WIPO Lex

Chapter: 227 MAGISTRATES ORDINANCE
PRELIMINARY
PART I CONSTITUTION OF MAGISTRATES
PART II PROCEDURE IN RESPECT OF SUMMARY OFFENCES
PART III INDICTABLE OFFENCES
PART IV TRANSFER OF OFFENCES TO THE DISTRICT COURT
PART V SUMMARY TRIAL OF INDICTABLE OFFENCES
PART VII APPEALS
PART VIII PROTECTION OF MAGISTRATES
PART VIII PROTECTION OF MAGISTRATES
PART IX MISCELLANEOUS
Schedule: 1 (Repealed)
Schedule: 2
Schedule: 3 OFFENCES TO WHICH DEFENDANT MAY PLEAD GUILTY BY LETTER
Schedule: 4

Chapter:	227	MAGISTRATES ORDINANCE	Gazette Number	Version Date

		Long title		30/06/1997

To provide for the jurisdiction of magistrates and the procedure and practice before magistrates in relation to offences punishable on summary conviction, the transfer of charges to the District Court and the committal of persons charged with indictable offences and for other purposes.

[1 January 1933]

(Originally 41 of 1932 (Cap 227 1950))

Section:	1	Short title		30/06/1997

This Ordinance may be cited as the Magistrates Ordinance.

Section:	2	Interpretation	L.N. 172 of 1999	05/07/1999

Remarks: Adaptation amendments retroactively made - see 59 of 1999 s. 3

PRELIMINARY

In this Ordinance, unless the context otherwise requires

"appellant" (上訴人) means the party appealing under Part VII from a decision of a magistrate;

"civil debt" (民事債項) means any sum of money claimed to be due which is recoverable before a magistrate otherwise than on information; (Replaced 35 of 1969 Schedule)

"counsel" (代表律師) means any barrister, advocate or solicitor having the right of audience before any court in Hong Kong; (Amended 59 of 1994 s. 6)

"deputy magistrate" (暫委裁判官) means a deputy magistrate appointed under section 5A; (Added 21 of 1999 s. 12)

"District Court" (區域法院) means the District Court of Hong Kong established by the District Court Ordinance (Cap 336); (Added 2 of 1953 s. 2. Amended 25 of 1998 s. 2)

"fine" (罰款) includes any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction or order;

"indictable offence" (可公訴罪行) means any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court;

"indictment" (公訴) includes an information in the court;

"information" (告發) includes a charge; (Added 49 of 1965 s. 2)

"legal officer" (律政人員) has the same meaning as it has in section 2 of the Legal Officers Ordinance (Cap 87); (Added 13 of 1966 Schedule)

"magistrate" (裁判官) includes a permanent magistrate and a special magistrate; (Replaced 24 of 1949 s. 2)

"magistrates' clerk" (裁判官書記) includes (where there is more than one) either or any of such clerks or such other person as a magistrate directs to do anything required by this Ordinance to be done by the magistrates' clerk; [cf. 1879 c. 49 s. 48 U.K.]

"party" (一方) includes the HKSAR and also any person aggrieved within the meaning of section 105 or 113; (Amended 25 of 1998 s. 2; 59 of 1999 s. 3)

"prescribed" (訂明) means prescribed or provided by any enactment which relates to any offences, penalties, fines, costs, sums of money, orders, proceedings or matters to the punishment, recovery, making or conduct of which this Ordinance expressly or impliedly applies or may be applied; [cf. 1879 c. 49 s. 49 U.K.]

"prison" (監獄) includes any place or building or portion of a building set apart, or hereafter to be set apart, for the purpose of a prison under any Ordinance relating to prisons;

"Registrar" (司法常務官) means the Registrar of the High Court; (Amended 25 of 1998 s. 2)

"respondent" (答辯人) means the opposite party whose interest conflicts with the interest of any person appealing within the meaning of section 105 or 113;

"sum adjudged to be paid by a conviction" (根據定罪而判決須繳付的款項) and "sum adjudged to be paid by an order" (根據命令而判決須繳付的款項), respectively, include any costs adjudged to be paid by the conviction or order, as the case may be, of which the amount is ascertained by such conviction or order;

"witness order" (證人令) means an order made under section 84(1). (Added 59 of 1981 s. 2)

Section:	3	Saving of special procedure		30/06/1997

Nothing in this Ordinance shall affect any special procedure provided in any Ordinance.

Section:	4	Use of forms		30/06/1997

The forms in the rules made hereunder or forms to the like effect, with such variations or additions as circumstances may require, shall be deemed good, valid and sufficient in law.

Section:	5	Chief Executive may by warrant appoint permanent and special magistrates	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

PART I

CONSTITUTION OF MAGISTRATES

(1) The Chief Executive may by warrant from time to time appoint such number of permanent and special magistrates as are in his opinion required for the efficient administration of justice in Hong Kong and may in the case of special magistrates by such warrant limit the jurisdiction and powers to be exercised by the person so appointed. Such appointments together with the warrant of appointment where such warrant limits jurisdiction or powers to be exercised by the person appointed shall be notified in the Gazette. (Amended 48 of 1949 s. 3; 3 of 1974 s. 2; 59 of 1994 s. 6; 25 of 1998 s. 2)

(2) A permanent magistrate shall exercise all the jurisdiction and powers conferred on a magistrate by any enactment in force in Hong Kong and also such jurisdiction and powers as may from time to time be conferred on a permanent magistrate. (Amended 59 of 1994 s. 6)

(3) A special magistrate shall, subject to the provisions of his warrant of appointment, exercise all the jurisdiction conferred on a magistrate by any enactment in force in Hong Kong, but his powers of imposing imprisonment and fine shall, in the case of any enactment in force on 20 May 1949, be subject to the limitations as to the maximum term or terms of imprisonment and the maximum fine which such magistrate may lawfully impose under this Ordinance as amended from time to time and in the case of any enactment coming into force after 20 May 1949, be so subject unless such enactment expressly provides to the contrary. (Amended 59 of 1994 s. 6)

(4) (Repealed 47 of 1997 s. 10)

(5) So long as any warrant of appointment of a magistrate issued under this section is in force and unrevoked, it shall continue to have effect notwithstanding his subsequent appointment to some other office.

(6) Any appointment made under the provisions of subsection (1) may be given effect from a date anterior to that of the warrant by which it is made:

Provided that nothing herein contained shall be deemed to authorize the discharge of any magisterial functions by any person so appointed before the date of the warrant or before the requirements of section 17 of the Oaths and Declarations Ordinance (Cap 11) have been fulfilled. (Added 30 of 1958 s. 2. Amended 20 of 1972 s. 24)

(Added 24 of 1949 s. 3)

(1): A person shall be eligible to be appointed as a permanent magistrate if-

(2): Notwithstanding subsection (1), a person shall also be eligible to be appointed as a permanent magistrate if-

(3): For the purposes of calculating the period of 5 years referred to in subsection (1)(b)-

(Added 10 of 2005 s. 142)

(1): A person shall be eligible to be appointed as a special magistrate if-

(2): Notwithstanding subsection (1), a person shall also be eligible to be appointed as a special magistrate if-

(3): For the purposes of calculating the period of 5 years referred to in subsection (1)(b)-

(Added 10 of 2005 s. 142)

Section:	5A	Appointment of deputy magistrates	10 of 2005	08/07/2005

(1): The Chief Justice may by warrant appoint any person who is eligible under section 5AA to be appointed as a permanent magistrate or under section 5AB to be appointed as a special magistrate to be a deputy magistrate for such period and on such terms as he thinks fit. Such appointment shall be notified in the Gazette. (Amended 10 of 2005 s. 143)
(2): Subject to the terms of appointment, a deputy magistrate shall, during the period for which he is appointed, have all the jurisdiction, powers and privileges, and perform all the duties of a permanent magistrate and any reference in any law to a magistrate shall be construed accordingly.
(3): Every appointment made in accordance with this section may be terminated by the Chief Justice at any time.
(4): Where the hearing of any proceedings before a deputy magistrate is adjourned or where judgment is reserved therein or where the determination of any matter is subject to review, the deputy magistrate shall have power to resume the hearing and determine the proceedings or to deliver as the judgment of the magistrate's court the judgment which he has reserved or to review the determination which he has made, notwithstanding that before the hearing is resumed or judgment is delivered or the review is disposed of, his appointment has expired or has been terminated.
(5): For the purposes of subsection (4), the power of a deputy magistrate to determine the proceedings in a resumed hearing includes the power of awarding costs and the making of any order ancillary to or consequential upon the award of costs.

(Added 21 of 1999 s. 13)

Section:	6	(Repealed)		30/06/1997

(Repealed 13 of 1995 s. 31)

Section:	7	(Repealed)		30/06/1997

(Repealed 47 of 1997 s. 10)

Section:	7A	(Repealed)		30/06/1997

(Repealed 13 of 1995 s. 36)

Section:	7B	(Repealed)		30/06/1997

(Repealed 13 of 1995 s. 36)

Section:	7C	(Repealed)		30/06/1997

(Repealed 13 of 1995 s. 36)

Section:	7D	Notice of prosecution		30/06/1997

PART II

PROCEDURE IN RESPECT OF SUMMARY OFFENCES

(1) Where the penalty which may be imposed upon conviction for an offence does not exceed a fine of $10000

and imprisonment for 6 months (whether with or without any additional order, relating to suspension or cancellation of a licence, disqualification from obtaining or holding a licence, or as to compensation or otherwise), any public officer or body corporate authorized to prosecute in respect of that offence may file in a magistrate's court a notice of prosecution and shall, within 14 days of such filing, serve a copy of that notice by post on the defendant. (See Forms 104, 105)

(2) A notice under subsection (1)-

(a): shall be in the prescribed form;
(b): shall be signed by the public officer or on behalf of the body corporate filing the notice;
(d): shall be accompanied by a statement of the penalty which may be imposed and any other order which

may be made upon conviction. (Added 18 of 1984 s. 2)

Section:	7E	Procedure where hearing required	L.N. 362 of 1997	01/07/1997

(1): Where a notice of prosecution has been filed and served and the defendant requires a hearing, he shall, by written notice filed in the magistrate's court in which the notice of prosecution was filed and before the date stated in the notice of prosecution, so state and shall, in that notice, state whether he intends to plead guilty or not guilty to the offence. (See Forms 109, 110, 111)
(1): Where a notice of prosecution is filed and served and the defendant does not file a written notice under section 7E(1), a magistrate sitting in the absence of the parties and otherwise than in open and public court, shall determine the matter as if the defendant has pleaded guilty to the offence alleged in the notice of prosecution and may order the defendant to pay any fine or costs permitted by law.
(2): In determining the matter under subsection (1), the magistrate may take into account the nature of the offence and the particulars alleged in the notice of prosecution, any previous convictions in the statement accompany in the notice of prosecution, and any matter submitted by the defendant in response to the notice of prosecution.
(3): Where a magistrate sitting under subsection (1) considers that a fine may not be an adequate penalty in the circumstances a summons shall be issued under section 8 and the prosecution shall proceed as if an information had been laid under that section by an informant deemed to act on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997)
(1): Where a magistrate has determined a matter under section 7F(1) and imposed a fine or ordered costs to be paid, a notice of such fine or costs shall be served by post on the defendant calling upon him to pay such fine or costs within such time, being not less than 21 days after the determination of the matter, as may be specified therein. (See Forms 106, 107)
(2): Where a fine or costs are not paid within the time specified in the notice referred to in subsection (1), a magistrate shall cause a further notice to be served personally on the defendant by a police officer, usher or other

Section:	7F	Procedure where no hearing required	L.N. 362 of 1997	01/07/1997

Section:	7G	Procedure after determination		30/06/1997

Cap 227 - MAGISTRATES ORDINANCE

officer of a magistrate's court, requiring him to make payment of the fine or costs within 14 days of the notice failing which a summons or warrant will be issued under section 101A.

