CHUNG SAU NAM CASE
THE HONGKONG TELEGRAPH.
EXTRA
HONGKONG, WEDNESDAY, MARCH 4, 1914.
Well then what is the evidence" State,
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fraudulent CON-
exhaustion the same way, and to the same ion demonstrated that the at Representative, has issued his veres it, and there is evidence as to the usurpation of power by or any other cause, has virtual- extent, and subject to the same tempt to establish independence warrant and it is to be assumed which could be left to a jury
** correlative
that he is satisfied that the Pro- (R. v. Sharpless). There is am- the alleged de facto Government."ly and substantially abandoned
obligations and wholly failed. Full Text of the Judgment. It appears thaton 21st. July Chan" the struggle for sapremoy it rights as it that authority I now pass to the second branchvincial Government of Kwang-ple evidence to show that the
was then "has no right to complain if a Kwing-ming who
been suppressed of the subjoot what was termed tung is a legal entity which is fugitive was engaged as an official displaced and Governor General of the Kwong, foreign State treat the indepen-and
was the non recognition argument. covered by the Treaty and this is of the Canton-Treasury at the (Continued from Page 1)
seeking to a pro-dence of its former subjects as "itself tung Province issued
enforce The Crown alleges the property & matter within the cognisance time of the alleged offence on the or exceeded his powers. It is clamation-Exhibit 21-which "de facto established; nor can
"it" The de facto government to be in the government of the of the Government which in my assumption that the view which true that the Magistrate has for states inter alia that Yuan Shih-it prolong its sovereignty by a here referred to is clearly the Province of Kwongtang and it is judgment this Court cannot inter-I have taken of the non-sxistence the purpose of arriving at a coa-kxi is contriving to rebel against mere paper assertion of right. United States government and contested that the Crown must fere with, although I have in-of the alleged de facto govern- On the further question whe olusion on the evidence presup the Itspublic and to break up the When, on the other hand, the not the Confederate government, show the existence of the Province dicated there is in my opinion ment is correct. psed that jury was investigat Federation and that the present" contest is not absolutely or per- In United States Amerion v. of Kwongtung in such a manner sufficient evidence to justify ue. ing it and I bil to see how this Tuinhis "outrusted by the elders" manently decided, a recognition Prioleau 35 L,. Ch. 7 decided that the Crown can take judicial in taking judicial cognisance ther the facts may constitute lar- ceny by a bailes I think they do Confederated cognisance of it. I may observe of it. constitutes ar aluse of his pow and brethren of the whole pro- "of the incohate independence of that where the
I now come to the question and they seem to come within the er, A I have already pointed vinee with the task of raising an"the insurgents by a foreign States of America had sext goods as a fact that the Court has now out the procedure under the Ex-army to impeach and punish the "States is a hostile act towards the held by them as public property extended powers of amendment whether the evidence discloses authority of R. v. Oxenham, 13 tradition Or.linance is assimilated aid Yuan Shib-kai". He theu sovereign State which the latter to England under a contract that at a criminal trial in a misdes- such an offence as would justify Cox 340. In that case it was de- to the preliminary enquiry on an declares himself responsible for is entitled to resent as a branch, the United States could not after cription of persons or body cor- the committal of the accused if cided that a person who receives indictable offence and section. 70 the peace of the province and for of neutrality and friendship. theCivil War wa over repudiate the porate alleged to be the owners the alleged crime had been com- a bill of exobange for the purpose of property in an indictment, such mitted is this Colony. The first al- of getting it discounted and hand- of the Magistrates Ordinance eu protection, of lives and property. The trae rule is that laid down contract and recover the goods.
