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374
the Chinese Government, and, up to the present time, there has been no special engagement with regard to Wong. I have, therefore, to decide
what is the effect of the absence of such an engagement. The order for the surrender is giren by the Governor ; not by the Court. The engagement by the Chinese Government must be given to the Governor; not to the Court. It is conceivable that the question might arise before the Court whether or not such an engage, ment had been given, but certainly not at this stage. The final stage of the proceedings for the surrender has not yet been reached they are in suspense, owing to the application for a habeas corpus. It would. I think, te premature for the Government to ask for such an engage. ment in the case of a prisoner who may not, after all, be surrendered, and, as there is nothing in the law roquiring the demand for extradition - to be accompanied by such an engagelu nt. I
over-rule the third point.
The fourth point raises a very serious and inportant question. By the Treaty of Tientsin (Article 21 of which is set out in the preamble of the
The
Local Ordinance), it is agreed that the criminals are to be delivered up "on proof of their guilt." Article 10 of the Ordinance (following the English Act) provides that the magistrate shall commit the prisoner to gaol, there to await the further order of the Governor if at the hearing such evidence is produced as would justify the committal of the fugitive criminal for trial at the Supreme Court, if the crime of which he is accused bad been committed in the Colony." There is a wide distinction between these two provisions. A person committed for trial is not found guilty of the offence. magistrate may decline to commit, but, in order to commit, it is not necessary for the magistrate to find the prisoner guilty. The Ordinance thus provides for the surrender of the fugitive criminals not found guilty, and, es this is not contemplated by the Treaty, there is a variance between the Ordinance and the Treaty. I understand. from what was stated during the argu- ment, that the magistrates consider that they are bound by the Treaty and entitled to disregard the Ordinauce, and I gathered also that the learned magistrate in this case said that, if it was necessary for him to find guilt, he thought there was sufficient evidence, and that he did, in fact, find the prisoner guilty. This view of the law appears to be based on Wilson's case. The doctrine which has apparently been derived from this case is that, where there is a variance between the Treaty and the Orsin- ance, the Treaty is to prevail. I do not for the moment say that it is not so. but, if there be such a principle, it must, I think, he deduced from other cases.
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June 17, 1905.
$100 per mensam. Judgment was given for the plaintiff with costs.
IN SUMMARY JURISDICTION.
BEFORE ME. A. G. WISE (Puisne Judge)
THE HONGKONG WEEKLY PRESS AND,
important to bear this in mind, because the decision dealt with a question at variance between the General Enabling Extradition Act of the United Kingdom, and the different treaties to which it extends. In the present case we have a different set of circumstances, the Hongkong Ordinance having been passed with a special view to carry out the Extradition Treaty with one country only-China. We must, therefore, d al with the variance (which admittedly exists between the treaty and the law) from another point of view.
It is generally state that the Courts in any colony may be called upon to adjudicate upon the validity of any Act of the Colonial Parliament. I believe this to be sound law, and the question must be examined whether this provision of the Hongkong Ordinance is ultra vires. This point was not directly argued before me, Mr. Ferrers' argument being based solely on Wilson's case. Admitting, then, that an inquiry whether the Hongkong Ordinance is ultra vies is permissible; it seems to me clear that this inquiry is for this Court, not for the magistrate. Unless a matter is put within his
Summary Jurisdiction. the magistrate has no right to pre-judge any case, and Bad the person charged guilty; his sole duty is to commit. There is a reference to the point that the magistrate is not & Court which would bave jurisdiction in such a matter, in the Chief Justice's judgment 189 of in Kwok A Sung's case (on page the report in L.R 5 Appeal Cases).
The questions involved seem to be the following:
First, can this section stand by itself inde-
In other words suppos pendently of Treaty ing no Treaty, could the Hongkong Legislature pass an Extradition Ordinance; such as No. 7 of 1889, looking at it in its entirety? or, varying the issue. sopposing the words on proof of their guilt "not to exist in the Treaty, could the Hongkong Legislature introduce such a provision as that contained in Article 10?
Secondly, with regard to the magistrate's jurisdiction, has he power so to limit the pro- visions of Article 10 as not to commit the fugitive criminal for trial, unless he is satisfied that there has been proof of his guilt?
There are two subsidiary questions which arise out of this latter question:-
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(1) Supposing the magistrate were merely to commit for trial, is the prisoner entitled to his discharge because he has not been proved to be guilty as the Treaty requires
(2) Supposing the magistrate to find the prisoner guilty, is he entitled to his discharge because the magistrate has acted without any authority of the Legislature and beyond his normal jurisdiction?
on the answers to
The Act of the United Kingdom is a permis- I think it better that there should be further sive act that is-it provides the machinery argument, specially directed to those two points, for carrying into force arrangements for extra-which, with the one already indicated. will be dition made with foreign states. Au Order- heard before the Full Court. in-Council may be issued applying the Act to The answer to the fifth point will naturally any given arrangement. There is nothing in lepend, in great measure, the Act to prevent the extradition of British the above questions. subjects, and, if in any Treaty it was stipulated that subjects should be surrendered, their surrender would be lawful. But in the Swiss Treaty (which was in question in Vilson's case) as in many, if not all other Treaties, it is expressly stipulated that no subjects shall be surrendered. The Court held that there was nothing in the Act to compel their surrender.