(Added 18 of 1984 s. 2)

Section:	7H	Review		30/06/1997

Where, on application being made at any time by the defendant, a magistrate is satisfied that a notice of prosecution has not come to the personal notice of the defendant, the magistrate shall review his determination in the matter and section 104 (except subsection (1)) shall apply to that review. (See Form 108)

(Added 18 of 1984 s. 2)

Section:	7I	Section 26 not to apply on review		30/06/1997

Where a magistrate reviews his determination on a matter under section 7H and reverses his decision, proceedings may be taken, notwithstanding section 26, within 6 months from the date of the review. (Added 18 of 1984 s. 2)

Section:	7J	Withdrawal of notice of prosecution		30/06/1997

The person filing a notice of prosecution may, at any time before the matter is determined under section 7F(1), by written notice filed in the magistrate's court, withdraw the notice of prosecution. (Added 18 of 1984 s. 2)

Section:	8	Issue of summons to defendant and mode of service thereof		30/06/1997

(1) In every case where a complaint is made to or an information laid before a magistrate or an officer of a magistrate's court who is authorized in writing for that purpose by a magistrate, being a complaint or information in respect of which a magistrate has power to convict summarily or to make an order for the payment of money or otherwise, it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate's court who is authorized under this subsection. (See Form 1) (Replaced 18 of 1981 s. 2. Amended 12 of 1992 s. 2)

(1A) Every such summons shall be issued to the person against whom the complaint has been made or information laid, stating the matter of the complaint or information and requiring him to appear at a certain time and place before a magistrate to answer to the complaint or information and to be further dealt with according to law. (Added 18 of 1981 s. 2. Amended 59 of 1994 s. 2)

(1B) (a) (Repealed 12 of 1992 s. 2)

(b) A summons may be issued without consideration of the complaint or information by the magistrate or an officer of a magistrate's court who is authorized under subsection (1), but, if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons. (Added 18 of 1981 s. 2. Amended 12 of 1992 s. 2)

(1C) (Repealed 12 of 1992 s. 2) (1D) Every such summons shall be in the prescribed form. (Replaced 12 of 1992 s. 2)

(2) (a) Every such summons shall be served-

(i): by hand; or
(ii): by post.

(b): Where a summons is served by post and the person to whom it is directed does not appear at the time and place specified in the summons for the appearance of that person, such service shall be deemed to have never been effected, and the summons shall thereafter be served by hand.
(c): Where a summons is served by hand, the police officer, the usher or other officer of a magistrate's court, or officer of the Independent Commission Against Corruption who served the summons shall, save as provided in subsection (3), attend before a magistrate at any time and place specified by a magistrate to depose, if necessary, to its service. (Amended 48 of 1996 s. 24); (e) In this subsection

"served by hand" (由專人送達) means served by a police officer, usher or other officer of a magistrate's court, or officer of the Independent Commission Against Corruption on the person to whom the summons is directed- (Amended 48 of 1996 s. 24)

(a) by delivering the summons to that person personally; or

(b) by leaving it with a third person for that person at that person's last or most usual place of abode;

"served by post" (以郵遞方式送達) means sent by an usher or other officer of a magistrate's court by ordinary post to the residential or business address of the person to whom it is directed. (Replaced 59 of 1994 s. 2)

(4) Notwithstanding subsection (3) a magistrate may require the police officer, usher or other officer who served a summons to attend before him and give evidence on oath as to its service. (Added 36 of 1976 s. 2. Amended 59 of 1994 s. 2); (5) Subject to subsection (6), at any time before the person to whom a summons is directed has appeared to answer the complaint or information, a magistrate may, where practicable upon first hearing the complainant or informant, cancel the summons by writing under his hand which shall be served in the manner provided for the service of a summons by hand in subsection (2). (Added 18 of 1981 s. 2. Amended 59 of 1994 s. 2); (3) If a person upon whom a notice under subsection (1) has been served fails to appear before a magistrate at the time and place mentioned in the notice, and it is made to appear to the magistrate by oath that the notice was served on that person personally, the magistrate may issue his warrant for the apprehension of that person and to bring that person before him or another magistrate to be dealt with according to law. (See Form 2A)
(6): Any costs ordered to be paid under subsection (5) shall be recoverable under section 69(2) in the same manner as costs awarded under section 69(1).
(1): Where a complaint or information laid before a magistrate is substantiated by oath before him, the magistrate may, in the first instance or notwithstanding that a summons has been previously issued, issue a warrant to arrest the defendant and bring him before a magistrate to answer to the complaint or information. (See Form 4)

(2) Where a defendant is arrested under a warrant issued under subsection (1), he shall be brought before a

magistrate, who may adjourn the hearing and deal with the defendant in accordance with section 20. (Replaced 36 of 1976 s. 3)

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

(1): Every complaint and every information under this Part, unless some enactment otherwise requires, may respectively be made or laid without any oath being made of the truth thereof; except in case of an information where the magistrate receiving the same thereupon issues his warrant in the first instance to apprehend the defendant as aforesaid; and in every such case where the magistrate issues his warrant in the first instance the matter of the information shall be substantiated by the oath of the informant, or of some witness on his behalf, before any such warrant shall be issued. (Amended 25 of 1998 s. 2)
(3): Every such complaint or information may be made or laid by the complainant or informant in person or by his counsel or other person authorized in that behalf.
(4): Every such complaint or information shall comply with the Indictment Rules (Cap 221 sub. leg.) in so far as those rules are applicable mutatis mutandis to any such complaint or information. (Replaced 36 of 1976 s. 4)

Section:	11	Place and manner of hearing		30/06/1997

The room or place in which a magistrate sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them, unless the magistrate otherwise directs where the evidence is of an indecent character, or where a prosecution is for an offence against the Societies Ordinance (Cap 151) and is an offence relating to or otherwise connected with a Triad Society, in which case he shall make a note on the depositions of the direction which he has given:

Provided that in any case the delivery by the magistrate of his determination and any proceedings subsequent thereto, other than a review under section 104 which requires the hearing of evidence, shall take place in open and public court.

(Amended 24 of 1949 s. 7; 16 of 1960 s. 2)

[cf. 1848 c. 43 s. 12 U.K.]

Section:	12	Prosecution of offences to be under control of Secretary for Justice	L.N. 362 of 1997	01/07/1997

The Secretary for Justice is hereby entrusted with the duty and discretion of conducting the prosecution of all offences cognizable by a magistrate:

Provided

(a): that it shall be lawful for any member of the police force and such other public servant as the Secretary for Justice may from time to time by any general or special direction authorize to lay before a magistrate or an officer of a magistrate's court who is authorized under section 8(1) an information in respect of an offence and any such information shall be deemed to have been laid on behalf of the Secretary for Justice; (Amended 12 of 1992 s. 3)
(b): that in any such case the Secretary for Justice shall be deemed to be a party to the proceedings and

such member or public servant shall not be so deemed. (Added 24 of 1949 s. 8. Amended L.N. 362 of 1997)

Section:	13	Appointment of official prosecutors by Secretary for Justice*	25 of 2008	11/07/2008

The Secretary for Justice may appoint any public officer or class of public officers to act as official prosecutor or prosecutors and to conduct generally on his behalf any prosecution before a magistrate or any specified classes of prosecutions or any particular case. Any official prosecutor so appointed may without any written authority appear and plead before a magistrate any case of which he has charge which is being inquired into, tried or reviewed.

(Added 24 of 1949 s. 8. Amended L.N. 362 of 1997; 25 of 2008 s. 3)

Note:

* (Amended 25 of 2008 s. 3)

Section:	14	Private prosecution and intervention by the Secretary for Justice	25 of 2008	11/07/2008

(1): A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates but the Secretary for Justice may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 104 for applying for a review intervene for the purpose of applying for or being made a party to any review.
(2): As from the date of any such intervention the Secretary for Justice shall be deemed to be a party to the proceedings or the review in lieu of such complainant or informant.
(1): In any case before a magistrate in which an accused person is being tried for an indictable offence pursuant to section 91, 92 or 92A and at any stage thereof before judgment and in any case in which an inquiry is being held by a magistrate for the purpose of determining whether an accused should be committed for trial, the Secretary for Justice may enter a nolle prosequi by informing the magistrate in writing that the HKSAR intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts. (Amended 59 of 1992 s. 13; L.N. 362 of 1997; 25 of 1998 s. 2; 59 of 1999 s. 3)
(2): If the accused shall not be before the magistrate when such nolle prosequi is entered the magistrates' clerk shall forthwith cause notice in writing of the entry of such nolle prosequi to be given to the keeper of the prison in which such accused may be detained.

Section:	15	Secretary for Justice may withdraw case by entering nolle prosequi*	25 of 2008	11/07/2008

(Added 24 of 1949 s. 8)

Note:

* (Replaced 25 of 2008 s. 5)

Section:	16	Rights of parties to conduct case personally or by counsel	L.N. 362 of 1997	01/07/1997

(1): The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf.
(2): Without prejudice to the rights of the Secretary for Justice every complainant or informant shall be at liberty to conduct the complaint or information respectively and to have the witnesses examined and cross-examined by him or by counsel on his behalf. (Amended L.N. 362 of 1997)

(Added 24 of 1949 s. 8)

Section:	17	(Repealed 25 of 2008 s. 6)	25 of 2008	11/07/2008

Section:	18	Appearance by counsel		30/06/1997

At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent: Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party. (Replaced 36 of 1976 s. 5)

Section:	18A	Non-appearance of defendant		30/06/1997

Subject to sections 18E and 19A(5), in any case where a summons has been served on the defendant a reasonable time before the hearing and at the time and place appointed for the hearing only the complainant or informant appears, the magistrate

(a): may issue a warrant to arrest the defendant and bring him before a magistrate and adjourn the hearing for such time as he may think fit; (See Form 2)
(b): may adjourn the hearing under section 20 and if the defendant does not appear at the time and place to which the hearing is adjourned may issue a warrant to arrest the defendant and bring him before a magistrate; or
(c): may, upon the application of the complainant or informant, dismiss the complaint or information.

(Added 18 of 1984 s. 4) (Added 36 of 1976 s. 5. Amended 18 of 1984 s. 4)

Section:	18B	Non-appearance of informant or complainant		30/06/1997

(2): Where a complaint or information is dismissed under subsection (1), the magistrate may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as the magistrate may think fit. (Amended 18 of 1981 s. 3)

(Added 36 of 1976 s. 5)

Section:	18C	Non-appearance of either party		30/06/1997

(2): Where a complaint or information is dismissed under subsection (1), such dismissal shall not operate as a

bar to any subsequent proceedings against the defendant in the same matter. (Added 36 of 1976 s. 5)

Section:	18D	Appearance of both parties		30/06/1997

Where at the hearing both the complainant or informant and the defendant appear, the magistrate shall proceed to hear and determine the case. (Added 36 of 1976 s. 5)

Section:	18E	Plea of guilty by letter	L.N. 294 of 2000	01/01/2001

(2): In every case where the defendant may plead guilty by letter, the summons shall contain a footnote or endorsement drawing attention to that fact.

