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November 25, 1907.]
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bearing the evidence, the Magistrate committed the acoused to prison (under the provisions of Ordinance seven of 1889, section 10 (Chinese Extradition Ordinance). Un September 16 on an application for that purpose made to this Court a rule nisi was granted. On November 15 the case came before the Court when the Attorney- General appeared to support the decision of the Magistrate, and Sir Henry Berkeley the rule. By arrangement ir Henry erkeley proceeded with his argument which he divided into three points. The first of these was that the evidence before the Magis'rate did not raise a strong or probable presumption of | the guilt of the accused within the meaning of Ordinance 3 of 1890, section 76 (Magistrates' ⚫rdinance). The material words of that section are-If in the opinion of the Magistrate such evidence is sufficient to put the accused upon his trial for an indictable ffence, or if the evidence given raises a strong or probable presumption of the guilt of the accused then the Magistrate shall by bis warrant commit him to prison." The words of section 10 of the Extradition 4'rdinance are:-"If at the hearing before the Magistrate such evidence is produced as would, subject to the provisions of this Ordinance, justify thh committal of the fugitive criminal for trial at the Supreme Court, if the orime of which he is accused had been committed in the colony, the Magistrate shall commit him to Victoria Ga· 1 to await the further order of the Governor, but otherwise shall order him to be disobarged." In considering this point it will be necessary to review the evidence shortly. There were two witnesses to support the charge and the clearly identified the accused in the gaof as having ben one of a tand of armed robbers who at about 1.30 a.m. on April 17 entered a house in Hayun village, in the Yanping district, province of Kwang tang, China, robbed the occupants and killed the master of the bouse. A point was made that the charge on which extradition bad b-en applied for should bave been murder, but I am only dealing with the facts before me.
One of the witnesses also appears from the depositions to have used three wor is in the Mandarin dialect, whereas in his evidence he stated he did not know that dialect. On the other hand two witne: 828 were called who declared that the accused had arrived in
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CHINA OVERLAND TRADE REFORT. substitutes “engagement" for arrangement" and omits the words "proved by provision or the facts." It was argued before me on behalf of the accused that the proof of the engagement was a condition precedent to commit al or detention. On the other hand it was contended that the question of engagement referred to the Governor alone, and had nothing to do with the Magistrate or with this Court at this stage. It was admitted that the latter view has been specifically held to be the correct one by the present learned
Chief Justice of this Colony in the case of Wong Ka Cheong (Hongkong L.R., Vol. 1, P.1) but I was asked if I had any doubts on the subject to reserve the point for the consideration of the Full Court. In support of this contention the cases of in re Bouvier (42 L.J., Q.B. 17) and of Alice Woodall (16 Cox. C.U. 478) were quoted. This point was not rais- ed before the Magistrate and I will deal with it when I deal with the whole case. raised was that the evidence was such as to prove The last point within the meaning of section 4 subsection 1 of the Chinese Extradition Ordinance that the requisition for the surrender of the fugitive was in fact made with a view to punish him for an offence of a political nature. The argument to support this was as follows:-The alleged robbery took place on April 17th and the re- quisition was not made until June 24th. That is admitted. The accused, however, stated in his evidence that in May 1907 some riot or rising took place a place called Wongkong in the Yanping district, in couer quence of the scarcity of rice, and that the object of the rising was to compel the local man. darins to take some remedial steps, aud that battles were fought and the town captured and proclamations issued. He further states that he himself took a prominent part in such rising and that in consequence a reward of $1,000 was offered for his capture on June 20, and it is suggested that this charge is the outcome of such offer. The evidence of this is his own statement, and the translations of some documents which, in my opinion, ought never to have been admitted as evidence at the Polic, Court. From this evidence and from the fact that a considerable time elapsed between April 17, the date of the alleged robbery, and June 24, the date of the requisition, it was sought to draw the conclusion that the requisition was originally intended to be Hongkong previously to April 17 and only left for the extradition of the accused in reference in May. The case of Reg. v. Spilsbury (79 to the rising in May, and that such rising L. T. 211) as to strong or probable presumption armed robbery was an afterthought. There is constituted a political offence, and that the of guilt was quoted, and also the of Rex. v. Zossenhein (29 Times L.R. 121) as
no further evidence on this subject. It should to the duty of the Magistrate to hear evidence be noted, however, that the accused in his as to the defence. In this case however, the evidence stated the rising was to make the Magistrate did hear all the evidence that was
mandarins obey the existing law in China, and produced for the defence and after referring to
that if they had done so there would have Cox v. Coleridge (1 Barn, and Cress. 37) as to
