The Attorney-General said that in connection with that point it occurred to him whether the return might not be amended so that it might set out, if the fact were so, that there was a requisition before committal.
The Chief Justice said that might be done. The prisoners were then remanded until Monday next.
Mr. Francis said he would venture to call their Lordships' attention to the fact that these men, convicted of no offence, were brought down in chains and handcuffs.
The Chief Justice said that ought not to be, but until the men were brought into court he had no control over the authorities; it was a question for the gaoler what he thought necessary for their security, but when they came into court their handcuffs were taken off.
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SUPREME COURT.
14th November.
CRIMINAL JURISDICTION.
BEFORE THE FULL Court.
IN THE MATTER OF YEUNG AKAM AND TWELVE OTHERS, PRISONERS IN VICTORIA GAOL.
Mr. Francis, instructed by Messrs. Brereton and Wotton, appeared for the prisoners; the Attorney-General (Hon. E. L. O'Malley), instructed by the Crown Solicitor (Mr. E. Sharp), appeared for the Crown.
The prisoners were brought up on a writ of habeas corpus. At the last sitting the court asked for the reasons of the Government for the long detention of the men and also for further argument as to whether a communication from the Chinese authorities to the magistrate was necessary, and whether the magistrate was required to state on the warrant the authority under which he acted.
The Attorney-General said he had not been able, or he should probably say he had not thought it right, with all deference to their Lordships, to file an affidavit setting out at length the reasons for the detention of the prisoners during the long period they had been kept in gaol, for two reasons. To state these reasons fully would involve the disclosure of matters which it was not desirable, if it could be avoided, to make public, and he had also been very much moved by the consideration that the question which was raised by Mr. Justice Russell upon the other part of the case appeared to him to be of really very much greater importance, and one upon which it was quite possible the court would dispose of the matter without reference to the long detention. Assuming the court were in favour of upholding the commitment upon that other point, he would then, after careful consideration, be quite prepared to trust the case, with regard to the long detention, upon the construction of the statute. He apprehended that although it was no doubt very desirable good reasons should be given, yet the statute was not so worded as to call for them; it might be an omission, and one that ought perhaps to be supplied, but he would submit, and he would take his stand on that ground, that in construing the statute as it must be construed it was not open to the court to insist upon such a statement of reasons.
The Chief Justice remarked it was the Attorney-General's own suggestion that such reasons should be given.
The Attorney-General said that was so, but the court would remember the way in which he put it, that if it should become material to the judgment of the court he would do so, and he certainly at the time, looking to many decisions which had been given in England, thought it might become material, but looking again to the wording of the statute, which was singularly strong, he would submit it could not become material here. Then with regard to the other point, which certainly appeared to him to be one that required consideration, the question was raised by Mr. Justice Russell, and what he said was very clearly reported in the Daily Press—There was some person in custody, and it appeared there had been an offence committed against the laws of China. The question arose under that third section, could the magistrate get rid of him by committing him and say, I put it now in the power of the Governor to detain him until he gets a requisition from the Chinese. While the prisoner was under remand he was under the control and jurisdiction of the magistrate; could the latter put him out of his jurisdiction by handing him over to the Governor to rendite him before he had got, either directly or indirectly, a requisition from the Chinese Government?—whether, in fact, the conviction was warranted by the state of facts at the time the conviction was made, whether the fact that a requisition had been made by the Chinese authorities and communicated to the magistrate was not essential, and ought that not to be in some way disclosed in the proceedings? He had filed an affidavit which had been sworn to by the now Acting Colonial Secretary, who was at the time of the proceedings Acting Police Magistrate, and he submitted that affidavit disclosed very completely the necessary facts upon that view. The learned Attorney then read a portion of the affidavit, which was to the effect that while the proceedings were pending the Hon. Frederick Stewart, Acting Colonial Secretary, received a confidential letter from Her Britannic Majesty's Consul at Canton enclosing a dispatch from the Viceroy desiring the rendition of the prisoners.
Mr. Francis said he objected to that portion of the affidavit being taken as evidence; it was hearsay evidence; it stated the contents of a document which was not produced.
The Attorney-General said it was a confidential official letter from an officer of the Foreign Office, and he apprehended it was not open to them to make that public, especially when they were in a position to state on oath the purport of it.
Mr. Francis said he would maintain that the requisition must be produced and that the court could not receive secondary evidence of the nature of its contents.
The Attorney-General said he had no doubt the Colonial Secretary would be in a position to say this was a confidential document and could not be produced, and that would be sufficient to justify secondary evidence. The learned attorney continued to read the affidavit, which set out that the magistrate waited on the Acting Colonial Secretary and was informed of the receipt of the dispatch and the purport of the contents of the same, and that after the investigation, being satisfied the thirteen prisoners were the same as those described in the Viceroy's dispatch and were Chinese subjects, he committed them to the safe custody of the Superintendent of the Gaol pending the order of the Governor. The learned Attorney submitted that affidavit showed there had been an application already made from the Chinese authorities, and that this case was not the same as the hypothetical case referred to by Mr. Justice Russell of prisoners being committed to wait the subsequent action of the Chinese authorities. The requisition was sworn to have been made before the prisoners were committed. The prisoners being in custody, there being a requisition from the Chinese authorities communicated to the magistrate, the magistrate being satisfied after investigation, that the men were Chinese subjects and that there was a prima facie case against them, these facts being before the court there was a substantial ground for upholding the conviction, and that being so the court would not for any informality or deficiency in the commitment quash it.
Mr. Francis, having cited cases in support of his contention that the warrant must show on the face of it the authority under which the magistrate acted, argued that the receipt of a requisition by the Colonial Secretary would not be sufficient to make the proceedings before the magistrate regular; the requisition must be communicated to the magistrate in proper form, whereas that had not been done, and such information as the magistrate possessed in reference to it he had himself gone after. The affidavit stood condemned on the face of it, as whatever it might show as to there having been a requisition it also showed that the requisition was never communicated to the magistrate and did not now form part of the proceedings. The learned counsel also argued that the prisoners were entitled to have the requisition before them at the time of the investigation, on the ground that they were entitled to go into the question of identity and show they were not the persons named in the requisition, as also that there had been no crime committed. With reference to the unreasonableness of the detention, the matter stood precisely where it did before. He never supposed the Attorney-General would or could give reasons for the detention.
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