CRIMINAL PROCEDURE ORDINANCE

CRIMINAL PROCEDURE ORDINANCE

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ORDINANCE No. 4 of 1852.

Criminal Procedure.

No, 4 of 182.
ririe. An Ordinance to Facilitate the Administration of Criminal Justice.
(Extended bra

Ovvtinan ae So. G
of IOU,)

[29th June, 1852.

PreambleHEREAS it is expedient that informations be abbreviated and
certain techni-.

calities abolished and other alterations made in the administration of
criminal
justice in this Colony

rreQn9>>y Wr)icil 1. Be it therefore enacted and ordained by His
Excellency the Acting Governor -
Injury was
inflicted sic need of Hongkong, with the advice of the Legislative Council
thereof, that henceforward it
III Indictment. shall be sufficient in every information for murder, to
charge that the defendant did
feloniously, wilfully, and of his malice aforethought kill and murder the
deceased; in
every information for manslaughter, to charge that the defendant did
feloniously kill
the deceased; in every information for piracy at common law, to charge
that the-
defendant did on the high seas feloniously and piratically rob the party
injured; and
in every information for piracy by statute, to charge that the defendant
while in the
' act of committing piracy did feloniously assault with intent to murder
or cut or
wound or endanger the life as the case may be of any person in such
information
named.
r,oln, or 2, That in any information for forging, uttering, stealing,
embezzling, destroying
Indtchuenttn
cases of forgery, or concealing, or for obtaining by false pretences any
instrument, or for engraving or
3;e. as to
Instrument, making the whole or any part of any matter or thing, or for
using or having the un-
lawful possession of any plate upon which the whole or any part of any
instrument,,
matter, or thing whatsoever shall have been engraved or made, or for
having the un-
lawful possession of any paper upon which the whole or any part of any
thing what-
soever shall have been made or printed, and in all other eases wherever
it shall be
necessary to make any averment in any information as to any instrument
wholly or in
part in writing, prints, or figures, it shall be sufficient to describe
such instrument by
any name by which the same is usually known, or by the purport thereof,
without set-
ting out any copy or fac simile thereof, or otherwise describing the same
or the value-
thereof.
Form or 3, That it shall be sufficient in every information for forging,
uttering, offering,
indtorment in
cases 0Yr01f,

$'C. u8 tO 171Vtdisposing of, or putting off, any instrument whatsoever7
or for obtaining or attempt -

D
ing to obtain any property by false pretences, to allege that the
defendant did the
act with intent to defraud, without alleging the intent as to any
particular person -
and on the trial of any of the offences in this section mentioned, it
shall be sufficient
to prove that the defendant did the act charged with an intent to defraud.

Party inaicm,i ¢, That if on the trial of any person charged with any
felony or misdemeanour,.
raI ml,))), or
Inij=llll:llr the jury shall be of opinion that the defendant did
not complete the -offence charged

may be Polour

guilty silo3ii`~i~i`)r~r' but only attempted the same, the defendant
shall not be acquitted, but the jury shall

afterwards for prosecuted return a verdict of not guilty of the felony or
misdemeanour. charged, but wilty of an-
b b

hcrellll'r. attempt to commit the same, and thereupon the defendant shall
be punished as if con-
ORDINANCE No. 4 of 1652.

Criminal Procedure.

victed on an information for attempting to commit such felony or
misdemeanour; and
no person tried as herein lastly mentioned shall be afterwards prosecuted
for an attempt
to commit the felony or misdemeanour for which he was so tried.

5. That if, on any trial for robbery, the jury shall be of opinion that
no robbery Similarly with
was committed, but an assault with intent to rob, the defendant shall not
be therefore pa

acquitted, but the jury shall return a verdict of guilty of an assault
with intent to rob,
and thereupon defendant shall be punished as if convicted on an
information for felo-
niously assaulting with intent to rob; and no person tried as herein
lastly mentioned
shall be afterwards prosecuted for an assault with intent to commit
the'robbery for
which he was so tried.

6, That if, on any trial for misdemeanour, the facts given in evidence
amount to
a felony, the defendant shall not be therefore acquitted of such
misdemeanour; and
no person tried for such misdemeanour shall be liable afterwards to be
prosecuted for
felony on the same facts unless the Court shall think fit in its
discretion to discharge
the jury from giving any verdict on such trial, and to direct such person
to be prose-
cuted for felony, whereupon such person may be dealt with as if not
previously put on
trial for misdemeanour.

7. That if, on tho trial for embezzlement of any clerk or servant, the
off once proved
amount to larceny, ,the defendant shall not therefore be acquitted, but
the jury shall
return a verdict of not guilty of embezzlement, but guilty of simple
larceny, or larceny
as alert' or servant, as the case may be, and thereupon tile defendant
shall be punished
as if convicted on an information for such larceny; and if, on any trial
for larceny, the
offence proved amount to embezzlement, the defendant shall not therefore
be acquitted,
but the jury shall return a verdict of not guilty of larceny, but guilty
of embezzlement,
and thereupon the defendant shall be punished as if convicted on an
information for
embezzlement; and no person so tried for embezzlement or larceny as
aforesaid shall
be liable to be afterwards prosecuted for larceny or embezzlement on the
same facts.

