July 15, 1905.,
SUPREME COURT.
Tuesday, 11th July.
IN ORIGINAL JURISDICTION.
BEFORE SIR. F. T. PIGGOTT (CHIEF JUSTICE).
IN THE MATter of wong's EXTRADITION.
Sir Henry Berkeley (Attorney General) and Mr. H. E. Pollock, K.C. (instructed by Mr. F. B. L. Bowley) appeared for the Crown in this case, while Mr. N. Ferrers (instructed by Mr. Otto Kong 8 ng) appeared for the aconsed.
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Judgment: On the hearing of the applic tion for a habeas corpus before me on 6th June. I reserved for argument before the Full Court the 2nd, 4th, and 5th points which had been raised on behalf of the prisoner: these points were argued on 29th June.
The second point was, that the prisoner's surrender, though asked for an extradition crime, had in fact been made with a view to Try him to au offence which is not an extradition orim rt. 4 (1) of the Ordinance.]
On this point the first difficulty which arose
with regard to the meaning of the expres SIOL in fact with a view."
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CHINA OVERLAND TRADE REPORT
the Supreme Court, if the crime of which he is accused had beef committed in the Colony. I have already indicated that there appears, on the face of this provision, to be a variance between the Treaty and the local law, for a magistrate can only discharge, not acquit; or commit for trial, but not find guilty.
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that bond the defendant had submitted to the jurisdiction of the United States.
His lordship-That comes after. We are on the one point now.
Mr. Calthrop, continuing, said that the defence raised two grounds, first that the American court, with reference to our own court, car ied no jurisdiction, because the defendant had no property in America. Secondly, as the defendant was not an American subject, and was not residing in the State of Oregon when the writ was issued, and had never submitted himself to the jurisdiction of the United States. Mr. Calthrop quoted legal cases at length to upset these arguments.
His Lordship reserved his decision on this
preliminary point.
But art. 10 of the Extradition Ordinanca must clearly be read subject to art. 76 of the Magistrates' Ordinance, No. 3 of 1890. And by the second part of that article. the magistrate is to commit the prisoner if, in. his opinion, the "evidence is sufficient to put the accused upon his trial for an indictable offence, or, if the evidence given raises a strong or probable presumption of the guilt of the accused."
on- This provision is copied verbatim from the English Act, 11 and 12 Vict c. 42 s. 25 What the precise distinction between these two alternatives I have not to enquire, and the books do not throw much light upon it. It i is sufficient to say that the second condition for committal for trial does exactly fit in with the duty required of the Colonial authority by the BEFORE SIR F. T. PIGGOTT (CHIEF JUSTICE). Treaty. If the firs' condition had stood alone, it would have been necessary to go into the questions of ultra vires suggested in my previous judgment
But it does not; and we are, therefore, relieved from the duty of deciding a mat troublesome Had it been necessary for us to point of law. do so we shuld have received material assistance from the learned Attorney General's able argument
The learned Attorney-General conceded that this question was governed by the ruling in Arton's case (1896-1 Q.B. 108). All questions of mala fides on the part of the foreiru Got ra. ment being put aside. under the English zot the ulterior object of that Government to The magistrate expressed the opinion that prosecule the person extradited for a politi che prisoner was guilty. It is impossible to cal offence may be shown. So, under the Hong-say that in so doing he was not acting in com. kong Ordinance the ulterior object of the pliance with the law. But in future I t ink it foreign Government to prosecute the person would be better for the magistrate to adhere extradited for a non-extraditable offenc may be rigidly to the words of art. 76, and to say whether or not in his opinion the evidence giveu" raises a strong or prob ble presumption of the guilt of the accused."
shown.
In order to prove the ulterior intention in the present case, the Proclamation of the Brigale General at se Kong, in Kwong Sai Province. was put in. It may, I think. be legitimately argued from this document. issue in order to assist in the work of exterminating bandits' from certain villages, that although the extra- dition of Woog Ka Tseung was only demanded for one crime of armed robbery, ye it does show the ulterior intention of the Chinese Government of punishing him. when they have got him, as a bandit But a bandit obviously means a person who has been concerned in more thau ne armed robbery. The ulterior intention. therefore, if it exists, is to try the man for other extreditable offences than the one for which his extradition is demanded; but not for other nou-extraditable offenc-s. If this, i deed, be the ulterior intention, it is fully covered by the provisions of art. 4 (3), which provides that. before the extradition is grated, an engage- ment shall be given by the Chinese Government that the prisoner shall not be tried for any offence committed before his surrender other then the extradition crime for whichis surren dr is demanded.
The second poin', therefore, falls to the ground.
智
The fourth point was that the prisoner's guilt had not been proved as required by art. 23 of the Treaty of Tientsin, Ou this point I have already indicated the many doubts which I felt in my former ju 'gment; but the slution of them is somewhat easier than { at first anticipated.
of
In the first place, I accept the learned Attorney General's argument that the words used in art. 21 of the Treaty. "on proof of their guilt." cannot, from the reason the thing. bear the rigid meaning that the prisoner is to be found guil y. For, in the first place, the trial is to take place in China, and th proof of the guilt will he there requi ed according to Chinese law.
