SUPREME COURT.
3rd November.
ORIGINAL JURISDICTION.
BEFORE THE FULL COURT.
IN THE MATTER OF TANG ACHAN AND OTHERS, RETURN OF WRITS OF HABEAS CORPUS AND CERTIORARI.
The Attorney-General (Hon. E. L. O'Malley), instructed by the Crown Solicitor (Mr. E. Sharp), appeared for the Crown to move that the writ be quashed. Mr. Francia, instructed by Messrs. Brereton and Wotton, appeared for the prisoners.
The Attorney-General said he appeared to move that a certain writ of habeas corpus, which was issued on Tuesday, 1st instant, might be quashed. There was a slight preliminary difficulty in the way of his making that application, which he had no doubt he need only explain to their Lordships to have removed. The writ required the gaoler to make a return and be with the prisoners in Judges' Chambers that day, and he understood that in supposed obedience to that writ the Gaoler had parted with possession of it and was unable now to obtain possession of it again. There was no doubt it was an irregularity to part with it.
Mr. Francis asked the Registrar if there was a return to the writ.
The Registrar said there was.
Mr. Francis submitted any motion to quash the writ after return was too late; it had been answered and dealt with and the return was filed. The Attorney-General said notice of motion to quash the writ was given on Wednesday, and he understood it was only within the last few minutes that the gaoler, moved by whom he knew not, and acting under whose advice he knew not, had handed the writ to the Registrar. That was not a return to the writ. The writ commanded the Superintendent or keeper of Victoria Gaol to have, not before that court, but "before the Hon. Francis Snowden, Acting Chief Justice of the Supreme Court of Hongkong, at his Chambers," the thirteen prisoners, together with the cause of their detention. His Lordship had not yet sat in Chambers for the purpose of receiving that writ, and the return had not been made. He submitted that the writ was on the face of it irregular. It purported to be dated the 1st November, but it certainly appeared to be some evidence of having been prepared in September. The form might be very suitable in September but became altogether inapplicable in November. He saw the word "September" scratched out and the word "November" put in. He submitted this was a writ issued under the provisions, or protected by the provisions, of the Act of 31st Charles II., and there was no authority, no right, in a judge in Chambers to issue a writ of habeas corpus to which the return was to be made to him in Chambers.
Mr. Francis said the writ was granted in court. The Attorney-General said if the writ was granted in court and by the court the irregularity that it was granted by a judge in Chambers was got rid of, but then the question was this, was it a proper writ, granted in proper form? Leaving the substance of the writ apart, the writ required, as he submitted, to be endorsed by rule of court, which showed the nature of the authority by which it had been issued. His second objection was that the writ was issued on insufficient material; there should have been an affidavit by the person in whose behalf the writ was sued out, or an affidavit by someone else accounting for the non-appearance of the affidavit of that person. The next objection he had was to the appearance of the writ. A writ of this kind was one of the most dignified documents that could well be brought before the court, and he put it that some respect ought to be shown to form as well as substance, but this document had been very materially altered, and in several important particulars, since it became a writ.
An affidavit by Mr. Hayward, Acting Superintendent of the Gaol, was then read, stating that the writ was served upon him by Mr. Wotton, solicitor, and that Mr. Wotton subsequently obtained it back from him, and re-served it upon him with certain alterations.
The Attorney-General pointed out the alterations which had been made—which included the insertion of the date and of other names for the prisoners—and submitted that if ever there was a case of gross irregularity this was one, and that the writ ought to be set aside.
Mr. Francis said the objections of the learned Attorney-General were two-fold; first, that whether good or bad on the face of it the writ was issued on insufficient grounds; secondly, that the writ was bad on the face of it. He (Mr. Francis) submitted that was not sufficient to enable or justify their Lordships in setting it aside. As to the irregularities on the face of the writ, there was one simple answer, they had been waived by the person to whom the writ was addressed, who had endorsed a return to the writ and filed it in court. All mere irregularities, he submitted, had been waived by the return being made. To take the objections seriatim, the insertion of the words "by rule of court" was not compulsory. The substantive requirement of the Act of Parliament was, he submitted, satisfied; the writ was verified by the signature of the judge who awarded it. If their Lordships would look at section 3 of the Act of 31st Charles II., they would at once see the requirements of that section were not compulsory; it was, "and to the intent that no sheriff, gaoler, or other person may pretend ignorance of such writ" it was to be marked in a particular way and signed by the person who awarded the same. He submitted that the writ in this case was signed and headed in proper form, and the rule of practice which might have sprung up in England that the signature should be by way of endorsement was one beyond the requirements of the statute, which were simply that the writ should have a reference to the statute somewhere on the face of it and be signed by the judge.
As to the place where the writ was made returnable, he submitted that they were now under the Supreme Court Reconstruction Ordinance, No. 12 of 1870, and by section 2 of that Ordinance, the word "Court" or "Courts" shall mean the Supreme Court and shall include the Chief Justice and Puisne Judge sitting together or separately in Court or in Chambers. Although no doubt it was an oversight to make the writ returnable in Chambers still it was equivalent to making it returnable in Court.
As to the names, their Lordships had the letters of request signed by the prisoners in their own proper names; the only names under which they could make the application. Those names appeared in the body of the writ of habeas corpus and so far as the body of the writ was concerned he submitted it was a perfectly good writ. All the alterations in the body of the writ were initialed by the Registrar of the court, and their Lordships would assume they were properly made; and it was competent for them to look on the names in the margin as a mere memorandum to the gaoler to point out the proper men; they need not be introduced into the body of the writ. They also had the letters of request, in which the men gave their own proper names; the warrants were annexed and they said they were detained under those warrants, so no possible confusion or difficulty could arise before his Lordship at the time he granted the writ that the men applied in one name and the warrants were in another.
He submitted the writ was in good form and asked what objections the person on whom it was served or anyone else could raise to it when he had already actually filed his return and when the prisoners were actually in the building. As to the question whether the writ ought to have been issued on affidavit by the men themselves, he submitted that to this case no affidavit was necessary. His application was based solely on the ground of the detention of the men for more than eleven months, and that appeared on the very face of the warrants which were before his Lordship, and there were no other facts about which to make an affidavit. He therefore submitted that it was a matter of indifference whether there was an affidavit by the prisoners or anyone else, because the one fact on which the application was founded, and on which his Lordship granted it, was a fact visible on the face of the documents, that the men had been detained in prison since the 27th November last.
His application was based solely on the unreasonableness of the detention; no irregularity in the warrants or want of jurisdiction was alleged—they might come later on—but his application was based solely on the one ground of the detention in prison for over eleven months. It was one of those cases in which the thing was self-evident and required no affidavit to support it. In conclusion, he would simply say this, if the learned Attorney-General thought it worthwhile to prosecute his motion and ask for a decision, he was quite prepared after that decision, if it should be against him, to ask for the issue of a fresh writ.
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