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71-1
111
EXTRADITION LAW.
IMPORTANT JUDGMENT BY HONGKONG FULL COURT.
The Chief Justice (Bir W. Roes Davis, K. C.) and the Puisto Judgo (Mr. Justice Compertz), delivered their judg ments at the Full Court yesterday in re Hung Shiv Lung. The accused appeared before the Magistrato (Mr. J. R. Wood) to show muse why an application for his surrender to tho Canton Government on a charge of murder should not be granted, and the case ultimately was taken to the Full Court.
The judgment of the Chief Justice is as
follows:-
This case raises questions of great im- portance and has involved elaborate arguments on, I think, practically all aspects of extradition law.
The fugitivo bas been committed under Section 10 of The Chinese Ex- tradition Ordinance, 1889, which is the equivalent of Section 10 of the Extradi- tion Act 1870.
Under Sections 9 and 10 of the Ordi
nonce the Magistrate is given the same jurisdiction and powers as if he was hearing an indictable offence committed in the Colony.
These sections are therefore, controlled by Section 70 of the Magistrate Ordi- nance, 1800, which is taken literally from Section 25 of the Indictable Offences Act (11 and 18 Vic o 42). This section requires the Magistrate to commit, if in his opinion the evidence offered on the part of the prosecution is sufficient to put the accused upon his trial for an indictable offence of if the evidence given raises & strong ar probable presumption of the guilt of the accused.
Now I have had occasion in two covent cases to examine the authorities su to the duty of this Court. in rolation to the decision of a Magistrate under the Ex tradition Ordinance, They were refor. red to in argument and I do not think it is neessary to allude to theia again
They lay down briefly:-- in detail.
That this Court is not a Court of Appeal from the Magistrate on questions of fact, but has only to seo that he had such evidence before him as given him authority and jurisdiction to commit. That the sufficiency of the evidence to justify commitment is a question entirely for the Magistrate; and that the decision of a Magistrato that the offence charged is not of a political character is subject to review by the Court. MAGISTRATE'S DISCRETIONARY
POWER
#1
FUGITIVE ENTITLED TO
· EXPLICIT FINDING, The fugitive was entitled to an ex-
event of the finding being against the plicit finding. on the law, and in the fugitive he is entitled to produce further evidence on the habeas corpus procted-
besitation in construing them Se confort- I proceed to consider the next point intimation on which the fugitive ing two alternatives on the Magistrate taken for the fugitive, La., that undor samums that the representation of iu hia power to commit. I cannot scoopt Bection 4 of the Ordinance the Magis Magistrate was hostile to him. Mr. Fotter's contention that the Magistrate is required to give an express and trate to justify a committed must finding whether in his opinion the requisi probable prosumption, which is the tion for the fugitive's surrender has in minimum ground upon which he can fact been made with a view to try or commit; nor can I and any ground for or punish him for an offence of a politi- holding that the fire alternative, e, cal character the prima facic case governs the disore. the Crown's witnesses, whereas tion of the Magistrate at the close of the second alternative must be called in aid after evidence for the defence, bas bécu. the evidence ne a whole. I called and the Magistrate is considering passing that the Magistrate is obliged to take evidence for the defence if tendered (R. v. Governor of Brixton Prison, Expurse, Stallman (1919) 3 K.B. at p. 441);
ernor.
In that case the order of We remitted to the Magis
The Magistrate in his judgment deals with this point as follows:
"The duty of the Magistrate to formings in this Court (Castioni's case). .
-On the furtkor question that we sh>utf- so opinion in this matter is clear; TK! I have formed an opinion. Any action remit the case to the Magistra to give to be, taken on the opinion formed has a finding on this point. In my opinion to be taken not by the Magistrato; but we should not. A may add in
Arton's case (No. 2) was cited an ♣ by the Governor. In my view the Magis trate's duty is completed when he has precedent, communicated his opinion to the Gor-committal
I have already done this. It is trate in order that it may be made clear no part of the Magistrate's duty to in respect of what crime the fugitive was inform the fugitive of bis opinion." committed. This was presumably in the. Now the scotion protects the fugitive interest of the fugitive
that the from surrender if he provey to the satisfaction of the Magistrate requisition is made to punish him for a A similar protection political offence. is afforded on such proof either to the Court
on habeas corpus proceedings, or to the Governor; but I am rot constrain ed for the moment to deal with these alternatives.