been no rising. So it is clear even, if his a strong or probable or even conflicting case of story was true, that the rising was guilt, he came to the conclusion that the evidence against the coutral government. On this raised a strong presumption of the guilt of the part cular point in re Castioni (1891, Q.B.D., accused. The next point raised was that there Vol. I, 149) was quoted, nd on the point in was no evidence that the Chinese Government general in re Meunier (1894 2Q B., 415) and in had given the engagement required by section 4ra Arton (1896, Q.B., 18) were referred to. sub-section of the Chinese Extradition Or- divance, and that in the absence of such en- gagement there was no jurisdiction to com. mit or detain the fugitive. The words of the subsection are as follows:-",\ fng tive criminal shall not in any case be surrendered unless an engagement be given by the Chinese Government that he shall not, until he has been restored or had an opportunity of re turning to Her Majesty's dominions, be detained or tied in China for any offence committed before his surrender other than the extradition crime on which the surrender is demanded. It may be as well here to cite the correspond. ing provisions of 33 and 34, Vic., Cap. 52, .eotion 3 subsection 3, as the cases quoted in support of the above last mentioned pro- position refer to them. They are:“A fugitive oriminal shall not be surrendered to a foreign state unless provision is made by the law of that state or by arrangement that the
case
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or
fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is granted." The difference is that the local Ordinance
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by the learned Chief Justice in Wong Ka As I entirely agree with the opinion, exprese d Cheong's case I do not think there is any necessity for question of engagement is for the Governor reserving the point, The
question I do not consider that there is any who surrenders. As to the politics! offence evidence in support of it worthy of credence, and I may sum up my view of the law so far as this case goes as follows:-I do not think any court of justice will impate unfairness or dishonest conduct (for that is what it would amount to in this case) to any power with which Great Britain has entered into treaty obligations on the practically unsupported statement of the accused himself. it seems
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to me there would b+ to extradition as the accused would only have to say:They really waut
m for a political offence and not for the offence Meunier the question turned on whether the charged." In the cases of Cas ioni and offences for which extradition was applied for the case before us is concerned that is not so. wer political offences or not. Here so far as As to the American case quoted it was held by the Attorney-General that there was no felony and the facts are different. For these reasons I think the rule should be discharged with costs.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GOMP3ьTZ (ACTING PUISNE JUrge).
LI CHICHIN AGAIN,
Another actiou was added to the
The
brought against the Tak i Luog firm. now claimant was l'un Kwong, and he sought firm mentioned, the sum of $7384. Mr. F. to recover from Li Chi-chin, as a p ́rtu r in the
iff, and Mr. J. H. Gardiner for the defendant X. d'Almada e Castro appeared for the plaint- As in former cases, execution was stayed pending appeal.
MALICIOUS PROSECUTION.
Judgment was delivered in the o se in which Chan Sam sought to reover from Lo Kam the sum of $50 for malicions prosecution. His Lordship decided that the plaintiff had made out her case, and gave judgment for solicitor, aud Mr. Crowther Smith appeared 350 and costs. Mr. E. J. Grist was plaintiff's
for the defendant.
SEQUEL TO A PIRACY. The case concluded in which 1p Tsung-nin claimed from Kwong Taking the delivery up of a junk now lying at Shaukiwan, or in the alternative, $1000 damages, Mr. F. B. L. Bowley (of Mesars. Dennys and Bowley) appeared for the plaintiff, and Mr. B. J. Grist (of Messrs. Wilkinson and Grist) for the
defendant.
Mr. Grist, in opening the d-fence, informep the Court that his client had purchased the jak in open market. Everything was done that could be done in order to give the public and anyone who might have an interest in the jnak full notice that he intended to purchase it. His friend's broad statement of the law, that wherever a msn camo soross not
These are the points that were taken and I will now deal with them. As to the first one I am of opinion that on the evidence before him the Magistrate would have been justified in com- mitting for trial supposing the offence charged his property he should seize it, was had been committed in this colony. It was essentially a case for a jury even after
strictly speaking correct. evidence for the defence had been duced, as a probable presumption had been raised, see Magistrates' Ordianace, section 76, above referred to and the case of Cox v. Coleridge, above cited. With reference to the point as t antecedent proof of engagement the cases of in re Bouvier and re Alice Woodall, which were much relied on, are not on all fours
with this case
pro-
In those cases the question turned upon leg provision only, which most almost necessarily have been antecedent. They had nothing to do with the question of arrangement or engagement, which was not decided, Be+ the remarks of Lord Cole-
ridge in re Alice Woodall page 497 where he says:- I do not go into the question of arrangement (that is the same as engagement in our ordinance) because that may come here- after although it has not come at present." Therefore thos; cases are so authority on the oustruction of the word engagement in our section 4, subsection 3, to the best of my ability, Ordinance. I have therefore to construe |
His Loidship- l'here is an exception, hat the broad principle is quite true.
Mr. Grist-The broad principle is that he is entitled to get it back after the thief has been prosecuted and convicted.
His Lordship-That is the exception; the broad principle is the other way.
Judgment was reserved.
We understand that the result of the working of the Japan Sugar Refining Company for the balf-year just closed continues to be satis. factory, and the company is in a position to pay a dividend at the rate of 20 per cent. per annum.
Mr. Sakawa, President of the Company, however, thinks it adrirable to increase the reserve, and be content with a smaller dividend, as the company has a considerable amount of de bentures still standing. The President has accordingly recommended the Board of Directors to pay a dividend at the rate of 15 per cent., reserve. placing the surplus so made available to the