(3) Where

(a): a complaint or information is in respect of an offence under section 41(1) of the Road Traffic Ordinance (Cap 374); and
(b): if the defendant is convicted of the offence on the basis that the complaint or information is true, the

conviction will be one to which section 41(3) of that Ordinance applies, a summons in respect of that offence shall be endorsed to the effect that the defendant may not plead guilty by letter, and in such a case the provisions of this section shall thereupon cease to apply. (Replaced 50 of 2000 s. 5)

(4) The Legislative Council may by resolution amend the Third Schedule. (Added 36 of 1976 s. 5)

Section:	19	Proceedings at hearing		30/06/1997

(1) Where the defendant is present at the hearing, the substance of the complaint or the information (or the summons which has been issued under section 8 pursuant to such complaint or information) shall be read over to him, and explained if necessary, and he shall be asked whether he admits or denies the truth of the complaint or

Cap 227 - MAGISTRATES ORDINANCE

information. If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an order against him accordingly; but if he does not admit the truth of the complaint or information as aforesaid, then the magistrate shall proceed to hear upon oath the complainant or informant and such witnesses as may be produced in support of the complaint or information, and also to hear the defendant and such evidence as may be adduced in defence; and also to hear and examine such other witnesses as the complainant or informant may examine in rebuttal, if the defendant or his counsel has examined any witnesses or given any evidence other than as to the defendant's general character. (Amended 48 of 1949 s. 5; 49 of 1965 s. 6; 59 of 1994 s. 3)

(2): The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be. (See Form 32)
(3): If the magistrate convicts a defendant or makes an order against him, he shall thereupon make a minute or memorandum of such adjudication (for which no fee shall be paid), and he shall cause the same to be lodged with the magistrates' clerk, who shall register the same as hereinafter provided. (Replaced 2 of 1955 s. 2)
(4): If the magistrate dismisses the complaint or information, it shall be lawful for him, if he thinks fit, on being required to do so, to make an order of dismissal of the complaint or information, and he shall give the defendant in that behalf a certificate thereof, which said certificate shall be a bar to any subsequent complaint or information for the same matters respectively against the same party. (See Form 47)
(1): On the hearing by a magistrate of any complaint or information against a corporation, a representative may on behalf of the corporation enter a plea of guilty or not guilty.
(2): Where a representative enters a plea of not guilty under subsection (1), he may exercise the rights under section 16(1) as if he were an individual defendant against whom the complaint is made or the information laid.
(3): Section 49(4) of the Criminal Procedure Ordinance (Cap 221) shall apply mutatis mutandis to a representative for the purposes of subsection (1) as it applies to a representative for the purposes of that section.
(4): A letter under section 18E may be addressed to the magistrate on behalf of a corporation by a director or the secretary of the corporation and that section shall apply in relation to a letter purporting to be so addressed as it applies to a letter purporting to be addressed by an individual defendant. (Amended 36 of 1976 s. 6)
(3): When adjourning the hearing of a complaint or information, the magistrate may admit the defendant to bail or commit him to prison or some other place of security or to such other custody as the magistrate may think fit. (See Forms 5-9, 18) (Amended 56 of 1994 s. 11)
(4): Where a defendant who has been admitted to bail fails to surrender to custody as shall have been appointed, a magistrate may issue a warrant for the arrest of the defendant. (Replaced 56 of 1994 s. 11)

(6) If, at the time and place to which the hearing or further hearing is so adjourned-

(a): the complainant or informant does not appear, either personally or by counsel, a magistrate may dismiss the complaint or information on such terms as he may think fit, including a term that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as the magistrate may think fit; or (Amended 18 of 1981 s. 3)

(iii) adjourn the hearing for such time as he may think fit. (Replaced 36 of 1976 s. 7)

General

(b): such time and place as may be directed in such manner as is specified in the summons, before a magistrate to testify what he knows concerning the matter of the complaint or information. (Amended 44 of 1962 s. 2; 59of 1994 ss. 4 & 6)
(3): If the magistrate is satisfied, by evidence upon oath, that it is probable that such person will not attend to give evidence without being compelled to do so, then, instead of issuing a summons, it shall be lawful for him to issue his warrant in the first instance. (See Form 16)
(4): If any person having come before a magistrate whether voluntarily or in obedience to a summons or having been brought before him by warrant or otherwise shall refuse to be sworn or having been sworn shall without just excuse refuse to answer such questions as shall be put to him concerning the premises, the magistrate may, by warrant under his hand and seal, order him to be imprisoned for 12 months unless he in the meantime shall consent to be sworn and to answer concerning the premises, or he may impose upon such person a fine not exceeding $5000. (See Form 17) (Amended 30 of 1958 Schedule; 6 of 1968 s. 2; 51 of 1981 s. 3; 59 of 1981 s. 2)
(5): The magistrate before whom a person is brought pursuant to a warrant under subsection (2) may, unless such person satisfies the magistrate that he had reasonable cause for his refusal or neglect to appear as required by the summons, impose upon such person a fine not exceeding $5000 and order him to be imprisoned for a period not exceeding 12 months. (Added 6 of 1968 s. 2. Amended 51 of 1981 s. 3; 59 of 1981 s. 2;

59 of 1994 s. 4) [cf. 1848 c. 43 s. 7 U.K.]

Section:	22	Power to order production of documents		30/06/1997

The powers contained in sections 21 and 78 enabling a magistrate to issue a summons to any witness to attend to give evidence before a magistrate shall be deemed to include the power to summon and require a witness to produce to such magistrate books, plans, papers, documents, articles, goods and things likely to be material evidence on the hearing of any charge, information or complaint, and the provisions of those sections relating to the neglect or refusal of a witness, without just excuse, to attend to give evidence, or to be sworn, or to give evidence, shall apply accordingly, and a magistrate shall have power to vary or add to the forms in the rules made hereunder accordingly. (See Forms 14-17)

[cf. 1914 c. 58 s. 29 U.K.]

Section:	23	Variance between information and evidence		30/06/1997

(1): In every case of an information for any offence punishable on summary conviction any variance between the information and the evidence adduced in support thereof as to the time at which the offence or act is alleged to have been committed shall not be deemed material, if it is proved that such information was in fact laid within the time limited by law for laying the same; and any variance between the information and the evidence adduced in support thereof as to the place in which the offence or act is alleged to have been committed shall not be deemed material, provided that the offence or act is proved to have been committed within the jurisdiction of the magistrate by whom the information is heard and determined.
(3): Where a defendant admitted to bail under subsection (2)(b) does not appear at the time and place appointed for the adjourned hearing, a magistrate may declare any recognizance to be forfeited and issue a warrant for the arrest of the defendant. (See Form 3) (Added 36 of 1976 s. 8)

[cf. 1848 c. 43 s. 9 U.K.]

Section:	24	Description of property of partners in complaint or information	25 of 1998 s. 2; 29 of 1998 s. 105	01/07/1997

Remarks: Amendments retroactively made - see 25 of 1998 s. 2; 29 of 1998 s. 105

(1): In any complaint or information or the proceedings thereon in which it is necessary to state the ownership of any property belonging to or in the possession of partners, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons and to state the property to belong to the person so named and another or others, as the case may be; and whenever in any complaint or information or the proceedings thereon it is necessary to mention for any purpose whatsoever any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them in manner aforesaid.
(2): Whenever in any complaint or information or the proceedings thereon it is necessary to state the ownership of any public work or building maintained or repaired at the public expense or any materials or tools provided for the repair of public highways, roads, buildings, gates, bridges, lamps, boards, stones, posts, fences or other things erected or provided for such highways, roads, buildings, gates, bridges, lamps, boards, stones, posts and fences, or of any reservoirs, conduits, sewers, drains or other public works or property of whatsoever description, it shall be sufficient to describe such property as the property of the Government. (Amended 25 of 1998 s. 2; 29 of 1998 s. 105)

[cf. 1848 c. 43 s. 4 U.K.]

Section:	25	Complaint for order to pay money need not be in writing	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

In any case of a complaint upon which a magistrate may make an order for payment of money or otherwise, it shall not be necessary that such complaint shall be in writing unless it is required to be so by the enactment upon which such complaint is framed.

(Amended 25 of 1998 s. 2) [cf. 1848 c. 43 s. 8 U.K.]

Section:	26	Limit of time for complaint or information	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

In any case of an offence, other than an indictable offence, where no time is limited by any enactment for making any complaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose.

(Amended 25 of 1998 s. 2) [cf. 1848 c. 43 s. 11 U.K.]

Section:	26A	Limitation of time in respect of certain summary offences concerning aviation	L.N. 362 of 1997; 25 of 1998	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

(1) Notwithstanding section 26, in the case of an offence (other than an indictable offence) against any order in force under section 2A of the Civil Aviation Ordinance (Cap 448) or against any regulation made under such an order, a complaint may be made or an information may be laid in respect of the offence within 12 months from the commission of the offence, if- (Amended 66 of 1997 s. 17)

(a) it was committed in connection with the flight of an aircraft in the course of which an accident occurred; and

(b) not more than 6 months after the commission of the offence

(i) public notice has been given that an investigation into the accident is being carried out in accordance with the Hong Kong Civil Aviation (Investigation of Accidents) Regulations (See App. I p. L 1); or

(ii) the Chief Executive has directed under regulation 16 of the Hong Kong Civil Navigation (Investigation of Accidents) Regulations (See App. I p. L 1) that a public inquiry into the accident be held in accordance with those regulations. (Amended 25 of 1998 s. 2)

(2) The fact that any direction referred to in subsection (1)(b)(ii) has been given on any date may be proved by the production of a certificate to that effect purporting to be signed by the Chief Secretary for Administration. (Amended L.N. 362 of 1997)

(3) For the purposes of this section-

(a) the flight of an aircraft shall include any period from the moment when power is applied for the purpose of the aircraft taking off on a flight until the moment when the landing run (if any) at the termination of that flight ends; and

(b) "accident" (意外事故) includes any fortuitous or unexpected event by which the safety of an aircraft or any person is threatened.

(Added 91 of 1970 s. 4) [cf. 1968 c. 61 s. 23 U.K.]

Section:	27	Defects in and amendment of complaint, information or summons		30/06/1997

(1) Where it appears to the adjudicating magistrate that there is

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it, he shall, subject to subsection (2)-

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall-

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as may be occasioned by the amendment; and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4) In this section, "amend" (修訂) includes the substitution of another offence in place of that alleged in the

complaint, information or summons. (Replaced 5 of 1987 s. 2)

Section:	28	Form of conviction and order	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

(1) In every case of a conviction where no particular form of such conviction is given by the enactment creating the offence or regulating the prosecution for the same, and in every case of a conviction upon any past enactment, whether any particular form of conviction is therein given or not, it shall be lawful for the magistrate who so convicts to draw up his conviction in such one of the forms of conviction in the rules made under this Ordinance as may be applicable to such case or to the like effect. (See Forms 20-26)

(2) Where an order is made, and no particular form of order is given by the enactment giving authority to make such order, and in every case of an order to be made under the authority of any past enactment, whether any particular form of order is therein given or not, it shall be lawful for the magistrate by whom such order is to be made to draw up the same in such one of the forms of orders in the rules made under this Ordinance as may be applicable to such case or to the like effect. (See Forms 27, 30-34, 38 , 39)

(3) Such convictions and orders shall not be drawn up unless for an appeal or some other legal purpose. (Added 2 of 1955 s. 3) [cf. Summary Jurisdiction Rules 1915 r. 53 U.K.]

(Amended 25 of 1998 s. 2) [cf. 1848 c. 43 s. 17 U.K.]

