10
a second time for the same offence, contrary to the 6th section of the 31 Charles II, c. 2. They cannot agree with the construction which the Chief Justice has put upon this section of the statute. The principal object of the section seems to have been to prevent persons who had been brought up on a writ of habeas corpus, and discharged on giving bail and entering into their own recog- nizance from being again arrested for the same offence, and obliged to sue out a second writ of habeas corpus. This appears from the provision by which the person discharged may be again arrested by the order of the Court wherein he shall be bound by recognizance to appear, or other Court having jurisdiction of the cause. The words, "other Court having jurisdiction of the cause,' were pro- bably added to meet the case of an indictment having been moved by certiorari from one Court to another.
They do not say, however, that the section may not also apply to cases, where a prisoner is discharged unconditionally upon the ground that the warrant on which he is detained shows no valid cause for his detention. They think, however, it can only apply, when the second arrest is substantially for the same cause as the first, so that the return to the second writ of habeas corpus raises for the opinion of the Court the same question with reference to the validity of the grounds of detention as the first. In the present case the second warrant is a warrant by which Kwok-a-Sing was committed to take his trial at Hong Kong for piracy jure gentium, and was, in their opinion, a valid warrant. They think he ought not to have been dis- charged from his custody under that valid warrant, because he had been previously discharged from an unlawful imprisonment.
Their Lordships will accordingly humbly recom- mend to Her Majesty, that the judgments and orders of the Supreme Court of Hong Kong of the 29th March, 1871, and the 18th April, 1871, should be affirmed, and that the judgment and order of the 22nd May, 1871, should be reversed, and that there should be no costs of the appeal.
Treasury
PRINTED AT THE FOREIGN OFFICK BY T. BARBISON.-24/6/73.
1200
130