Now can it be contended that powers however cannot avail leges simple larceny the stealing ing the proceeds over to another thorises a committal subject to and prescribes certain rules to be in the old distich, Rebellion, two alternatives "if in the cpin-in force in pursuance of the until it has succeeded, is Trea-Chan Kwing-ming's action ever where the jurisdiction of the of two cheques for $100.00 and and instead of getting it dis- ion such evidence is sufficient to proclamation. It appears then** son, when it is successful, it established a de facto govern- Coarts is challenged, But there $50,000 respectively. The Ma- counted indorses it as his own to put the accused upon bis trial for that the "President Pro"tem"
"becomes Independence. And ment at all. Was there any are authorities to show that the gistrate hes found guilty intenta.oreditor in payment of his ar an indictable offence, or if the It appears that Chan Kying-thus the only real test of in- success to constitute Independence question whether a particular ion at the time when he obtained count, intending to pass the pro- dependence is final success." as distinguisued from Rebellion? government is or is not an in- the cheques. Is there evidence perly in the bill absolutely to the evidence given raises a strong or ming left. Canton probably on
vailee of a probable presumption of the guilt the 4th. August and he arrived Accepting this rule that "the in my opinion there was not. dependent sovereign is one which which can justify this finding? ereditar,
valuable security and guil- of the accused." Surely the con- in Hongkong on the 5th. August real test of Independence is final The evidence so far us it goes a British Court will answer for Bath cheques wore handed to the sideration of whether the ovidence It was stated in evidence by one access on it be contended with shows that during the fortnight itself taking judicial cognisance fugitive by Chung Sui-lan any of issufficient to send the accused for of the Canton Treasury Ollicials,
If and were admittedly received by 58.
As to the last charge of trial involves the question of whe-Chung Siu-lam, that he continued any show of authority that the in question payment were made of the facts that are within the official in the Canton Treasury version of the same to his own
rebellion ever acceeded, or that into the public Treasury as usual knowledge of the Crown. ther & jury would or would not in the service after the Proclama-it permanently established in-officials remained in their offices necessary the Court itself applies the fugitive and presumably in be likely or be entitled" to con- tion of Independence uý Chan vict upon it. In so far as the Kwing-ming, that he worked for dependence, to use the language performing their duties na neual through the Foreign Office to the obedience to the order issued by fraudulent conversion this I take of Hall? United States of and as the Magistrate I think Crown for information (Foote on the Tutah (Exhibit) and were it is alleged to have occurred services of an imaginary jury the Government, that the Trea- Americs v. MoRze & Eq. 75. rightly observed the one act of Internationa! Jurisprudence p. subsequently negotiated by the when the fugitive obtained two were invoked on determining the eary worked as usual during This case was decided in 1869 administration which can be 150 and cases there referred to). fugitivo. There is clearly no cheques in Canton in his own Now an affidavit of His Majes-direct evidence to establish guilty name and instead of remitting to questions of law, eg. the de facto Char's regime, that after his government, and dominion in the proclamation be recognised his some five years after the cicee of claimed by the rebel Governor alleged stolen property it is nihil orders on the Treasury, that some the Civil war in the United States General is that he depleted the ty's Consul General at Canton intention at the time of receiving Shanghai converted them to his ad rems and can be properly Government notes were issued a of America and claimed sa zo-Treasury." And the most I think speaks to "arrangements entered the cheques or that there was any own use. This appears to be an disregarded.
few of which bore special mark count of money which came to could be fairly contended is that into between the British Govern- taking invito domino which is the offence ander Ordinance 5 of Then on the question of em- Then another contention as to "To Un" (Perish Yaan). It was the hands of the defendant as the possession as distinguished meat end the Provincial Govern-essence of the crime of larceny: 1865 section 62. Ses R. V. Aden, the abuse of the Magistrate's also stated that the rebellion agent of "the pretended Con- from the dominion of the pro- ment of Kwongtung" and he also In reply to this the Crown relied 12 Cox 612.
federate Government during the perty in question was in the restated in his evidence before us on certain cases and contended powers was based on certain affected many provinces.
late insurrection" and it was bel Chan for the period in ques-that he "absolutely recognised that the question of the intention bezzlement in so far as the
The Yuan Shih-kai issued an order decided inter alis that upon the tion.
circumstances are the Provincial Government ofs the time the fugitive took the specific charge that the fugitive remarks in the judgment which
at Canton, China, then being s chaquea is one for the jury and reflect on the action of the fugitive (Exhibit 17) five days afterwarde anppression of a rebellion the clearly and wholly different from Kwongtung."