Section:	29	Proof of previous convictions		30/06/1997

Otherwise than in a court sitting in manner provided in section 3 of the Juvenile Offenders Ordinance (Cap 226),

where a magistrate

(a) has convicted any person; or

(b) has made an order against any person for the payment of money or otherwise, and it is proved to the satisfaction of the magistrate, on oath or in the prescribed manner, that not less than 7 days previously a notice was served on such person in the prescribed form and in the manner prescribed in section 8(2)(a) for the service of a summons specifying any alleged previous conviction of such person of a summary offence proposed to be brought to the notice of the magistrate in the event of the conviction of such person of the offence charged, and such person is not present in person before the magistrate, the magistrate may take account of any such previous conviction so specified as if such person had appeared and admitted it.

(Added 30 of 1958 s. 5)

Section:	30	(Repealed)		30/06/1997

(Repealed 47 of 1997 s. 10)

Section:	31	Form and execution of warrant, etc.		30/06/1997

(1): Every warrant to apprehend a defendant in order that he may answer to any complaint or information shall be under the hand and seal of the magistrate issuing the same, and may be directed either to any police officer by name or generally to all the police officers within Hong Kong. (Amended 59 of 1994 s. 6)
(2): It shall state shortly the matter of the complaint or information on which it is founded, and shall name or otherwise otherwise describe as far as practicable the person against whom it has been issued, and it shall order the person to whom it is directed to apprehend the defendant and to bring him before a magistrate to answer to the complaint or information, and to be further dealt with according to law.
(3): It shall not be necessary to make the warrant returnable at any particular time, but the same may remain in full force until it is executed or until it is withdrawn by any magistrate. (Amended 32 of 1966 s. 2)
(4): The warrant may be executed by apprehending the defendant at any place within Hong Kong or the waters thereof; in every case where the warrant is directed to all police officers within Hong Kong, it shall be lawful for any police officer to execute the warrant in like manner as if it were directed specially to such police officer by name: (Amended 59 of 1994 s. 6)

Provided that no objection shall be taken or allowed to any warrant to apprehend a defendant so issued on any such complaint or information as aforesaid under or by virtue of this Ordinance for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the complainant or informant but if any such variance appears to the magistrate at the hearing to be such that the party apprehended has been thereby deceived or misled, it shall be lawful for the magistrate, on such terms as he may think fit, to adjourn the hearing of the case to some future day, and in the meantime to commit the defendant to prison or some place of security or to such other custody as the magistrate may think fit, or to admit him to bail. (See Forms 6-9) (Amended 56 of 1994 s. 11)

[cf. 1848 c. 43 s. 3 U.K.]

Section:	32	Non-avoidance of summons or warrant by death of magistrate	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made-see 25 of 1998 s. 2

Any warrant or summons issued by a magistrate under this or any other enactment shall not be avoided by reason of the magistrate who signed the same dying or ceasing to hold office. (Amended 25 of 1998 s. 2) [cf. 1879 c. 49 s. 37 U.K.]

Section:	33	Description of offences, exceptions, exemptions, etc. warrants, forfeiture, etc.		30/06/1997

The following provisions shall apply to proceeding before magistrates

(b): (Repealed 5 of 1971 s. 13)
(c): a warrant of commitment shall not be held void by reason of any defect therein, if it is alleged that the offender has been convicted or ordered to do or to abstain from doing any act or thing required to be done or left undone, and there is a good and valid conviction or order to sustain the same;
(d): a warrant of distress shall not be deemed void by reason only of any defect therein, if it is therein alleged that a conviction or order has been made, and there is a good and valid conviction or order to sustain the same, and a person acting under a warrant of distress shall not be deemed a trespasser ab initio by reason only of any defect in the warrant or of any irregularity in the execution of the warrant; but this enactment shall not prejudice the right of any person to satisfaction for any special damage caused by any defect in or irregularity in execution of a warrant of distress; and
(e): all goods forfeited by order of a magistrate may be sold in such manner as the magistrate may direct. [cf. 1879 c. 49 s. 39 U.K.]

Section:	34	Minute of proceedings		30/06/1997

(1): The magistrates' clerk shall keep a register in the prescribed form of the minutes or memoranda of all the convictions and orders of the magistrate and of such other proceedings as are directed by rules made under section 133 to be registered. (Amended 2 of 1955 s. 4)
(2): The register, and also any extract from the register certified by the clerk keeping the same to be a true extract, shall be prima facie evidence of the matters entered therein for the purpose of informing a magistrate, but nothing in this section shall dispense with the legal proof of a previous conviction for an offence when required to be proved against a person charged with another offence.
(3): The entries relating to each minute, memorandum or proceeding shall contain the name of the magistrate before whom the conviction, order or proceeding referred to therein was made or had.
(4): The right to inspect under subsection (1) shall include the right to a copy of the minute or register subject, in the case of applicants under subsection (1)(g), (h) and (i), to the payment of the prescribed fee.

Section:	35	Register of cases and proof thereof		30/06/1997

Section:	35A	Inspection etc. of minute and register	L.N. 362 of 1997	01/07/1997

(5) Disclosure of the contents of a minute or register under subsection (1) shall not amount to a breach of the

Rehabilitation of Offenders Ordinance (Cap 297). (Replaced 13 of 1995 s. 42)

Special provisions

(2): The magistrate may, where he makes an order under this section, further order that the offender shall pay such costs of the proceedings (not exceeding $2000 or, if a higher limit is fixed by any enactment relating to the offence, that higher limit) as he thinks reasonable. (See Forms 26, 33, 34) (Amended 48 of 1972 s. 4; 51 of 1981 s. 4)
(3): An order made by a magistrate under this section shall, for the purpose of revesting or restoring stolen property and of enabling the magistrate to make orders as to the restitution or delivery of property to the owner and as to the payment of money upon or in connection with such restriction or delivery, have the like effect as a conviction.
(1): Subject to the provisions of subsections (2) and (3), where a term of imprisonment is imposed by a magistrate in respect of the non-payment of any sum of money adjudged to be paid by a conviction or order, that term shall, on payment of a part of such sum to any person authorized by a magistrate to receive it, be reduced by a number of days bearing as nearly as possible the same proportion to the total number of days in the term as the sum paid bears to the sum adjudged to be paid.
(2): Notwithstanding the provisions of subsection (1), in reckoning the number of days by which any term of imprisonment would be reduced under this section, the first day of imprisonment shall not be taken into account, and in reckoning the sum which will secure the reduction of a term of imprisonment, fractions of a cent shall be omitted. (Replaced 30 of 1958 s. 6)
(3): Notwithstanding the provisions of subsection (1), where any person who has been sentenced to imprisonment in default of payment of a sum of money adjudged to be paid by a conviction or order earns under the Prison Rules (Cap 234 sub. leg.) any remission of the sentence, the term of his imprisonment shall for the purposes of

subsection (1) be deemed, at any given time, to have been reduced by such period of remission as may at the time stand to his credit.

[cf. 1914 c . 58 s. 3 (1) U.K.]

Section:	38	Application of money found on defaulter to satisfy sum adjudged		30/06/1997

(1): Where a defendant is fined and the same is not forthwith paid, the magistrate may order the defendant to be searched.
(2): Any money found on the arrest of a person adjudged to pay a fine, or on a search as aforesaid, or on his being taken to prison or other place of detention in default of payment of such a fine may, unless the magistrate otherwise directs, be applied towards payment of the fine; and the balance, if any, shall be returned to him.
(3): The magistrate shall not allow the application as aforesaid of any money found on a person if he is satisfied that the money does not belong to him or that the loss of the money would be more injurious to his family than would be his detention.

(Replaced 41 of 1956 s. 2) [cf. 1952 c. 55 s. 68 U.K.]

Section:	39	Recognizance may be dispensed with		30/06/1997

Where in the case either of imprisonment or a fine there is prescribed a requirement for the offender to enter into his recognizance and to find sureties for keeping the peace and observing some other condition, or to do any of such things, the magistrate may dispense with any requirement or any part thereof.

Section:	40	Summary order		30/06/1997

(1): Where a power is given by any future enactment to a magistrate of requiring any person to do or to abstain from doing any act or thing, other than the payment of money, or of requiring any act or thing to be done or left undone, other than the payment of money, and no mode is prescribed of enforcing such requisition, a magistrate may exercise such power by an order and may annex thereto any conditions as to time or mode of action which he may think just, and may suspend or rescind any such order on such undertaking being given or condition being performed as he may think just, and generally may make such arrangements for carrying into effect such power as to him may seem meet.
(2): A person making default in complying with any such order shall be punished in the prescribed manner, or, if no punishment is prescribed, may be ordered to pay a sum of $25 for every day during which he is in default, or to be imprisoned until he has remedied his default: (See Form 68)

Provided that a person shall not, for non-compliance with the requisition of a magistrate, whether made by one or more orders, to do or to abstain from doing any act or thing, be liable under this section to imprisonment for any term or terms amounting in the aggregate to more than 3 months or to payment of any sums exceeding in the aggregate $1000. (Amended 24 of 1949 s. 13; 30 of 1958 Schedule)

[cf. 1879 c. 49 s. 34 U.K.]

Section:	41	Provision as to mode of payment of sum adjudged to be paid		30/06/1997

(3): A magistrate directing the payment of a sum or of an instalment of a sum may direct such payment to be made at such time and in such place and to such person as may be specified by the magistrate, and every person, not being the magistrates' clerk, to whom any such sum or instalment is paid shall as soon as may be account for and pay over the same to such clerk. (See Forms 21-23, 25-27, 30-34, 38)

[cf. 1879 c. 49 s. 7 U.K.]

Section:	42	Return by magistrate's order of property taken from defendant		30/06/1997

Where any property has been taken from a person charged before magistrate with an offence punishable either on indictment or on summary conviction, a report shall be made by the police on the charge sheet to the magistrate of the fact of such property having been taken from the accused or defendant and of the particulars thereof, and the magistrate may, if he is of opinion that the property or any portion thereof can be returned consistently with the interests of justice and with the safe custody of the accused or defendant, direct such property or any portion thereof to be returned to the accused or defendant or such other person as he may direct.

[cf. 1879 c. 49 s. 44 U.K.]

Section:	43	(Repealed)		30/06/1997

(Repealed 5 of 1971 s. 13)

Section:	44	Rule as to cumulative sentences for assault		30/06/1997

A special magistrate shall not, by cumulative sentences of imprisonment (other than for default of finding sureties) to take effect in succession in respect of several assaults committed on the same occasion, impose on any person imprisonment for the whole exceeding

6 months; but nothing in this section shall be deemed to affect the provisions contained in section 94.

(Amended 24 of 1949 s. 14 )

[cf. 1879 c. 49 s. 18 U.K.]

Section:	45	(Repealed)		30/06/1997

(Repealed 21 of 1970 Second Schedule)

Section:	46	(Repealed)		30/06/1997

(Repealed 21 of 1970 Second Schedule)

Section:	47	Order for delivery of goods stolen or fraudulently obtained and in possession of dealer in second-hand property		30/06/1997

(1): If any goods are stolen or unlawfully obtained from any person, or, having been lawfully obtained, are unlawfully deposited, pledged, sold or exchanged, and complaint is made thereof to a magistrate, and that such goods are in the possession of any broker, dealer in marine stores or other dealer in second-hand property, or of any person who has lent money upon the credit of such goods, it shall be lawful for the magistrate to issue a summons or warrant for the appearance of such broker, dealer or lender and for the production of such goods to be delivered up to the owner thereof, either without payment or on payment of such sum and at such time as the magistrate may think fit.
(2): Every broker, dealer or lender who, having been so ordered, refuses or neglects to deliver up the goods, or who disposes of or makes away with the same after notice that such goods were stolen or unlawfully obtained as aforesaid, shall forfeit to the owner of the goods the full value thereof:

Provided that no such order shall bar any such broker, dealer or lender from recovering possession of such goods by action from the person into whose possession they may come by virtue of the magistrate's order, provided that such action is commenced within 6 months next after such order has been made.

