THE SOTTO JUDGMENT.
(Continued fram'page"5")
The plaintiff in a journalist and the defendants are respectively the Assistant Executive Secretary of the Philippine Islande, and the Vice Consul of the United States of America in Hongkong.
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THE HONGKONG TELEGRAPH.
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HONGKONG, SATURDAY, JANUARY 10, 1914. 5 P.M.
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viotion of the Court of the 'Philip-"extradition proceedings in India. an extraditable crime but These pless are fully dealt with second charge in extradition pro" "happens that a preliminary pinea is not authenticated accord-" he could not be re-arrested in because full opportunity of in Chitty's Criminal Law which ceedings. Eefore dealing further "examination faile. The testimony ing to our law and the practice "respect of the same charge on that calling evidence in defence bad was referred to by Avory with this argument I refer to "first prezented is insufficient
incorporated into that law. The" in respect of which bewne dis."not been given to him when in the very recent 0880. "record atutts with a scaled doon-charged in India. That argument" before the Magistrate in India R. V. Marsham Exparte Perwick curacy of which was challenged "jurisdicion; the complaint in of Piggott on Extradition, the a0" the officer is found not, to have and fully justified the oxhaustive" mout, signed by the Governor was based upon the language of
"cannot bi n reason why he Laurenes 1912 2 K. B. 362, In by the learned Counsel. He says technically defective and the pro- and interesting, argumenta ad-General of the Philippines and section 6 of the Habeas Corpus" should not be re-arrcated upon that case the applicant was con- st.p. 76. "The effect of a. O of the ceedings fail. It would be an dnead by Counsel on both sides.
"ends with a sealed certificate of Act, 1879. It is unnecesary, and the same charge and committed victed summarily by a Metropoli-Habeas Corpus Act is practical-outrage upon justice if for any the Chief Justice, but in between "frit impossible, to deal with all for extradition after a falltan Magistrate of assaultingly the same as that of a plea of such reason as that there could are a number of. Jonan sheets the questions that may arise as "investigation
palice constable but by inadvoraatiofois acquit. In an ordia he us further prosecution of one "which are not certifioito,andern-" what is covered by that esction;; Kwok-u-Sing's case was fully tence it appeared that the con-
sequently sheas might have been but it seems to me, having considered in the judgments in stable who assaulted gave his in England, the prisoner is not extradition cases, a violation of ary case of a crime committed charged with crime and equally in extrnated, and extraneous sheata |“ regard to the language of the Stallmann's case in so far as it evidence without being sworn. raight have been introduced. tion, that the Legislatura has any bearing on this case. Upon the attention of the Ma-"ed by the magistrate on the of the treaty."
acquitted when he is discharg-of the spirit, if not of the letter In March 1912 the plaintiff was" It is most important that every never intended to provide Kwok-a-Sing a Chinese subject gistrate boing called to the irre-ground that the evidence in arrested and imprisoned under a "sheet should ho certified; and "that the Court has not the had been committed to prison for gularity he re-heard the case the
And again In re. White 45 Fe- insufficient for committal. And deral Reporter 337, another Amer- warrant of a l'olies Magistrate of" I need only refer to the practico' power to make
an order extradition to China for murder same day, all the evidence boing so in extradition" proceedings, ican case, the Court said. "If Hongkong on a charge of being a in regard to the records which
which would lead to a person committed on the high sons and then taken on cath and the "the finding is either that there" however the person arrested is fugitive criminal who had been "go home to the Privy Council,
who has been released on a writ had besa discharged by the Chief Magistrato again convicted the is no evidence to justify the released upon habeas corpus convicted of the Crime of abduc- to emphasise the statement that of balsas pus being sub- Justice of Hongkong upon & applicant. was" contended issue of the warrant of deton- ** tion in the Philippine falauds and this is the English law. Possibly equently re committed In my writ of habeas corpus. fle was that the second conviction was "tion in the first instance, or, on
upon the ground of informality in the following month the plaintiff when the record came to the option it was intended by the subsequently otrasted and charg bad in that the applicant at the "hearing of the case, that thoro
or mistakes in the proceedings was discharged by the Full Court Colony all these cheats were rection to precorvo, the right of od with piracy jrra gentium which time of the conviction had been" is no evidence to warrant his!
