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of both sides as to the course to adopt and
stated that my own opinion was that the
rendition case should be postponed until
the case arising out of the proceedings had been determined. No objection to this course was raised on the part of the Counsel representing the Chinese Government, while the other side asked for the immediate discharge of the prisoners in this case. My idea in postponing the case was that I thought any action taken in this case might be calculated to prejudice the perjury case in one way or another, and that therefore it would be advisable to stand by and wait until the other case was concluded. Accordingly the case has been postponed from week to week until yesterday, when it was further adjourned until to-day. During the last few days I received a letter from the Government instructing me to abide in my action by the opinion of the Attorney General "which was transmitted to me. In that communication the Attorney General says —
• I submit that the Magistrate acted irregularly and contrary to all practice in postponing the rendition case until after
the trial of the witness Leung Ayou, for perjury. I will therefore now resume the case at the point where I left it off. I left off at the point at which the witness, Leung Ayon, was being cross-examined as to the marks which he had upon his arm.
I said then before the prosecution was commenced against him for perjury that I would hear the evidence with regard to this mark and would then allow the other side to bring rebutting evidence. I will now ask Mr Dennys to produce any further evidence he wishes to bring bearing on the evidence of this man, and I
will give the other side whatever opportunity they wish to bring further rebutting evidence.
Extract from the Daily Press.
His Worship-In the first place, with regard to the proceedings that have been taken so far, it will have been noticed that throughout I have made a distinction between taking evidence as regards the prima facie case and evidence as regards the defence for the prisoners. When a witness was produced before me on the part of the prosecution whose evidence was of immense weight in making out a prima facie case, seeing that cross-examination was allowed and that in the course of that cross-examination it became likely that the story told by the witness was untrue from beginning to end and that he was merely personating somebody who might have been an important witness in the case I thought it was my duty to test the truth of the counter statement put forward in the course of cross-examination. I can scarcely think that this court is to be regarded simply as a court of registry for statements made on oath by Chinese and that it is not competent for the court, having information in its possession altogether tending to entirely upset the story told by the witness, to test that story by the merits of the other information which the court has it in its power to produce. So far therefore as the evidence of the witness Leong Ayow is concerned I must, in deciding whether a prima facie case has been made out, look at it by the light of the whole of the evidence which has been adduced regarding that man.
The Chinese Government were within their right in declining to enter into the question, but I must remember that they had the opportunity of doing so, and therefore I go by the evidence before me. By the light of that evidence I consider Leong Ayow's story as absolutely unworthy of credit.
With regard to the whole case generally, it is of a highly unsatisfactory kind. There is a taint of collusion running through the whole of it. Witnesses are brought forward who with monotonous regularity testify to certain points connected with each prisoner which if true would criminally compromise each one of them, but it is a singular coincidence that of the men arrested under the eight warrants of arrest these three should be the ones who happened to be specially connected with the tying up and keeping guard over the particular witnesses who have come down on independent grounds to testify in the case. Other points have been brought forward by Mr Dennys in his analysis of the evidence gravely tending to discredit the whole of their evidence. Considering the doubtful testimony in the case on its own merits it becomes a point of great significance that the second prisoner should have been identified as at one and the same time keeping guard over one of the witnesses in Ma She's house and keeping guard over another of the witnesses in the guard house, the only reason given in each case for the identification being that he was so keeping guard.
If, therefore, I felt that the decision of the case finally rested with me I should have no hesitation whatever in deciding that the case was not made out. But at this point I am brought up by a consideration of what there is before me to guide me as to my powers. Of course I am bound by the Ordinance No. 2 of 1850 read in conjunction with Ordinance No. 2 of 1871 and the Treaty of Tientsin. The language of that Ordinance is capable of a good deal of variety of interpretation, and in the absence of any ruling of interpretation by a court competent to deal with such matters I feel it would not be proper for me to strain my powers, but that I should leave doubtful points for decision to be forced upon me by mandamus from the Supreme Court or by such other constitutional ways as there are for enforcing orders on the magistrate. For my own information and guidance I have the following extract of a letter from the Government :- His Excellency desires to call the attention of the Magistrates to section 3 of Ordinance No. 2 of 1850, according to which the Magistrate is to commit when there is probable cause for believing the accused has committed a crime. The Privy Council in the case of the Attorney-General of Hongkong versus Kwok A Shing had to consider the Ordinance and the powers and provisions of this Ordinance. The Judges speak of prima facie evidence to justify the Magistrate in committing. There is no doubt that "probable cause" and "prima facie evidence" are synonymous terms. By the Treaty of Tientsin this Government is bound on certain requirements being complied with to deliver up criminals who have taken refuge in Hongkong. The Magistrates cannot require such proof of guilt as would warrant a conviction. It is their duty under the Ordinance above mentioned to commit as soon as a prima facie case has been made out, and His Excellency in calling the attention of the Magistrates to the Ordinance and to the case above cited would suggest that they should restrict their inquiry accordingly, as he is of opinion that to require complete proof would be going contrary to the provisions of the Treaty and the clear enactments of the Ordinance.
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In the absence, therefore, of authoritative judicial dicta I take my stand upon the principles laid down for my guidance in what I have just read. The question then arises, has a prima facie case been made out? And in deciding whether a prima facie case has been made out is it competent for the other side to call witnesses for the defence? I am clearly of opinion that to call witnesses for the defence would be travelling beyond the province of my powers in this case; it would be constituting me judge of the merits of the whole case rather than judge of the point whether a case for the prosecution was established.