(3) Nothing in this section shall affect pawnbrokers.

Section:	48	Restoration of property unlawfully pledged, etc.		30/06/1997

(1) It shall be lawful for a magistrate to order that any goods brought before him which have been unlawfully pledged or exchanged, and the ownership of which is established to his satisfaction, shall be delivered up to the owner by the person with whom they were so unlawfully pledged or exchanged, either without compensation or with such compensation to that person as he may think fit.

(2) Nothing in this section shall affect pawnbrokers.

Section:	49	(Repealed)		30/06/1997

(Repealed 70 of 1967 s. 7)

Section:	50	Penalty on common informer for compounding without permission of magistrate		30/06/1997

In case any person lays any information before a magistrate for any offence alleged to have been committed, by which he was not personally aggrieved, and afterwards directly or indirectly receives, without the permission of a magistrate, any sum of money or reward for compounding, delaying or withdrawing the information, it shall be lawful for a magistrate to issue his warrant or summons, as he may deem best, for bringing before him the person charged with such compounding, delay or withdrawal; and if such offence is proved by the confession of the said informer or by the oath of any credible witness, he shall be liable to a penalty of $500.

(Amended 24 of 1949 s. 17)

Section:	51	Warrant of distress		30/06/1997

Distress and committal warrants

Where a conviction adjudges a fine to be paid or where an order requires the payment of a sum of money and by the enactment authorizing such conviction or order such fine or sum of money is to be levied on the goods and chattels of the defendant by distress and sale thereof, and also in cases where by the enactment in that behalf no mode of raising or levying such fine or sum of money or of enforcing the payment of the same is stated or provided, it shall be lawful for a magistrate to issue his warrant of distress for the purpose of levying the same, which shall be in writing under his hand and seal: (See Forms 21, 30, 48, 49)

Provided that whenever it appears to the magistrate to whom application is made for any such warrant that the issuing thereof would be ruinous to the defendant and his family, or whenever it appears to the magistrate, by the confession of the defendant or otherwise, that he has no goods or chattels whereon to levy the distress, or whenever in the opinion of the magistrate it is inexpedient to issue such warrant, then and in every such case it shall be lawful for the magistrate, instead of issuing the warrant of distress, to commit the defendant to prison for such time and in such manner as by law the defendant might be so committed in case such warrant had issued and no goods or chattels could be found whereon to levy such fine or sum and costs aforesaid. (See Form 69)

(Amended 30 of 1958 Schedule)

[cf. 1848 c. 43 s. 19 U.K.]

Section:	52	Allowing defendant to go at large until return made to warrant, etc.		30/06/1997

Where a magistrate issues any such warrant of distress it shall be lawful for him to suffer the defendant to go at large, or, by a written warrant in that behalf or verbally, to order the defendant to be kept and detained in safe custody until return is made to the warrant, unless the defendant gives sufficient security, by recognizance or otherwise, to the satisfaction of the magistrate, for his appearance before a magistrate at the time and place appointed for the return of the warrant: (See Forms 64, 65)

Provided that in any case where a defendant gives security by recognizance as aforesaid, and does not afterwards appear at the time and place mentioned therein, the magistrate then present may forthwith declare the same to be forfeited in manner hereinafter provided. (Amended 56 of 1994 s. 11)

[cf. 1848 c. 43 s. 20 U.K.]

Section:	53	Commitment in default of sufficient distress		30/06/1997

If at the time and place appointed for the return of any such warrant of distress the police officer or other officer who has had the execution of the same returns that he could find no goods or chattels or no sufficient goods or chattels whereon he could levy the sum or sums therein mentioned, together with the costs of or occasioned by the levying of the same, it shall be lawful for the magistrate before whom the same is returned to issue his warrant of commitment under his hand and seal, directed to the same or any other police officer or other officer, reciting the conviction or order shortly, the issuing of the warrant of distress, and the return thereto, and requiring such police officer or other officer to convey the defendant to prison, and there to deliver him to the Commissioner of Correctional Services, and requiring the said Commissioner to receive the defendant and to imprison him in such manner and for such time as the enactment on which the conviction or order mentioned in the warrant of distress is founded directs, unless the sum or sums adjudged to be paid, and all costs and charges of the distress (the amount thereof being ascertained and stated in the commitment) shall be sooner paid. (See Forms 57, 63)

[cf. 1848 c. 43 s. 21 U.K.]

Section:	54	Commitment of defendant where no remedy or punishment in default of sufficient distress		30/06/1997

Whenever it is returned to a warrant of distress issued for the recovery of a fine or sum of money ordered to be paid under a conviction or order that no sufficient goods of the party against whom such warrant has been issued can be found, and by the enactment under the provisions of which such conviction or order was made no further remedy or punishment is provided for the non-payment of such fine or sum of money, it shall nevertheless be lawful for a magistrate, if he thinks fit, by his warrant as aforesaid, to commit the defendant to prison for such period as may be in accordance with the scale provided by section 68, unless the fine or sum adjudged to be paid, and all costs and charges of the distress (the amount thereof being ascertained and stated in the commitment), shall be sooner paid. (See Form 63)

(Amended 30 of 1958 Schedule)

[cf. 1848 c. 43 s. 22 U.K.]

Section:	55	Commitment of defendant in first instance		30/06/1997

(1) Where the enactment by virtue of which a conviction for a fine or an order for the payment of money is made makes no provision for such fine or sum being levied by distress, but directs that, if the same be not paid forthwith or within a certain time therein mentioned or to be mentioned in the conviction or order, the defendant shall be imprisoned for a certain time unless such fine or sum shall be sooner paid, in every such case such fine or sum shall not be levied by distress; but if the defendant does not pay the same, together with costs, if awarded, forthwith, or at the time specified in the conviction or order for the payment of the same, it shall be lawful for a magistrate to issue his warrant of commitment under his hand and seal, requiring the police officer to whom the same is directed to take and convey the defendant to prison and there to deliver him to the Commissioner of Correctional Services, and requiring the said Commissioner to receive the defendant and to imprison him for such time as the enactment on which the conviction or order is founded as aforesaid directs, unless the fine or sum adjudged to be paid shall be sooner paid. (See Forms 27, 59, 61) (Amended 30 of 1958 Schedule)

(2) A warrant issued under subsection (1) may remain in full force until it is executed or until it is withdrawn

by any magistrate. (Added 32 of 1966 s. 3) [cf. 1848 c. 43 s. 23 U.K.]

Section:	56	Commitment for disobedience of order to do some act, etc., not being payment of money	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made-see 25 of 1998 s. 2

Cap 227 - MAGISTRATES ORDINANCE

(1): Where a conviction does not order the payment of any fine but that the defendant be imprisoned, or where an order is not for the payment of money but for the doing of some other act, and directs that, in case of the defendant's refusal or neglect to do such act, he shall be imprisoned, and the defendant refuses or neglects to do such act, in every such case it shall be lawful for a magistrate to issue his warrant of commitment under his hand and seal, requiring the police officer to whom the same is directed to take and convey the defendant to prison and there to deliver him to the Commissioner of Correctional Services, and requiring the said Commissioner to receive the defendant and to imprison him for such time as the enactment on which the conviction or order is founded as aforesaid directs. (See Forms 66, 68) (Amended 30 of 1958 Schedule; 25 of 1998 s. 2)
(2): In any such case, where by the conviction or order any sum for costs is adjudged to be paid by the defendant to the complainant or informant, such sum may, if the magistrate thinks fit, be levied by warrant of distress in manner aforesaid, and, in default of distress, the defendant may be also committed to prison there to be kept for one month to commence at the termination of the imprisonment which he is then undergoing, unless such sum for costs and all costs and charges of the distress shall be sooner paid. (See Forms 50, 51, 69) (Amended 30 of 1958 Schedule)

[cf. 1848 c. 43 s. 24 U.K.]

Section:	57	Consecutive or partly consecutive sentences of imprisonment		30/06/1997

Where a term of imprisonment is imposed by a magistrate, either in the first instance or in respect of the nonpayment of any sum of money adjudged to be paid by a conviction or order, the magistrate may order that the said term shall commence at any time during or at the expiration, in whatever manner, of any other term of imprisonment which has previously been imposed by any court:

Provided that where 2 or more terms of imprisonment imposed by a magistrate are ordered to run consecutively in whole or in part the aggregate of the said terms of imprisonment shall not, in the case of a special magistrate, exceed 12 months and in the case of a permanent magistrate exceed 3 years. Nothing in the foregoing proviso shall be deemed to affect the provisions of section 44.

(Replaced 24 of 1949 s. 18. Amended 48 of 1949 s. 7; 13 of 1995 s. 44)

Section:	58	On payment of fine and expenses distress not to be levied, or party, if imprisoned, to be discharged		30/06/1997

Where any person against whom a warrant of distress issues as aforesaid pays or tenders to the police officer or other officer having the execution of the same the sum mentioned in the warrant, together with the amount of the expenses of the distress up to the time of such payment or tender, such police officer or other officer shall cease to execute the same; and where any person is imprisoned as aforesaid for non-payment of any fine or other sum he may pay or cause to be paid to the Commissioner of Correctional Services the sum mentioned in the warrant of commitment, together with the amount of the costs therein mentioned, and the said Commissioner shall receive the same, and shall thereupon discharge such person if he is in his custody for no other matter.

[cf. 1848 c. 43 s. 28 U.K.]

Section:	59	Provisions as to warrants of distress		30/06/1997

The following provisions shall apply with respect to warrants of distress issued by a magistrate under this Ordinance-

(a): a warrant of distress shall be executed by or under the direction of a police officer or other officer;
(b): save in so far as the person against whom the distress is levied otherwise consents the distress shall be sold by public auction, and 5 clear days at the least shall intervene between the making of the distress and the sale, unless the goods distrained are perishable, and when consent is so given as aforesaid the sale may be made in accordance with such consent;
(c): subject as aforesaid the distress shall be sold within the period fixed by the warrant, and, if no period is so fixed, then within the period of 14 days from the date of the making of the distress, unless the sum for which the warrant was issued, and also the charges of taking and keeping the distress, are sooner paid;
(e): where a person charged with the execution of a warrant of distress wilfully retains from the produce of any goods sold to satisfy the distress or otherwise exacts any greater costs and charges than those to which he is for the time being entitled by law or makes any improper charge, he shall upon summary conviction be liable to a fine of $100; (Amended 22 of 1950 Schedule)
(f): a written account of the costs and charges incurred in respect of the execution of any warrant of distress shall be sent by the officer charged with the execution of the warrant as soon as practicable to the magistrates' clerk; and it shall be lawful for the person on whose goods the distress was levied, within 1 month after the levy of the distress, to inspect such account without fee or reward, at any reasonable time to be appointed by a magistrate, and to take a copy of such account; (See Form 58)
(g): an officer charged with the execution of a warrant of distress shall cause the distress to be sold, and may deduct out of the amount realized by the sale all costs and charges actually incurred in effecting the sale, and shall render to the owner the surplus, if any, after retaining the amount for which the warrant was issued and the proper costs and charges of the execution of the warrant;
(h): where a person pays or tenders to the officer charged with the execution of a warrant of distress the sum mentioned in the warrant or produces the receipt for the same of the magistrates' clerk, and also pays the amount of the costs and charges of the distress up to the time of such payment or tender, the officer shall not execute the warrant; and
(i): where a claim is made to or in respect of property taken in execution under this section by any person other than the party against whom such execution issued, such claim shall be heard and determined by the magistrate upon a summons calling before him as well such claimant as the party on whose behalf such execution issued, and the decision of the magistrate upon such claim shall be final.

