Magisterial Synopsis, Vol. II page 901, and in several previous cases where persons were charged with having stolen property and gave references to persons from whom they received the same, the Judges have stated that such persons should be sent for and examined with the view of exonerating or contradicting the accused. 30 and 31 Vic. C. 35 § 8 directs Justices in England to ask prisoners whether they have witnesses, and directs their examination and to be placed under recognisances like witnesses for the prosecution. Prisoners committed for trial are by local Ord. almost on the same terms as in Jervis' Act, to be informed that if they wish to make a statement they may do so, but that it will be taken down in writing and may be used in evidence, and although the Act of 30 and 31 Vic. has not been formally made law here yet the practice has been to allow prisoners to call witnesses as “meet and conducive to the ends of Justice." In his argument the learned counsel called our attention to Clarke's work on extradition and the rules of practice in different countries. At page 177 the learned author states in reference to English practice that "when the fugitive is apprehended he is brought before the Police Magistrate, who hears the case in the same manner, and has the same jurisdiction and powers as near as may be as if the prisoner were charged with an indictable offence committed in England," and he may receive evidence to show that the offence is a political one and not an extradition crime. The writer then proceeds to discuss the question as to the duty of the Magistrate to receive evidence for the prisoner. He cites various opinions, and gives the views of the late Lord Cairns, who referred to the minutes of a Conference held at Paris wherein it was stated that a prisoner brought before a magistrate would be entitled to deny his identity with the person named in the warrant. Lord Cairns stated “that as to an accused person being precluded from entering into any other defence than a denial of his identity he differed entirely from that view, for he apprehended that it would be quite open to him to produce any evidence in his power to controvert the allegations made in the depositions." Clarke page 185. The writer seems to take the view that the Magistrate should only hear evidence for the prosecution except as to political offences or that the crime was not an extradition crime but with all respect to the learned author we think that the English practice and the demands of justice are in accord with Lord Cairns' view and his view that was announced by this Court in 1831. See judgment of the late Mr. Justice Snowdon, 18th Nov., 1831. From the form of warrant of committal under the Extradition Act of 1870 it would appear that the prisoner is brought before the Magistrate "to show cause why he should not be surrendered in pursuance of the Extradition Act 1870, on the ground of his being accused of...
and for as much as no sufficient cause has been shown to me why he should not be surrendered in pursuance of the said Act: This is therefore, &c." In Oke's Magisterial Synopsis 898, in the footnote 29, dealing with indictable offences, the author cites Mr. Justice Bagley in Cox v. Coleridge as saying "I think that a Magistrate is clearly bound in the exercise of a sound discretion not to commit any one unless a prima facie case is made out against him by witnesses entitled to a reasonable degree of credit." Justices ought not therefore to balance the evidence and decide according as it preponderates, for this would in fact be taking upon themselves the functions of a petty jury and be trying the case. They should consider whether or not the evidence makes out a strong, or probable, or even a conflicting case of guilt. In any one of such cases they should commit the accused for trial. We think the above gives the true rule for dealing with extradition cases here, and the Magistrate should ask himself if the offence had been committed within this jurisdiction, should he commit for trial at the Supreme Court. If so he should commit under the Ordinance, and thus enable the Governor to carry out the treaty obligation. The Magistrate after investigating the case,
On the other hand, if as he does an indictable offence, comes to the conclusion that there is no probable cause for believing that the person before him committed the crimes charged, then he should not put it in the power of the Governor to deliver him up if he thought fit, but discharge him. It seems to us from a careful perusal of the documents before us that the sitting magistrate interprets prima facie case, and "probable cause" to mean evidence on one side—and on one side alone—but that is too narrow a meaning to put upon those terms. There may be a conflict of testimony and yet a prima facie case, or probable cause. The Magistrate refused evidence for the prisoner apparently because of some order or other that he got from the Executive Government. He does not, from the information before us, appear to have refused it of his own sense of right, and we think that in result, from whatever cause, an injustice has been done to the prisoner by the refusal of the evidence on his behalf pressed on the Magistrate. Mr. Justice Snowden in the case already cited stated that in the depositions there was no statement that the accused were called on to plead. Above all it does not appear that they were asked what they had to say in their defence although they might have been able to show beyond doubt, either mistaken identity or an alibi, or some defence within the province of the Magistrate to hear. No opportunity was afforded them to do so". These observations we think are in accordance with justice and the present case is much stronger, for it appears that there were eight witnesses in attendance and tendered on behalf of the prisoner, and whether their evidence was worth anything or nothing in our judgment they should have been examined. On the evidence before the Magistrate there was sufficient grounds for committing the prisoner if he believed the witnesses. There was also sufficient evidence that he was a Chinese subject. For the reasons given above we think the warrant had on the face of it, and that the prisoner ought not to have been committed without being allowed to make any defence, and the Governor thus authorised if he thought fit to deliver Laung Afu to the Chinese Authorities. The deportation to another country for trial is a severe penalty in itself" says Sir Edward Clarke at page 190 of his work on Rendition, and we think that justice requires the putting in force of the maxim audi alteram partem in rendition cases as well as in other matters. The prisoner is discharged.
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