THE HONGKONG TELEGRAPH TUESDAY FEBRUARY 25, 1908.
CHINESE REFORMER'S
CASE.
APPLICATION UPHELD BY FULL COURT.
IU KAI SHING RELEASED FROM CUSTODY.
the offance for which In Kai Shing says he will One point al minor importanca may be dis be panlibed when he gets to China be a politi-posed of at once. The order to the Magistráte cal offence or not, he says it is an offence which gives by the Governor, in this case the Officer is not the armed robbery for which his extra-Administering the Government, must under dition is demanded. The importance of the Sec 5 be under his hand and seat.". This question lies in this that it is the safeguard meats the Governor's afficial or private seat,
obligation of extradition the right of asylum abull got be violated. It is therefore of the tmost consequence that the provisions of the
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provided by the law that in fulfilling the Treaty preferably his official seal, if he has orin. CSTRERT, late Hole, Baltimore, rent
to the case the real, of the Calony was used; moderate. but that does not make the order invalid. It is First Floor of No. 6, QUEEN'S ROAD, ng more than what I may call an excess Central, containing 6 Rooms and Servants of wax. There are authorities to show that a
Quarter.
Apply to Jump of wax merely impressed with anything
DAVID SASSOON & Co., LD. will constitute a seal. If the Governor were to
Hongkong, 25th February, 1908 borrow the Colonial Secretary's seal the document would still be under his bood and
DOUGLAS, STEAMSHIP COMPANY, seal, within the meaning of those words,
⚫LIMITED.
Section should be rigidly complied with
The argument based on this Section is two. fold. First, it is said that the engagement must be that of the Chinese Govemment, and not of any subbidinate authority, such as the Viceroy of the two Kwang; secondly, that this engagement must be given at the time of the requisition, or at least, that if it has not been. given at the time the habras corpus is applied far, it is a good ground for making the rule for
FULL TEXT OF THE JUDGMENTS. the writ abaçlule.
As to the first point, I'am clearly of opinion that the word "Government" meant what it says; that is, Government, and not a subordin
Next as to the form of warrant issued by the Magistrate. During the first day's argument there was no evidenco forthcoming as to what information the Magistrate had before him when be issued the warrant. As his action was challenged on this cround wo were clearly- entitled to know. Mr. Hazeland therefore fited information was to the following effect. nn affidavit, from which it appears" that the
The information and compisint of Tseng Kat
Ying: I am sub-lleutenant in the Chinese army, 1 am informed and have good cause to believe and verily do believe that Ju Kai Shing allas Ki Shing, late of Wong Kong, and now residing
Judgment was delivered by the Full Court principle that the fact that the King has ap (comprning Sir Francis Piggott, Chief Justice,proved, or has not exercised his powers of disale authority. The words "Chinese authori and. Mr. A G. Wise, Puisse Judge), this allowance, in respect of any Ordinance will not morning, in the case of lu Kai thing, the give validity to any extra-territorial provisions well-known Swaton reformer, who appealed which it may contain. It is also settled law against, the decision of the Magistrate, who that a Colonial Court can declare a Colonial found that a prima facie case had been made Ordinance to be alien sent. But although this out against him and that he took part in an argument seems to fit this case to a nicely, not lett to the "authorities," but the engage" ‚† the crimia.of armed tobbery within the jurisdic.
armed robbery in Chins.
"
in.
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ties" are used in the Ordinance with respect to the requisition; but when it comes to this very important provision, which is in favour of liberty, unless the Ordinance is carelessly drafted, which I do not assume, the matter is there is another question to be consi- ment is required, and I am bound to say pro- It will be remembered that the appellant dered another prerogative right involved. Ioperly required, from the Government itself tion of China, I am informed and verily be
lieve that a warrant has been issued in Wong. THE Steamship that is the Government at. Peking. 1 said in argued that he had not been concerned in any purely Crown colonies, those acquired by Wong Kà Cheong's cast, and I still think, that Kong for the arrest of the said tu Kal Shing armed robbery, but that the Chinese wovern codquest or cession, the King himself has a
there seems to be a latitude given to the Ex-alins Ki Shings that the Chinese Government ment desired to obtain possession of his prerogative right of legislation; 'in this way person because he was known as an active they differ essentially from settled colonies, ecutive of the Colony to accept a general en- will demand bis extradition in due course, and reformer. An order under the habeas corfius the Sovereign's rights therein being created by gagement if it so chooses; but it has not done that there are reasonable grounds for suppose faw was heard and refused by the Pujsne Act of Parliament; and now regulated general. As to whether the delay involved in geting the accused may escape during the time necessary to present the diplomatic requisition Judge, and lu Kai Shiny now sought to have ly by the British Settlements Act, 1887. Hang.tuig an engagement from Peking in each case
would be too clich teus, that is not for the for his surrender. I therefore pray on be the Magistrate's-decision and the previnus kong is a ceded colony. Now, treating as we,
Court ja'conmidicif"though 1 mremark (bat
half of HE the Viceroy of Canton that a application upheld nad, to obtain his release, of course, must do, the non-exercise of powers.