[cf. 1879 c. 49 s. 43 U.K.]

Section:	60	Special provisions as to warrant of commitment for nonpayment of money and as to warrant of distress		30/06/1997

(1): A magistrate to whom application is made either to issue a warrant of distress for any sum adjudged to be paid by a conviction or order, or to issue a warrant for committing a person to prison for non-payment of a sum of money adjudged to be paid by a conviction or, in the case of a sum not a civil debt, by an order, or for default of sufficient distress to satisfy any such sum, may, if he deems it expedient to do so, postpone the issue of such warrant until such time and on such conditions, if any, as to him may seem just.
(2): The wearing apparel and bedding of a person and his family and, to the value of $1000, the tools and implements of his trade shall not be taken under a distress issued by a magistrate. (Amended 24 of 1949 s. 19; 51 of 1981 s. 5)
(3): Where, on application made to a magistrate to issue a warrant for committing a person to prison for nonpayment of a sum adjudged to be paid by a conviction or, in the case of a sum not a civil debt, by an order, or for default of sufficient distress to satisfy any such sum, it appears to the magistrate to whom the application is made that, either by payment of part of the said sum, whether in the shape of instalments or otherwise, or by the net proceeds of the distress, the amount of the sum so adjudged has been reduced to such an extent that the unsatisfied balance, if it had constituted the original amount adjudged to be paid by the conviction or order, would have subjected the defendant to a maximum term of imprisonment less than the term of imprisonment to which he is liable under such conviction or order, the magistrate shall, by his warrant of commitment revoke the term of imprisonment, and order the defendant to be imprisoned for a term not exceeding such less maximum term instead of the term originally mentioned in the conviction or order. (See Form 71)

[cf. 1879 c. 49 s. 21 U.K.]

Section:	61	Exercise on complaint of power to bind over to keep the peace		30/06/1997

Recognizances, etc.

(1) The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance and

find sureties to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint. (See Forms 34-36)

(2) The magistrate may order the defendant, in default of compliance with such last-mentioned order, to be

imprisoned for 6 months. (Amended 30 of 1958 Schedule) [cf. 1879 c. 49 s. 25 U.K.]

Section:	62	Power to reduce or vary security		30/06/1997

Where, other than in criminal proceedings, a person has been committed to prison by a magistrate for default in finding sureties, a magistrate may, on application made to him in manner directed by rules made under section 133 by such person or by some one acting on his behalf, inquire into the case of the person so committed, and if, on new evidence produced to the magistrate or proof of a change of circumstances, the magistrate thinks, having regard to all the circumstances of the case, that it is just to do so, he may reduce the amount for which it is proposed the sureties or surety should be bound, or dispense with the sureties or surety, or otherwise deal with the case as he may think just. (See Forms 40, 41)

(Amended 56 of 1994 s. 11)

[cf. 1879 c. 49 s. 26 U.K.]

Section:	63	Recognizance taken out of court		30/06/1997

When a magistrate has fixed, as respects any recognizance, the amount in which the principal and the sureties, if any, are to be bound, the recognizance, notwithstanding anything in this or any past enactment, need not be entered into before such magistrate, but may, subject to rules made under section 133, be entered into by the parties before another magistrate or before the magistrates' clerk or before a superintendent or inspector of police or, where any of the parties is in prison, before the Commissioner of Correctional Services; and thereupon all the consequences of law shall ensue and the provisions of this Ordinance with respect to recognizances taken before a magistrate shall apply as if the recognizance had been entered into before a magistrate as heretofore by law required. (See Forms 6-9)

[cf. 1879 c. 49 s. 42 U.K.]

Section:	64	Mode of giving security and enforcement thereof		30/06/1997

(1): A person shall give security under this Part, whether as principal or surety, either by the deposit of money with the magistrates' clerk or by an oral or written acknowledgement of the undertaking or condition by which and of the sum for which he is bound, and evidence of such security may be provided by the entry thereof in the register of the proceedings of the magistrates. (See Forms 6-9, 42)
(2): Any sum which may become due in pursuance of a security under this Part from a surety shall be recoverable summarily in manner directed by this Ordinance with respect to a civil debt on complaint by a police officer or by the magistrates' clerk or by some other person authorized for the purpose by a magistrate.
(4): Any sum paid by a surety on behalf of his principal in respect of a security under this Part, together with all costs, charges and expenses incurred by such surety in respect of that security, shall be deemed a civil debt due to him from the principal, and may be recovered before a magistrate in manner directed by this Ordinance with respect to the recovery of a civil debt which is recoverable summarily.

(5) Where security is given under this Part for payment of a sum of money, the payment of such sum shall be

enforced by means of such security in substitution for other means of enforcing such payment. [cf. 1879 c. 49 s. 23 U.K.]

Section:	65	Enforcing recognizance for appearance		30/06/1997

(2): Where a recognizance conditioned to keep the peace, or to be of good behaviour, or not to do or commit some act or thing has been entered into by any person as principal or surety before a magistrate, any magistrate, on proof of the conviction of the person bound as principal by the recognizance of any offence which is in law a breach of the condition of the same, may by conviction adjudge the recognizance to be forfeited, and adjudge the persons bound thereby, whether as principal or sureties, or any of such persons, to pay the sums for which they are respectively bound. (See Forms 35-38)
(3): All sums paid in respect of a recognizance declared or adjudged by a magistrate in pursuance of this section to be forfeited shall be paid to the magistrates' clerk, and shall be paid and applied by him in such manner as the Director of Accounting Services may direct. (See Form 55) (Amended L.N. 16 of 1977)

[cf. 1879 c. 49 s. 9 U.K.]

Section:	66	(Repealed)		30/06/1997

Civil debts

(Repealed 35 of 1969 Schedule)

Section:	67	Enforcing civil debt		30/06/1997

(1) Any sum of money recoverable summarily as a civil debt within the meaning of this or any other Ordinance, or in respect of the recovery of which jurisdiction is given by such Ordinance to a magistrate, shall be deemed to be a sum for payment of which a magistrate has authority by law to make an order on complaint under this Ordinance: (See Forms 71A-77)

Provided as follows-

(a): a warrant shall not be issued for apprehending any person for failing to appear to answer any such complaint; and
(b): an order made by a magistrate for the payment of any such civil debt as aforesaid or of any instalment thereof or for the payment of the costs in the matter of any such complaint, whether ordered to be paid by the complainant or the defendant, shall not, in default of distress or otherwise, be enforced by imprisonment, unless it is proved, to the satisfaction of a magistrate, that the person making the default in payment of such civil debt, instalment or costs either has, or has had since the date of the order, the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same, and in any such case the magistrate shall have power to imprison the defendant for 3 weeks, unless the same shall be sooner paid.

(2): Proof of the means of the person making default may be given in such manner as the magistrate to whom application is made for commitment to prison may think just.
(3): The payment of any costs ordered to be paid by the complainant or the defendant in proceedings for the recovery of a civil debt shall, subject to paragraph (b) of the proviso to subsection (1), be enforced in like manner as such civil debt. (Added 35 of 1969 Schedule)

[cf. 1879 c. 49 s. 35 U.K.]

Section:	68	Scale of imprisonment for non-payment of money, etc.	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made-see 25 of 1998 s. 2

Scale of imprisonment for non-payment of money, etc.

(1) Unless in any enactment it is otherwise provided, the period of imprisonment, which may be imposed by a magistrate exercising summary jurisdiction, in respect of the non-payment of any sum of money adjudged to be paid by a conviction, whether it be a fine or in respect of the property the subject of the offence, or in respect of the injury done by the offender, or in respect of the default of a sufficient distress to satisfy any such sum, shall be such period as, in the opinion of the magistrate, will satisfy the justice of the case, but shall not exceed in any case the maximum fixed by the following scale- (Amended 30 of 1958 Schedule)

the period of

Where the amount- imprisonment is not to exceed-

does not exceed $2000 7 days

exceeds $2000 but does not exceed $5000 14 days

exceeds $5000 but does not exceed $10000 1 month

exceeds $10000 but does not exceed $25000 3 months

exceeds $25000 but does not exceed $50000 6 months

exceeds $50000 12 months (Amended 13 of 1995 s. 57)

(2) Where the fine or other sum adjudged to be paid is imposed by a sentence in addition to a term of imprisonment, the imprisonment imposed under this section or any other enactment shall commence from the expiration of the term of imprisonment imposed by the sentence.

(3) The Chief Executive in Council may by order published in the Gazette amend the monetary amounts in the

scale in subsection (1). (Added 13 of 1995 s. 57. Amended 25 of 1998 s. 2) [cf. 1879 c. 49 s. 5 U.K.]

Section:	69	(Repealed)		30/06/1997

(Repealed 39 of 1996 s. 24)

Section:	70	(Repealed)		30/06/1997

(Repealed 39 of 1996 s. 24)

Section:	71	(Repealed)		30/06/1997

(Repealed 13 of 1995 s. 58)

Section:	71A	Interpretation	25 of 1998 s. 2	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

PART III

INDICTABLE OFFENCES

In this Part, unless the context otherwise requires- "committal" (交付審判、交付) means committal for trial or sentence in the Court of First Instance; (Amended 25 of 1998 s. 2)

"committal proceedings" (交付審判程序) means proceedings under this Part for the committal of an accused;

"juvenile" (少年) means a person who is, in the opinion of the magistrate presiding at the committal proceedings, under the age of 16 years;

"preliminary inquiry" (初級偵訊) means proceedings pursuant to an election by the accused under section 80C(1) to have a charge against him heard at a preliminary inquiry;

"return day" (提訊日) means a day appointed as such under section 80A(1) or (2) or a day to which proceedings are adjourned under section 80B(6).

(Added 48 of 1983 s. 3)

Section:	72	Procedure on information being laid		30/06/1997

(1) In every case where a complaint is made to or an information laid before a magistrate alleging the commission of any indictable offence then, if the accused is not then in custody, it shall be lawful for the magistrate to issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law; but in any case it shall be lawful for the magistrate to whom the complaint is made or before whom the information is laid, if he so thinks fit, instead of issuing his warrant in the first instance to apprehend the accused, to issue his summons directed to the accused requiring him to appear before a magistrate at a time and place to be therein mentioned; and if, after being served with the summons in manner hereinafter mentioned, he fails to appear at such time and place in obedience to such summons, then and in every such case any magistrate may issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law: (See Forms 1, 2, 4) (Amended 49 of 1965 s. 9; 50 of 1991 s. 4)

Provided that a warrant shall not be issued in the first instance unless the complaint or information is supported by evidence on oath. (Added 49 of 1965 s. 9)

(2) Nothing in this section shall prevent a magistrate from issuing the warrant hereinbefore first mentioned at

any time before or after the time mentioned in the summons for the appearance of the accused. [cf. 1848 c. 42 s. 1 U.K.]

