrar shall, once a month, make out a list or lists of persons
bound by recognizance to appear or to do any other thing, or who have been
bound for the appearance of any other person or for his doing any other thing, and
who have made default, or whose principal, or other person for whom they are so
bound, has made default, to appear or to do such other thing; and the Registrar
shall, if he is able to do so, state the cause why such default has been made
(Amended, 50 of 1911; ]of 1912, Schedule; ]7of 1931, s. 2 and 63 of 1971, s. 7)
(2) The list or lists so made out shall be examined, and, if necessary, corrected
and signed by the judge, and shall be delivered by the Registrar to the bailiff.
(Amended, 17 of 1931, s. 2)
[cf. U.K. 1826 c. 64, s. 31]
Issue of writ of execution
111. A writ of execution shall be issued from the Registrar's office against every
such person who is liable on a recognizance in respect of any such default, and
shall be delivered to the bailiff, and such writ shall be the authority of the bailiff for
levying and recovering such forfeited recognizance on the real and
personal property of such person and for taking into custody the body of such
person, in case sufficient real or personal property is not found whereon levy may
be made.
Apprehension and detention of person making default where recognizance is
unsatisfied
112. Every person who is arrested under the provisions of section 111 shall be
committed to prison and be there kept until ordered to appear before the court on
such day as the Registrar may appoint, there to abide the decision of the court,
unless in the meantime the forfeited recognizance, or a sum of money in lieu or
satisfaction thereof, is paid, together with all costs and expenses in consequence of
his arrest and detention:
Provided that if any person so arrested and imprisoned gives to the bailiff
good and sufficient bail for his appearance before the court on the appointed day,
to abide the decision of the court, and for the payment of the forfeited recognizance
or a sum of money in lieu or satisfaction thereof, together with such costs as may
be awarded by the court, then it shall be lawful for the bailiff, and he is hereby
required, forthwith to cause such person to be discharged out of custody.
(Amended, 50 of 1911, s. 4 and 63 of 19 71, s. 8)
Failure of such person when released to appear on
appointed day
113. If such person fails to appear before the court on the appointed day in
pursuance of his undertaking in that behalf, the court may order that a writ of
execution be issued from the Registrar's office against the surety or sureties of the
person so bound as aforesaid, and such writ shall be delivered to the bailiff, who
shall proceed as therein directed: (Amended, 63 of 1971, s. 9)
Provided that the court may, in its discretion, order the discharge of the whole
or any part of the forfeited recognizance or of the sum of money paid or to be paid
in lieu or satisfaction thereof.
General power to fine
Power of court to fine
113A. (1) Where a person is convicted of any offence, other than an offence for
which the sentence is fixed by law, the court may, if it is not precluded from
sentencing him by the exercise of some other power (such as the power to make a
probation order under section 3 of the Probation of Offenders Ordinance (Cap.
298)), impose a fine in lieu of or in addition to dealing with such person in any other
way in which the court has power to deal with him, subject however to any
enactment requiring him to be dealt with in a particular way.
(2) If the court imposes a fine on any person under subsection (1), the court
may make an order
(a) allowing time for the payment of the amount of the fine; and
(b)directing payment of that amount by instalments of such amounts and on
such dates respectively as may be specified in the order. [cf. U.K. 1973 c.
62, s. 31]
(3) If the court imposes a fine on any person under subsection (1), the court
shall make an order fixing a term of imprisonment not exceeding 12 months which
that person is to undergo if any sum which he is liable to pay is not duly paid.
(4) In this section, 'court' includes the District Court.
