20. It is most important, therefore, to ascertain whether the Attorney General can really be called upon to prosecute the Newspaper Editors of Hongkong at the risk and expense of this Government for the purpose of vindicating the character of private Individuals, for if so, I apprehend that the Attorney General's services and the assistance of the Colonial Exchequer will be very frequently invoked.
21. The importance of the question must be my excuse for entering at such length upon it and I am very glad of the opportunity which presents itself in making this Report upon the Petition of the Portuguese Community to bring forward prominently the questions raised as to the position of the Attorney General in Criminal Cases, because the continual attacks which the Chief Justice makes upon me publicly in relation to these points tend to bring the administration of Justice into ridicule.
22. Having now disposed of the questions affecting Criminal Prosecutions for Libel in general, I will proceed to remark upon the Decision given by the Chief Justice in the Case of REG. v. Souza.
23. That Decision is correctly stated in the Petition to amount to this, viz.: "That a Person residing in Hongkong may print and publish a Libel in Hongkong upon any one in Macao from the Governor downwards and not be amenable to the Criminal Law of this Colony for the same.”
24. I, therefore, strongly recommend that no Legislation on the subject be attempted until a reference has been made to the Secretary of State, and the opinion of the Law Officers of the Crown has been obtained as to whether the Decision of the Chief Justice is correct,
25. According to RUSSELL on Crimes by GREAVES, vol. 1, p. 323, it appears to have been considered that "the remedies by Action and Indictment for Libels are co-extensive and may be regarded as on the same footing," and the writer after citing in a note the authorities for that proposition (STARKIE, HOLT, and a case in FORD's manuscripts) observes: "This must be understood, however, of cases where the Libel, from its nature and subject, inflicts a private injury, and not of those cases in which the Public only can be said to be affected by the Libel."
26. An instance of the latter description of Cases is where a Libel is published against a Foreigner of Distinction, calculated to excite Discord between the two Nations, and therefore to affect the Public. The Criminal Remedy in such Cases is by ex officio Information.
27. But if, as would appear from the passage in RUSSELL on Crimes above cited, the Civil and Criminal Remedies are co-extensive in Cases of Private Libels, the Decision of the Chief Justice in REG. v. Souza must be erroneous.
28. Thirty years ago it was decided in the Case of PISANI v. LAWSON that an Action for Libel will lie at the suit of an alien, who has never set his foot in England, and it was conceded in the argument of that Case that if the Plaintiff had come within the Jurisdiction for one hour the objection could not have been raised, which concession is conclusive in the Case of REG. v. Souza, for the Procurador of Macao came at once to Hongkong for the very purpose of prosecuting the Defendant,
29. Chief Justice SMALE in his Judgment utterly ignores the passage from RUSSELL on Crimes above cited, and dismisses the important Case of PISANI v. LAWSON with the erroneous statement that the Decision turned upon the fact that the Plaintiff was in the employ of the British Minister at Constantinople, but it will be found on reference to the Reports of the Case that the Decision was founded on no such ground. "If, (says Chief Justice TINDAL in that very Case), the Court were to hold that this excuse, (viz., that the Plaintiff was an alien residing out of the Jurisdiction) could prevail, some of the consequences which would flow from such a Decision would be very striking, and it would present our Laws in a very unfavorable light to strangers, if we were to say that foreigners cannot bring an Action for injuries committed in this country unless they come here first and especially when it is admitted that if they come here for a single hour their right to bring an Action would accrue.'
30. It is true that the fact of the Plaintiff in that Case being the Dragoman of the English Embassy was urged on argument, but it is clear that all the Judgments (of which I annex a few extracts) proceeded upon the broad principle above expressed by Chief Justice TINDAL. Even were it otherwise, it was admitted that if the Dragoman had come within the Jurisdiction, the objection could not have been supported.
31. I may mention that Prosecutions for Libels upon Foreigners residing out of the Jurisdiction have been instituted before this in the Supreme Court of Hongkong, and no such objection has ever been raised.
Munnow, Editor Daily Press
SOUZA, Editor Echo du Povo,
BARON DO CERCAL
32. I enclose a Report (from the Daily Press) of the Judgment delivered by Chief Justice SMALE in REG. v. Souza, a copy of which was furnished to the Newspapers for publication, and with reference to the passage in which he reiterates that he had not "the advantage of the Attorney General's assistance," in these Libel Cases, I beg to state most distinctly that there is no foundation whatever for such a complaint. I have rendered him all the assistance in my power in reference to these Cases, both in Court and out of Court, and although I have certainly refused to give up any principle, I think that every Member of the Profession will be ready to testify that I have exercised great patience and forbearance during the "scenes," which periodically arise in Court, owing partly to the natural irritability of the Chief Justice and partly to the peculiar views which he entertains as to the duties and position of the Attorney General. I can only say, in conclusion, that I shall be most thankful when these vexed questions are solved, for the present state of things recalls the old French Proverb cited by Lord BACON: "Beaucoup de bruit, peu de fruit." And what is still more serious, it is bringing the Supreme Court of the Colony into contempt.
JULIAN PAUNCEFOTE, Attorney General.
5th July, 1869.
Note. I have struck out a passage at the foot of page 14 in Enclosure No. 1, (Report on REG. v. SAINT) in which there is an error as to the Law of Costs in Libel cases.
It does not however affect the Case in the least degree.
J. P.
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