664 THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879.
That it should, at first, have escaped my attention is not surprising, for, though I detected other illegalities in the proceedings, I had hardly time (not being then four weeks in the Colony) to make myself acquainted with section 6 of Ordinance 9 of 1867. But that cannot be said for the experienced officers to whom I referred the case. My first minute is transcribed in paragraph 7 of my despatch No. 44 of 23rd June, and your Lordship will see that it was perfectly general; that it expressed surprise at some of the sentences, and asked the Attorney General to report on each of the four convictions and sentences.
Here I will interpolate this much to the credit of the Magistrate who had committed this error. In 1875, he had, as visiting justice, detected an illegality which had gone on for years and pointed out in the Justices' book the nature of that illegality, adding that Mr. TOMLIN, to whom he spoke about the flogging of prisoners who were not felons, had even at his request, refused to alter the practice, and the Magistrate added: "The Superintendent has incurred a grave responsibility, and it is my duty to call attention to it." The same gentleman, therefore, who on this occasion, by the oversight to which he refers, gave a man more punishment than he intended, that same gentleman is the man who, I am happy to say, detected an illegality that had gone on for years in another branch of the service.
The subsequent reference to the Magistrates was in these terms:-
"Refer to the Magistrates.
"30th May, 1877.”
"(Signed,)
J. P. H.
From what preceeded that minute it was clear that, though the Magistrates were expected to report especially on the question of ordering a flogging when the age of the convicted person was stated in the proceedings themselves as above 16, they were also expected to report on the other circumstances bearing on the four sentences.
I cannot accept Mr. RUSSELL'S view that such a blunder as he admits having made in this case might have been detected by the gaol officials at the time. It was only last week that I had a con- versation with Mr. RUSSELL as Coroner respecting an inquest he held on a prisoner named Mok A-KWAI who died in gaol of phthisis on the 28th of last month. He admitted (though no reference is made to it on the proceedings of the inquest) that the prisoner had been illegally flogged four times and otherwise illegally punished by the then Acting Superintendent. He appeared to be fully sensible of the fact that the gaol officials at that time were not over scrupulous in the treatment of Chinese prisoners.
On the question of CHAN TIN LAM's age, in which I also think the Magistrate made a mistake, I shall do myself the honour of addressing your Lordship in another despatch."
In the despatch now under reply your Lordship says:-
"Neither the power of deportation, as the order of banishment is usually called, nor the sentence of flogging for crimes of violence, are penalties which in ordinary cases or for venial offence are in themselves desirable, but the circumstances of Hongkong are peculiar, &c."
I venture to point out that. the sentence of five floggings on CHAN TIN LAM were not for crimes of violence. Flogging for crimes of violence are imposed by the Supreme Court. The Magistrates The accused in this case never alleged that their sentence had anything to do with crimes of violence. was an ordinary pickpocket who, according to the depositions, carefully avoided using any violence.
I take the liberty of asking your Lordship's particular attention to the consequence of the illegal flogging in such cases as this. The Magistrate now says that the first clerk or the Superintendent of the gaol might have detected the blunder; and there can be no doubt whatever but the gaol officials must have been aware that the number of strokes given was in excess of what the law allowed in such cases. No laws are better known in Hongkong than the flogging laws, so that the criminal himself and the other prisoners knew also that it was illegal.
I need not dwell on how far the knowledge of such a fact and of its painful consequences in the recent case of MOK A-KWAI must necessarily affect the discipline of the prison.
Unless I can receive your Lordship's support in putting a stop to these illegalities, I fear my labours in endeavouring to reform the discipline of the gaol and to diminish crime will be seriously increased."
I have &c..
J. POPE HENNESSY,
Governor.