Persons taking refuge on board British ships are to be given up on due requisition by the Chinese authorities addressed to the British Consul, who would have no more power to investigate the case than a Magistrate in England under the Act of 1870. But what does the other part of the Treaty say, which is incorporated with the Hongkong Ordinance? "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 their guilt be delivered up." That Treaty was distinctly brought in and made to apply to Ordinance 2 of 1850 by Ordinance 2 of 1871. He would ask his Worship's attention to the words "on proof of guilt," and to note the great difference which existed between the Ordinance of 1850 and the English Act of 1870. In this case there had not been a word of evidence to show the prisoners were subjects of China, and the learned counsel said he did not want to produce further evidence, although attention was drawn to this point. The very first thing to prove when rendition was applied for was the nationality. Mr. Dennys went on to call his Worship's attention to the words of Ordinance 2 of 1850, that the Magistrate is to investigate the alleged crime or offence in the same manner as if such person were charged with a crime or indictable offence committed within the colony. Where was the proof of guilt to be obtained if not in that court before the prisoner was committed? Had the Governor the faintest power to obtain it? In one case in which some persons had been committed by the Magistrate the Governor did refuse to give them up. And why? Because the French missionaries were in fact, and the Governor took advantage of a technicality and said he would not hand them over, but in doing that he (Mr. Dennys) did not mind saying publicly the Governor exceeded his authority and had no right to do it. There could only be one way of proving guilt, and that was the way laid down in the Ordinance, and the law of the colony was beyond anything the Governor might be pleased to do outside the court.
The Governor had power to pardon any person convicted of a crime committed in Hongkong, but he was bound by the Treaty of Tientsin to hand these men over if his Worship said they were guilty. But his Worship had to say they were guilty, and before that was done his Worship must have evidence on the subject, and that the men were Chinese subjects. As to the prisoners going before a higher court in their own country, as would be the case in France or any other civilized country, we did not treat China as a civilized country, and every European nation which had concluded a treaty with China had refused to allow China to have jurisdiction over its nationals. And why? No doubt his Worship had been to Canton and knew how witnesses and prisoners were treated. He (Mr. Dennys) had seen them tortured before the Mandarins. He had been there with a friend from Hongkong who had to leave because he was sick, actually vomiting at the sight of the torture. China was not to be treated as other countries were in the matter of rendition. But if his Worship committed these men to gaol pending the order of the Governor, his Excellency was simply a ministerial officer and was bound to hand them over, and he (Mr. Dennys) would like to know what court could be appealed to. If his Worship decided that prisoners could not enter into their defence, the safety and life of every Chinaman in Hongkong would be at stake. If a man like Li Loi came and said a person had committed a murder in China, that person must be given up.
At this stage Mr. Dennys received information that the witness Leung Ayow, who had been committed for trial on a charge of perjury, had been discharged by proclamation at the Supreme Court. He asked for a subpoena, which, however, he said would probably not be of much use. He remarked that Ho Ki, the principal witness against Leung Ayow, was expected back that day from Singapore. He believed he had been kidnapped by the prosecutor Li Loi.
Continuing his address, Mr. Dennys said that the case for the prisoners was that this was a false charge. It might be that the prisoners had been selected from some thirty or forty men reported by this Government to the Chinese Government as being in the Colony without means of subsistence and that then the Viceroy of Canton said "Cannot you make the criminal fit the charge. We must have them punished. The Hongkong authorities tell me they have a lot of bad characters." But whatever the reason of bringing the charge, that had nothing to do with that Court. If his Worship believed the officers declaring the charge had deliberately brought forward false witnesses, his Worship was bound to say they were not of any credit whatever, and to discharge the prisoners. Mr. Dennys then analysed the evidence at considerable length and argued that no case had been proved.
Mr. Holmes then addressed the Court contending that by the Ordinance his Worship was bound to try the prisoners as fully as if they were being tried before the Supreme Court for a crime committed in Hongkong. He also referred to his Worship's statement at an earlier stage of the case, to the effect that if Leung Ayow's evidence broke down the case would fail altogether. Leung Ayow's evidence had failed and he therefore contended that the prisoners were entitled to their discharge.
Mr. Caldwell said that as to the charge being false, he had received his instructions and presented the case, and it was entirely for his Worship to judge whether or not this was a false charge. His submission was that even eliminating Leung Ayow's evidence, there was sufficient to support a prima facie case. He contended that it was not necessary to prove the nationality of the prisoners. That if there were circumstances going to show that they were subjects of China, such as their wearing Chinese clothes, and having the physical characteristics of Chinese, it was for the prisoners to show that they were not what the prosecutors said they were. The question of nationality was on all fours with that of identity. If a person said he was not the person he was said to be, it was for him to show he was not that person. As to the prisoners being entitled to call evidence in defence, it was true that the Extradition Act of 1870 did not apply to this Colony, but the principle of law, that such evidence was not allowable, was laid down before the Imperial Act of 1870 was passed. Supposing his Worship ruled that Mr. Dennys was entitled to enter into evidence for the defence, and supposing fifty witnesses were called to contradict the evidence of the prosecution, it would simply be a case of contradictory evidence, and he submitted that his Worship could not acquit with contradictory evidence before him, but would be bound to commit the case and leave the matter to the decision of his Excellency. He thought it was perfectly plain, that whatever might have been the practice in that Court before, the true principle of law was that evidence for the defence was not admissible if there was a case of any kind made out for the prosecution.
His Worship—It now remains for me to deal with the case as a whole. In the first place before going further, I think it is important that the matter, with regard to the prisoners being Chinese subjects, should be dealt with, and if there is evidence forthcoming to show that the prisoners are Chinese subjects I think it ought to be made part of the case. I shall, therefore, see if there is any evidence that will go to substantiate that point.
Mr. Dennys objected to any evidence on that point being taken at this stage after the prosecution had been closed, and after the counsel for the prosecution had stated that even if allowed the opportunity of calling further witnesses, he would not do so.
The objection was noted.
Several of the officials of the Magistracy were then called to prove the descriptions the prisoners gave of themselves at the time the charge was entered. The first prisoner, when asked where he belonged to, said he did not belong to anywhere. When asked where he was born, he said he was born on board a boat. When asked what province he belonged to, he said Kwangtung. The other prisoner said he belonged to Heung Shan.
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