as extradition is so aften follow by decapita-provisional warrant to arrest the said ju Kai The case has been betere the Supreme Court of disallowance, whether expressly or other
tion the opposite of circuity might without im, Shipg alir Kt Shing may issue under the for some months, wind during that din lu Kai wise, as the same as an act of approval this is
propriety be called "undue haste." The Legis, provision of Ordinance 7 al 1889. Shing has been incarcer-ted in prison,
an act of the King and, therefore, unless there
Tature has said that the Chinese, Government Mr. W. Rees Davies (Attainty-General), is any other question involved, this Ordinance, instructed by Mr. E: B. L. Bowley (Crown which, has not been disallowed, is by virtue of Solicitor), appeared in support of the applica- these two prerogatives intra viren, tion for the Crown, while Sir Henry Berkeley, K.C. (instructed by Mr. Oro Kung biog), acted for the defence.
In answer to this it was said that the King can only exercise his prerogative rights through his Privy Council, and therefore that his appro-
val or non-disallowance.should have been by
The Chief Justice said:-The question of this man's extradition comes before us in two į Order in Council. This would not be so in a ways: as an appeal, from Mr. Justice Wise's settled colony, even in face of the British Set decision de charging the wit of Anbeas corpur | tlements Act, because in them there is an ex- which had been obtained, and also ari no press devolution of the Parliamentary power to original motion for a hubers corpus to the Full the Colonial Legislature by Parliament itself, Court,
and the powers of cariament extend through A preliminary point was taken by the learned out the King's dominions. And therefore as Attorney General that no appeal lies.because the King hua prerogative right to veto in the this is a criminal matter. But Section 23 of case of Parliament, he clearly has it also in the Ordinance 3 of 1873 allows appeal in all case of a Parliament with delegated powers.
I think, But in Parliament of his own creation, in cases other than crisana bials. therefore, that an appeal lies. And there Crown colonies, it is not in the exercise of any being apparently some advantage in cont prerogative right of veto, but in the exercise of nection with the admission "of-evidence-by-his-prerogativa-right of legislation, that he as making an origin 1 motion, also, I suppose sents or does not dissent from legislation. there is nothing to prevent that being made, as Again it was said that by the words of the according to the decision in Bell Cox's case, a men may go to every Cou-1 for a habeas corpus, though not, as seems originally to have been thought, to every Judze. Imaintain the view that I expressed in the case of the seven wit pesses committed (or perjury, that this double procedure is not necessary, and therefore un- Decessary, as it certainly increases the costs of such applications which ought to be as little costly as possible, and I feel certain that any benefit which one, procedure inay give would certainly not be denied on the other.
The whole of the form is printed, except of must give the undertaking; it is for the Legis-course so much as relates to this special case. Fiture to decide whether it will be satisfied with a delegated power to be exercised by the Viceroys.
on this information the learned Magistrate. filled in another form headed Provisional
Warrant," substance of which was as follows:
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The second question is more difficult. Iagree Whereas it has been shewn to me that Iu Ka with my learned brother that it is not gov Shing aldar Ki Shing is accused of the com. erned by the decisions in re Bourier and emission of the crime armed robbery within the THE Steamship Woodhall. The corresponding provision of the jurisdiction of China. This therefore is to English Act is that the lugitive shall not be command you forthwith to apprehend him and bring bin before me to be further dealt surrendered unless this very necessary provi sion is made by the law of the country making with according to law, the requisition or by hirangement. In our Ordinance therefore the word “engagement' stands in the place of "provision by law of arrangement."