"An affidavit of the acting Chief the Magistrate having found on servant of the government, of the in not tendering evidence to rebut dismissing Chan from the post restored legitimate Government these ander consideration in
"Jaslice of (says the affidavit) the evidence as a whole the guilty Province of Kwongtang, feloni- ously and fraudulently did the presumption of guilt. If the of Tutuh of Kwongtung and is entitled as of right to all Mcrae's case and Priolean's case
embezzle and steal the two Magistrate's decision had been directing his arrest. The order money, goods and treasure which and there is no real analogy be-"the highest Court of the pro-intent established the Court can- based on this conception it would stated that "Chan Kwing-ming were public property of the tween them. As to the question "vince of Kwongtung known as not interfere.
the Sao Teng Shen Pau Tong" Semple's case 1 East Please of several sume of $100,000 and clearly have raised £3rious ques: coerced the "members of the government at the time of the whether as a fact the alleged re-
was also tendered.
the Crown 691 was relied on. In $50,000 delivered to him for his tions as to the improper exercise of Provincial Assembly to declare outbreak, such right being is no bellion was put an end to by the
Then under the Chinese Extra- that case there was a distinct said employer" it cannot I think his jurisdiction, but an examina- independence at the assembly way affected by the wrongful Central government or by the tion of the judgment shows that and that he had raised a rebel-seizure of the property by the Provincial authorities, in the view dition Ordinance, 1889, under pretance held out that the prison-succeed, for it is clear that there the Magistrate considered the ion" and a Proclamation (Exhi- usurping government. Now it which I take of the case of the which these proceedings are in-er wanted the chaise and agree-ws no misappropriation of Chinese Goment arrived at to pay so much moneys at all at Canton and no evidence put forward by the bit 24) was subsequently issued was contended on behalf of the failure to establish the existence stituted the term Crown was calculated to raise a by order of Commander So Shun-fugitive that the position of the of a de facto government it be vernment" to whom the fugitive for the hire of it and the Court money passed. What the fugi strong and probable presumption cho who had temporarily and after province of Kwongtung was comes unnecessary to determine. ie surrendered includes the held that the question of intention tive received there from the of guilt. He says I shail here the departure of Chan assumed identical with that of the Federal I should however add that Viceroy or other officer adminis-was for the jury and if they were Treasury were two cheques or therefore, while allowing that the duties of Governor stating. Stales during the war, in its early evidence was tendered by the tering a Provincial Government." of opinion that original taking of drafts which he subsequently farther evidence may put that "the declaration of Iode-stages and that Chan's declara- Crown which bears on the status In my opinion this is suficient the chaise was with a felonious negotiated, obtaining payment & new адрес од the pendence of this Provinos i tion was effective to divest poss of the Tutub. Referring to the evidence to justify the Court in intent to steal it and the hiring a therefor in Hongkong. It was that the act of embezzlement matter, express the opinion that hereby withdrawn."
ession from the government and Proclamation of Chan Kwing taking judicial cognisance of the mere pratence rithout any inten- contended on behalf of the Crown the evidence before me if present- It was argued by the learned to vest it in the rebel government. ming an official of the govern-existence of the government tion to restore it they should con- ed to a jury in its present form is Counsel for the fagitive, stated Further that at Chen's declaration ment of the Province of Keong of the province of Kwongtung. vict. In this case there is no began in Canton and was con- calculated to raise a strong and briefly, that these facts coupled of Independence the Provincial tung who says in his affidavit Numerous authorities were cited evidence that any inducement was eluded in Hongkong and Reg. v. probable presumption of the with Yuan Shi-kai's Proclam- Government came to an end and "he has been deputed by the by the learned Counsel for the made to part with the cheques or Holmes 12 BD. 23 was relied on. guilt of the accused in respect to ation which was an act of state that with the subsequent cancel Governor General of the said fugitive in regard to the state of any pretence put forward to sec-la that case the defendant wrote addressed to G. at a town în Any of these charges (Nos. 1, 3, established a de facto Govern-lation of Independence by Yuan Province to take charge of the foreign states and governments in ure them upon which guilty and posted at Nottingham a letter
ment in the röbel party and that Shih-kai the authority of the Cen-extradition proceedings" states as our Courts but whatever benefit knowledge can be inferred."
