PART IV
General
Service of documents where preparatory hearing not ordered. 21. Where proceedings are transferred to the court under section 4 but no preparatory hearing is ordered under section 9, the prosecutor shall serve on the accused and deliver to the court the documents listed in paragraphs (a), (b) and (c) of section 13(1) within 30 days of the decision of the judge that no such preparatory hearing shall be held.
Application for discharge of accused. 22. (1) The accused may at any time before the jury is empanelled apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.
(2) Only one application may be made by an accused under this section in relation to a single indictment.
(3) Evidence shall not be given on the hearing of an application under this section except with the leave of the judge.
(4) The judge shall not grant such leave unless it appears to him, having regard to any matters stated in the application for leave, that the evidence proposed to be given bears on the issue of whether or not there is a prima facie case.
(5) Where evidence is given in pursuance of leave granted under subsection (3) the prosecutor or the accused, as the case may be, shall be given full opportunity of cross-examining the witness and the accused may cross-examine any such witness whether or not he has been examined by the prosecutor.
(6) In deciding whether to grant an application for discharge under this section the judge shall have regard to—
- (a) the documents ordered to be served and delivered under section 13 or, as the case may be, the documents served and delivered under section 21, any depositions served under section 80B(1) of the (Cap. 227).Magistrates Ordinance (and, where the prosecutor has notified the accused that he will seek to have further evidence admitted at the trial, such further evidence);
- (b) any evidence given in pursuance of leave granted under subsection (3); and
- (c) any representations which the accused and the prosecutor may wish to make.
(7) The judge may, after consideration of the documents, the evidence (if any) given in pursuance of leave granted under subsection (3) and any representations which the accused and the prosecutor may wish to make, direct that the accused be discharged.
(8) Subject to section 81E(3) of the (Cap. 221).Criminal Procedure Ordinance, where a person is discharged under this section he shall be treated as having been tried on indictment and acquitted.
(9) The hearing of an application under this section shall, subject to rules or orders made under this Ordinance, be heard in open court.