Section:	73	Warrant to apprehend for offence committed on high seas, etc.	L.N. 362 of 1997; 25 of 1998	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

In every case of an offence committed on the high seas, or outside Hong Kong, or in any creek, harbour, haven or other place within the jurisdiction of the courts of Hong Kong for which an indictment may be preferred by the Secretary for Justice, it shall be lawful for any magistrate, if the accused resides or is supposed to reside or be within Hong Kong or the waters thereof, to issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the charge and to be further dealt with according to law.

(Amended 50 of 1991 s. 4; 59 of 1994 s. 6; L.N. 362 of 1997; 25 of 1998 s. 2) [cf. 1848 c. 42 s. 2 U.K.; 1952 c. 55 s. 1(4) U.K.]

Section:	74	Warrant to apprehend where indictment is filed by Secretary for Justice pursuant to direction or with consent of a judge	L.N. 362 of 1997; 25 of 1998	01/07/1997

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

(1) Where the Secretary for Justice files an indictment against any person pursuant to the direction or with the consent of a judge under section 24A of the Criminal Procedure Ordinance (Cap 221), the Registrar, on application by or on behalf of the Secretary for Justice, shall issue a certificate certifying that the indictment has been filed against that person. (Amended L.N. 362 of 1997)

(2) Where a certificate issued under subsection (1) is produced to a magistrate, he shall, if the person named in the indictment-

(a): is at large, issue a warrant to arrest that person; or (See Form 4)
(b): is in custody, issue a warrant directed to the Commissioner of Correctional Services requiring that person to be brought before magistrate.

(1): Every complaint or information alleging the commission of an indictable offence shall be in writing and shall contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.
(2): No objection shall be allowed to any complaint or information for any defect in it in substance or in form or for any variance between it and the evidence adduced on behalf of the prosecution at the committal proceedings. (Amended 48 of 1983 s. 3)

Section:	75	Complaint or information to be in writing and defects therein		30/06/1997

(Replaced 49 of 1965 s. 10)

Section:	76	Service of summonses		30/06/1997

The provisions with reference to summonses contained in Part II in relation to offences punishable on summary conviction shall apply equally, mutatis mutandis, to summonses under this Part. [cf. 1848 c. 42 s. 9 U.K.]

Section:	77	Forms, etc., of warrants		30/06/1997

The provisions with reference to the form of warrants, the directions to be contained therein and the execution thereof contained in Part II in relation to offences punishable on summary conviction shall apply equally, mutatis mutandis, to warrants under this Part.

Section:	78	Summons or warrant for witness, etc.		30/06/1997

(1): If it is made to appear to a magistrate, by any credible witness, that any person is likely to give material evidence on the part of the prosecution the magistrate may enforce the attendance of such person in the manner provided in Part II for enforcing the attendance of a witness under the summary jurisdiction of such magistrate. (See Form 16) (Amended 58 of 1967 s. 2)

Section:	79	Power to remand accused		30/06/1997

for any time, the magistrate before whom the accused appears or is brought may from time to time by his warrant remand the

Cap 227 - MAGISTRATES ORDINANCE

accused to a prison or, some place of security, for such time as the magistrate may think reasonable, not exceeding 8 clear days, unless the accused and the prosecutor consent to a longer remand; or, if the remand is for a time not exceeding 3 clear days, it shall be lawful for the magistrate verbally to order the police officer or other person in whose custody the accused may then be, or any other police officer or person to be named by the magistrate in that behalf to continue and keep the accused in his custody and to bring him before the same magistrate at the time appointed for continuing the committal proceedings: (See Forms 18, 84) (Amended 24 of 1949 s. 23; 49 of 1965 s. 12)

Provided that-

(a): the magistrate may order the accused to be brought before himself or another magistrate at any time before the expiration of the time for which the accused is so remanded, and the gaoler or officer in whose custody he then is shall duly obey such order; and
(b): instead of detaining the accused in custody during the period for which he is so remanded, a magistrate before whom the accused so appears or is brought as aforesaid may admit him to bail. (See Forms 8587) (Amended 48 of 1983 s. 3; 56 of 1994 s. 11)

(2) A magistrate may, on being satisfied that a person accused of an indictable offence is by reason of illness or accident unable to appear personally before a magistrate

(a): visit the accused and in his presence exercise any of the powers conferred by subsection (1); or
(b): exercise such powers in the absence of the accused if, in the opinion of the magistrate, it is not practicable for him to visit the accused. (Replaced 91 of 1970 s. 5)

(3) (Repealed 56 of 1994 s. 11) [cf. 1848 c. 42 s. 21 U.K.; 1914 c. 58 s. 20(2) U.K.]

The room or building in which a magistrate conducts a preliminary inquiry shall not be deemed an open court for that purpose; and it shall lawful for the magistrate, in his discretion, to order that no person shall have access to or be or remain in such room or building without the consent or permission of the magistrate, if it appears to him that the ends of justice will be best answered by so doing.

(Amended 49 of 1965 s. 13; 48 of 1983 s. 3)

[cf. 1848 c. 42 s. 19 U.K.]

(1): When the accused appears or is brought before a magistrate upon an allegation of the commission of an indictable offence the magistrate may, and shall if the prosecutor so requires, appoint a day for the continuation of the committal proceedings (hereinafter referred to as "the return day").
(2): Any magistrate may, from time to time thereafter, on the application of the prosecutor or of the accused, and upon reasonable cause, appoint another return day in the place of the return day previously appointed.
(3): The return day shall not, unless the prosecutor and the accused consent or the magistrate, upon reasonable cause being shown, determines otherwise, be less than 10 days nor more than 42 days from the day on which the return day is appointed.

(4) Upon first appointing the return day, the magistrate shall inform the accused

(a): of his right to apply for legal aid;
(b): that not less than 7 clear days before the return day he will receive a copy of the complaint made or information laid together with copies of witness statements and any documentary evidence in support thereof, being the statements and evidence upon which the prosecutor will seek the accused's committal;
(c): on the return day, he will have the right to require a preliminary inquiry and, if he does so require, he may, at the inquiry, call witnesses to give evidence on his behalf;
(d): where there is more than one charge that, in the event of his requiring a preliminary inquiry on any charge, the inquiry will be held into all the charges against him and that only at the conclusion of the inquiry will he have the opportunity to plead guilty to any charge;
(e): if he does not require a preliminary inquiry, he will be committed for trial without an inquiry unless he

pleads guilty to the charge, in which case he will be committed for sentence on that charge. (Added 48 of 1983 s. 3)

(3): A documentary exhibit of which a copy is served under subsection (1) shall, if written in a language other than English, be accompanied by an English translation certified under section 27 of the Evidence Ordinance (Cap 8) and, unless the magistrate on cause shown otherwise directs, if written in a language other than Chinese, be accompanied by a Chinese translation.
(4): An exhibit which is mentioned in the list of exhibits served under subsection (1) shall be clearly identified in a statement of a witness of which a copy is served under that subsection and the accused or his legal representative shall be given reasonable opportunity to examine any such exhibit.
(5): Failure to comply with the requirements of subsections (2), (3) and (4) shall not render the service of any documents under subsection (1) ineffective or prevent such documents being handed into court under the provisions of section 80C(1) or admitted in evidence under the provisions of section 81A(1) provided that the magistrate is satisfied that accused is not prejudiced by such failure.

than one charge, any of those charges so heard, he will be committed without such an inquiry, and the accused shall, thereupon, be asked whether or not he elects to have the charge against him heard at a preliminary inquiry; and the accused may make such an election.

(2) If the accused elects or is, by virtue of subsection (5), deemed to have elected, to have the charge against him heard at a preliminary inquiry the magistrate shall-

(a): inform the accused that at the inquiry a witness for the prosecution whose statement was served on him under section 80B(1) will not be called to give evidence and his written statement will be received in evidence unless the accused, either then or not less than 7 days before the inquiry, notifies the magistrate and prosecutor of his desire to have the witness called; and
(b): ascertain, without prejudice to any right of the accused to give notice thereafter, what prosecution witnesses the accused wishes to have called at the hearing and whether or not the accused wishes to

call any witnesses of his own, and thereafter the preliminary inquiry shall be conducted in accordance with the provisions of sections 81, 81A, 82, 83, 84 and 85.

(3) If the accused does not elect, and is not deemed to have elected by virtue of subsection (5), to have the charge against him heard at a preliminary inquiry, the magistrate shall inform the accused that

(a): he is not obliged to say anything in respect of the charge but that he may plead guilty to the charge and that such a plea will result in his being committed for sentence on that charge;
(b): unless he pleads guilty to charge, he will forthwith be committed for trial on that charge without an inquiry; and
(c): after committal for trial he has the right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him.

(5): An election by the accused to have a charge against him heard shall be deemed, if there is more than one

charge, to relate to all charges. (Added 48 of 1983 s. 3)

(1): At a preliminary inquiry where the accused is present at the hearing, the magistrate shall, before committing the accused to prison for trial or before admitting him to bail to take his trial, in the presence of the accused proceed to take evidence for and on behalf of the prosecutor and his witnesses in the same manner, subject to subsection (3), as is hereinbefore provided for the taking of the evidence of the complainant or informant and his witnesses on a complaint or information for an offence punishable on summary conviction. (See Form 19) (Amended 49 of 1965 s. 14; 48 of 1983 s. 3)
(2): The accused or his counsel shall be at liberty to put questions to any witnesses produced against him, and, subject to subsection (3), the depositions or evidence of the prosecutor and his witnesses shall, in the presence of the accused, be read over to and signed respectively by the witnesses who have been so examined, and shall also be signed by the magistrate taking the same.

writing, the deposition or evidence of that witness shall be treated, for all purposes, including section 70 of the Evidence Ordinance (Cap 8), as if it had been reduced into writing immediately, read over to the witness and signed by him in the presence of the accused. (Added 75 of 1984 s. 2)

(Amended 75 of 1984 s. 2) [cf. 1848 c. 42 s. 17 U.K.]

(1): Subject to the provisions of this section, at a preliminary inquiry

(2): A magistrate shall, on the application of the prosecutor or the accused made

the witness is required, require a person who has made a witness statement which has been handed into court under section 80C to give oral evidence at the hearing in accordance with section 81.

(Replaced 48 of 1983 s. 3)

Remarks: Amendments retroactively made -see 25 of 1998 s. 2

(1) Where, by section 80C(4)(a) or section 82(1), the magistrate is required to ascertain whether the accused desires to plead guilty to the charge, he shall inform the accused that the court proposes to commit him for trial; but that the accused may, if he so desires now, plead guilty to the charge and, if he pleads guilty, he will be committed to the Court of First Instance for sentence. (Amended 25 of 1998 s. 2)

(2) If the accused then pleads guilty the magistrate, before he accepts the plea shall

(a): where the accused pleads guilty in proceedings under section 80C, require the prosecutor to outline to the accused, to the satisfaction of the magistrate, the alleged facts upon which the charge is based;
(b): explain to the accused the offence with which he is charged and the ingredients which at law constitute such offence; and
(c): record any statement made by the accused in pleading guilty to the charge and that the offence and the

ingredients which at law constitute the offence were explained to the accused, and, if the magistrate is satisfied that the plea is made voluntarily and with an understanding of the nature of the charge, he shall commit the accused for sentence.