In Reg. Carden 5 Q.B.Dat p. 6 Cockburu C. J. and The duty and province of the Magistrate is to determine, on hearing the evidence for prosecution and that for the defence, if there be any, whether the case is one in which the accused ought to be put on his trial. It is ro part of his province to try the case."
the
EFFECT OF MAGISTRATE'S FINDING.
Now I will consider the effect of the Magistrate's findings.
Well in so far as the second alterna tive is concerned the Magistrate has expressly found in favour of the fugi five. Ho says:--
own
mind
2
The
"Under the second condition, the duty would seem to be laid upon the Magis trate to consider whether the ovidonee raised in his
strong And probable
of presumption guilt of the accused. Twill here state That the evidence has in my mind raised no such prosumption. I do not myself believe in the guilt of the acensed. I question very seriously the band-fides of the witnesses called for the Crown from Sam To Chuk, I have, committed the fugitive not because I believe in his guilt, but because it has seemed to me that if a Court of Trial viewing the eri- dener diferently should proceed on it to conviction, such a conviction could not be set aside on the ground of absence of ovidence."
Then reading his judgment as a whole what is the effect of his finding on the first alternative1 Does he find that the evidence is sufficient to put the accused on his trial? He says that in his mind the evidence raises no presumption of guilt; that he questions very seriously the bond-fides of the Crown witnesses, and that he has committed the fugitive not because he believes in his guilt but. because if & Court of Trial viewing the evidence differently should proceed on it to conviction, such a conviction 'cannot be set aside on the ground of abserice of evidence." CONSTRUCTION ON MAGISTRATES LANGUAGE.
I must observe firstly that the statute 16 a penal one affecting the liberty of the subject and must be construed strict ly: and secondly that the Magistrate has expressly declined to inform the fugitive of the conclusion which he has come to on the point. In fact the solicitor for the fugitive states in his affidavit that the Magistrate, although requested by Counsel so to do, declined in his judg. went to state the ponclusion as at which he had arrived on this point. DECISION OF MAGISTRATE SUB-
JECT TO REVIEW. Now it is laid down in re Castioni (1891) IQB. 149 that the decision of a Magistrate that the offence charged is not of a political character is subject to review by the Court un labeas Corpus and such a review is equally applicable in the case of a decision as to whether a requisition is made with a view to punish a fugitive for such an offence.
Donman J. dealing with the contention of the Court's jurisdiction on the point said:
It appears to me that this proposi- tion cannot be maintained on the very face of the Act itself, which requires by 11 that the Magistrate shall inform the prisoner that he may apply for a habeas corpus, and if he is entitled to apply for a habeas corpus I think it follows that this Court must have power to go into the whole matter, and in some cases, certainly if there be fresh evidence, or perhaps upon the same evidence night take a different view of the matter from that taken by the Magistrate.?! Hawkins J. said :—
Secondly, he (the Magistrate)" has come to the conclusion, rightly or wrong- ly, that the offence was not of a political character, and that therefore he ought to be given up.
The matter now comes before us-I will not say to review the whole of his decision--but to ask our- selves as to whether or not, having regard it the whole of the circumstances which are now brought to our attention, and which are proved by the depositions and other evidence in the case, we come to the same conclusion as the Magistrate, or whether we deliberately arrive at a opposite conclusion."
