u. Kwok Asing, which was decided in the Privy Council on appeal from the Supreme Court of this Colony. As far as this case is concerned, we would respectfully submit that the only point decided by the Privy Council in that case was that the Chinese Authorities could not claim the rendition of a person they accused of piracy on the high seas (piracy jure gentium), as that was an offence triable within this Colony.
One other important point that was raised by Mr. J. J. Francis, who was at that time the Attorney for Kwok Asing, was that the Ordinance 2 of 1850 was a dead letter, as all treaties made previously to the passing of the Ordinance had been abrogated or put an end to by the war between England and China in 1857; and Mr. Francis argued that the Ordinance could not be considered to be revived or to apply to the cases where rendition was claimed under the Treaty of Tientsin negotiated after the war.
The question of what was a "prima facie case" or what was "probable cause" was not raised or argued, and there was no binding judicial decision as to what was sufficient to justify the Magistrate in saying that a prima facie case had been made out, or that the words "probable cause for believing that the said person has committed such crime or offence" are the legal equivalent of the words "on proof of their guilt," contained in Ordinance 2 of 1871, the latter Ordinance not affecting the decision of the Privy Council as it was passed after Mr. Francis' objection had been raised; but Lord Justice Mellish, who delivered the judgment, stated while the appeal was being argued that he had an impression that a Crown Colony has not jurisdiction to make such a law as Ordinance 2 of 1871.
As the Privy Council decided that piracy jure gentium was not an Extradition crime, it became unnecessary to decide whether Ordinance 2 of 1850 was in force, and nothing is said about it in the judgment.
With reference to the Tientsin Treaty, which is not, as we have above pointed out, an Extradition Treaty between England and China in the ordinary sense of the words, we would call the attention of His Excellency to the fact that there are two articles, Nos. 21 and 23, which refer to the criminal and civil Jurisdiction of the Courts in Hongkong over Chinese subjects, and we point this out as showing that it was considered necessary in dealing with China, where the law of exterritoriality is in force as to Europeans, to insert clauses which are not to be found, as far as we are aware, in any Treaties in existence between civilized states.
These two articles specially provide that in case of a Chinese criminal taking refuge in this Colony, on proof of guilt, he shall be delivered up, and that in case of a Chinese incurring debts in Hongkong, the recovery of such debts must be arranged for by the English Court of Justice on the spot.
Supposing, therefore, Ordinances 2 of 1850 and 2 of 1871 not to be law, which, as we have above stated, seems extremely doubtful, then there is no legal provision whatever in existence which enables His Excellency the Governor to carry out the Tientsin Treaty, and there is no law in Hongkong under which Leong Afu can be detained or handed over.
As Lord Justice Mellish says: "There is no doubt that in England, no treaty unconfirmed by Act of Parliament would be sufficient to enable a person to be given up."
Supposing, as we say, that the local Ordinances are valid, we humbly submit to His Excellency that he cannot order Leong Afu to be delivered over to torture and execution by the Chinese Authorities unless he has been proved to be guilty of the offence charged against him by Li Loi.
We think it hardly necessary to ask His Excellency to say that no such thing has been done.
What the Magistrate, before whom the prisoners were brought, has done is this - he has made no enquiry or investigation into the guilt or innocence of Leong Afu, but he has expressed in terms capable of no mistake and of no misinterpretation that he considers the charge brought forward by Li Loi to be false from beginning to end, and he has simply committed the prisoners to gaol, because, reading his instructions from the Government as he does, he has no right to enquire into the guilt of the accused.
All he can do is to register the statements made on declaration before him.
We do not intend to point out the contradictions and falsehoods contained in the depositions taken before Mr. Wodehouse, as we should be repeating what Mr. Dennys has already urged to the Magistrate,
but with reference to the statement of Li Sui, the cook, we would call attention to the fact that he was not cross-examined, as he did not in any way implicate the 1st or 3rd prisoners, who at the time of his examination, were the only two represented by Solicitors.
Woo Achuk was not cross-examined, as she incriminated none of the prisoners.
As to the declarations which we forward, His Excellency will see from the dates upon which they were made that two of the witnesses, Dr. Fung Sai Tau and the landlord Luk Kai Ming, were examined afterwards on the hearing of the case before Mr. Meekin, in which Li Loi and Lung Avau, the Chinese Alandaria and his principal witnesses, were charged with perjury at the instance of our Mr. Dennys.
These two witnesses were cross-examined by Mr. J. J. Francis, Q.C., who appeared as Counsel for the defence, and their evidence was in no way shaken.
It was just at the close of the examination of the landlord, Luk Kai Ming, that the Magistrate was directed by the Attorney-General, as we submit without any legal authority, to stay proceedings against Li Loi, and there then being sufficient evidence before the Magistrate to justify a committal for trial before the Supreme Court of Lung Ayau for perjury, Mr. Dennys did not see any necessity for calling further witnesses, but had Mr. Wodehouse allowed witnesses for the defence of Leong Afu to have been called, we were prepared to produce on his behalf all the witnesses whose declarations we enclose.
In conclusion, we again ask His Excellency to have the prisoner Leong Afu immediately discharged from Gaol, and suggest that unless this be done and the prisoner allowed to immediately quit the Colony unmolested by Chinese Officials, the promise of protection to Chinese frequenting Hongkong made by Her Majesty when Hongkong was ceded to the British Crown will become absolutely of no effect, and any person of Chinese descent, even though a British subject by birth or naturalisation, residing in Hongkong who may offend any Chinese Mandarin, will be subject to be renditioned to torture and to the mockery of a trial from which our client, the late U-shap, was only too glad to escape by strangling himself in his cell during one of the frequent adjournments of this case, and this too, although there was not the faintest doubt that the evidence given against him was false.
We have the honour to forward you this letter in triplicate, and to request that whatever steps His Excellency the Acting Governor may take as to the release of our client, he will have the same forwarded to Her Majesty's Principal Secretary of State for the Colonies.
We have the honour to be, Sir, your most obedient servants,
DENNYS & Mossop.
Hon. F. Stewart, LL.D.,
Acting Colonial Secretary.
DECLARATIONS.
In the Police Court of Hongkong. - In the matter of an application for the rendition of Ching Sam, U Ashap, and Tsang Achun, under Ordinance No. 2 of 1850.
1. Ho Fook, of Victoria, in the Colony of Hongkong, interpreter to Messieurs Dennys, and Mossop, solicitors, do hereby solemnly and sincerely declare and say
1. On the 9th day of March, 1887, I interpreted in the Chinese language the declarations now shown to me and marked A, B, C, D, E, and F to the respective declarants therein named and duly declared them before James Billington Coughtrie, Esq., one of Her Majesty's Justices of the Peace for and in the Colony of Hongkong.
2. On the 17th day of March, 1887, I interpreted in the Chinese language the declaration now shown to me marked G to the declarant therein named, and duly declared him before the said James Billington Coughtrie, Esq.
3. On the 31st day of March, 1887, I interpreted the declaration now shown to me and marked H to the declarant therein named, and duly declared her before the said James Billington Coughtrie, Esq.
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of an act made and passed in the sixth year of the reign of his late Majesty King William the Fourth, entitled "An act to repeal an act of the present session of
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