230
:)
The Prisoner was accordingly discharged from his arrest under the "Extradi- tion Act, 1870," and again arrested on a charge of Piracy jure gentium.
The Evidence of the French Witnesses was taken de novo before the Chief Magistrate of Police, who committed the Prisoner for Trial in the usual course.
I immediately filed an Information against the Prisoner for Piracy with Violence, which was duly served upon him, under the Provisions of Section III of Ordinance No. 2 of 1869. That Section is as follows:--
"III. For the Purpose of bringing any Criminal Case under the Cognizance of the Supreme Court, an Information signed by the Attorney General or in certain Cases by the Colonial Secretary as hereinafter provided, shall be as valid and effectual in all Respects as an Indictment presented by a Grand Jury."
I also addressed the following Letter to the Government :--
"SIR,
"ATTORNEY GENERAL'S OFFICE,
'HONGKONG, 1st May, 1871.
"I have the honor to address you once more in relation to the case of the Prisoner Kwok-A-SING, who was charged by the Chinese Authorities, and also by the French Government, with being one of the leading and most active participa- tors in the seizure of the French ship La Nouvelle Penelope on the high seas, and in the Murder of her Captain and of Nine of her Crew under circumstances of extreme barbarity.
"The Chief Justice in his Judgment on the return of the Writ of Habeas Corpus granted by him for the purpose of testing the legality of the Prisoner's surrender to the Chinese Authorities, decided that the Crime charged, was, if anything, Piracy jure gentium, and therefore, justiciable in this Colony, but the principal ground upon which he discharged the Prisoner was that upon his view of the Depositions taken before the Magistrate no crime whatever had been committed.
"The consequence of that Judgment was that the Acting Consul of France whilst protesting against such a conclusion, withdrew the formal requisition for the surrender of the Prisoner to his Government, which he had addressed to His Excellency the Lieutenant-Governor, as a measure of precaution in the event of the Prisoner escaping through any technicality or difficulty which might be raised on the Chinese Extradition demand.
"The Government of Hongkong is already in possession of the Regulations now in force at Macao in relation to Chinese Emigration and I entertain no doubt whatever, that all the Emigrants shipped on board the Nouvelle Penelope were subjected to the formalities prescribed by the Law, and that they all declared before the Authorities of Macao their willingness to embark and to emigrate upon the conditions contained in the contracts which they signed.
"No Witnesses were called on behalf of the Prisoner nor was any attempt made to put forward any Defence on the merits; yet the Chief Justice held that evidence adduced in support of the Demand of the Chinese Government for the Extradition of the Prisoner, justified the conclusion that the Chinese Emigrants shipped on board the Nouvelle Penelope had been kidnapped by the Master of that Vessel; that they were forced on board against their will by armed Soldiers of the Macao Government; that in fact, they had been carried off as Slaves and therefore that the seizure and plunder of the Ship and the Murder of her Captain and Crew were, under the circumstances, justifiable acts.
"I cannot but feel that were this Government to permit the Prisoner, who beyond doubt took an active part in the slaughter of the unhappy victims of the Nouvelle Penelope, to go at large without a further Investigation, their inaction would entail a grave responsibility upon the Executive and would be a reproach to the administration of Justice in the Colony,
"I have, therefore, as you are aware, upon the discharge of the Prisoner from his custody under the French Extradition demand, caused him to be arrested once more on the charge of "Piracy jure gentium."
Enclosure. 2.
C
(5)
"He will be tried for that crime before a jury at the next Criminal Sessions of the Supreme Court unless the Chief Justice should in the meanwhile set him once more at liberty.
“In view of the coming Trial I am desirous of suggesting to His Excellency the Lieutenant-Governor the expediency of invoking the good offices of His Excel- lency the Governor of Macao for the purpose of procuring the attendance of Witnesses who can prove the Regulations of his Government as to Emigration and that the Coolies shipped on board the Nouvelle Penelope were all examined as to their willingness to embark and that they declared the same before the Authorities.
"This evidence would of course be superfluous under ordinary circumstances
as the " onus of proving that the homicide was justifiable, lies on the Prisoner;
but the case is one of so grave and important a character, that it is extremely desirable to omit nothing which can throw any light upon it; and it is due both to the Governments of France and of Macao to bring out the true facts before the Public, and to dispel the conclusions formed by the Chief Justice on a perusal of hitherto incomplete evidence.
"I have the honor to be,
"To the Honorable
JOHN GARDINER AUSTIN,
“ Colonial Secretury.”
"Sir,
» Your obedient Servant,
(Signed,)
*JULIAN PAUNGEFOTE,
Attorney General,”
The substance of the above Letter was communicated to His Excellency the Governor of Macao, from whom the following reply was received:----
"Govt. of Macao & Timor,
"No. 42.
"SIR,
(Translation.)
"I have the honor to acknowledge receipt of Your Excellency's Despatch of the 2nd Instant, No. 214, enclosing a letter from The Honorable J. PAUNCEFOTE to the Colonial Secretary relative to the Prisoner KwOK-A-SING, implicated in the atrocities committed on board the French Vessel La Nouvelle Penelope, and requesting me to furnish Witnesses to prove that the Coolies embarked on board the said vessel were all examined in the Superintendency of the Emigration in conformity with the Regulations in force and of which the Honorable the Attorney General says he is officially acquainted with.
"I should therefore signify to Your Excellency that I will furnish as many Witnesses as may be necessary to prove that the Coolies who embarked on board the Nouvelle Penelope were all examined in public before the respective Authorities when they signed the Contracts which were read and explained to them during the Days in which they were in the Superintendency away from any communication with the Agents and Brokers.
"When I am informed of the day on which the Witnesses are required, I will direct them to appear before the Honorable Mr. PAUNCEFOTE. They are the Chief of the Interpreters, the Assistant Harbor Master, the Officer in Charge of the Superintendency and two other Employées--and if these five be not sufficient, other Employées of the Superintendency will be sent.