or upon some ground which gador a writ of habeas corpus. "joined together at the top, as.
the Court over pors who was committed on the same oc- put in peril in respect of the" being committed for surrender.whether upon the real facts "does not decide the question In November 1912, the plain-"I believe in the Americanmight be omenable to ita cision as the murder. A second same cffence. The Court held This could not preclude fresh" the one arreste tiff at the instigation of defond-method,, but they are not jurisdiction, and the section was writ of babeas corpus was issued that the applicant had not legally" evidence being produced, and "be ants was again arrested on the joined now. The importance of only intended to repress and and the Chief Justice of Tongkong been convicted on the first hear another warrant being issued." such extradited for trial, sumo charge of abduction under "this point is that if the record stop the imprisonment without ordered that Kwok-a-Sing should ing and bad therefore not been in The nature of the application" upon the merits should not be réfease not being the warrant of another Police" of the conviction JA not justification--which at that time be discharged on the ground perit at the time of the second for extradition does not touch: Magistrate.
properly before the Court,
was very common-of a person that the second arrest was a viola-hearing and the second convicthe question of guilt, the Eng" ted paper or proceedings."
'a bar to an arrest upon perfac The plaintiffelaime as damages
thero ia HO evidence not" who had been released on bail. tion of section 6 of the Fabeae tion was therefore good. for this the equivalent in real" only of one crime having been Having regard to the fact that Corpus Act. The Privy Council JsidIt is clear that in order with it; and it is only when that 518, an extradition case, Field J. Avory" lish Courts not being concerned In Reg. V. Maurer 10 Q.B.D. currency of £500 under keetinni B
commited, but also of the this section imposes a penalty reversed the decision of the Chief" to plead such a ples" question is in issue that the ways "The statute says that the of the Habens orpus Act 1679 Resudition of the Extradition upon any one who procures to Justice as to the second "writ of "effectually either a plea of "ples of autrefois acquit is (31 Charles 1 chap. 2) "Act having been fulfilled-that" be re-imprisoned for the eam Habeas Corpus. No point bow-"autrefois acquit or autrefois available." This is a definite jurisdiction so nearly as possible magistrate shall have the same The defendants admit the" the act is criminal by the law offence any porson who has been ever strictly analogous to the "convict it must appear that the ratement of the law on the sub-as if the priconer were brought facts whilst denying liability aud}" of both the requisitioning delivered by a writ of habeas point either in this case or in defendant has been legally con- ject which is entirely at variance" brought before him charged with rely on the following defences. country and this Colony. This corpus, and to the fact that the Stallmann's case was before thevicted or legally acquitted and with the plaintiff's contention and an indictable offence in Eng- (1) That the provisions of the" is the cardinal principle of exection reserves the right of Privy Council in that case, but it laid down in Chitty on Sir Francis Piggot in Wong Kaland. So long as the magistrate Flabeas Corpus Act ate not in "tradition laid down in the in- onsbling a person to go to the have referred to it on general Criminal Law p. 454 the point Cheong's case 1 H.K.L.R. at " force in this Colony,
"troduction to the schedule of Court to obtain the re-commit principles and as is was dealt in discussion always is whether p22 in reference to section 10 of we have no power to interfere keeps within his jurisdiction (2) That the provisious do not the Act, and there can be no mett, by a legal process for good with fully in Lord Alverstone's" in fact the defendant could have the Chinese Extradition Ordio-" with his decision. It is only apply to extradition proceedings." qucation that the onus of pre-cause, of a person who has been judgment in Stallmann's cine. Laken a fatal exception to the ance
1889 which is (3) That the provisions do not "ving this is on the Grown, at at large by habeas corpus, it
Now as regards the analogy: former indictment for if he from section 10 of the Extradition "aa when there is no evidence taken when there is no jurisdiction, apply to plaintiff's second arrest Now it was said in argument is impossible to suggest that be between this case and Stallmann's could no acquittal will avail hot of 1870 said section 10 of "before the magistrate that we and imprisonment, and that the and it may well be that the cause the applicant was released case the legal efect of refusing "him." It is also laid down by the the Extraditon Ordinance must "can interfere"; and Mathew J. · discharge under tho writ of law of abduction in the Philip-in Tadin, owing to some error in an opportunity to give evidenco same authority at p. 458 that "if clearly be read subject to "asid an application for habeas habeas corpus was not upon the pines is not the same as it is in the procedure, that is a sufficient legally admissible as in Stall a judgment in favour of a pri- section. 76 of the Magistrates corpas can only succeed when merits but upon technical defects" this Colony. It is common rgument for his release "now, manu's case, and of improperly souer to reversed he may be Ordinance of 1890," in the proceedings which, they "knowledge that the age of when there has been no error in admitting evidence not legally arraigned and tried de nove