Now, the main argument in re Bouvier was
M
I have looked in vain in the schedules of the Ordinance for this form, but it is not there, and have looked in vain through the Ordin inace for some warrant for this exceedingly ummary mode of dealing with applications as to whether the facts which the Court had bewhich has been adopted, apparently for a long for extradition. It is clear that the procedure fore it explanatory of the law of France amount- ed to a "provision made by law," and it was time in the Colony, is based on the procedure of opining that they did. The same point was by way of provisional warrant sanctioned by decided in the same way in te Wandhull, where the Fugitive Offenders' Act. I will assume the Court held that a decision of the Supreme that for this purpose the information was Count of the United States binding on all other sufficient, though--very-much-doubt-it Courts in the States also satisfied the condition, allude to this becouse the same form of words and the Court held that this also provi. to which I am now going to allude are used in sinn of the law," But Lord Coleridge, C. J., Sec. 4 of that Act. Let me say this however with said, if the requirement of the Act has been regard to S, 8, that there is no doubt whatever complied with the prisoner must be given up'; that it does provide a provisional procedure if the requirement of the Ach has not been in order to prevent a fugitive criminal getting complied with he cannot be, but the rule for away, before the necessary formalities have the habent corpus must be made absolute, been completed. The nature of the subject of extradition demands that such a procedure Under the English Act, as we see, there is an
should be provided. But then the procedure alternative condition-provision by law or are rangement, and it is certainly legitimate to which the law provides most be carried out.
Now, St. 6 and 7 of the Ordinance provide argue that what is true of the provision by law must also be true of the arrangement-and that the regular machinery by which extradition
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he may require have no application to this matter of how ech evidence or information case, for here there was on information as 10 the facts at all. As I have said if it be. thought; pecessary-that-such-provisional-pro- cedure be adopted in order to make; extra- dition proceedings effective, by all means let the Legislature, say, so; but the Executivo and the Magistrature must not invent it, even though, as I am told, it conforms to in structions sent from home, The Court cannot tnak into these instructions because the question before use at whether they are, in the first place, implicable to this special Ordinance, and if there whether they have been complied with; only whether the Ordin And further, that a "Provisional warrant auce has been complied with or exceeded.
may be which is not sanctioned by an Ordin ance, and is not followed up by a complete warrant, I have not the remotest iden. I shall have to revert to this point presently, I am therefore of opinion that the warrant is bad
Colonial Charter, the Letters Patent originally "of-1843, and now of 1888, the Sovereign has expressly limited his rights"ol·legislation, be cause he has said that he reserves to himself the right to legislate by Orders in Council as such matter as he has put within the power of the Colonial Legislature to deal with. This may be so. But the charter expressly limits the power of the Colonial Legislature to deal with matters affecting the peace, order and good government of the Colony, and therefore if this provision has the effect contended for, it As is almost inevitable when a man is strunust clearly be limited to those things which the gling for his liberty, and therefore in all exira Colonial Legislature has power to deal with, dition cases, a great number of points technical But ra hypothers this matter of extradition does and otherwise weze, takon, and although we
not fall within the grast in the chatter; there "are both strangly of opinion that the procedure lore it, cagnot be affected by this Jimitation, complied with the prisoner must be given up. officers of the Chinese Government; the Govat all points. But this is not the end of the
in this case has been defective, and has not been cured. I shall endeavour in deal fully with all the points raised, so that as far as is possible these points may be considered as settled for the future. It is of great import ance that extradition proceedings should be conducted with the utmost regularity, not only in the interests of, the fugitive, criminal, but also of the foreign State which is demanding
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if there is an pinvision by law and no arrange-proceedings are to be begun. There is to be a ment the requirement of the Act has not been requisition to the Governor made by some This much must be added on this point. The and that the same principle must apply to the Ferner thereupon may issue his order to a limited power of a Colonial Legislature, the engagement required by the Hongkong. Or Magistrate to issue his warrant; and on, the
A requisition from the Chinese Government absence of any power on its part to pais extra-dinance. But Lard Coleridge did say that he receipt of the order the warrant is to be issued.