B. v. Perry 10. & K. 725. France containing a false pretence This is a clear and decisive that seizure of power was actual tral Government revived and any followa "I have seen exhibit 21 may attach to this point in civil exercise of the "Magistrate's dis-and effective. That with the can-rights which are consequent are "pat in in the Police Court pro- proceedings it cannot I think in This oase appears to cover the by means of which he induced G. cretion with which in so far as cellation of Independence the in the Central Government. I "ceedings being the Proclamation the light of the evidence tendered present case larceny as a servant to send from France, to Notting the facts as distinguished from authority of the Central Govern-am unable to see how McRae's issued by Uban Kwing-ming; by the Crown of which the Court under charge. Frisoner was giv ham a draft for £150 which defen- the law are concerned this Court ment revived and any rights ease is an authority for these "the word used throughout the must take judicial cognisance eo a cheque sea servant of the dant then cashed. It was held that has no power to interfere. which are consequent are in the propositions. After referring to Proclamation translated as Pro- have any bearing in these pro- Great Western Railway and or there was jurisdiction to try the
The learned counsel for the Central Government.
rights in property upon the vince is a word which essentially ceedings. The Vice Chancellor dered to pay to an overseer and defendant at Nottingham, the fugitive also complained of an Numerous authorities were suppression of a rebellion seized "indicates territory subordinate to in Taylor v. Barola 2 Sim. p. 221 to buy a stamped receipt on his pretence having been made at irregularity committed by the cited in argument. Hall on In- daring such robellion James V:C."the Republic of China and could says " It appears to me that sound return. On his return return Nottingham where also the money Superindendent asked obtained by means of "it was he had received. Lord Coleridge 0. J. Magistrate as to the mode of ternational Law (1880 Ed.), p. 27 nid apprehend it to be the "not indicate an Independent policy requires that the Courts the
of the King should set in unison the prisoner f making certain correctione in the states "As soon, it is said, as a clear public universal low "State. It is quite distinct from
with the Government of the paid the overseer. He answered said "of the two necessary in- deposition of one of the witnesses "considerable population is ar-that any
government "the word "" which would and we thought it desirable to "rayed in arms with the professed which de facto succeeds to any have been used and an Indepen-"King," and Farwell J. in Foster rea and being asked for the re-gredients of the offence both take "v, Globe Venture Syndicate ceipt said that the overseer not place in Nottingham. It may be afford the Magistrate as oppor-"object of attaining political ende, other government, whether by dent State been referred to or Limited 1000,1 Ch. 814 said, I having one by him had promised that one important part of the
,4 and 5)."
tunity in the witness-box of ex-it resembles
ก
state
too" revolution or restoration, conqu- intended.
plaining the irregularity complian" nearly for it to be possible to "est or reconquest, succeeds to expression “,
ed of. My learned brother has treat individuale belonging to "all the public property, to ever
+1
Furthermore
the
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大都督
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respectively
asked to take judicial to forward it to a certain inn in offence taking place in Nothing- 都督
cognisance of the fact that the town for him. In truth, the pri-ham would be sufficient, but here eaming these tribes (of Sues) soner had not paid it and oa Moa-both ingrediente take place in dealt fully with this point in his-auch population as criminals; "thing in the nature of publie "translatea as Grand. Tutuh and to be independent they do not day morning, got it changed by Nottingham." That case has NO jadgment and need only say it would be inhuman for the property, and to all rights in
"Tutub, essentially indicate a« therefore that I entirely agree | «| enemy to execute hie prisoners;"
possess jurisdiction over cortain in tradesman in Taunton, and ap bearing on this; the alleged con respect of the public property
delivered to the fugitive was in with his conclusions.
"it would be still more inhuman "of the displaced power, what Governor of a Province au territories. That is a matter plied the proceeds to his own use. version of the valuable security I now come to the question for foreign states to capture and "aver may be the nature or origin ordinate to the Central Repub-which it appears to me must The conviction was affirmed.
They are
the R. v. Sharpless-I Leach 92, Hongkong and not in Chins and necessarily be within raised as to possession in the "bang the crews of war-ships "of the title of each displaced lican Government. property. It was contended that "ae pirates; humanity requires power any such public money quite distinct from the words "ognizance of Her Majesty. shows that it is a question for the there was no property in the "that the member of such a com- "in any treasury, any such which would have "Sound policy appears to me to jury whether the taking was done government to the Province of "munity shall be treated as bel-property found in any ware- "been used had the office of Pre-require that I should act in with evil intention.