(Added, 50 of 1981, s. 4)
[cf. U.K. 1973 c. 62, s. 30(1)]
Fines, forfeitures, and contempts
Powers of court in relation to fines and forfeited
recognizances
114. (1) Subject to the provisions of this section, where a fine is imposed by, or
a recognizance is forfeited before, a court, an order may be made in accordance with
the provisions of this section
(a)allowing time for the payment of the amount of the fine or the amount due
under the recognizance;
(b)directing payment of the said amount by instalments of such amounts
and on such dates respectively as may be specified in the order;
(c)fixing a term of imprisonment which the person liable to make the payment
is to undergo if any sum which he is liable to pay is not duly paid or
recovered;
(d)in the case of a recognizance, discharging the recognizance or reducing
the amount due thereunder. (Amended, 35 of 1976, s. 13)
(2) Where any person liable for the payment of a fine or a sum due under a
recognizance to which this section applies is sentenced by the court to, or is
serving or otherwise liable to serve, a term of imprisonment, the court may order
that any term of imprisonment fixed under subsection (1)(c) shall not begin to run
until after the end of the first-mentioned term of imprisonment.
(3) The power conferred by this section to discharge a recognizance or reduce
the amount due thereunder shall be in addition to the powers conferred by any
other enactment relating to the discharge, cancellation, mitigation or reduction of
recognizances or sums forfeited thereunder.
(4) Where any such order as aforesaid is made directing payment by
instalments of a fine or the amount due under a recognizance, and default is made in
the payment of any one instalment, the same proceedings may be taken as if default
had been made in payment of all the instalments then remaining unpaid.
(5) Where any such order as aforesaid is made fixing a term of imprisonment in
default of payment of a fine or the amount due under a recognizance, then
(a)on payment of the fine or the said amount to the officer responsible for the
recovery thereof, or (if the person in respect of whom the order was made
is in prison) to the Commissioner of Correctional Services, the order shall
cease to have effect; and, if the said person is in prison and is not liable to
be detained for any other cause, he shall forthwith be discharged;
(b)on payment to the said officer or to the Commissioner of Correctional
Services of a part of the fine or of the amount due under the recognizance,
the total number of days in the term of imprisonment shall be reduced
proportionately, that is to say, by such number of days as bears to the said
total number of days less one day the proportion most nearly
approximating to, without exceeding, the proportion which the part paid
bears to the amount of the fine or the amount due under the recognizance.
(6). In reducing the number of days in the term of imprisonment under
subsection (5)(b), the term of such imprisonment to be reduced shall be deemed, at
any given time, to have been reduced by any period of remission earned under the
Prison Rules (Cap. 234, sub. leg.).
(7) For the purposes of this section, 'court' includes the District Court.
(Amended, 35 of 1976, s. 13)
(Replaced, 12 of 1960, s. 4)
Pardon
Power to grant conditional pardon
115. A magistrate or the court may, with the consent in writing of the Attorney
General, order that a pardon be granted to any person accused or suspected of, or
committed for trial for any indictable offence, on condition of his giving full and true
evidence on any preliminary inquiry or any trial; and such order shall have effect as
a pardon by the Governor, but may be withdrawn by the magistrate or the court on
proof that such person has withheld evidence or given false evidence.
(Amended, 50 of 1911 and 1 of 1912, Schedule)
Effect of pardon
116. In every case where either a free or conditional pardon is granted to any
person, the discharge of the offender in the case of a free pardon, and the
performance of the condition, in the case of a conditional pardon, shall have the
same effect as a pardon has in the like cases under the public seal.
(Amended, 50 of 1911 and 21 of 1912, s. 2)
[cf. U.K. 1827 c. 28, s. 13]
Recording of pardon
117. (1) Whenever the Governor, in the name and on behalf of Her Majesty, is
pleased to grant to any offender a pardon under the public seal or to issue any
warrant for the commutation of any sentence of death, the Registrar shall be bound,
on the direction of the Governor, to record such pardon or
warrant in the book to be kept by him for that purpose and to endorse such
pardon or warrant with the word 'Recorded' and with his signature. (Amend-
ed, 50 of 1911 and 21 of 1912, s. 2)
(2) Every such pardon and warrant shall be valid and effectual for all
purposes whatsoever, and it shall be the duty of all courts, judges, magistrates,
officers, and others, on production thereof, to take notice of and to give effect to
the same.