Again in re Arton (1898) 1 Q.B. 108. the Court held that proof that the sur render Was demanded from political motives justified the intervention of the Court, Lord Russell U.J; said:
Now doubt if the learned counsel were able to show that the surrender was demanded for an offence of a political character, or that it was domanded in order that the prisoner might be tried or punished for an offence of a political charactor, it fould furnish ground for the intervention of this Court, and for a declaration by this Court that for such an offenco extradition could not legally be granted. Let us consider whether there is any real ground for either of the suggestions made."
In Bex Dix 18 T.L.R. 231 the same course was adopted.
In re Ohung Sau Nam 9 HK,LR, Y this Court followed the same course, and In R. v. Governor of Brixton Prison for the same reason. (Exparte Percival) 1907 1 K.B. 698, a case under the Fugitive which was Offenders Act, the Court had doubts whether it ought to send the onse back to the Magistrate to take further av dence on foreign law, but it dealined in do Boy
In the present case the
None of these cases are in my opinion analogous, Magistrate, with all necessary evidence before hit, has declined to exeróise & power conferred by law upon him; and, the consequences may have whatever been, has deprived the fugitive of a legal right.
Then arises the question has the Eugi- tivo satisfied this Court that the requist tion for his surrender has in fact been made to try or punish him for an offence of a political character?
We have before us an engagement given by the Authorities in the Kwangtang Province, as required by sub-section 3 of the section, that the fugitive shall not be tried for any offence other than the
which: DE
surrender is
crime
demanded.
the
Mr. Sharp in the interesting 516-28
which he addressed to us on this of the case contended, stated briefly, that the express words in sub-section (1) which the give the Court power to investigate the question must be road subject to undertaking given by sub-section (3). And, that if the Government, demanding extradition is acting in good faith the fugitivo is safeguarded. Further that as soon as the undertaking is given tho Municipal Courts can not entertain any question affecting its good faith; and the powers of the Court to investigate the grounds for the requisition are ousted. In other words he stated frankly that on pro- duction sub-section (1) is superfluous or a nullity.
In support of this position he referrod to the cases set out in Biron on Extradi- tion in relation to the contention which had hitherto existed between our Govern- ment and the United States of America on the trial of fugitives for crimes other than those for which they had been extradited. Such an undertaking has formed the sub- joet of treaty between, the varions Powers; but no such express understaking existed by treaty with the United States of America at the time of the passing of the Extradition Act of 1870; and it was or pressly embodied in the later Treaty of 1889; thus amplifying the terms of the Ashburton Treaty of 1812. The question, however, apart from the historical interest attaching to it, has I think no direct bear- ing on the point before us. We are called upon to construe the express language of the Ordinance.
Mr. Sharp alec relied on the language of Lord Russell, CJ, in re Arton 1896, 1 Q.B.- 108. The motion for the extradition of the Prisoner in that case was made on Four grounds. The third was that the demand for extradition was not, made in good faith, and in the interests of justice; the fourth was that offences, political in their cha meter, were imputed in France to the pri somer, and that the surrender was demand- ed from exclusively political motives, The fourth point was ordered to. argued first.
