Their Lordships were referred to the Imperial Extradition Act of 1870 and Ordinance No. 1 of 1881, which provided that a prisoner committed under an extradition warrant was entitled to discharge if not delivered up within a certain period. The Ordinance No. 1 of 1881 was directly applicable to prisoners claimed by the Macao Government, with a delay sanctioned of one month only.
The counsel submitted that the proceedings before the magistrate were without authority, as the essential communication or information from a Chinese officer was lacking. The magistrate's authority to take cognizance of the proceeding was derived from such a communication, as stated in Ordinance 2 of 1850.
The section of the Ordinance cited stated that if a complaint or information was made by a Chinese officer, or if it appeared during an investigation that a Chinese subject had committed a crime, the magistrate could issue a warrant for arrest. However, there was no such communication, and the arrest by the police constable was deemed illegal.
The prisoners were charged with being dangerous to the peace and good order of the colony, but the counsel argued that this charge was not justified, as they had done nothing within the colony. The case of Kwok A-sing was cited, where the Chief Justice decided that a person could not be charged with being dangerous to the peace and good order of the colony except for something done within the territory.
The Attorney-General opposed the motion for discharge, arguing that the court could look beyond the warrant and examine the depositions. He contended that the commitment was valid if there was substantial ground for it, even if the proceedings before the magistrate were irregular.
The Ordinance allowed for the detention and investigation of a person already in custody, and the Attorney-General argued that the prisoners were in custody, regardless of the legality of their arrest. The investigation was held, and the magistrate concluded that there was a prima facie case against the prisoners.
The Attorney-General submitted that the commitment was valid, as the depositions disclosed an offence committed by Chinese subjects against Chinese law. He also argued that the question of reasonable detention was a matter for the Executive, as the Ordinance vested the decision in the Governor.
The relevant sections of the Ordinance were cited, which provided for the committal of the prisoners to prison until the Governor issued an order regarding their further detention, discharge, or transmission to Chinese authorities.
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