Saving of prerogative of mercy
118. Subject as hereinbefore provided, nothing in this Ordinance shall
affect Her Majesty's prerogative of mercy or any prerogative of mercy vested in
the Governor.
(Amended, 50 of 1911 and 1 of 1912, Schedule)
Error, etc.
Prohibition of proceedings in error
119. No proceeding in error shall be taken upon any trial under the
provisions of this Ordinance.
Interpretation of reference to information
120. Where, in any Ordinance, or in any rules, regulation, by-law, or order,
or in any other document of whatever kind, reference is made to an information
in the court in respect of an indictable offence, such reference shall, unless the
context otherwise requires, be taken as applying to an indictment in the court.
Repeal of rules and orders
121. All rules and orders of the court which are inconsistent with the
provisions of this Ordinance shall and the same are hereby declared to be of no
force or effect whatsoever.
Power to exclude public from criminal courts
122. (1) Any judge, District Judge or magistrate may, if he considers it
necessary in the interests of justice or public order or security, direct that, save
as provided in subsection (3) or with the permission of a public officer acting
under his direction, no person shall be in the court in which such judge, District
Judge or magistrate sits in the exercise of his criminal jurisdiction or in the
building, or within the curtilage of the building, in which that court sits.
(2) The Chief Justice may, if he considers it necessary in the interests of
justice or public order or security, direct that, save as provided in subsection (3)
or with the permission of a public officer acting under his direction, no person
shall be in any court hearing any criminal proceedings or in any building, or
within the curtilage of any building, in which that court sits.
(3) Subsections (1) and (2) shall not apply to a person who is required to
be in any such court or any such building by virtue of his office or profession or
an order of a court or who is otherwise required for the purposes of any
proceedings, whether civil or criminal, to be in any such court or any such building
or to any one person representing a newspaper or news agency.
(4) Any person who contravenes any direction of a judge, District Judge or
magistrate under subsection (1) or of the Chief Justice under subsection (2) shall be
guilty of an ofrence and shall be liable on conviction to a fine of $5,000 and to
imprisonment for 6 months and may be forcibly removed by any police officer from
the court or building or the curtilage of the building, as the case may be.
(5) Notwithstanding any other law, the exclusion of persons from any court or
any building by or in accordance with a direction of a judge, District Judge or
magistrate under subsection (1) or of the Chief Justice under subsection (2) shall
not affect the validity of the proceedings of that court or of any court which sits in
that building as the case may be.
(6) Nothing in subsection (1) or (2) shall derogate from or affect the power of
any judge, District Judge or magistrate to order the exclusion from the court in
which he sits of members of the public where the proper administration of justice so
requires.
(7) In this section 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 14)
(Added, 37 of 1968, s. 2)
Criminal proceedings may be held in camera and non-
disclosure of identity of witnesses in certain cases
123. (1) Notwithstanding any other law-
(a)if it appears to a court that it is or may be expedient so to do in the
interests of justice or public order or security or for the safety or well-
being of a witness or any other person; or
(b)if a court is satisfied on the information of any person or otherwise that a
witness is apprehensive as to what may happen to him or to any member
of his family or a friend or to his property or business if he gives evidence
in open court,
the court may order that the whole of the proceedings before it in respect of any
offence shall take place in a closed court.
(2) In any case where a court may make an order under subsection (1), the court
may, whether or not it makes an order under that subsection, order that no question
shall be put to any specified witness in the proceedings before it if the answer
thereto would lead, or tend to lead, to disclosure of the name or address of any
witness in the proceedings; but the court may require any such witness to record
the name and address of a witness in the proceedings in writing and to deliver it into
the custody of the court. (Replaced, 35 of 1976, s. 15)
(3) In this section 'court' includes the District Court and a magistrate.
(Amended, 35 of 1976, s. 15)
(Added, 37 of 1968, s. 2)
Amendment of Third Schedule
124. The Legislative Council may, by resolution, from time to time amend the
Third Schedule.
