672 THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879.
"To be imprisoned for 12 months with hard labour and to be twice flogged on the breech, 10 "strokes each time. At expiration of imprisonment to find security 2 householders each $25, to be "forthcoming within 12 months, in default, case to be submitted to His Excellency the Governor with "view to deportation."
"20th May, 1876.”
' (Signed,) " 1)
C. MAY. J. RUSSELL.
14. It will be observed that the second sentence does not state the instrument with which the As prisoner was to be flogged; whilst the first of these two sentences directs 24 strokes of rattan. this sentence does not sub-divide the number of strokes, it would seem to be at variance with the local law which precludes a sentence by a Magistrate of more than twenty strokes.
15. 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, the prisoner had fully undergone the further punishment of deportation.
16. Having so far reported on the enclosed papers and explained the course I felt compelled to take, I venture to ask Your Lordship's particular attention to two points of some importance. The first is the interpretation I have ventured to put on Ordinance No. 8 of 1858, Section XXI. In my opinion (and the Attorney General in his later opinion seems now disposed to take the same view) the adjudication to find security within twelve months should in each case be reported forthwith to the Governor and could have no legal prospective effect in contemplation of imprisonment. If I am right there have been hundreds of cases of this kind improperly dealt with by the Magistrates; for the second sentence I have quoted in a preceding paragraph (13) is the form of sentence pronounced week after week by Mr. MAY and Mr. RUSSELL, when they desire to add deportation to imprisonment.
17. The second point to which I ask Your Lordship's special attention is involved in an observa- tion officially recorded by the Attorney General on the enclosed papers. In his further report dated 12th of June, Mr. PHILLIPPO, whilst laying down many sound principles in which I entirely agree as to the relations between a Governor and Stipendiary Magistrates, gives me an admonition, hardly called for, I think by my minutes and action in the case; he refers to what has been laid down "within his own knowledge by the Colonial Office"; and he winds up by a warning in the following words :----
"Unless His Excellency is prepared to charge the Magistrates with criminal conduct in the matter, "to do more, as for instance to censure the Magistrates in any way for the manner in which they "exercised a discretionary power, (His Excellency will I am sure excuse me for writing freely) would "be in my opinion, to repeat the blunder, made by Lord LYTTON in India, when he censured and punished the Magistrate and to some extent censured also the Supreme Court for leniency in a case "where a native died after having been struck by a European."
61
"(Signed,)
GEORGE PHILLIPPO, Attorney General.
18. No doubt Lord LYTTON's action in the matter to which the Attorney General adverts has excited a great deal of attention in the East. As far as I have seen, the great majority of intelligent and impartial Europeans in the East heartily approve of Lord LYTTON's conduct; and by the natives throughout India and the Oriental Colonies it is regarded with loyal and affectionate gratitude.
**
*
*
I have, &c.,
(Signed,)
J. POPE HENNESSY,
Governor.
Governor Hennessy, C.M.G., to the Right Honourable Sir Michael Hicks-Beach, Bart., M.P.
GOVERNMENT HOUSE, HONGKONG, May 13th, 1879.
SIR,-I have the honour to lay before you a copy of the report* of the Medical Board I appointed un'er instructions from the Earl of CARNARVON to investigate the physical effect of the mode of flogging in the Hongkong Gaol, and the prevalence or otherwise of pulmonary disease in the prison. In the appendix to the report will be found a copy of the evidence taken by the Board, together with a copy of the Colonial Surgeon's observations on the report, a memorandum showing the air space in the asso- ciated cells where the Chinese prisoners are confined, a note giving the reason why the Chinese Govern- ment do not sanction flogging on the back, and some correspondence that had been laid before the Committee.
* This Report, with the evidence and enclosures, was laid before the Legislative Council and published in May, 1879.