Hongkong
No 568
14th September 1868
lovemer,
Sir Richard Graves Machonnell, CK.
Hais Space,
مال
the Duke of Buckingham Hihandas,
Regina & Saint.
Right of Attorney General to file Criminal Informations. bhief Justice's reverts on
11/07
HUIC
Ko Ropn
This may be put
poper
h
wette the Ma finestrone, upon man willer of tempthe.
11/177
وه کرد تمكن
THE CHINA MAL.
HONGKONG, FRIDAY, SEPT. 11, 1868,
THE CROWN COOLIE LIBEL IN- FORMATIONS AGAINST THE CHINA MAIL.
SUBJOINED We give the full judgment i given by the Chief Justice on the rule isi obtained by defendant, calling on the prosecution to set down a day for trial. The effect of the judgment has already been published, but we desire--and we hope the aspiration will be endorsed by the public--to preserve as full a record as possible of the proceedings in a most unusual case.
SITTINGS OF THE SUPREME COURT IN VACATION.
(Before the Hon. the Cuier JUSTICE.) Tuesday, 2nd September, 1868.
REGINA, SAINT.
In respect of an Ex Oficio Information for Libel against Senhor Amaral.
Judgment.
Before proceeding to give my decision on the question now before me, argued on the 20th of last month, I again entreat the learned Acting Attorney General, as a mat- ter of grace and favor, and of grace and favor only, to name an early day when the Defendant may be (as he asks to be) trisd, and so to render any decision by the Court unnecessary. (The Acting Attorney General says the question was argued as a matter of Law, and as a matter of Law it must stand.) Answered as my appeal has been by the Acting Attorney General, I must deal with the case as I best can,
The Defendant is the proprietor of the China Mail, published in this Colony. Un the 5th of May, 1808, an editorial article appeared in the paper of that date, in re- ference to the Coolie Teade, as it was said to be carried on at Macao.
On the 8th of the same month an article appeared in the China Mail of that date, purporting to be a letter from a correspond- ent at Macao on the same subject.
In these two articles the names of Senhor Horta, the then Governor of Macro, and of Senhor Amaral, a former Governor of Ma- cao, were referred to, and the title of Por- tugal to Macao was said to have been for- feited to China.
On instructions direct through the Por- tugnese Consul and Mr Caldwell, his attor- ney, the Acting Attorney General, and Mr Pollard, were consulted, ending in Mr Ball, the Acting Attorney General, ou the 18th of March, without previous official in- tination to the Defendant, filing three Ex Officio loformations for alleged libels in these two articles, on Senhor Amaral, en- hor Horta, and on the Poringness Govery- ment, with allegations that these articles were written with the intent to destroy the peace between England and Portugal.
The King v. Peltier in 1802, for libels on the Emperor Napoleon, was stated to be the precedent on which these Informations had been framed.
The Defendant appeared on the 20th of August to each fuformation. He asked for
nud obtained a month's time to enable himn to plead a justification in each case. Leare to justify was opposed for the prosecution on several grounds; done thunt the libel was public and not defamatory with in Lord Campbell's Act; on another that to give the time would dolay the trial which
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it was then contended for the Crown ought to be had as soon as possible.
I understood that the information as to Amaral would be brought to trial before the vacation, and when Senhor Horta's ex-t amination was taken on the consent of the? defendant, on the 6th of August, and when there was ample time, I offered to fix any duy, and to sit in the vacation, so that there might be no delay.
On an intimation made to the defendant) that the Acting Attorney General would not proceed with the information and fix a day for the trial, a Bule Nisi was obtained by the defendant, and the Acting Attorney! General and Mr Pollard on the 20th of August, the last day of the sittings, shewed cause against its being made absolute. The kule was to the effect that the Acting At- torney Gencral be directed to join issue one. defendant's pleas, and that the cause be set! down for trial within the first week after this vacation, which will expire on the 12thi' of October next.
The Rule Nisi was obtained on affidavits in which among other things the defendant swore, and it is not suggested that it is un-- true, as follows:-
"I am advised and verily believe that this cause could have been tried long before. this date, and no obstacles have been inter- posed by me to delay the trial thereof.
"The said delay has caused and contiunes to cause me great trouble and anxiety of mind and body, and has put and still puts me to great and unnecessary expense, and every day that the delay as aforesaid conti- Dues that expense increases and augments.
"I am advised and verily believe that any further delay in the trial of this cause will seriously prejudice me in my defcuce there- to, and deprive me of many witnesses, and of much evidence that it is necessary for my defence that I should have."
It appeared that no replication had been filed by the Crown, and that no issue had been taken, and that no notice of trial had! been served on defendant's attorney,
The Acting Attorney General denied the power of this Court to compel him to join issue, and contending that no laches could be attributable to the Crown, cited cases to show that the Court could not allow the defendant to take the record to the Court of Nisi Prius for trial by proviso, a pro- ceeding founded on an assumption of la ches; but he failed to show that the books laid it down that the Court could not allow a trial at bar and itself fix a day for such a trial He very sig nificantly inquired how, if the Court made such an order as asked, it had means to en- force obedience by the Attorney General? His argument was that the Court could not compel the act when ordered to be done. He did not suggest that he was not prepared for trial; he merely said he declined on his own authority to set down the case, as be was only loeum-teuens, and he declined to establish any precedent in the absence of the Attorney General; but he did not explain how it happoued that being such locum-touens only, he originated the pre- cedent of bling these Ex-officio Informa- tious, and he did not attempt to shew that it was uot his bounden duty to set it down for trial as soon as possible. I then sug gested whether, not establishing a precedent, i he would unt as a matter of grace and favor to the Defeudaut set down the case for trial This he also declined to do under, as he said, the general circumstances of the case, but the course he took was supported by no affidavit.
Mr Hayllar insisted on his rule being: made absolute as of right, that the main reason justifying an Ex-officio Information- as stated by Cole on Informations at p. 2,
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