(Added, 5 of 1971, s. 12A)
FIRST SCHEDULE
FORM 1 [s. 15(2)]
HONG KONG.
Be it remembered that Her Majesty's Attorney General declines to file any indictment against
a charge of detained in the custody of upon
Given under my hand this day of 19
Attorney General.
To the Registrar of the Supreme Court.
(Added and amended, 8 of 1912, s.
52)
FORM 2 [s. 15(2)]
IN THE SUPREME COURT OF HONG KONG
To
Whereas is detained in your custody under the warrant of
upon a charge of and whereas the Attorney General declines
to file any indictment against the saidyou are therefore
hereby authorized and required forthwith to discharge the said from your
custody without fee or reward.
Given under my hand and the seal of the court the day of
19
Registrar.
(Added and amended, 8 of 1912, s.
52)
FORM 3
[Deleted, 35 of 1976, s.
16]
FORM 4 [s. 27]
Notice of Trial of Indictment
IN THE SUPREME COURT OF HONG KONG
To A.B.
Take notice that you will answer to this indictment [or to the indictment whereof this is a
true
copy] at the Supreme Court, Victoria, on the day of 19
(Signed)
Registrar.
(Replaced, 63 of 1971. s. 10)
FORM 5 [s. 86]
Certificate of Sentences
IN THE SUPREME COURT OF HONG KONG
To the
This is to certify that the undermentioned persons were sentenced this day to undergo the
undermentioned punishment namely
months
A.B., imprisonment years
months
C.D., imprisonment years
Dated this day of 19
(Signed)
Registrar.
(Replaced, 63 of 1971 s. 10)
FORM 6 [s. 63]
Certificate of Previous Con viction
To the .............................................
This is to certify that
(a)the following conviction(s) is/are recorded in the criminal records in my custody relating
to the person whose name appears on such records as
....................................................... and whose finger-prints appear therein also, and
(b) the finger-prints exhibited to this certificate are true copies thereof.
Signed
.............................................................................
Authorized to sign by
Commissioner of Police under
section 63 (2) (a).
(Added, 31 of 1958, s. 3)
FROM 7 [s. 63]
Certificate of Finger-printing
To the .............................................
This is to certify that the finger-prints exhibited to this certificate were taken on
..................
day of .....at the
from the person of ..........................in my presence and that at that time such person-
(a) was under arrest in connection with the ofrence of .............................................
...........
(b) had appeared before this court and had been charged with the offence of
.........................
........................................
............[Delete that which is inapplicable.]
Signed ...
(Added, 31 of 1958, s. 3)
FORM 8 [s. 63]
Certificate of Comparison of Finger-prints
To the .............................................
'This is to certify that the copies of finger-prints exhibited to the Certificate of Previous
Conviction dated
...............................................................................................................
............... in respect of a person named
............................................................................................................
and the finger-prints exhibited to the Certificate of Finger-printing dated ..............................
............... in respect of a person named
are those of the same person.
Signed
Authorized to sign by Commissioner
.......of Police under section 63 (2) (e).
.......(Added, 31 of 1958, s. 3)
(14 of 1906, Schedule, incorporated. Amended, 29 of 1952, s. 4; 21 of 1970, Second Schedule
and 1 of 1978, s. 8)
[cf. U.K. 1908 c. 67, s. 27 1st Sch. and 1914 c. 58, s. 28(3)]
THIRD SCHEDULE [ss. 109A, 109G 124]
EXCEPTED OFFENCES
The following offences are declared to be excepted offences-
1. Manslaughter.
2. Rape or attempted rape.
3. Affray.
4. Any offence against section 4, 5 or 6 of the Dangerous Drugs Ordinance (Cap. 134).
5.Any offence contrary to section 10, 11, 12, 13, 14, 17, 19, 20, 21, 22, 23, 28, 29, 30, 36 or 42 of the Offences
against the Person Ordinance (Cap. 212).
6. Any offence or attempted offence against section 122 of the Crimes Ordinance (Cap.
200).