Now as to the finding of the Magis trate: It is clear that he regards the discretionary power conferred on him as alternative or twofold. He says “It
I must frankly confess that I have had is the duty of the Magistrate to com- considerable difficulty in arriving at a During the mit firstly if in his opinion the evidence conclusion on the point. given is sufficient to put the accused bearing of the argument I strongly at apan
his trial OF secondly if the evidence one time inclined to the view that the given raises a strong and probable pre language of the Magistrate was not a sumption of the guilt of the accused. mere expression of serious doubt as to I think this reading of the motion is the guilt of the fugitive; but was tanta- obviously the correct one," An able mount to a refusal to exercise the juris argument has been addressed to us on diction conferred on him by the Ordi- nance by relegating to a jury (... The the constraction of the section, and in particular on the necessity for the Court of Trial) the duty of deciding alternative words if the evidence given a case, where a prima facit case was not raises a strong or probable presumption in his opinion made out, on the ground of guilt when the previous words con- that there was legal evidence on which fer a power to commit on a prima facie a jury could possibly convict. If this view was the correct one I should have case being established,
At the outset of the argument Mr.no hesitation in holding that it is an Potter contended that owing to certain abuse of the Magistrate's power, inas language of the Full Court in Wong Ka much as it is tantamount to a refusal Cheong's case (1 H.K.LR. at p. 83) and to exercise the power which the law to meet the words on proof of guilt give him. in Article 21 of the Treaty of Tientsin, The Crown has, however, urged upon which is set out in the Freamble to the the Court that the language of the Extradition Ordinance, the Magistrate Magistrate is not open to such a con should give a direct finding; and that struction; and that it amounts to an a finding in the affirmative is a condi-expression of strong doubt on the part tion precedent to committal; whereas in of the Magistrate as to the guilt of the fact the Magistrate on this alternative fugitive, but that he decides to commit has found in the negative. This argy for trial as there is evidence which a
Now as I have pointed out the restric ment, however, was not persisted injury, viewing the evidence differently. owing to the view expressed by the Court may convict upon without the possibility tion on surrender rests equally in the during the argument; and I need say of their verdict boing set aside. By this Magistrate, the Court and the Governor
THE ALLEGED WANT OF GOOD
FAITH.. Dage no more that, this, as the Court remarked I think we must assume that the Magis. And the power of the Court, and the in Wong Ka Cheong's case, that as the trate in his reference to a jury or the Governor to intervene is shared equally with the Magistrate. I am clearly of
The enumeration of the offences was saf must be taken to have trial of the fugitive is to take place in Court of Trial China the proof of guilt will be required implied that there is such evidence as a opinion therefore that the Magistrate is ficient to satisfy the Court that they ware there the words cannot mean that jury, viewing
the whole of the evidence required to give a finding to the fugi- divested of a political character; but prisoner is to be found guilty here. I reasonably, could properly convict upon; tive as to whether he is satisfied on the when counsel sought to show the object am not satisfied that there is anything and that the reference to the conviction evidence tendered by the fugitive or not with which the demand for surrender was that the requisition for his surrender made, which alleged want of good faith on the ground of in the language of the Treaty which calls being set aside
The Court cannot ner- for discrimination in construing the absence of evidence" must be construed has in fact been made with a view to Lord Russell said language embodied in the English Act, to mean such evidence as a jury could try or punast him for an offence of amit you to argue the point that a friendly His decision 1 Stato is not acting in good faith in mak and in the local law.
reasonably and properly convict upon. political character.
He is ing this application; that is not Well then as to the words "a strong Sea Metropolitan Railway Wright 11 sujbect to review by this Court.
the tion which the Judicial authorities of this The language of the House obliged to express an opinion on or probable presumption of gut" we A.C. 152. were referred for their origin by Mr. of Lords in that case, which was a civil points, although no power is exprealy country have any power jo entertain," He Sharp to the old Criminal Law Act-1826 action is adapted in the Criminal given to the Magistrate to discharge the subsequently added: "The statute clearly
fugitive if he is autisfied on this point powers, conferred on a single Justice in for setting aside the verdict of a jury ed" in sub-section (1) is a mattor apper-cover of trying the accused for a crime the (7 Geo, IV. cap. 64), which defines the Appeal Act 1807 which assigns the ground the words. If he shall not be susret contemplates that a political offence has been already committed and that under indictable offences, and gives him the on a criminal conviction.