(3): No objection shall be taken to any information or complaint to which the accused has pleaded guilty, and the accused shall not afterwards be allowed to withdraw the plea except with the leave of a judge of the Court of First Instance. (Amended 25 of 1998 s. 2)
(4): Where a judge grants leave to withdraw a plea of guilty in accordance with the provisions of subsection (3) he may, at the same time, exercise his powers under section 24A(1) of the Criminal Procedure Ordinance (Cap 221) to direct or consent to the preferment of an indictment charging the accused with the offence in respect of which the plea has been withdrawn or any related offence.
(5): An accused who is committed for sentence shall as soon as practicable be brought before the Court of First Instance for sentence, and any judge of that Court shall have the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he would have had if the accused on arraignment at any criminal sittings of the Court of First Instance had pleaded guilty to the offence charged on an indictment duly presented. (Amended 25 of 1998 s. 2)

"Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial." (Amended 49 of 1965 s. 16; 48 of 1983 s. 3)

(2): Before the accused makes any statement in answer to the charge, the magistrate shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of his guilt, but that whatsoever he then says may be given in evidence on his trial notwithstanding the promise or threat. [cf. 1925 c. 86 s. 12(3) U.K.]
(1): Immediately after complying with the requirements of the preceding section relating to the statement of the accused, and whether the accused has or has not made a statement, the magistrate shall ask the accused whether he desires to give evidence on his own behalf and whether he desires to call witnesses.
(2): If the accused in answer to the question states that he wishes to give evidence but not to call witnesses, the magistrate shall proceed to take forthwith the evidence of the accused, and after the conclusion of the evidence of the accused his counsel shall be heard on his behalf if he so desires.
(3): If the accused in answer to the question states that he desires to give evidence on his own behalf and to call witnesses, or to call witnesses only, the magistrate shall proceed to take either forthwith, or, if a speech is to be made by counsel on behalf of the accused, after the conclusion of that speech, the evidence of the accused, if he desires to give evidence himself, and of any witness called by him who knows anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.
(4): All statements by the accused and all evidence given by him or any such witness as aforesaid shall be taken down in writing. (Amended 5 of 1954 s.2)
(5): Nothing contained in this section shall prevent the prosecutor in any case from putting in evidence at the trial any admission or confession or other statement of the accused made at anytime which is by law admissible as evidence against the accused.

(Replaced 24 of 1949 s. 25) [cf. 1925 c. 86 s. 12(5) & (6) U.K.]

Remarks: Amendments retroactively made-see 25 of 1998 s. 2

(1): At a preliminary inquiry the magistrate shall in respect of any witness examined by him, other than the accused and any witness of his merely to his character, make an order in the prescribed form requiring the witness to attend and give evidence at the trial of the accused before the Court of First Instance. (See Form 79) (Amended 48 of 1983 s. 3; 25 of 1998 s. 2)

80)

(3) A magistrate

(a) on committing an accused for trial shall inform him

(i) of his right to require the attendance at the trial of any witness in respect of whom a conditional witness order, or an order treated as a conditional witness order, has been made; and

(ii) that the accused should inform the Registrar not less than 10 days before the trial if he requires such a witness to attend; and

(b) if he determines not to commit the accused for trial, shall cause notice to be given in the prescribed form to any witness in respect of whom a witness order has been made, informing the witness that he is no longer required to attend. (See Form 81)

[cf. 1965 c. 69 s. 1 U.K.]

(4) In this section, "witness" (證人) includes a person whose written statement is admitted in evidence under

section 81A. (Replaced 59 of 1981 s. 2)

Remarks: Amendments retroactively made-see 25 of 1998 s. 2

(1) If after hearing all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses and after taking into consideration any statement made by the accused, the magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, the magistrate shall forthwith order the accused, if in custody, to be discharged as to the complaint or information then under inquiry, but such discharge shall not be a bar to any subsequent complaint or information in respect of the same facts.

(2) If in the opinion of the magistrate, after hearing such evidence as aforesaid and taking into consideration any statement of the accused, such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order that the accused stand committed for trial at the Court of First Instance and shall so inform the accused or cause him to be so informed. (Amended 5 of 1954 s. 4; 63 of 1971 s. 13; 25 of 1998 s. 2)

(3) (Repealed 48 of 1983 s. 3)

(Replaced 24 of 1949 s. 26) [cf. 1848 c. 42 s. 25 U.K.; 1925 c. 86 s. 12(8) U.K.]

(1) A magistrate who commits an accused for trial under section 80C(4) or section 85(2) shall-

Public Officer	Offences
Agriculture, Fisheries and Conservation Department (Amended L.N. 331 of 1999) (i) Forestry Officer (ii) Field Officer (iii) Field Assistant (iv) Forest Guard (v) Agricultural Officer (vi) Fisheries Officer (vii) Fisheries Supervisor (viii) Veterinary Officer	(a) Any offence under the Public Cleansing and Prevention of Nuisances Regulation (Cap 132 sub. leg. BK). (Replaced 78 of 1999 s. 7) (b) (Repealed 78 of 1999 s. 7)
(i) Forestry Officer (ii) Field Officer (iii) Field Assistant (iv) Forest Guard	(c) Any offence under the Country Parks and Special Areas Regulations (Cap 208 sub. leg. A).
(i) Fisheries Officer	(d) Any offence under section 4D(1) of the Summary
(ii) Senior Fisheries Supervisor	Offences Ordinance (Cap 228).
(iii) Fisheries Supervisor I
(iv) Fisheries Supervisor II
Fire Services Department
(i) Divisional Officer	(a) Any offence under the Public Cleansing and
(ii) Assistant Divisional Officer	Prevention of Nuisances Regulation (Cap 132 sub.
(iii) Senior Station Officer	leg. BK). (Replaced 78 of 1999 s. 7)
(iv) Station Officer	(b) (Repealed 78 of 1999 s. 7)
Food and Environmental Hygiene Department (i) Senior Overseer (ii) Overseer	(a) Any offence under Part III of the Public Health and Municipal Services Ordinance (Cap 132).

(iii) Senior Foreman (iv) Foreman (v) Health Inspector (vi) Principal Hawker Control Officer (vii) Chief Hawker Control Officer (viii) Senior Hawker Control Officer (ix) Hawker Control Officer (x) Assistant Hawker Control Officer
(i) Director of Food and Environmental Hygiene (ii) Deputy Director of Food and Environmental Hygiene (iii) Assistant Director (iv) Senior Overseer (v) Overseer (vi) Senior Foreman (vii) Foreman (viii) Health Inspector (ix) Transport Supervisor (x) Principal Hawker Control Officer (xi) Chief Hawker Control Officer (xii) Senior Hawker Control Officer (xiii) Hawker Control Officer (xiv) Assistant Hawker Control Officer	(b) Any offence under the Public Cleansing and Prevention of Nuisances Regulation (Cap 132 sub. leg. BK).
(i) Director of Food and Environmental Hygiene	(c) Any offence under section 4D(1) of the Summary
(ii) Deputy Director of Food and Environmental	Offences Ordinance (Cap 228). (Added 78 of 1999
Hygiene (iii) Assistant Director (iv) Senior Overseer (v) Overseer (vi) Senior Foreman (vii) Foreman (viii) Health Inspector (ix) Principal Hawker Control Officer (x) Chief Hawker Control Officer (xi) Senior Hawker Control Officer (xii) Hawker Control Officer (xiii) Assistant Hawker Control Officer	s. 7)
Highways Department
(i) Senior Engineer	(a) Any offence under the Public Cleansing and
(ii) Engineer	Prevention of Nuisances Regulation (Cap 132 sub.
(iii) Assistant Engineer	leg. BK). (Replaced 78 of 1999 s. 7)
(iv) Chief Technical Officer	(b) (Repealed 78 of 1999 s. 7)
(v) Inspector of Works I
(vi) Inspector of Works II
(vii) Assistant Inspector of Works
Housing Department
(i) Housing Manager	(a) Any offence under the Public Cleansing and
(ii) Assistant Housing Manager	Prevention of Nuisances Regulation (Cap 132 sub.
(iii) Housing Officer (Amended L.N. 109 of 1990)	leg. BK). (Replaced 78 of 1999 s. 7) (b) (Repealed 78 of 1999 s. 7)
Labour Department (i) Factory Inspector (ii) Factory Inspector I (iii) Factory Inspector II	(a) Any offence under the Public Cleansing and Prevention of Nuisances Regulation (Cap 132 sub. leg. BK). (Replaced 78 of 1999 s. 7)

(iv) Labour Inspector I (v) Labour Inspector II	(b) (Repealed 78 of 1999 s. 7)
Lands Department (Amended L.N. 283 of 1993)
(i) Senior Land Executive	(a) Any offence under the Public Cleansing and
(ii) Land Executive	Prevention of Nuisances Regulation (Cap 132 sub.
(iii) Senior Survey Officer (Estate)	leg. BK). (Replaced 78 of 1999 s. 7) (b) (Repealed 78 of 1999 s. 7)
Leisure and Cultural Services Department (i) Amenities Officer I (ii) Amenities Officer II (iii) Senior Amenities Assistant (iv) Amenities Assistant I (v) Amenities Assistant II (vi) Amenities Assistant III (vii) Assistant Recreation and Sport Officer II (viii) Chief Leisure Services Manager (ix) Senior Leisure Services Manager (x) Leisure Services Manager (xi) Assistant Leisure Services Manager I (xii) Assistant Leisure Services Manager II	(a) Any offence under Part III of the Public Health and Municipal Services Ordinance (Cap 132).
(i) Amenities Officer I	(b) Any offence under the Public Cleansing and
(ii) Amenities Officer II	Prevention of Nuisances Regulation (Cap 132 sub.
(iii) Senior Amenities Assistant	leg. BK).
(iv) Amenities Assistant I
(v) Amenities Assistant II
(vi) Amenities Assistant III
(vii) Chief Curator
(viii) Curator
(ix) Assistant Curator I
(x) Assistant Curator II
(xi) Chief Librarian
(xii) Senior Librarian
(xiii) Librarian
(xiv) Assistant Librarian
(xv) Chief Manager, Cultural Services
(xvi) Senior Manager, Cultural Services
(xvii) Manager, Cultural Services
(xviii) Assistant Manager, Cultural Services
(xix) Assistant Recreation and Sport Officer II
(xx) Chief Leisure Services Manager
(xxi) Senior Leisure Services Manager
(xxii) Leisure Services Manager
(xxiii) Assistant Leisure Services Manager I
(xxiv) Assistant Leisure Services Manager II
(i) Amenities Officer I	(c) Any offence under section 4D(1) of the Summary
(ii) Amenities Officer II	Offences Ordinance (Cap 228).
(iii) Senior Amenities Assistant (iv) Amenities Assistant I (v) Amenities Assistant II (vi) Amenities Assistant III (vii) Assistant Recreation and Sport Officer II (viii) Chief Leisure Services Manager (ix) Senior Leisure Services Manager (x) Leisure Services Manager	(Replaced L.N. 21 of 2005)

(xi) Assistant Leisure Services Manager I (xii) Assistant Leisure Services Manager II
Marine Department (i) Marine Officer (ii) Assistant Marine Officer (iii) Marine Inspector I (iv) Marine Inspector II	(a) Any offence under the Public Cleansing and Prevention of Nuisances Regulation (Cap 132 sub. leg. BK). (Replaced 78 of 1999 s. 7) (b) (Repealed 78 of 1999 s. 7) (c) Any offence under section 4D(1) of the Summary Offences Ordinance (Cap 228).
Transport Department (i) Transport Controller I (ii) Transport Controller II (iii) Transport Assistant I (iv) Transport Assistant II	(a) Any offence under the Public Cleansing and Prevention of Nuisances Regulation (Cap 132 sub. leg. BK). (Replaced 78 of 1999 s. 7) (b) (Repealed 78 of 1999 s. 7)

Hong Kong (Chine)

HK153

Magistrates Ordinance （Chapter 227）