whether a private individual or an officer of the Chinese Government, I presume, in the ordinary way, although an “information" is generally said to be "laid," and must specify some particular "crime" or "offence against the laws of China, so as to show that it is a crime or offence by the laws of all civilized nations, and not one against the peculiar laws of China as the judgment of the Privy Council in Kwok Asing's case, L.R., 5 P.C., p. 174, defines these words. Or, 2ndly, there may be a communication from an officer of the Chinese Government, either, it would seem, made verbally or by writing directly to the Magistrate ---or forwarded to him by the proper Colonial authorities. This point was much discussed in Kwok Asing's case. The British Consul at Canton addressed the Colonial Secretary, who wrote a letter to the Magistrate, which was returned with the proceedings. Sir John Smale held that the letter of Mr. Robertson was not a "due requisition" by the Chinese authorities, under the Treaty of Tientsin, or a "charge" or complaint by a Chinese official duly made" or "forwarded." Therefore he held that the whole proceeding before the Magistrate was unauthorised, and of no force in law. Whether the word "communication" in the Ordinance, and "requisition" in the 21st article of the Treaty of Tientsin mean exactly the same thing is very doubtful, but I quite concur that a verbal or written communication must be made or forwarded to the Magistrate. Or, 3rdly, upon any investigation before a Magistrate, it appearing that any person being a subject of China has committed any such offence. Or, 4thly, by Sect. 4, a warrant for the examination of such Chinese subject may be made by the Governor. The word" examination" is no doubt taken from the existing statutes, and means the hearing or the proceedings and evidence taken against a prisoner. In these four ways the jurisdiction of the Magistrates to commit under Ordinance 2 of 1850 arises.
I cannot find upon the face of the depositions or proceedings the faintest trace of any authority for the Magistrate to take the examination, or rather investigate the charge of murder, out of the jurisdiction. I say nothing of the illegality of the arrest of these men, but no charge was under investigation, during which it appeared that a crime had been committed in China. Secondly, there is no "complaint" or "information." Now, by the provisions of section 2, if the persons are in custody, the Magistrate is to investigate the alleged crime or offence (no summons or warrant being required), in the same manner as if such persons were charged with a crime or indictable offence committed within the Colony. No prudent Magistrate, I imagine, would investigate a charge of murder without a formal information.
There does not appear on the face of the depositions any statement that a communication by an officer of the Chinese Government was "made" or "forwarded" to the Magistrate. To cure, apparently, this want of jurisdiction the learned Attorney-General filed an affidavit made by Mr. Tonnoohy. I doubt if this affidavit ought to have been received at all. Affidavits may be filed to prove want or excess of jurisdiction, but I do not think they are admissible to supply the defects on the face of depositions and conviction and order of commitment.
It came to be filed in this way. The Court threw out a suggestion that the grounds for the detention of these men for ten months might come within the scope of their consideration, and the Attorney-General offered to supply the reasons should the Court consider it necessary. We considered the point, and, thinking that some explanation should be given, adjourned the case. At the next sitting the learned Attorney-General announced that he had decided that it was not desirable to state the reasons, as a despatch referred to in Mr. Tonnoohy's affidavit as having been received by the Government, was a confidential communication.
The intention of the affidavit is to set up a sort of communication from an officer of the Chinese Government made or forwarded to the Magistrate. No secondary evidence of a document, withheld on the grounds that its publication would be injurious to the public interests, can be given. We therefore know judicially nothing of its contents. Still it might be argued that it was a communication "made," if its contents were told to Mr. Tonnoohy by the Colonial Secretary, or if he saw it. Mr. Tonnoohy can only say in Par. 7 "I verily believe I must have seen it" Par. 5, "Between the 15th and 22nd days of December I was informed of the receipt of the said letter and despatch and the contents." I am of opinion that this is not "making" or "forwarding a communication-they were not before the Magistrate judicially, and what he saw or thinks he saw, or was told at the Colonial Secretary's Office, cannot cure the defect.
