say that he had reasonable cause for believing that the prisoner committed the offence impute to him?: He did not think for one moment that the Magistrate believed the man guilty. If their Lordships would read his (Mr. Dennys') affidavit they would see that the prisoner had been committed upon the order of the Governor. The Magistrate said "I have orders from the Government that as soon as a prima facie case is made out I am bound to commit." But a prima facie case was made out the moment the first witness for the prosecution stepped into the box and gave his evidence. Their Lordships must go upon that understanding now if they decided that the conviction must be upheld. He was perfectly certain that the court would agree with him that the mere fact of evidence being given of a crime that has been committed is no proof of guilt against a prisoner. The evidence of the man Leang Yi was to the effect that one of the men, at the time the burglary took place, tied him up and kept guard over him, and he swore positively to the second prisoner being the man. He should say that the second prisoner, who has since committed suicide, was not defended by anybody. The first and third prisoners only were defended by solicitors and the solicitors for these two did not consider it their duty to examine this man as he did not, in any way, incriminate their clients. Another witness was an amah living in the house, and she again could not swear to the prisoners. She simply stated that the crime was committed. The prosecution then put forward a witness who made out a nice, clear, straightforward case against the prisoners. This was Leung Ayow, who called himself the nephew of the rich old lady whose house was robbed, and who swore he was in the house at the time the burglary took place. Mr. Dennys then went on to recite at some length the evidence as given by Leung Ayow before the Magistrate. Having read this and pointed out how they had called evidence which entirely destroyed the idea of Leung Ayow being a credible witness, he went on to say that the Magistrate had stated that he did not believe one word of Leung Ayow's statement. How then could the Magistrate feel justified in signing a warrant for committal as being satisfied of the guilt of the prisoner? And then with reference to the Magistrate refusing to hear evidence on behalf of the prisoners. The prisoners were able to produce witnesses to prove their innocence, who attended at the court and were prepared to go into the witness box, but the Magistrate refused to hear them because the Government had told him that as soon as a prima facie case was made out he must commit the prisoners. There was no evidence before the Magistrate to justify him deciding that the prisoners were Chinese subjects. There was a distinction between prima facie evidence and a prima facie case. Prima facie evidence was that which established a case with a degree of probability before rebutting evidence was called. A prima facie case must show evidence against the prisoner, but in such case the Magistrate before detaining him must hold investigation. The Magistrate in this case had held no such investigation. The meaning of the word "investigate," according to Webster, was to search carefully and examine accurately into. Their Lordships would agree with him that the Magistrate had not investigated this case, in the true meaning of the word. He rested his application upon two grounds, first as to there being no evidence as to the prisoners being Chinese subjects; and, secondly, that there was no reasonable amount of evidence in proof of their having committed the offence.
His Lordship then called upon Mr. Francis for reply, when Mr. Francis said he believed Mr. Wodehouse wished first to address the court.
The Acting Chief Justice said he thought Mr. Wodehouse was not called upon to address the Court. The statements made were merely ex parte. Mr. Wodehouse was only doing what was perfectly within his right when he signed the warrant for committal.
Mr. Wodehouse then withdrew from the court.
Mr. Francis said the only question before the Court was whether the prisoner was properly detained in Hongkong Gaol at the present moment. Undoubtedly the treaty with China said that in extradition cases the prisoner was to be handed over to the Chinese authorities on "Proof of guilt." The Ordinance they had to consider was 2 of 1850, for the later one of 1871 was merely a re-enactment of the former Ordinance. The Magistrate by that Ordinance was to investigate the case in the same manner as if the offence had been committed within the jurisdiction of the Government of Hongkong. Now in the case of an indictable offence the Magistrate was not bound to take the evidence of witnesses for the defence.
The Acting Chief Justice asked the learned Counsel if he could give any authority for that. Mr. Francis said he could not do so at the moment as he had not come prepared, not knowing that the point would be raised. There were few cases of like nature to refer to. He based his argument upon “Clark on Extradition" and contended that the Magistrate was not legally bound to take evidence for the defence inasmuch as it would be useless for judicial purposes.
The Acting Chief Justice then read an extract describing the usual course of procedure in ordinary criminal cases. It was the custom for the Magistrate after hearing the evidence for the prosecution to ask the prisoner if he had anything to say and the prisoner either made his defence or reserved it until tried at the Supreme Court.
Mr. Francis said that what his Lordship had just read only related to the prisoner's personal statement. He could not call any witnesses. In England in rendition cases it was the custom for the Magistrate to simply take the evidence of the prosecution, and a prima facie case having been made out the prisoner was handed over, and here he submitted the proceedings were substantially the same. With reference to the question as to whether the prisoner was a Chinese subject, he contended that there was sufficient prima facie evidence before the Magistrate for him to come to the conclusion that he was. There was evidence to show that the prisoner was at the time in Chinese territory, that he wore the Chinese dress and spoke the Chinese language, and therefore the onus of proof lay with him to show that he was not of that nationality.
At this point the court adjourned for tiffin.
Page 12
On reassembling Mr. Francis stated he had looked up several books to find the authority his Lordship had asked for. The learned counsel then read a lengthy extract from "Stephen's History of Criminal Law" in support of his previous argument, and contended that the Magistrate had no option but to act as he did.
Mr. Justice Leach-Is the man then to remain under the stigma of the accusation without being allowed to call any evidence in defence until tried at the Supreme Court?
Mr. Francis-That is the law here.
The Acting Chief Justice-Suppose a man should be charged with being in possession of stolen property and he can call a large number of witnesses to prove that he came honestly by it?
Mr. Francis said the Magistrate of course had a discretionary power to allow the prisoner to call witnesses to prove his innocence, but he was not obliged by law to do so. If there were half a dozen witnesses to prove an accusation against a prisoner and the prisoner could call fifty reliable and accredited witnesses to prove the contrary, of course, it would be very foolish of a Magistrate to refuse to allow him to call his witnesses; but still he would be acting quite within his powers in refusing, and committing the prisoner for trial. He believed a case had never arisen before in which a Magistrate had refused to take such evidence, but still he submitted to the court that the Magistrate had only done what he had perfect right to do. He should ask permission of the court to run as briefly as possible the chief points in the evidence before the Magistrate, and he thought their Lordships would agree with him that there was sufficient prima facie evidence to justify the Magistrate in committing the prisoner. The learned counsel then went over the depositions of the witnesses taken in the Police Court enquiry, and said he was certain that on much weaker evidence than that just read by him, many a man had been committed for trial at the Supreme Court.
He would go further and say that on much weaker evidence than that many a man had, in that very court, been convicted by the jury and sentenced by the judge.
The Acting Chief Justice said that he considered the case a most important one, which would require a good deal of consideration, and therefore the Court would reserve judgment.