8. That if, on the trial of any two or more persons for jointly receiving
any pro-
perty, it shall be proved that one or more of them separately received
any part thereof,
the jury shall convict upon such information such of the said persons as
shall be proved
to have received any part of such property.

9. And whereas it may happen that the principal in a felony be not in
custody or
amenable to justice, although several accessories to such felony or
receivers at dif-
ferent times of stolen property the subject of such felony, are in
custody or amenable
to justice, for the prevention of several trials, it is enacted, that any
number of such
accessories or receivers may be charged with felonies in the same
information, notwith-
standing the principal felon be not included in such information or in
custody or
amenable to justice.

Party indicted
for nriademoan-
onv not to be
acquitted if the
offence be
proved felony,
unless Court so
direct.

1'arGy indicted
for emVezale
meat as a clerk,
.ecc. not to be
acquitted se
offence be prove<~
larceny, and
mace vereft.

On indictment
for jointly
receiving, party
convicted of
separately
receiving may be
convicted,

fn the same in-
dictment, eepar
ate accessories or
receivers may be
included in als
hence of principal
felon.

10. It shall be lawful to insert several counts in the same information
against the I'iiwe larcenist'
from the same -

same defendant for any number of distinct acts of stealing, not exceeding
three, com- 'person Within s'x
ORDINANCE No. 4 of 1852.

Criminal Procedure.

monthe may be
Included in the
same indictment.

When single tak-
ing to chargEd,
prosecutor need
not elect, unless
more than twee
takings, or more
than six months
between first and
last taking.

Coin and bank
notes may be
4ESCribe~as
money.

Form of indtct-
ment for perjury,

what defects
shall not vitiate
indictment.

mined by him against the salve person within the space of six calendar
months from
the first to the last of such acts, and to proceed thereon on all or any
of them.

11. If, on the trial of any information for larceny, it shall appear that
the property
alleged to have been stolen was taken at different times, the prosecutor
shall not be
required to elect upon which taking he will proceed, unless it appear
that there were
more than three takings, or that more than six calendar months elapsed
between the
first and last of such takings; and in either of such last mentioned
cases, the prosecutor
shall be required to elect to proceed for such number of takings not
exceeding three as
appear to have taken place within the period of six calendar months from
the first to
the last of such takings.

12. In every information in which it is necessary to make averment as to
any
money or any note of any 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 shall be sustained as regards a description of the property by
proof of any
amount of coin or any bank note, although the particular species of coin
of which such
amount was composed or the particular nature of the bank note be not
proved; and in
cased of embezzlement and obtaining money or bank notes by false
pretences, by proof
that the defendant embezzled or obtained any piece of coin or bank note,
or any portion
of the value thereof, although such piece of coin or bank note may have
,been delivered
to him in order that some part of the value thereof should be returned to
the party,
delivering the same, or to any other person, and such part shall have
been returned
accordingly.

13. In every information fur perjury or for in any form or way giving
false testi-
mony, it shall be sufficient to set forth the substance of the offence
charged upon the
defendant, without setting forth the commission or authority of the Court
or person
before whom such offence was committed; and in every information for
subornation o
perjury, or for procuring or attempting to procure any person to give
false testimony
in any form or way, it shall be sufficient if the perjury or other
offence has been
committed by the person perjured or who gave false testimony to allege
the offence
committed, and then to allege that the defendant unlawfully and wilfully
did procure
the said person the said offence in manner and form aforesaid to commit;
and if the
perjury or other offence has not been committed, it shall be sufficient
to set forth the
substance of the offence charged.

14. No information shall lie held .insufficient for want of the averment
of any
matter unnecessary to be proved, nor for the omission of the words ' as
appears by the
record,' 'with force and arms,' 'against 1110 peace,' nor for the
insertion of the
words `°against the form of the statute' instead o£ against the 'form of
the statutes,'
or vice versa, nor for that ally person mentioned in the information is
designated by a
name of office or other descriptive appellation instead of his proper
name, nor for
omitting to state the time at which the offence was committed 111 any
case where time
is not of the essence of the offence, nor for stating the time
incorrectly, nor for.want
of A proper venue, nor for want of a proper or formal conclusion, nor for
want of or
ORDINANCE No. 4 of 1852. .27.1

Ctrinainal Procedure.

imperfection in the addition of any defendant, nor for want of the
statement of the
price or value of any thing, or the amount of damage or injury where the
price or value
or the amount of damage or injury is not of the essence of the offence;
and every
objection to any information for any formal defect apparent on the face
thereof shall
be taken by motion to quash such information before the jury shall be
sworn, and not
afterwards.