R. v. Middleton, L.R. 2 C.C.R. complied with. Kwongtang and that the fugitive"ligerents, and if so there must be "house, forte or arsenals, would,sident been referred to or in-unison with the Government on is not a servant of the Kwong-" point at which they have a "on the success of the new or tended and which is the same "uch a point as that. Assume 38, disclosed a question of dif- tang Government. Further it was "right to demand what confes-restored power, vest ipso factoword which hae always been "that the Foreign Office have ficulty as appears from the differ- theft of the payment out book. contended that the burden was on "sedly must be granted. As a "in such power; and it would used to indicate the President of "already satisfied themselves ont positions taken by the Judges. The evidence is simple and I have the Crown to show (1) that the "belligerent community is not have the right to call to account "Foreign Republics such as the that the territory in question is The facts are set out fully in Ar-erefully considered it and have Province erists and what it is (2)" itself a legal person, a society any fiscal or other agent, of any United States of America and within the dominion of Morocco chbold at p. 520 and show how arrived at the conclusion that the what the Provincial Government "slaiming only to be bellige "debtor or accountant to or of "France."
"it would carely be improper learned Judges have differed us question of guilty intention is
morised as follows:-
(1) Was the alleged property in
in my opinion the conditions embezzlement in China were not necessary to anatain a charge of
Now in regard to the alleged
is and that thoro is such a thing" rent, and not to bave permen-" the persons who had exercised It also appeare at the time (21st that I, sitting here as a judge to what constitutes a taking and within the Magistrate's discretion (3) that if it exists it le capable "ently established its indépen-" and had ceased to exercise the July) that Chan's Proclamation "of that High Court, should, in stealing with the definition of to decide and that he would be of holding property and having dence, can have no rights under "authority of a government the was issued that Yuan Shih-kai "the face of that not of Her larceny. I think that the raling within his right in considering of the majority of the Judges all the circumstances surrounding servants responsible to it. These that law. It cannot therefore "agent debtor, or accountsar had not in het been instated as "Majesty hold (otherwise). contentiona may I think be sum demand to be recognised upon "having been the agent, deb President. His order (Exhibit 17) "I should be contravening the would probably cover the facts in the fugitive's fiction in coming to, "legal grounds, and recognition, "tor or cf such persone in dismissing Chan some five days act of Her Majesty acting as a this case; but it is not necessary a decision on this point. It ap when it takes place, either on their charseter a pretended later is handed Order of the "Savereign in a matter which is however on the foregoing authori- pears that the fugitive was him- fugitive amounted to larceny at and ordinary duty question in the prong or Go the part of a foreign govern-character of a government Fresident Pro Tem" and I think within the cognizance of Her tia to hold that the notion of the and that it was his ordinar, dury vernment of Kwongtung or was "ment, or of that against which accountant of a govern there is much in the contention Majesty's Foreign Officə,"{\" the properly ousted by the al- the revolt is directed, is from "mont. But this right in the that Ohan's Proclamation was Now these extradition proceed. Common law as I am olearly of to examine the book in question leged de facto government? the legal point of view a con- "right of succession, is the right mainly directed to impeach and ings are instituted by the Crown opinion that there was evidence which he obtained from another (2.) If the property was in the cession of pure grace." We" of represention, is right not punish Yuan Shih-kai" than to hore by virtue of the treaty before the Magistrate on which a Treasury official, Ngai Un-ping, Provincial Government is it neces were referred to Historions where paramount, but derived, I will declare independence from the obligations contained in the charge of larceny by a olerk or on 4th August, which se toes sary for the Crown to prove in a Sir William Harcourt states in" not say under, but through, the Republic of China. Whatever Treaty of Tientsin which is given servant ander Ordinance 5 of Was the day that Chan Kwing- criminal proceeding what the regard to the Civil
suppressed and displaced au-view however may be taken of effect to by the Ordinance of 1880 1885 section 54 could be sustain-ming fled from Canton and that
(ɑandinud on Second Fatra ) Provincial Government is? Артіса, When a sovereign "insity, and only be enforced in Chan's intention it is la my opin. The Governor, His Majesty's, and R. v. Perry I think go
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