was in fact received, and the o der of the was not dealing with the arrangement, but Then comes 5. &. A Magistrate may also issue Officer Administering the Government sent to territorial legislation, depends entirely on this exniess-lilnitation of its powers, and on nothing that that must come afterwards and these words his warrant for the apprehension of a fugitive the Magistrate in due form, as: 1 have already sise. Parliament has, but I think within may mean, when occasion arises that question criminal on such information or complaint as indicated. Now this order required the Magis certain well-defined limits, p power of extra- will be considered: `And it may be that the would, in his opinion, justify the issue of a trate to issue a warrant. And the issue of it is territorial legislation even in respect of for argument does not apply to the arrangement, warrant the crime had been committed in regulated by 5. 7, which is in two parts. On eigners abroad Saltake it must the King For it may be argued that a "provision of the the Colony. The fugitive is to be discharged receipt of the order the Magistrate is to iss: Airo have within lng own domain of legislation; law" is something essentially of the past, if the order referred to in the previous sections the Warrant; or, here comes the second case, The first point argued was that the Ordinance, and this power he has not cided to his Crown something which must from its nature be does not come within a reasonable time.t
if the fugitiva criminal is already in custody No. 7 of 1889, is ultravires, because it is extra- Colony legislatures. With regard to what the pre-existent to the requisition for surrender,
These words seem to me to have a very de- he is to issue his order to all necessary per territorial, is that it sanctions the deportation limits of extra-territorial legislation are, it and that an arrangement or engagement may, folle meaning Before he acts in an extradi-sans, to bring the fugitive criminal before him of persons from the Colony. There can be no is no doubt a matter of great uncertainty; also from its nature, come after the requisition tion case in the absence of a requisition and to be dealt with according to the Ordinance." doubt that whether it be regarded from the but this on one could deny that legislation has been made. I doubt if the argument is order, he must receive such information, of The learned Attomey-General's contention sound. The writ of habeas corpus in protec, the same nature, quality or quantity, as he as to this last provision was, that it means that point of view of the get accessary to carry it passed in order to carry out the King's own out, or merely from that of its consequences obligations entered into by him with a foreign tive of liberty; the fact that the right to apply would require and receive if he were applied to if the fugitive in is custody for some other an order deporting a person from the Colony state falls will within them. On all grounds, for it is expressly granted by the law assumes
for a warrant in the case of a crime committed crime than that this procedure is to be follow- is extra-teritorial. it is equally clear that a and looking at the question from every point the possibility of wrongful rendition. And if in the Colony. Now, as Magistrate would ed, but that it does not apply to the case of a Colonial Legislature has no power to legislate of view, therefore, I am of opinion that this there should be, by accident or oversight, issue a warrant if someone were to come to him man in custody tinder a warrant, issued by the what is the remedy? It would be too and say " Ki Shiog bas.committed the crime Magistrate under s. 8, because, as I gaiber, il extra-territorially; and as a concrete il'usiration Ordinance is intra vires. of that principle, it may be said generally that I bave gone thus elaborately into the ques late, and the Court could no longer give of armed robbery in Kowloon." He would would be mere surplusage, i cannot agree. * Colonial Legislature cannot make any of tion which was argued with much learning, the man the protection which the law. had watt to know more about it. He would want, The drafting of S. 7 has an evident relation to the arrangements necessary to carry out the berause it is recondite, and it is well that mat guaranteed. As I have said the whinir ques-
at least, some evidence, bowever little, some S. 8. In fact the argument is refuted by the tion resolves ittelf into one of protection of the information about the details of the crime, practice which has been adopted, which is a extradition of fugitivé criminals, without the ters of such high importar ce should, if possible, express, authority of Parliament. But in the be put on their iruz bisit. Since writing this ludividual, and the Court is bound to see that Warrants are not launched in so promiscuous provisional procedure pending the receipt of present case the proposition cannot be applied part of my judgment my attention has been there is no loophole by which this protection fashion,, at least I hope not, in the case of the requisition. The plain meaning of R. 7 is without further inquiry into the subordinate called to a recent decision of the Privy Coun- may be destroyed. I think there is a tendency crimes alleged to have been committed ja the that if the Magistrato bas already issued a war- factors which have led to this Ordinance being cit in the case of Attorney-General of Canada to assume that a fugitive criminal is what he is Colony. The word information is not rant on information, as to the commission of v. Cain, in which an almost, if not this identical'ed, and therefore guilty of the crime with technical word: it expresses the fact that the the crime without a formal order, then the passed.
