In reply to Mr. Dennys one of the witnesses stated that Macao was in Heung Shan, and that Hongkong was, geographically, in Kwangtung.
His Worship-Geographically?
Mr. Dennys-Yes, any Chinaman here would tell you he belonged to Kwangtung. There the question arises as to the nationality of the boat. In the case of the Arrow War, it was held that a junk registered in Hongkong, even after the register had ceased, was a British ship, and we went to war with China on the question.
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. 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, they 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. It, 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 vs. Kwok A Sing had to consider the meaning of this Ordinance and the powers and duties and speak of prima facie evidence and of the sufficiency of prima facie evidence to justify the Magistrate in committing. There is no doubt that "probable cause" and "prima facie evidence" are anonymous terms. By the Treaty of Tientsin, this Government, certain requirements being complied with, is to deliver criminals who have taken refuge in Hongkong. 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.
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. I therefore decline to receive evidence on behalf of the defence. As to whether a prima facie case has been made out, that also has to depend in a great measure upon what one may conceive to be the requirements of a prima facie case, and I am inclined to think so long as there is evidence which, whatever I may think, I am nevertheless unable to say is false, to that extent and to that extent only is the case made out. Had there been any other evidence forthcoming of the same kind as that which has been adduced in the case of Leong Ayow, I should have taken it into consideration. If, for instance, it had been proved to me that one of the watchmen was, say, at the time this affair is supposed to have taken place a constable in the Police Force of Hongkong, I should clearly have considered it within my right to take evidence on such a point. Or again, had the woman who describes herself as the amah of Yow Ma She been known to be all the time in the domestic employ of some one in Hongkong, I should also have considered it right to take such evidence. But merely contradictory evidence, such as that of an alibi, or evidence of that kind, I consider would not be within my power to allow. Considering, then, all that has been urged by the defence as against the evidence for the prosecution, admitting that it is tainted throughout, and that if I were in the position of a jury or the final decision rested with me, I should unhesitatingly throw it on one side, I nevertheless admit that to the extent of evidence having been given criminating the prisoners, there is a prima facie case made out against them. I shall therefore commit the prisoners for safe custody to prison and shall direct the gaoler to detain them in prison until he shall receive some order from the Governor of Hongkong relative to the further detention, discharge, or transmission of such persons to the nearest Chinese authorities or to such other Chinese authorities as the Governor shall think fit. And in transmitting, as by Ordinance I am bound to do, the minutes of the investigation and the documents connected with the charge, I shall state what I have stated to-day, and it will then rest with the Government to decide on their final action. Looking at the case from this point of view, the Governor appears to me to have very much the same duties as the Attorney-General or the Grand Jury. He decides on the detention, discharge, or transmission of the accused.
Mr. Dennys-He has no evidence before him on behalf of the defendants. The Grand Jury has, so has the Attorney-General.
His Worship-The minutes of the evidence go before him.
Mr. Dennys-But not evidence for the defence. I merely throw that out.
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