"the magistrate has exceeded his The defendants further relied "joriediction." I refer to these claim, they were entitled to cute the victim varies in almost the procedure. After considor-admissible as in this case, is the It also laid down in the same and establish a right upon theevery country, and it is noting the judgment of Mellish, LJ. same. They both go to the root volume at p. 463 that the plea Canadian and the United States fered in this
a certain cases decided in the rulinge as the Fall Court inter- merits to the plaintiff's extra-" possible for the Court so assume in Attorney General of long- of the Magistrate gjurisdiction and antrefois convict will be of no Courts which go far to confirm Magistrats exceeded his juris- Case #8 the "anything. On one of the kong v. Kwok-a-Sing 5.P.C. 170 the question "have to consider is avail when the first indictment the statement laid down in Fig diction. The last named defence was "unauthenticated pages of the Lord Alvorstone says "The whother there was in this case was invalid, and when on that gott on Extradition to which "I think regarded throughout the" record the 'nge of the girl ab-“words which Lord Justico. Melan error in the proceduva" account no judgment could have have seferred, and the decisions jurisdiction Martin B. said in Ex- Again on the question of argument & the paramount one I ducted in stated to be under 18,lish uses, so that the return to which placed the prisoner outside been given because the life of the of these Courts are always now parts Huguel 28 L.T. 41 "The will deal with it firstly
and therefore if we can admit the second writ of babeas corpus the jortsdiction of the Magistrate defendant was never before in accorded the full respect and at- The position taken by the“ the record the point on which raises for the opinion of the and whether thero has bean, a jeopardy."
tention of the English Court." within the jurisdiction of Bir question is, was this proceeding defendant is briefly stated", ne we ought to have information is "Court the same question with decision of the Full Cours "oD In R. v. Cardan 5 Q.B.D. at p. in re Haraba-American and Eng-Thomas Henry, I don't say if follows:-
settled. But I am of opinion reference to the validity of tho the motits" within the meaning 6 Cookbura C.J. Baid "The liab cases vol. 6, p. 490 is a "there had been no evidence be That the legal effect of either thit the law on the subject of gronads of dolention as the first', ] of 'Stallmoun's. (169. Now the duty and province of the Magis- Canadian extradition case, and fore him or he had acted con excluding or adnitting ovidence authentication being what it is, in my opinion show that he is decision of the Full Court reated trete before whom a person decided that where a persontrary to law we would not have. by the Magistrate is the same and had so cardinal a question boroferring to a decision upon the upon the fact that owing to tho" is brought with a view to hisrrested in extradition proccod-discharged the prisoner but it that if evidence has been impro-ing dependent upon it, that is "merita in respect of the matter record not being properly authen-"baing committed for trial or ings for forgery is released on appears all the proceedings have perly excluded or admitted the in itself auflicient for the pri-upon which the person was ticated there was (inter alia) no held to bail is to determine or habeas corpus on the ground that" been properly taken." Court had no jurisdiction and soner to be discharged." "sought to he arrested, Lord evidence of the crime having beon" boaring the ovidence for the there is no proper evidence show. Any proceedings taken in saclyn Stated briefly the effect of the Justice Mellish continued In the committed or of the age of the prosecution and that of the de-ing the commission of the alleged alleged by Mr. Slade in the Well now as to the distinction case are nullity, and that such foregoing decision was that owing present case bo second warrant abductod girl. The Chief Justice fence, if there be any, whether offence or identifying the alleged position of a Magistrate holding nullity is no bar to further pro to the record of conviction not" is a wetrant by which Kwok-a-said "on one of the unauthenticat the case is one in which the forged document, he may be an entradition enquiry and an ecedinga for the same offence. being authenticated according to "Sing was committed to take his ed pages of tho record the age of accoused ought to be put upon re-arrested in subsequent ex enquiry into au indiotable offence. That the Full Court found our law there was no evidence trial at longkong for piracy the girl abdunted is stated his trial. It is no part of his tradition proceedings for that the Magistrate had let before the Magistrate either of "jure gentibu, and was in their to bo under 18 and therefore province to try