The steps that have been taken in the mat cal point was decided. The argument I have which he ischarged: The law of England which Magistrate has received some information escaped criminal being already in custody, in ter of extradition of Chinese, subjects from used arrives by a somewhat different roule at assumes a man innocent until he is proved to | about the crime alleged to have been commit- respect of the extradition offence and I desire Hongkong to Chino, are as follows: (1) the the same result as their Lordships: but be guilty applied as well to such a fugitive as ted. And the case is really no different if the to emphasise these words,-no forber warrant Sovereign, has entered into the Treaty of after reading that judgment I do not think it to anyone residing in the Colony. Nor do word complaint is taken by itself in this is necessary, but an order may be issued to Tientsin, by Art, at of which this extradition necessary to alter my seasoning. It covers the think thatthis is a mere technicality; I shall there document the words used are the informa- bring, bim up to the hearing. This form is ja guaranteed. The making of a Treaty in case of Canada, for that comes within the de-fore content myself with saying that the question and complaints" in fact there was a com- given in the schedule,, but no such order was within the prerogative, and there is no limit to Gaition of a ceded colony. The only point ion is not absolutely within the English decl plaint, but no information, and from either ever issued.
ow let me take the procedure which has in HOMPOSITION RED HAND the power; bat although it does not require about which these may still be room for argusions, and that I entertain a strong yow that point of view the fact is that the Magistrate had the petion of Paris tent, If in order to its ment is how far the assent of the Crown in a the engagement should accompany the requisis nothing before him on which a warrant could fict been followed and see what it comes to executive acts within the realm are necessary estied colony would make extra-teritorial tion. If it be ap it is one which is easy to com- in the case of a crime alleged to have been As I have said a provisional warrant, if it
ply with, The Chinese Goverment has no committed in the Colony, But it was naidi. and Parliament does opt make the recessary legislation intra vires.
mexas anything, means that it is something 1 pass now to a matter of great importance. desire to evade the safeguards with which the OK, this is an extradition case, and that makes which requires completion; and that although provision; the Treaty obligations cannot be fulfilled. Therefore in this case some legis- By S. 4 (3) of the Ordinance-No. 7 of 1889-law surrounds the fulfilment of our treaty all the difference. In point of fact the Informasit may serve its purpoas for the time being it Istive action was necessary, and the question is it is provided that a fugitive criminal shall not obligations to it; and it has only to be informed on was merely that Ki Shing was accused is not a real warrant and cannot become a real whether this must be action on the part of this in any case be surrendered unless an engage that the engagement will be in future required of the commission of the crime of armed rob-warrant until some further order is made com- Amperial Parliament of whether the Gotanist ment is given by the Chinese government that will therequisillun os son Biterar la possible bery Ju China So that this warrant has been pleting in efficacy. Assuming the information Legislature can do what is cecessary. There isng he shall not be detained or tried in China for in order to prevent fugitives being released on istued to express disregar! of the provisions to have been sufficient and the only defect to doubt ikat, speaking geseially, when it is found any offence committed before his surrender, habeas corpus. In Wong Ka Cheong's case of the Section, which are that this procedure by have been the name "Provisional Warrant, it decors to outbris extraterritorial action on other than the extradition crims on which the expressed an opinion on this point which was the Magistrate withedi order from the Gaver not Impossible that this might have been the part of the Colonial Executive, orta intre surrender is demanded, until he has been resin farons of the existing practice, but the poles nor shall not be used merely because the cured by the order of the Magistrate under S. the pair of the Critorial, provision into the injed or had an opportunity of saturping to the was not very fully argued
Chinelo Government bave accused the fugitive to bring up the fugitive to the beating, But SHIPS STORES AND REQUISITES For with British dominigus.
: The next question raised deals with the pros and mean to demand his extradition, but golely there being pa sach order in this case this
The next daw of the Colony, it must be done by, or the cermission. the Imperial : Paillament | It is said iħat this Section hat cot been concedure which, bas been followed to this case, who
information as com; | hopa ofźfectifyług thats proceedings". New South plied with in this cass, and II. it has not, the and renders a close-analysis
a general | Sagion la obviously, applicable; for whether
the ground
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