The Daily Press.
HONGKONG, JUNE 15TH, 1887.
THE CHINESE RENDITION CASE. JUDGMENT.
In the case of Leung Afu, one of the defendants in the Rendition case, for whose discharge Mr. Dennys applied, their Lordships delivered the following judgment:-
On the application of Mr. Dennys, supported by two affidavits—one by himself and the other by Leung Afu, a prisoner in the Victoria Gaol, committed under the Extradition Ordinance,—Lung Afu was brought before the court on a writ of Habeas corpus. To his return to the writ, the Superintendent of the Gaol annexes the warrant under which he holds the prisoner. Notice of a writ of certiorari was served, and this writ was moved for and the proceedings before the magistrate were brought into court by the magistrate himself, and were referred to in the argument on the return of the writ of Habeas corpus. Mr. Francis, Q.C., appeared on behalf of the Chinese Government to support the warrant of commitment. The committing magistrate appeared in person and handed in the proceedings. The Acting Attorney-General appeared to watch the case on behalf of the Government, but took no part in the proceedings. Mr. Dennys, for the prisoner, by special leave in absence of Counsel, argued that the prisoner was detained on a warrant which was bad on the face of it, as there was no offence recited over which the magistrate had jurisdiction. He cited Regina v. King, 13 L.C., 43, and other cases, which we have examined.
The warrants in these cases omitted to state the gist of the offences for which the magistrates committed. "In the matter of Paarle," 1 A. and E. N. S., bears most on this matter. It appears from the proceedings at the Police Court that the prisoner and two others were charged on the 19th February last, as subjects of China, with murder and burglary within the jurisdiction of the Emperor of China on the 9th October last. Several examinations took place, and in the course of the proceedings Mr. Dennys alleged that one of the principal witnesses for the Chinese authorities had committed perjury, and the man was charged with it, and the investigation of the case against Leung Afu and the others was postponed, pending the trial of a witness for perjury.
It appears that although the witness was committed for trial for perjury, the Attorney-General, for reasons no doubt satisfactory to the Crown, entered a nolle prosequi, and proceedings against the prisoner were thus abandoned. After this, the rendition case was resumed, and it appears from the affidavit and from the magistrate's own notes that the magistrate refused to hear any evidence on behalf of the prisoners, although Mr. Dennys on behalf of one prisoner, and Mr. Holmes on behalf of another, asked to be allowed to produce evidence.
In rendition cases of Chinese subjects in this Colony, the procedure and powers of the magistrates are to be found in Ord. 2 of 1850 and Ord. 2 of 1871. Ord. 2 of 1850 was passed to carry out the treaty of the Bogue, which provided for the rendition of Chinese subjects to the Chinese Government who had committed crimes and offences in China. Ord. 2 of 1871 was passed as a declaratory Ordinance—declaring that 2 of 1850 was to apply to the Treaty of Tientsin, the 21st Article of which provides for the rendition to China of Chinese criminals escaping here, on "proof of guilt." Mr. Dennys argued that "proof of guilt" meant complete proof, and amplified the words in the Ordinance 2 of 1850 in favour of the accused.
The learned Counsel for the Chinese Government argued that the Court, Magistrate, and Government will only look to Ordinance 2 of 1850, as declared by 2 of 1871. Section 1 of Ordinance 2 of 1850 gives power to the magistrate to detain Chinese subjects having committed offences against the laws of China and being then in Hongkong: (1) if a complaint has been made by any officer of the Chinese Government; or (2) if it appears in the course of investigating any other matter, that a Chinese subject has committed an offence against the laws of China; or (3) if such person be already in custody, it shall be lawful to detain such person, and 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.
Section III says that if at the close of this investigation it shall appear to the Magistrate or Court that such person as aforesaid is a subject of China, and that there is probable cause for believing that the said person has committed such crime or offence, it shall and may be lawful for such Magistrate or Court to commit such person for safe custody to prison, and to direct the Gaoler to detain such person in prison until the said Gaoler shall receive some order from the Governor of Hongkong, relative to the further detention, discharge or transmission of such prisoner to the nearest Chinese authorities as to the Governor shall seem fit; and the Magistrate or Court shall, upon making such committal as aforesaid, transmit to the said Governor of Hongkong the minutes of such investigation, &c.
Now, under the warrant of the magistrate the prisoner Leung Afu was committed to Gaol on 29th April, 1887, pending the orders of the Governor as to his further disposal, it appearing to the said magistrate, upon investigation of the case, that there was cause to believe that the prisoner was a subject of China, and had committed crimes and offences, viz., burglary and murder, within the Empire of China. It is not stated in the warrant when the murder and burglary were committed, nor is there any reference to the Act or Ordinance giving the Magistrate jurisdiction.
In the case of Young Achau and 12 others, brought before this Court in November, 1881, the late Mr. Justice Snowden in ordering the discharge of the prisoners, although the warrant stated on the face of it that it was under Ordinance 2 of 1850, S. III., said: "I am unable to discover when the form now in use was adopted in this Colony. I find that the form of conviction appended to Ord. 10 of 1884, still in force, requires the following particulars—setting out the information and if the conviction is made for an offence against any Statute or Ordinance to state it."
He then goes on to quote from the warrant of committal: "Whereas it hath appeared to me a magistrate for the said Colony,—is a subject of China—and that there is probable cause, &c.,” and asks if this form is sufficient and cites Baron Parke's Judgment, Ex. Chamber, in Howard and Gossett, 10 Q.B., at p. 411-452. Paley on Conviction, 182, says: "In the case of special authorities given by Statutes to Justices or others acting out of the ordinary course of Common Law, the instruments by which they act, whether warrants to arrest, commitment orders, convictions or inquisitions ought, according to the course of decision, to show their authority on the face of them by direct averment or necessary intendment."
Mr. Justice Snowdon goes on to say: "Of course greater nicety is required in the case of summary conviction, and where the commitment is in execution than where prisoners are remanded or committed to prison for further disposal only." He further states that he is of opinion that in "cases of rendition the accused are entitled to the protection of every formality the law throws around them, and that it is the duty of this court before whom they claim their discharge to see that there has been no shortcoming in this respect."
In Paley on Convictions, pages 201 and 202, it is stated that the conviction must likewise specify the time and place of committing the fact complained of." The precise day need not be named if the fact be alleged to have happened between such and such a day—see also 2 Hawkins C. 25, sec. 82.
It is quite true, as Mr. Francis pointed out, that Jervis Acts have not been made the law of the Colony, and that so far as indictable offences are concerned the procedure would be in strict law according to 7 Geo. 4 C. 64. Jervis' Acts became law in England in 1849, and introduced certain changes which are pointed out in Stephens' History of the Criminal Law of England.
But sec. 1 of 7 George IV. C. 64, after describing two persons are to be examined in indictable offences with the view to commitment, indicates that evidence may be adduced by the accused—"or such evidence shall be adduced on behalf of the prisoner charged, &c." "Provided, however, that nothing herein contained shall be construed to require any such Justice or Justices to hear evidence on behalf of any person so charged as aforesaid unless it shall appear to him or them to be meet and conducive to the ends of Justice to hear the same."
Now Ord. 2 of 1850 directs that the magistrate shall investigate rendition cases as he would indictable offences. In 1849 Lord Denman, C.J., said that where a person charged with felony has witnesses in attendance at the time of the examination before the magistrate they should then be examined if the prisoner wished it. See Oke's Magisterial Guide.
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