the under section 76 of the Magis- the caso". sime offence, upon the discovery trates Ordinance 1890. It was in improperly unauthenticated the crine having been committed “ opinion, a valid warrant. Theyif we can admit the Numerous cases were cited in of further and new evidence to evidence but that there had or that the act in criminal by the think he ought not to have record the point on which we argument and it is unnecessary supply any deficiencies, and the argued that these words in section booń no decision by the Full}law of both countrica ar of the been dischargol from his cusought to have information is to refer to thom in detail which judge (Boyd 0.), laid down that as mation then under enquiry" 76 by discharged as to the infor Court upon the merits of the one loge of the abducted girl. Now "tody under that valid warrant souled." That is assuming the show that a defective indictment u rulo in all offences if the Magis- were inserted to proserve any which prevented further procce the question then arises is this "becaus bo lad been record to liave been authenticated is no bar to a subsequent indict rate thought the first evidence future proceedinge whereas the dings and a recotomittal on the case covered by the recent de-"previnusly discharged from an as required by the Court there ment being preferred (R. V. Riob-nid before him insufficient and discharge same obargo. They contended cision in tex v. Governor of unlawful imprisonment'. There would have been the necessary mond 10. & K. 240) and a plea dismissed
contemplated in the acoused that rection that this case was governed by of Brixton Prison exparte fore we have to consider the evidenco us to the piomission of autrefois sequit is no answer would be no bar to bia taking up is an absolute discharge and not certain authorities of the Eng-Stillmano 1912 . K. 13, 4247 ground upon which the appli- of the offence and also of R. v. Coogan 1 Leach 448) nor the matter. de nove upon batter only from the information then lish Courts.
In that ca60 a German cant was sought to bo detained. the age of the abducted girl. is a plea of ausrofole convict good evidence is applicable similarly under enquiry. Before coming to these authori-subject was diedberged from cas-"In my opinion this Court has In the face of this language where a conviction has been a extradition preceedings. If of the Act directs that “the Now section 9 tios it is necessary to refer to the tody by the High Court in India "jurisdiction and power to deal do not think it can be contended quashed because the indictment however the decision apon the Police Magistrate shall hear the judgment of the Foll Court or to on a habous corpus. That Court" with the applicant not with thore was a decision on the was bad the prisoner never hav-habeas corpus is on the merits case in the same manner and have so much of it as is material to decided that, there was a prima "standing the fact that, owing to morit. A care of the defective ing been in jeopardy (R. v. Bow in the sense that no. offence has the same jurisdiction and powers the argument, and this
tura-facio case established against the an informality in the procedura rocurd would supply the paces-man 6 C. & P. 337). It is clear been committed the discharge is as near as may be as if the ed upon the finding that the prisoner, but that, inasmuch an "in India, bo could no longer ba sary evidence upon which the therefore that a discharge by the is final. conviction upon which the ex- the Magistrate had declined to 'detained there, and that the rendition could be effected and I Magistrate on an indictable offence In re Kelly, Federal Reporter him charged with. sa indiotable prisoner were brought before tradition of the convicted fugitive to give him a fair and reasonable objection taken on his behalf think the principle underlying under section 76 of the Magie-vol. 20 p. 852, is an American ex-offence committed in England." was demanded was not properly opportunity of obtaining his namely, that there has been a Lord Alverstone's language is trates Ordinance 1890 is no bar tradition case (State of Minnesota, Section 10 provides for the authenticated and thoroforo was evidence from England in order "a previous decision under which applicable. "In my opinion the to a subsequent charge being it decided whore a party accused committal of discharge of the not properly proved. There were to present to the Magistrate she was liberated when charged "whole object of the treaty would made that a plea of autrefois of crime has been arrested, had fugitive criminal. The powere other questions as to proof of the answer to the prima facie case with the same offence in India" would be defested if a person acquit can only stand in magis an examination before a commis-of Magistrate