Now it was stated by Counsel in argu-taining to the Executive in which the foreign, tribunel will punish him for that same powers ag two justices in respect of remand, bail and committal; but, the ment that the learned Magistrate some Magistrate is not concerned.
past political offence; but your suggestion. Aot continues, if the whole evidence is what embellished his judgment to OBLIGATION ON A MAGISTRATE in the present bust is pure speculation. such as neither raise a strong pre- the request of counsel; and this has
to
It was also pointed out by Counsel for In the course of his judgment Lord Rua- per to warrant the possibly made the position of this Court the fugitive, and I agree, that if the sell dealing with the fourth ground said: sumption of guilt
isual of the charge he must order more difficult in construing it; but after Magistrate's view is correct that bis duty "No doubt if the learned Counsel word the accused to be detained until ho can a very full consideration. I have arrived
on this point is completed when he has able to show that the surrender was de at the conclusion that the view which communicated his opinion to the Gov monded for an offence of a political cha- I formed during the argument is erron-ernor ach an intimation would havo racter, or that it was demanded in order
.f
be brought before two or more justices
AN ALTERNATIVE DISCRETION.
1-86
que
The language is perpetuated in Jerviyous and that on reading the judgment as been expressly provided for in the part that the prisoner might be tried or punish......
a whole we are not doing violence culars of the report, which he has tued for an offenes of a political character,
furnish to the Governor after committal it would furnish ground for the interven under Section 10 of the Ordinance.
Act, and clearly in my opinion vests an it's Language in placing the construc alternative discretion in the Magistrate tion which I have indicated upon it, in extradition cases to commit (a) when and it the only locigal construc
a prima facie esso is established, e fica to place. when the evidence is sufficient to put the It was contended, and I think
I have only to repent that the statute tion of this Court that fuil such an offence with Magistrate in my opinion is
is penal and the obligation on the extradition could not legally be granted. whe ground for either of the suggestions
accused upon his trial for an indictable some force, that if a Magistrate having the fugitive should be informe That Let us consider whether there is any rea
nether or no, he has satisfied the Magistrate made." Dealing later with the third on the evidence which he has tendered ground that the demand for extradition the and in the present cass it was consider was not made in good faith he said that able, that he is entitled to his liberty. such an allegation could not be argued.
offence, or (b) when the evidence given formed, as the Magistrate has here, raises a strong or probable presumption strong opinion, in favour of the of guilt.
cence of the accused, is to commit or probable presumption of guilt it is that the discretion given him by the undoubtedly sufficient to put the accused is a mere nullity and his position is point amounts to a failure to exercise gravest possible kind, not only upon the
The upon his trial and woud appear to purely ministerial. reply bowover.
duty the jurisdiction conferred on hip.
Now if the evidence raises a strong fugitive in defiance of those opin The action of the Magistrate on this because it contained a reflection of the-
It
involve something more than the evidence appears, to be that the Muristsnds that is based I think on a mistaken view emotive and actions of the responsible
necessary
to establish a prima facie ease; to commit is imperative if he
judicial authorities of friendly State and this is demonstrated, if proof is there is evidence on which reasonable the law, and in itself mast vitiate the government, but also impliedly upon the Tá is not open to us at all to nccessary, by the discrimination shown men might convict-not ought to
to the suggestion put I cannot as in the Act of 7 Geo. IV. cap. 64 in convict see language of Lord: Halsbury Crown that the
the Magonsider such a suggestion. The question limiting the power of a single justice in Metropolitan Railway Wright, to a case where 3 strong presumption of notwithstanding the strong-doubts enter strate's opinion on the point is covered bears on the political aspect of extradition. by the warrant of committal which is and it must be determined upon a 30- guilt exists, whereas no such limitation tained by the Magistrate.
to the sideration of matters into which this Court is not competent and has no authority to Prison Authorities for the detention of merely the authority given
enter. Such considerations, if they exist the accused; or that the Magistrate's in- timation in his judgment that he had at all, must be addressed to the executive communicated his opinion to the Gov of this country; they cannot enter, and ernor, from which no dischargo by the ought not to enter, into the judicial son- Governor followed, was a sufficient sideration of this question"
If we have is placed on the power of two or more construed his language correctly the justices.
Magistrate has so found, of the Legislatare What the reason
DUTY OF A MAGISTRATE may have been in incorporating the words in the Extradition Act we are not- For these reasons I am of opinion that called upon to decide, we have to read the Magistrate's committal should not them as we find them. And I have no be interfered with on this ground..