Such reasons as existed would not stand investigation for a moment. He submitted the prisoners must be discharged, and with costs as these proceedings against the Crown, under Ordinance 4 of 1857, which provided that "In all proceedings where costs would have been recoverable by or from private parties they shall be recoverable by or from the Crown." If this had been a case of false imprisonment in a lunatic asylum or private house the prisoners would have been entitled to their costs and they were equally so here.
The Attorney-General briefly replied, and with reference to Mr. Francis's remark as to the unreasonableness of the detention, said he thought he had stated pretty clearly to the Court the grounds on which as counsel in this case he had not thought it right to file an affidavit such as was referred to on the last occasion, and he thought it was explained on grounds as to the confidential character of the things that would be disclosed in such affidavit. He was sorry to hear his friend say no reasons could be given by the Government because such reasons as existed would not bear investigation. That was a remark which it was entirely beyond the scope of his friend's duty to make, and he need not deal with it further.
Mr. Francis said the Attorney-General was wasting the time of the court in offering to give such reasons if he could not do it.
With reference to costs the Attorney-General contended they should not be given on such a proceeding as this, as no costs could be recovered by the Crown were the commitment upheld, and there ought to be some mutuality in the application of that provision; otherwise speculative applications for the release of prisoners might be made in every case. The question of costs was, however, premature.
Mr. Francis remarked that costs could be given for or against the Crown.
Judgment was reserved.
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SUPREME COURT.
November 18th.
IN CRIMINAL JURISDICTION.
BEFORE THE FULL COURT.
IN THE MATTER OF YEUNG AKAM AND TWELVE OTHERS.
The prisoners were brought up on remand under a writ of habeas corpus, and the Court gave judgment on the application for their release.
Mr. Francis, instructed by Messrs. Brereton and Wotton, appeared for the prisoners, and the Attorney-General (Hon. E. L. O'Malley), instructed by the Crown Solicitor (Mr. E. Sharp), for the Crown.
The Chief Justice delivered judgment as follows: On November 3rd a writ of habeas corpus was issued from this Court calling upon the Superintendent of Victoria Gaol to bring up the bodies of Yeung Akam and twelve other Chinese prisoners named in the writ, and have them in Court on Saturday, November 5th. On that day the prisoners were brought up by the Acting Superintendent of the Gaol, with his return endorsed on the back of the writ, showing that they were in custody under warrants of commitment made by the Hon. Malcolm Struan Tonnochy, then Acting Police Magistrate and Justice of the Peace for the Colony of Hongkong. The warrants were as follows:-"In the Police Court of Hongkong, under Ordinance No 2 of 1850, Section 3. To Solal Singh, Constable of Police in the said Colony, and to the Superintendent or keeper of the Gaol at Victoria in the said Colony. Whereas it has appeared to me Magistrate in and for the said Colony, that the said --- is a subject of China and that there is probable cause for believing that he hath committed the crime of murder within the jurisdiction of the Emperor of China; these are therefore to command you, the said Constable, to take the said and him safely to convey to the said Gaol at Victoria aforesaid, and there to deliver him to the said Superintendent together with this precept; and I do hereby command you, the said Superintendent or keeper of the said Gaol, to receive the said into your custody in the said Gaol, and there to detain him, the said until you shall receive some order from the Governor of Hongkong relative to the further detention, discharge, or transmission of the said to the nearest Chinese authorities or to such other Chinese authorities as to the Governor shall seem fit; and for your so doing
Given under our hand and seal, 22nd day of December, 1880.-M. S. TONNOCHY."
Under a writ of certiorari issued on the same day as the writ of habeas corpus the depositions taken in the case with an order of commitment written under a conviction or order, it is difficult to say which, were returned by Mr. Wodehouse, the present Magistrate. The date of this conviction or order is December 22nd, 1880. It is signed by M. S. Tonnochy, and certified by him to be a true copy of a summary order made by him on the day mentioned. I presume that some verbal order is referred to, as it differs from the one written under the depositions.
The arguments came on for hearing before the Full Court on Saturday, November 5th, 1881. Mr. Francis on behalf of the prisoners moved that they be discharged. The Attorney-General opposed it on behalf of the Crown. The grounds on which the application for a discharge were made were two-fold. (1st) That the whole proceedings and the consequent commitment were invalid as being coram non judice, the Magistrate having no jurisdiction. (2ndly) That the detention under the warrants, even if they are legal, had become illegal as a reasonably long time - eleven months; that such detention ought only to be for such time as is necessary for their rendition.
It was argued that the provisions of Ordinance No. 2 of 1850, had not been complied with, that there was no complaint or information or communication from the Chinese authorities, or investigation before the Magistrate during the course of which it appeared that the prisoners were subjects of China, and had committed an offence against the laws of China. The depositions and proceedings returned under the writ of certiorari show that none of these sources of jurisdiction were before the Court.
On November 27th, 1880, the prisoners were charged before the Hon. M. S. Tonnochy with "Being concerned in the murder of Yung Sui Fat, Young Lui Kwai, and Yung Sha Kwai in the village of Shung Yeung in the Kwai Shin district. Also dangerous to the peace and good order of the Colony on the 22nd instant." They were remanded till the 30th November. These are two distinct charges, the latter being under Ordinance 9 of 1857, Section 6. Next follows a statement of what Mr. Stokes, the solicitor for the prosecution, said on the 7th December, when they were further remanded till the 14th without further evidence. This ought not to appear on the depositions at all, as it was a statement made not upon oath. It was not improper for the Magistrate to allow of the statement, as it was very pertinent to the subject of a remand. They were further remanded till the 21st without further evidence and then to the 22nd.
The depositions of three witnesses are returned which show prima facie that these men were brutally murdered by the prisoners in Chinese territory. The first witness, P. C. MacMullin, proves that on the information of some Chinese informers he went to a house in Hung Ham in this Colony and found the prisoners there. He arrested them, I believe, as being dangerous to the peace and good order of the Colony, but whether he was authorized to do so by a Justice of the Peace does not appear.
In the Kwok Asing case, Sir John Smale laid it down that some word or act within the Colony is necessary to bring a man within the operation of this Ordinance 9 of 1857, Section 6. With the greatest respect for Sir John Smale's opinion, I cannot go quite so far, inasmuch as "reasonable suspicion" is all that is required by the Ordinance to authorize a Justice of the Peace to cause a person to be arrested as dangerous to the peace and good order, with or without a warrant. In this case there was no reasonable ground even for suspicion, except that some one told the Police Constable Mac Mullin that they had committed murder out of the Colony.
It will be observed that the order of the two charges is inverted. Instead of being charged under the Ordinance 9 of 1857, they are charged with murder out of the jurisdiction, and in point of fact this was the only question ever entered upon. The last was apparently an excuse for the detention of the prisoners, and having served its purpose was dropped. This seems to me a serious irregularity, and Mr. Francis argues that as the crime committed against the law of China did not appear during the course of any investigation the proceedings were coram non judice, as on this the Magistrate's jurisdiction was founded.
To give the Magistrate jurisdiction under Ordinance 2 of 1850, one of four things is required. First, a complaint or "information," the words being understood in the ordinary technical sense well known in Magisterial law, the latter being the foundation of a "warrant," the former of a summons. These may be made by any one,
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