The Daily Press.
HONGKONG. MAY 24TH, 1887.
IN ORIGINAL JURISDICTION.
MOTION FOR A WRIT OF HABEAS CORPUS.
Mr. Dennys applied for a writ of Habeas Corpus in the matter of Leong Afu, one of the defendants in the Chinese Rendition case, and who is at the present time detained in Victoria Gaol. Mr. Dennys stated that he was unable to secure the services of counsel. There were at present only three counsel acting as such in the Colony; of these Mr. Francis was prosecuting in this case. Mr. Brereton stated that he was retained by the Chinese Government, and Dr. Ho Kai had been applied to by the Chinese Government but had refused to act for either side. He therefore put in an affidavit which he had filed.
The affidavit stated that Leong Afu was at present detained in Victoria Gaol under a warrant signed by Mr. Wodehouse, although the said Leong Afu had not been found guilty of any offence against the laws of this Colony or those of China. He had been charged with others with robbery and murder committed in Chinese territory on the night of 9th October, 1886. That he had stated that the evidence of Li Loi and Leong Ayau, the chief witnesses for the prosecution, had been guilty of subornation of perjury and of perjury; and at the request of the Magistrate had called witnesses to prove that Leong Ayau was not the person he represented himself to be, but a convicted and branded criminal. He had afterwards charged Li Loi and Leong Ayau with perjury, and that while that case was proceeding, without any previous notice to himself or any enquiry as to how far he was able to support his charge, the Acting Attorney-General stopped the further hearing of the case against Li Loi. That Leong Ayau had been committed for trial at the Supreme Court, but that the Acting Attorney-General caused him to be discharged by proclamation. That at the conclusion of the case against Leong Afu, although the Magistrate stated he believed Leong Ayau's evidence to be unworthy of belief, he (the Magistrate), acting under instructions from the Government, refused to release Leong Afu. That he had since applied to the Acting Governor for the immediate discharge of Leong Afu but had been informed that it had been decided to surrender the accused to the Chinese Authorities. That the Acting Governor, so far as he was aware, had made no enquiries as to the guilt or innocence of Leong Afu nor examined any witnesses who could give evidence in his behalf.
Mr. Dennys then put in and read the warrant by virtue of which Leong Afu is detained in Victoria Gaol.
Mr. Dennys based his argument against the accused being given up on article 2 of the Treaty of Tientsin, which he said distinctly stated that a prisoner should only be delivered over to the Chinese authorities when he had been tried and found guilty of the offence imputed to him. Leong Afu had not been found guilty, and therefore his Lordship would be quite justified in granting the writ asked for.
His Lordship granted the writ and adjourned the further hearing of the case to 30th May.
Page 199
The Daily Press.
HONGKONG, June 1st, 1887.
THE CHINESE RENDITION CASE-APPLICATION FOR DISCHARGE OF LEUNG AFU.
Mr. Dennys applied for the discharge of Leung Afu, one of the defendants in the Chinese rendition case.
Mr. J. J. Francis, Q.C., instructed by Messrs. Caldwell and Wilkinson, appeared on behalf of the Chinese Government to oppose the discharge; Mr. Wodehouse, the Magistrate by virtue of whose warrant the defendant is detained, appeared on his own behalf; and the Acting Attorney-General watched the case on behalf of the Government.
Mr. Dennys objected to Mr. Francis appearing for the Chinese Government. They had no locus standi in the matter. The case was simply between the Supreme Court and the Gaol.
The Court decided in favour of Mr. Francis being allowed to appear for the Chinese Government.
Mr. Dennys said he applied for the return of a writ of certiorari and for the discharge from custody of Leung Afu as he was not detained under any legal warrant of conviction or committal. The warrant was bad on the face of it. It did not cite any offence over which the Magistrate had jurisdiction. Again, the warrant said "whereas Leung Afu having been duly convicted, &c.," but the defendant had not been convicted of any offence.
The Acting Chief Justice said that the Magistrate had committed the man to Gaol pending the orders of the Governor.
Mr. Dennys said he was quite prepared to show that the warrant of commitment must contain a recital of the conviction.
Mr. Francis said that it was the usual practice for the writs for certiorari and habeas corpus to be applied for at the same time and both dealt with together.
The Acting Chief Justice said he did not see why this rule had not been followed in this case. Mr. Dennys said on that point he must ask for the consideration of the court. He then went on to say that he should show to their Lordships that the Magistrate had not done his duty inasmuch as he had refused to hear witnesses who were willing to give evidence on behalf of the defendant. He should also call their Lordships' attention to his affidavit which, so far as he was aware, had not been contradicted.
Mr. Wodehouse said that his object in appearing was that if the writ of certiorari were granted, certain documents as well as the depositions be put in. These documents would show how he was somewhat influenced in the decision he had come to in the case.
His Lordship said he thought the documents might be put in.
Mr. Francis said that he thought all documents having reference to the case should be admitted.
Mr. Dennys said he had no objection to the documents being put in, but as he had not seen them it was impossible for him to say whether they had to do with the case or not. Continuing, he said that under Ordinance 2 of 1871 and Ordinance 2 of 1850, the Magistrate was held to be in the position of a jury as regards the prisoner, and when any doubt existed, that doubt was to benefit the prisoner. He would like to call their Lordships' attention to the three phrases in the second Ordinance, "investigation," "probable cause of belief," and "proof of guilt." With reference to the words "proof of guilt," he thought the same construction must be put on them as was done by the Privy Council in the case of the Attorney-General v. Kwok Shing. The Magistrate in trying the case must have such a proof of guilt as would justify him in committing the prisoner had the offence been committed within the jurisdiction of Hongkong. There might be links in the chain of evidence wanting, but there must be no reasonable doubt in his mind that those links would be found when the case was heard against him in that Court. He would ask their Lordships to refer to the affidavit before them, and they would see that there was no such proof of guilt in this case. The Magistrate had said distinctly that if he were a jury, he would not convict upon such evidence.
The Acting Chief Justice-The Magistrate does not exactly say that. He is not in the same position as a jury. He says if the final decision were to rest upon him, he might perhaps give the prisoner the benefit of the doubt.
Mr. Dennys said that their Lordships could not hold that the Magistrate had reasonable grounds of belief that the defendant was guilty. One witness had sworn that in the middle of the night he had seen through four solid walls. At the time that statement was made, they had not gone far enough to see what were the facts of the case, but when other witnesses were called and the position of these walls determined, his statement meant that or nothing. From his own statement as to where he was sleeping and from the place stated afterwards in evidence as the spot where the men broke into the house, it was perfectly plain that the witness, if he looked perfectly straight, saw through four solid walls, and if he looked crooked through five. Could the Magistrate with such evidence as that before him...