L.
J
THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879. 663
express the opinion that the sentence of the twenty-four strokes was lawful. It was my duty, whoever had given that advice to his Lordship, to point out that it was bad advice; that this man was flogged as a juvenile offender; as he was a pickpocket and had never been accused of crimes of violence he could not have been flogged except as a juvenile offender for larceny; and I re-affirmed, with regret that the sentence was illegal. In the papers now laid before Parliament by command of Her Majesty this despatch is printed. It is as follows:-
GOVERNMENT HOUSE, HONGKONG, October 17th, 1877.
MY LORD, I have the honour to acknowledge the receipt of your Lordship's despatch of the 28th August, 1877, respecting certain floggings that had been imposed on a prisoner named CHAN TIN LAM and a recommendation of the 1st Police Magistrate that he should be deported.
In my despatch of the 23rd of June I reported to your Lordship that on the whole I entertained. such grave doubts as to the convictions and sentences in this case that I declined to add to the various imprisonments and floggings which CHAN TIN LAM had fully undergone the further punishment of deportation, and I pointed out to your Lordship, what was patent on the face of the depositions, that the sentence on the 16th of July, 1875, of 24 strokes was illegal, as the local law precludes a sentence by a Magistrate in such a case of more than twenty strokes. On this, however, your Lord- ship remarks-
"With regard to the punishment of 24 strokes awarded in the second conviction, I observe that the charge was stealing from the person and not simple larceny, and as under Ordinance 6 of 1862, which was then in force, the Magistrate had a general power of awarding 36 strokes, I cannot determine that there was any illegality in this case in the absence of any explanation from the Magistrates; and I do not find that you drew the attention of Mr. RUSSELL to this point or called upon him for any explanations."
With great regret I venture, however, to re-affirm that the sentence was illegal. The Ordinance dealing with such cases was not, as your Lordship supposes, Ordinance No. 6 of 1862, but the latter Ordinance No. 9 of 1867.
On the receipt of your Lordship's despatch I made the following minute :-
"Refer the depositions in the case of CHAN TIN LAM to Mr. RUSSELL, drawing his attention to the second-conviction for stealing from the person-16th July, 1875--when he was sentenced to four months' imprisonment with hard labour and to be flogged 24 strokes with a rattan on the breech, and enquire under what provision of our law that sentence was passed.”
The following is a copy of Mr. RUSSELL'S memorandum in reply
"This case was reported on from this department on 2nd June last, and to those reports I beg to refer. It was then pointed out that, although on the face of the proceedings the prisoner's age as given by himself was 21 years, yet that only 7 months before he had given his age as 15 when he was previously convicted, as appears in evidence by the incorporation of case No. 6,726 of 1874.
"The provision of law under which I sentenced the prisoner was the then existing Section 6 of Ordinance 9 of 1867.
"My note is '4 months' hard labour and 24 strokes of rattan privately on the breech.' By some oversight I neglected to state 'in two instalments' of 12 each. This is a mistake which I much regret.
"This blunder might have been detected by the first clerk or the Superintendent of the gaol at the time, but their not noticing it is not so surprising considering that it escaped His Excellency and the Members of the Executive Council (as would appear from His Excellency's memorandum to us of the 22nd June) as well as Mr. MAY and myself on review in June.
"Magistracy, 15th October, 1877."
"(Signed,)
JAMES RUSSELL,
Police Magistrate.
According to the gaol records this illegal flogging of 24 strokes was administered on the 16th July, 1875. Mr. RUSSELL expresses much regret for the mistake he made. He thinks his blunder might have been detected by the first clerk or the Superintendent of the gaol; and he refers to the fact that it appeared for a time to have escaped my attention.