(Amended, 1 of 19 78, s. 8)
7. An offence under any section in Part III of the Firearms and Ammunition Ordinance
(Cap. 238).
(Replaced, 68 of 198 1, s. 56)
8. Any ofrence against section 10 or 12 of the Theft Ordinance (Cap. 210).
9.Any offence against section 33 of the Public Order Ordinance (Cap. 245). (Added, L.N. 250/72)
10.Any offence under section 4 or 10of the Weapons Ordinance(Cap. 217). (Added, 69 of 1981. S. 19)
(Added, 5 of 1971. s. 12B)
FOURTH SCHEDULE [s. 76]
EFFECT OF ORDERS FOR ADMISSION To
HOSPITAL
1. (1) An order for admission to the Correctional Services Department Psychiatric Centre
or to a mental hospital under section 76(1) shall be sufficient authority for
(a) in the case of admission to the Correctional Services Department Psychiatric Centre,
the
Commissioner of Correctional Services; or
(b) in the case of admission to a mental hospital, any person acting under the authority of
the
Governor,
to take the person to whom the order relates and convey him at any time within the period of
28 days (beginning with the date on which the order was made) to the Correctional Services
Department Psychiatric Centre or the mental hospital specified by the Governor.
(Replaced,37of 1973,s. 7)
(2) The court by which any such order as aforesaid is made may give such directions as it
thinks fit for the conveyance of a person to whom the order relates to a place of safety and his
detention therein pending his admission to the Correctional Services Department Psychiatric
Centre or the mental hospital within the said period of 28 days.
(3) Where a person is admitted within the said period to the Correctional Services
Department Psychiatric Centre or the mental hospital specified by the Governor under section
76(1), such order shall be sufficient authority for the Commissioner of Correctional Services or
the medical superintendent to detain him therein in accordance with section 45 of the Mental
Health Ordinance (Cap. 136) as applied by paragraph 2 of this Schedule.
2. A person who is admitted to the Correctional Services Department Psychiatric Centre or
a mental hospital in pursuance of an order under section 76(1) shall be treated for the purposes
of the Mental Health Ordinance as if he had been so admitted in pursuance of a hospital order
made (on the date of the order under section 76(1)) under section 45 of that Ordinance.
(Added, 34of 1972,s. 20. Amended, 37 of1973, s. 7)
[cf. U.K. 1964 c. 84, Sch. 1; 1968 c. 19, Sch. 5, Paras. 1, 2
(1)
FIFTH SCHEDULE [ss. 83D 83L]
CONSEQUENCES AND EFFECT OF ORDER FOR ADMISSION
To HOSPITAL
UNDER SECTION 83D OR 83L
1. (1) An order for admission to the Correctional Services Department Psychiatric Centre
or a mental hospital under section 83D or 83L shall be sufficient authority for the
Commissioner of Correctional Services or any other person directed to do so by the court to
take the person to whom the order relates and convey him at any time within the relevant
period to the Correctional Services Department Psychiatric Centre or the mental hospital
specified by the Governor.
(2) The relevant period for the purposes of this paragraph is
(a) in relation to an order under section 83D or 83L(1), 28 days;
(b) in relation to an order under section 83L(2), 7 days,
the said period to begin in either case with the date on which the order was made.
(3) Where a person is admitted within the relevant period to the Correctional Services
Department Psychiatric Centre or the mental hospital specified by the Governor under section
83D or, as the case may be, section 83L, the order shall be sufficient authority for the
Commissioner of Correctional Services or the medical superintendent to detain him in
accordance with the provisions of the Mental Health Ordinance (Cap. 136) referred to in
paragraphs 2 and 3, as those provisions apply by virtue of those paragraphs.
