THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879. 671
5. The Magistrates recommendation and the depositions came to me in the usual course on the 19th of May, each Member of Council having recorded upon the papers his concurrence with Mr. MAY'S recommendation.
6. Looking to the heavy penalty of five year's banishment and to the still severer penalties in- volved in an unlawful return from Deportation (a not uncommon crime in Hongkong) I have felt it to be my duty not to sign Deportation orders hastily or as matters of course: but to carefully consider the depositions and the proceedings of the Magistrates in each case.
7. Having done this in the matter of CH'AN TIN-LAM, I made the following minute on the papers on the 22nd of May:-
"I signed the last Deportation Warrant with reluctance, as one of the sentences that had been carried into effect appeared to be illegal. In this case I am also somewhat surprised Co at some of the sentences that have been inflicted. Before signing the warrant I "should therefore be glad to receive a brief report from the Attorney General on each "of the four convictions and sentences which are now put before me as the justification "of the course I am recommended to take."
8. The cases to which I refer as being one in which I signed the warrant with reluctance, was where a sentence similar to the fourth on CH'AN TIN-LAM had been passed. I could not satisfy myself that it was according to Law and I therefore sent for the Attorney General and explained my difficulty to him. He had already recorded his concurrence in the sentence of Deportation; but he admitted there was something in the point I raised. At the same time he said he was bound officially to advise me that I should sign the order. He pointed out the inconvenience of a Governor interfering unduly with the discretion of Magistrates and he gave many weighty reasons why a Governor should avoid thinking for himself in matters of Law and Justice. Accordingly in spite of my own opinion, I acted on his advice, recording however the fact that I deported the prisoner in question with great reluctance. 9. In the case of CH'AN TIN-LAM, I discussed the details in Executive Council and also called for a written report from the Attorney General and this report is given on pages 33-40 of the papers I now enclose.
10. In his report the Attorney General makes the following admissions:-
"With regard to the 2nd conviction, I do not know that if I had been sitting as Magistrate I should have convicted." This however he qualifies by saying very properly, that the Magistrate having heard the evidence had better means of judging. He adds that the prisoner acted in a most suspicious manner, and that he has very little moral doubt as to his guilt.
"With regard to the 3rd conviction" he says. "This conviction is I think so far as I am aware of the circumstances somewhat doubtful." And respecting the fourth conviction and sentence he says: "The latter portion of the sentence would seem to be incorrect inasmuch as the Ordinance only em- powers the finding of security for the appearance of the party charged in Court at any time within "twelve months from the date of the adjudication."
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In spite of those admissions, the Attorney General concludes his report by expressing the opinion. that he had satisfactorily disposed of any objections I may have entertained.
11. I had previously pointed out to him at a Meeting of the Executive Council that in addition to other defects in the proceedings, the prisoner had been flogged five times, the last three floggings being, in my opininn, open to grave doubt and I especially noticed the fact that the age of the pri- soner when sentenced to be flogged was recorded on the depositions as being 21 in one case and 22 in another, whereas the power of flogging was only given to the Magistrates in cases where the Court was of opinion that the accused was under sixteen years of age. I therefore referred the papers to him again; and then at his suggestion sent them to the Magistrates, Messrs. MAY and RUSSELL, whose proceedings were in question.
12. I transmit for Your Lordship's information the reports and observations of the Magistrates. I gave them an opportunity of reading all the minutes that had been made; and as they now for the first time recorded their opinion that the prisoner was under sixteen in the year 1876, I asked the Registrar General, Mr. SMITH, who had seen the man in prison, to make an enquiry and report to me on the subject. I have also seen the prisoner myself and from my own observations as well as Mr. SMITH'S enquiry, I entertain no doubt whatever, but that the last three floggings were given to him when he was over twenty years of age.
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13. The two sentences under which these three floggings were given, are in the following words :-
"4 months' hard labour and 24 strokes of rattan privately on the breech."
"16th July, 1875."
"(Signed,)
J. RUSSELL.