996.
1.
532
Your Lordship with obseren
that Señor
for
will
Checa has been
itted
trial at the Supreme Comit-bail being accepted.
I have the hever to be,
My Lord,
Lordship's
You Ledlilijn mot obedient
humble cervant,
Lilin neay Governor.
THE CHINA MAIL.
HONGKONG, THURSDAY, AUG. 15, 1872.
TO-DAY'S FOLICE.
THE DUEL CASE. Before the Honourable . MAY. 15th Aug., 1872.
Mr Leon Checa again appeared to answer the charge of conspiracy to take away hu- man lives.
Mr Toller, Crown Solicitor, appeared for the prosecution, and Mr B. J. Francis for the defence.
Me Toller said that during the last exa- mination Mr La Forest declined to answer certain questions on the ground that they would tend to criminate him.
Mr Toller
would put him in the box again and ask him the same questions; if he should take the same objection, he, Mr Toller, had a free pardon in his hand, and he would give it to Mr La. Forest, which would remove all objections on that score.
Mr La Forest was then sworn: I was not in Mr Checa's house on the 20th July last.
Mr May recorded the fact that the Crown Solicitor had a Free Pardon for Mr La Forest in his hands,
Mr Francis submitted that was no part of the evidence and should not appear in the deposition.
Mr May overruled the objection. Examination continued: Mr Toller asked whether witness recognised the signatures on the document handed to the witness
Mr La Forest declined to answer, saying
it would criminate him.
The Crown Solicitor herewith handed the Free Pardon to the witness.
Mr Francis asked to see it and told wit-
ness not to answer any questions.
Mr Toller repeated his question.
Mr La Forest declined to answer.
Mr Toller said if he persisted in declin-
ing, he would ask the Magistrate to commit him.
Mr Francis said the Governor had no power to grant & Free Pardon on Her Majes: iy's behalf except under the Charter of the Colony and Ordinance No. 1 of 1860.
Mr Toller said Mr Francis had no latus standi, and quoted Taylor on evidence and Chitty's practice.
Mr Francis contendel that he could ap- pear for the protection of the witness, and on behalf of his client he took the objec tion.
Mr May thought the witness being a for eigner unacquainted with the English law should have the advantage of legal assist-
ance,
Mr Toller, after the remarks from his Worship, waived his objection.
Mr Francis then submitted that the Go- vernor had no power under his Letters Fatout to grant a Pardon, freeing a person
!
from all the consequence of a Criminal act, unless that person had been first convicted before a Court. This appeared in the cita- tion of the document produced by the Crown Solicitor. By the Governor's Let- ters Patent, he was merely a delegate hold- ing, as it were, a power of attorney from the Queen, which latter must be literally and strictly construed. With this limited power, the Governor could only grant a pardon to a person convicted before any Court, or (under the Conditional Pardon Ordinance No. 1 of 1860) to a person con- victed of a crime in order to free him from the effect of the sentence, or order impri- sonment in place of death, but not for the purpose of getting a participator in crime to come forward to give evidence against an accomplice. Therefore if a person was not convicted, the Governor had no power to grant a Pardon to him. It would have been different if the words "convicted of any crime" had been struck out. The Governor's power was limited to pardon a particular class of persons and not all persons.
Mr May wished some suggestions could be made by which the case could be brought to the Supreme Court.
Mr Francis said he had a means of taking
it to the Supreme Court if the Crown Soli- citor would accept a nominal committal.
Mr Toller could not consent to any arrangement, and cited a case to shew that where a witness had a pardon, and if the danger of incrimination was only imaginary, the witness should not be allowed the privilege of refusing to answer. It was not likely that the Government, having granted a pardon, would turn round and prosecute Mr La Forest, Mr Toller undertook, on behalf of the Crown, that a nolle prosegui should be entered against Mr La Forest.
Mr Francis argued that the Pardon was a useless piece of paper, and if the Attorney General should return to the Colony and take the office over from the Acting Attor- ney General, there was nothing to prevent Mr La Forest from being indicted, in which case the Pardon of the Governor would not avail him. (Here the defendant's Soli- citor again referred to the Letters Patent, remarking that Legislative power by Ur- dinance having to be given before the Go- vernor could grant conditional pardons was another strong argument against the suffi ciency of the Pardon.) Touching the pow ers of the Attorney-General, it might be re- membered that three criminal informations were filed against the late proprietor of the China Mail, in opposition to the wish of the Governor, and on the sole responsibili. ty of the then Acting Attorney-General.
Mr Toller said that the Government would not turn round after granting this Pardon.
Mr Francis replied that Mr Pauncefote might take an entirely different view of the matter; and the Government of Hongkong had done more extraordinary things than that in its time.