15. And whereas it was enacted by Regina Geaeralis, Ist March, 1847,
section 41,
that every defendant shall have at least ten days' notice of trial, and
it has been found
that the making such length of noticQ imperative is attended by more
inconvenience
than benefit to defendant, be it therefore further enacted, that such
period of ten days
shall be reduced to five days, and that every defendant in custody at the
opening or
during the sitting of the sessions shall and may be tried thereat if so
desirous, and no
special objection be made thereto on the part of the Crown.

16. In any plea of autrefois convict or autrefois acquit it shall be
sufficient for any I'roiisionas tolea defendant to state that he has
been lawfully convicted or acquitted (as the case may be) aciaf our
Convtu.

of the said offence charged in the information.

1'l. Whenever any person shall be convicted of any one of the offences
following, Punishment

n tetas an indictable misdemeanour; that is to say, any cbeat or fraud
punishable at common able ,nisdemeun-
ours.
law; any conspiracy to cheat or defraud, or to extort money or goods, or
falsely to accuse
of any crime, or to obstruct, prevent, pervert or defeat the course of
public justice; any
escape or rescue from lawful custody, on a criminal charge; any public
and indecent
exposure of the person; any indecent assault, or any assault occasioning
actual bodily
harm; any attempt to have carnal knowledge of a girl under ten years of
age; any
public selling, or exposing for public sale or to public view, of any
obscene book, print,
picture, or other indecent exhibition, it shall be lawful for the Court
to sentence the
offender to the imprisoned for any term now warranted by law, and also in
its discretion
to be kept to hard labour during the whole or any part of such term of
imprisonment.

18. In the construction of this Ordinance, the word 'Information' shall
be Interpretation of
understood to include 'Indictment' 'Inquisition' and 'Presentment,' as
well as terms.
'Information,' and also any 'Plea,' 'Replication,' or other pleading; and
the terms
'° Exhibiting' of an 'Information,' shall be understood to include 'the
Taking of an
Inquisition ' finding an indictment, and ' the Making a Presentment;' and
wherever
in this Ordinance, in describing or referring to any person or party,
matter or thing,
any word importing the singular number or masculine gender is used, the
same shall
be understood to include and shall be applied to several persons and
parties as well as
one person or party, and females as well as males, and bodies corporate
as well as
individuals, and several matters and things as well as one matter or
thing; and the'
word 'Property' shall be understood to include goods, chattels, money,
valuable
securities, and every other matter or thing whether real or personal,
upon or with
respect to which any offence may be committed.

Ten days' notice
of trial, hitherto
necessary,reduc-
ed to five.

(Repealed by. Ordinance No. 8 of 1865.E
Title. (Extended by Ordinance No. 6 of 1856.)
Means by which injury was inflicted need not be specified in indictment.
Form of indictment in cases of forgery, &c. as to instrument.
Form of indictment in cases of forgery, &c. as to intent.
Party indicted for felony or misdemeanour may be found guilty of attempt, and shall not be prosecuted afterwards for attempt.
Similarly with party indicted for robbery.
Party indicted for misdemeanour not to be acquitted if the offence be proved felony, unless Court so direct.
Party indicted for embezzlement as a clerk, &c. not to be acquitted if offence be proved larceny, and vice versa.
On indictment for jointly receiving, party convicted of seprartely receiving may be convicted.
In the same indictment, separate accessories or receivers may be included in absence of principal felon.
Three larcenies from the same person within six
months may be included in the same indictment.
When single taking is charged, prosecutor need not elect, unless more than three takings, or more than six months between first and last taking.
Coin and bank notes may be described as money.
Form of indictment for perjury.
What defects shall not vitiate indictment.
Ten days' notice of trial, hitherto necessary, reduced to five.
Provision as to plea of autrefois acquit or convict.
Punishment for certain indictable misdemeanours.
Interpretation of terms.

Title. (Extended by Ordinance No. 6 of 1856.)
Means by which injury was inflicted need not be specified in indictment.
Form of indictment in cases of forgery, &c. as to instrument.
Form of indictment in cases of forgery, &c. as to intent.
Party indicted for felony or misdemeanour may be found guilty of attempt, and shall not be prosecuted afterwards for attempt.
Similarly with party indicted for robbery.
Party indicted for misdemeanour not to be acquitted if the offence be proved felony, unless Court so direct.
Party indicted for embezzlement as a clerk, &c. not to be acquitted if offence be proved larceny, and vice versa.
On indictment for jointly receiving, party convicted of seprartely receiving may be convicted.
In the same indictment, separate accessories or receivers may be included in absence of principal felon.
Three larcenies from the same person within six
months may be included in the same indictment.
When single taking is charged, prosecutor need not elect, unless more than three takings, or more than six months between first and last taking.
Coin and bank notes may be described as money.
Form of indictment for perjury.
What defects shall not vitiate indictment.
Ten days' notice of trial, hitherto necessary, reduced to five.
Provision as to plea of autrefois acquit or convict.
Punishment for certain indictable misdemeanours.
Interpretation of terms.

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1890

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No. 4 of 1852

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