The Chief Justice then added:-With regard to former judgment on the locus standi of the Chinese Government, I find that notice of the proceedings on the writ of habeas corpus was in fact given to the Freuch Government in Arton's case, and the Attorney General now informs me that the French Government was represented by Counsel in Guerin's case, but, The whole question of extradition is, by the there, the counsel appears to have taken no Act, made subservient to the Treaty, and does active part in the argument. I desire to not provide for extradition in the absence of modify to this extent my previous judgment, so or in excess of, such an arrangement. This is far as the statement is concerned that I could the effect of the decision, and the same prin. find no trace in the reports of any foreign ciple was acted on In Re Counhaye (LR. 8 government having appeared in Court in any
ertradition case. Q.B. 410). The Courts will refuse extradition
There are, in, fact, these two for an offence included under a Treaty, but not references, but they do not in any way bear upon included in the Extradition Act, and, conversely, the question of, or induce me to alter the if there were a crime included in the schedule, opinion I have expressed with regard to, the but not mentioned in the treaty, there can right of foreign governments to take part in be no extradition. I doubt if these cases the proceedings for habeas corpus in extradi- The dictation cases. warrant any larger proposition. of the learned judges appear, perhaps, to justify the proposition which has been contend- ed for, but they must be read by the light of the question before them, and cannot have any wider interpretation given to them.
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The point I wish to emphasise now is, that Wilson's case does not warrant the general proposition that where there are variances the Treaty is to prevail; and it is the more
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HIP ON INSURANCE AND Loan Co. V. TREUNG KING.
In this case Mr. H. E. Pollock, K.C., instructed by Mr. Bonner (Messrs. Dennys & Bowley) appeared for the plaintiff, while the defendant did not put in an appearance. The claim was for $25,000 due on promissory notes, and interest at the rate of $1.20 per
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YEUNG KWAN HING v. NG WAI CHI AND OTHERS.
Mr. Dixon (of Mr. John Hastings' office) appeared for the plaintiff in this case and for the defendant in a cross action, Wai Hing v Yeung Kwan Hing. Mr H. Bursthouse (of Messrs. Dennys and Bowley) appeared for the
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other side.
The original was brought to recover $718.12. The defendant is the compradore of the Messageries Maritimes Company; and during the five days set apart for the celebration of the Birthday of the Goddess of Heaven, April 3rd to 27th, defendant chartered Hardouin, from the Messageries Maritimes Company to run between Hongkong and Shek- wan. The plaintiff entered into an agreement to be allowed to sell refreshments to the pis- sengers on board the steamer but, it was alleged, found a good deal of opposition going on against him, the steward of the steamer selling meals and drinks. The cross-action was in respect of payment for the exclusive right to sell refresh-
two river steamers, the Paul Beau and Charles
ments.
His Honour gave judgment for the defendant with costs in each action."
Wednesday, 14th June.
SUMMARY JURISDICTION,
BEFORE MR. A. G. WIBE (PUISNE JUDGE).
OS. BAGGE V. B. C. BURLEY.
The plaintiff in this action, a diver employed at the Naval Yard, claimed from the defendant, the manager of the Astor House boarding house, $500, as damages for wrongful arrest. Mr. O. D. Thomson appeared for the plaintiff and Mr. M. J. D. Stephens for the defendant.
His Honour-As your man is still in Govern- ment employ will he do any good for himself even if he succeeds? He will probably get the
kick out."
Mr. Thomson-I submit from the pleadings that the plaintiff is entitled to judgment.
Mr. Thomson-There was no justification for They had this man arrested to the arrest. preserve the peace, when there was no breach of the peace.
His Honour-The damages will be practically nil. Suppose he gets five cents as damages and no costs.
Mr. Thomson-He will probably get more if you hear the manner of the arrest, and the way he was taken from the house. Would you like me to go into the case?
His Honour-I leave that to you. I should think if we went into the case it would do your man harm.
facts.
Mr. Thomson-I submit the plaintiff is en- titled to judgment even without going into the His Honour-Yes, but no damages can. be assessed unless we go into the facts.
Mr. Thomson-The plaintiff had only on his trousers and slippers, and ought to have had an opportunity of putting on his clothes.
His Honour-He should not have been in a disorderly costume.
Mr. Thomson -He was going to the bath. His Honour--To the bar? Mr. Thomson-Bath.
His Honour-Oh, I thought you said bar. Mr. Stephens submitted that the defendant had reason, on account of the plaintiff's dis- orderly conduct, for causing his arrest.
His Honour-Why did he not order him out; why did he not put him out?
Mr. Stephens-The plaintiff is a very power- ful man.
His Honour-Though the policeman did so he should not have taken him in charge. He If Mr. Hurley had a must see something. broken head it would have been different. The thing is clear. The law laid down years and years ago that if a man makes a disturbance he can be ordered out, and if he does