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It was not his duty to seek a communication. The precedents on record in this Colony were not followed. In Kwok Asing's case a letter from the Colonial Secretary was returned to the Court, informing the Magistrate that a communication had been received. In the Mo Wong case, as it was called, the person who was surrendered to the Chinese authorities by the Governor of Hongkong in 1865, there was a despatch from the Governor-General of the Two Kwang provinces transmitted through H.B.M. Consul at Canton. A letter from the Acting Viceroy Sue to the Acting Governor of Hongkong, which by his direction was communicated by the Registrar General to the Magistrate (see proceedings Parliamentary papers, Hongkong, 26th March 1866.) There was a proper formal information, and no formality was wanting, as was admitted in a letter of the Secretary of State approving the proceedings.
It is necessary to refer briefly to the treaty of Tientsin, article 21, which is incorporated with Ord. 2 of 1850, by Ord. 2 of 1871, and so controls its operation, as was decided in Queen v. Bessant, Jurist page 68, and Queen v. Wilson, L.R., 2 P.C. 39 B.D. That article provides that "If criminals, subjects of China, shall take refuge in Hongkong, or on board the British ships there, they shall upon due requisition by the Chinese authorities be searched for, and on proof of guilt be delivered up." I understand this to mean not absolute proof, but such prima facie proof as would authorize a grand jury to return a true bill in a criminal trial in England.
I do not understand the article to impose any new duty. It must be read with the Ordinance 2 of 1850, and no doubt lays down the principle that the Governor of Hongkong, when put in motion by a due requisition, must search for, and upon proof, or in other words, proper evidence, surrender criminals; but it does not seem to me to alter the machinery provided by the Ordinance for other cases, when the knowledge of the presence of a Chinese criminal against the laws of his country is brought to the notice of the Colonial authorities. I do not see anything in the Treaty of Tientsin which affects the proceedings in this case. I think, however, that the communication from the officer of the Chinese Government, or a copy, ought to have been forwarded to the Magistrate as the foundation of his jurisdiction, if that is relied upon, as the filing of the affidavit seems to imply; if not, it is irrelevant.
Next, as to the conviction. It is drawn up apparently according to the forms given in Jervis, Acts 11 and 12 Vict., Ch. 43.-made part of the law by express enactment--which contain simply the charge adjudicated upon and the judgment, taking the place of a more elaborate form as provided by 3 Geo. 4, c. 23, which contained:--- 1st, the information; 2nd, the statement and appearance, or default of the prisoner, with his confession, denial or defence; 3rd, the evidence; 4th, the adjudication. Whether this is an order or a conviction is not necessary to decide--they were practically the same thing and required the same formalities.
I am unable to discover when the form now in use was adopted in this Colony. I find that the form of conviction appended to Ord. 10 of 1844, still in force, requires the following particulars: "Setting out the information, and if the conviction is made for an offence against any statute or Ordinance, to state it." The conviction here merely states the fact of conviction for that they being subjects of China, and there being probable cause for believing that they have committed the crime of murder within the jurisdiction of the Emperor of China, I do order that they do for such offence be conveyed to the Gaol, etc. The order of commitment written under the Deposition is with certain differences to the same effect, and does not show any jurisdiction.
The warrants of committal state "Whereas it hath appeared to me, a Magistrate for the said Colony, that 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," &c. Are these forms sufficient? Mr. Baron Parke says in delivering the judgment of the Court of Ex. Chamber in Howard v. Gossett, reported in 10 Q.B., 411 to 452, and Jurist, Paley on Conviction, p. 182, "In the case of special authorities given by statutes to Justices or others acting out of the ordinary course of the common law, the instruments by which they act, whether warrant to arrest, commitments, or orders or convictions, or inquisition, ought according to the course of decisions, to show their authority on the face of them by direct averment of necessary intend-