2. A person who is admitted to the Correctional Services Department Psychiatric Centre or
a mental hospital in pursuance of an order under section 83D or 83L(1) shall be treated for the
purposes of the Mental Health Ordinance as if he had been so admitted in pursuance of a
hospital order made (on the date of the order made under section 83D or 83L(1)) under section
45 of the Mental Health Ordinance without any period of detention being specified in the order
3. A person who is admitted to a mental hospital in pursuance of an order under section
83L(2) shall be treated for the purposes of Part 111 of the Mental Health Ordinance as if he
had been admitted (on the date of the order made under section 83L(2)) in pursuance of an
application for detention and observation duly made under the said Part III.
(Added, 34 of 1972, s. 20. Amended, 37 of1973, s.
7)
[cf. U.K. 1968 c. 19, Sch.
1]
SIXTH SCHEDULE [s. 83F]
PROCEDURAL AND OTHER PROVISIONS APPLICABLE ON ORDER FOR
RETRIAL
Depositions
1. On a retrial, section 70 of the Evidence Ordinance (Cap. 8) (admissibility in evidence in
criminal proceedings of deposition of person dead, etc.) shall not apply to the depositions of
any person who gave evidence at the original trial or to any written statement by such a person
tendered under section 8 1 A of the Magistrates Ordinance (Cap. 227) in the committal
proceedings before the original trial; but a transcript of the record of the evidence given by any
witness at the original trial may, with the leave of the judge, be read as evidence
(a) by agreement between the prosecution and the defence; or
(b)if the judge is satisfied that the witness is dead or unfit to give evidence or to attend for
that purpose, or that all reasonable efforts to find him or secure his attendance have
been made without success,
and in either case may be so read without further proof, if verified in accordance with rules and
orders made under section 9.
Sentence on conviction at retrial
2. (1) Where a person ordered to be retried is again convicted on retrial, the court before
which he is convicted may pass in respect of the offence any sentence authorized by law.
(2) Without prejudice to its power to impose any other sentence, the court before which an
offender is convicted on retrial may pass in respect of the ofrence any sentence passed in
respect of that offence on the original conviction notwithstanding that, on the date of the
conviction on retrial, the offender has ceased to be of an age at which such a sentence could
otherwise be passed.
(3) Where the person convicted on retrial is sentenced to imprisonment or other
detention, the sentence shall begin to run from the time when a like sentence passed at the
original trial would have begun to run; but in computing the term of his sentence or the period
for which he may be detained thereunder, as the case may be, there shall be disregarded
(a)any time before his conviction on retrial which would have been disregarded in
computing that term or period if the sentence had been passed at the original trial and
the original conviction had not been quashed; and
(b) any time during which he was at large after being admitted to bail under section
83F(2)
(4) Section 67A shall apply to any sentence imposed on conviction on retrial as if it had
been imposed on the original conviction.
(5) In this paragraph 'sentence' has the meaning assigned by section 80.
(Added, 34 of 19 72, s.
20) [cf. U.K. 1968 c. 19,
Sch. 2]
SEVENTH SCHEDULE [s. 83N]
APPLICATION OF PART IV OF MENTAL HEALTH ORDINANCE
WHERE ORDER MADE UNDER SECTION 83N
Order for custody pending trial
1. Where an order is made by the Court of Appeal under section 83N(3) of this Ordinance
for a person to be kept in custody pending trial, sections 53, 54 and 54A of the Mental Health
Ordinance (Cap. 136), shall apply to him as they apply to the persons listed in section 53(2)(a)
to (d) of the Mental Health Ordinance.
Order for continued detention under Mental Health Ordinance
2. Where an order is made by the Court of Appeal under section 83N(3) of thisOrdinance
for a person's continued detention under the Mental Health Ordinance, Part IV of that
Ordinance (admission of patients concerned in criminal proceedings and transfer of patients
under sentence) shall apply to him as if he had been ordered under the said subsection (3) to be
kept in custody pending trial and were detained in pursuance of a transfer order or an order under
section 54A of that Ordinance.
(Added, 34 of 1972,s.20.Amended, 37 of1973, s. 7)
[cf. U.K. 1968 c. 19, Sch.
3]