In the second place, the trial is not to take place in Hongkon, either under English or Chinese law, and the man will not be punished in the Colony. It would be imposible, therefore, to determine by what law he was to be found guilty. The only possible interpretation of the words is that the colonial authorities who are entrusted with the proceedings in Hongkong are to be satisfied that the prisoner is guilty.
The magistrate is the anthority charged with the enquiry, and the evidence before him under art. 10, is to be such as would justify the committal of the fugitive criminal for trial at
The fourth point therefore, fails.
Thursday, 13th July.
IN BANKRUPTCY,
LAI HING FIRM EXPARTE MA LEUNG KO.
Ma Fat Ting, debtor, was publicly examined. He said-I put in Tla. 20,000 into the bank myself. The others, some more, some less. The rate of interest I received was $80 per $1,000
This amount is
per year.
If there was a profit 1 also had a bonus. Last year there was no bonus. The year before I received about $600. The bonus was calculated at every $100, $15. That is The profits were irrespective of profits. divided according to capital. All the profits were not divided. All the profits last year were put into the shop. The Wang Fang Company has taken the monopoly of the Wai Shing lottery in the Kwangtung Province. The Li Hing firm advanced $910,000 to the Wong Fung Company. approximate. The Wang Fung Company wanted the money to pay for the monopoly. We advanced the money at 1.2 per cent per | On the fifth and last pont Mr. Ferrers
admitted that the cise was too strong for him month to them. The interest resulting went could review the into the profits of the Lai Hing. I received to contend that this Cour
The law $500 per month from the Wang Fung Company. magistrate's decision as to the facts.
All those who had shares did likewi e. That is too clearly establishel for this point again to
I ha a share be raised He contouded, however, that under was what the agreement wRJ. art. 15 of the Magistrates Ordinance. the in the Wang Fung Company. I have $60.000 magistrate ought to have heard the complain-odd with the Wang Fung Company now. ant-who was, he said, the Chinese officer in charge of the case. But art. 15 is in part 2 of the Ordinance, which deals with in re pect of Summary Offences, such provision in the part which deals with indictable offences The fif h point, therefore. also fails.
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Procedure There is no
All the points which the ingenuity of counsel has raised on behalf of the prisoner have thus been over-ruled. All of them were well wortby of consideration; some of them of considerable difficulty. The sum and substance of the decision is that while there have been deviations from what I consider to be the strictness of practice which the law requires, none of them have been sufficiently serious to warrant the procedure being set aside. The writ of habeus corpus is therefore, discharged.
ROBERT SMITH v. WILLIAM DUMBAR.
In this case the plaintiff claimed the equiva- leut in the currency of this Colony of $2,707 73 United States currency. Mr. H. G. Calthrop (instructed by Mr. Paget Hett) appeared for the plaintiff, and Mr. H. E. Pollock, K.C. (instructed by Mr. Dixon) for the defendant.
of
the said
Mr. Pollock said the first question they had to argue was, “Is the plaintiff entitled to have the judgment of the Circuit Court of Oregon in the United States of America enforced by the Supreme Court of Hongkong against the defendant who is a British subject, and who was absent from the United States America at the commencement of and throughout the action in which judgment was given, and who has not submitted in any way to the jurisdiction of the said court Mr. Pollock said that the in the said action." defendant never having submitted to the juris- diction of this court in Oregon the judgment would never be enforced against him here on If His Lordship the principles of the case. was with him on this point, as he hoped would be the case, a deal of legal expense would be saved.
Mr. Calthrop said that the action was origin. ally brought on a certain bond, and by entering
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If the capitalis $1,000,000 and the profits $1,000,000 then the profits on a $10,000"share would be $10,000 in the Wang Fung.
well $8 I get wages
profits from the Wang Fung. My wages last year amounted to $6,000. This is not my share in the profits. This is how the agreement was made. Îf you have a $50,000 share in the Wang Fang then you have 8500 per month. I had nothing to do with the making of the Wang Fang Com. pany. There were a number of persons who were not partners in both the Lai Hing and Wang Fung Company*
By the Official Receiver (Mr. W keman) The office of the Wang Fung used t› be above Bonham Stand East, the U Shun, in but the U Shun is now closed. I do not re- member the number of the house, it was close to one of the houses belonging to the Lai Hing, bought from the Wai Lung Stan. The mani. ger of the Wang Fung in Hongkong. is So Pat Ting The Wang Fung and Lai Hing are not the same. I do not know No. 83, Elgin Street. I do not know the street; I never paid rates for that house. I do not know No. 26, Upper Lascar Row. The Lai Hing never paid rates on property other than their own, except in Lyndhurst Terrace, In- land Lot No. 107 is mine and Lan Wai Chun's. I received a letter from Messrs. Stoke and Platt, of Shanghai, asking for some deeds. The deeds referred to property in Canton. Everyone in the Wang Fung received a similar letter, I never received the deeds. They are with the Lau Wi Hongkong and Shanghal Bank Chun handed them over to the bank. It was in a matter of bills of exchange. as security In connection with Lan Hok Shun's property in Canton. The firms that had to do with the bills of exchange were the Lai Hing, the Wing Shing Lung, the Lai Fang, the King Wa and the I Shun. Lan Hok Shun is in Shanghai. He had a share in the Wang Fung Company. Lau Hok Shan deposited the deed with the bank on account of bills of exchange, as security for the Lai Hing and others. Lau Hok sent