under these order in Council and the position against him, the Magistrato's is no answer to these proceed-"charged with an offonce but who terial proceedings when the ioner duly appointed, and been sections are fully dealt with of the Requisitioning Ollices order could not be sustained and "ings. The proceedings in India" had not been tried in the strict Magistrate bag the jurisdiction discharged by order of the in the notes in Biron and Chal- which are dealt with in the judg- they. therefore quashed that are no bar to subsequent pro-"sense of the word could be al- to hear and determine the case. executive on the ground than mersand in Clarke on Extradition. ment but are not material on the order and discharged the pris" ceedings being taken here.' "lowed to escape being extradited it has been repeatedly laid down the evidence was not sufficient to (Mr. Biron is now himself a Police oner. Shortly afterwards the In my opinion the whole object" merely because he had been that after a hearing and acquittal justify his extradition for the Magistrate.) Biron says "except After remarking "I do not prisoner came to England and wor of the treaty would, ha defeated if "discharged in a preliminary en upon the merits by a Court of crime charged, he may be again for the limitation as near as may think that the fact that the rearrested there "on the identical a person charged with an offence "quiry owing to an informality competent jariedication the de-arrested for the same offence and be the Magistrate has exactly Order in Council was not proved charge. upon the identical but who had not been tried in the procedure.".
fondant cannot again be tried on compelled to submit to a second the same powers as if he were would be a grand for the re-evidence" which had been sabin the strict conso of the word I am of opinion that there is a the same charge. Wemyss voxamination without the issuance heating an indictable offence. lease of the prisoner it the jur-mitted to the Magistrate in could ba allowed to escape clear analogy between this case Hopkins 10 Q. B. 378).'
of a second mandate by the That limitation means as near isdiction which the Magistrate Calcutta, It was submitted to being extradited merely because and Stallmann's and I think this But then it was argued by the axecutive 'exercised was in fact existent, the Magistrate on the prisoner's be had been discharged, in a case is governed by it..
learned Counsel for the plaintiff
Re may be consistent with the the Chief Justice (Sir Fracois bebalf that he could not be again" preliminary enquiry owing to
The language adopted by the Extradition Act 1870. I desire however to deal with that there is material distinction Court is entirely germane to this Apart from any limitation of the Piggottt) said "It was contended charged as being contrary to an informality in the procedure the general question as to how in the powera possessed by a case it is conceded law that Magistrate a powera and juris- that that the conviction was not section 8 of the habeas corpus" when such preliminary enquiry for proceedings before a Magie Magistrate when investigating an where one is arrested for a local diction express or implied in properly authenticated, and Act 1879. A rule for Babeas" could not have deciled the case tarte are a bar to subsequent indictable offence under section" offence and a preliminary ex “therefore was not properly prov- Corpus was obtained and was finally."
proceedings on the same 76 of the Magistrates Ordinance" amination fails for any reason, of Magistrate is identical ex the Extradition Acte the daty ed. The manner of authentica- discharged by a Divisional Court, Phillimore J. said "In my charge in relation to the ples of 1880 and holding an extradition such as a defect in the juris with that of a Magistrate sitting 'tlon is sometimes provided for Lord Alvéretone C. J. said “The " the fact the applicant autrefois acquit or autrefois enquiry under section 9 and 10 of diction of the examining Magis under the Indictable Offences
in more elaborate treaties; but some point was then taken before" was where it is not so dealt with, the Magistrate as has beenged in India convict, and to the further ques" the Extradition Act 1870, and "trate, lack of evidonos, informaak Aat l'é, to consider whether thers because he could not tion whether the law in this that the Magistrate having an "ity of papers, that is no far is a prima facie case against the we must have recourse to the raised here to-day-namely, that "be committed for trial; for the respect is distinguishable in absolute power to discharge ander to a second proceeding.......
There can be no inasmuch as the applicant Stall'orima alloged against him indictable offences and in extra-section 10 of the Act a plea of "We all know how often in the is consed according to English Bocused of the crime of which he doubt that this judgment of con, main was discharged from the "or rance 10 Was pot dition osses,
autrefoisnoquit would be good on a "administration Justice it
law and if so to cɔsamit him "
argument.
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