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The plea of justification having been filed by consent the rights of the Crown remain intact, but the arrangement as to costs should have been to the effect that the Macao Government would pay the Defendant his costs should the prosecution fail--not that they should indemnify the Crown, as that assumes the liability of the latter, which I do not admit, as Ordinance No. 4 of 1857, in my opinion, applies only to civil suits and certainly not to a "proceeding" like this. With regard to the locus standi of the Counsel and Attorney of the Macao Government, who happen to be Mr. Pollard, Q.C., and the Crown Solicitor, I think they might be permitted to appear on behalf of the Crown if they are disposed to do so (of course without fees) so as to enable the case to be carried on without my intervention; subject to a modification of the arrangement about costs, I think the proceedings should continue, and that they would fairly raise the question between the parties, without any prejudice to the Crown.
This Government is, in a great degree, responsible through the action of the Acting Attorney General for the filing of these informations and after the lapse of nine months, and the incurring of great expense, and the taking of evidence de bene esse (which would not be available in a fresh proceeding and is no doubt material to the prosecution) the Macao Authorities would, I imagine, be deeply mortified and humiliated by a nolle prosequi being entered.
J. PAUNCEFOTE, Attorney General.
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It would be well, however, to come to some decision at once, as I think it desirable for Mr. Pauncefote to visit Macao and personally explain matters to the Governor there.
29th January, 1869.
Minute of the Honorable W. H. Rennie.
R. G. M. D.
The Macao Government was certainly led into the error of commencing the prosecution in the way it did by believing that the Hongkong Government, through its legal adviser the Acting Attorney General, considered the course adopted as the proper one under the circumstances, and it would seem a harsh measure now to enter a nolle prosequi without consulting with Governor Souza. Mr. Pauncefote's proposed visit to Macao, will probably lead to some expression of that officer's opinion as to the continuation of the proceedings, and until this has been obtained it would be premature to advise any particular course of action.
W. H. RENNIE.
25th January, 1869.
Minute of His Excellency the Governor.
I gather from the above statement that there is an understanding with the Defendant to have his costs paid in the event of the prosecution failing, which would substantially be the case, if a nolle prosequi were entered. Under these circumstances no punishment would be inflicted on Defendant for an undoubted libel on Ex-Governor Amaral, and unless the Macao Government consents, with a full knowledge of the situation, to this course, I do not think under the circumstances it should be taken. I have a very strong opinion of the original impropriety of Mr. Ball's conduct in using his official position, without the leave or knowledge of this Government, to fetter the Crown with inconvenient responsibility. The Macao Government seems as little benefitted by him as this, and I maintain that all the unpleasantness and inconvenient responsibility, as well as the embarrassing opposition between the abstract rights of the Crown and the conflicting obligations and understandings which have been entered into with third parties under Mr. Ball's sanction, are owing to that officer's misapprehension of his duty.
Nevertheless, I agree with Mr. Pauncefote that whatever be the legal rights or prerogatives of the Crown in the matter, this Government has morally become in a great degree responsible through the late Acting Attorney General for the efficient conduct of the proceedings. Therefore, having especial regard to the understanding as to costs, of the extent of which arrangement I had not been previously aware, I think it impolitic to enter a nolle prosequi without the full consent of the Macao Authorities, and that it is better to allow the Attorney General to carry out his suggestions. If the Macao Government wish us to proceed, the remainder of the proceedings should be conducted as suggested, and a locus standi be given to the Counsel for the Macao Government (without fees,) who should be allowed to continue the prosecution under the nominal sanction of the Crown,
29th January, 1869.