the time it was negotiated, interpret it in relation to a law and rule of procedure enacted many years subsequent to that event. This, the Imperial Government consider as being inadmissible and contrary to precedent and established usage. It is a principle in the interpretation of international agreements, that they should be held to mean what they meant at the time when they were negotiated, and that they are in no way affected by the changes which may have subsequently taken place in the laws and conditions of the countries of the Contracting Parties. The reason of this is obvious; for, were they subordinated to these changes, Treaties would cease to have any binding effect. Interpreted, then in this manner Article XXI of the Treaty of Tien-tsin of 1858 must be held to be altogether unaffected by the changes in the law and rules of procedure with regard to extradition which have taken place since that date.
In other words, the Acts of 1870 and 1873, which discriminate between political and unpolitical offences do not apply to the extradition of fugitive criminals of Chinese nationality from Hong Kong. The only question then for the Hong Kong Magistrate to decide in the case of Chung Sui-yung was whether there were grounds for thinking he was guilty or not. And had this been done, there can scarcely be a doubt his extradition would have been granted. It was notorious that he was the head of a formidable Secret Society, and that if not the actual offender, he had been a party to the committal of the crimes of which he was accused. Not only the Viceroy of Canton, but, as will be seen in the sequel of this despatch, the Governor of Hong Kong was in possession of independent, and very detailed evidence to that effect.
The Imperial Government hope that your Lordship will take the point of Treaty obligation, as opposed to what is the present practice of the Hong Kong authorities, into your serious consideration, for it is clearly in the interest of the two countries that the extradition procedure should be simplified, and so framed as—whilst insuring ample protection to the accused—to afford him the minimum of facilities for defeating the ends of justice.
It may be that in the particular case which is the subject of this note, the evidence technically before the Court was insufficient to justify a conviction; as to that, I have no information, but even if it had been so the Hong Kong authorities could have had not the slightest doubt as to the prisoner's guilt. For the remarkable Memorandum which the Governor of the Colony presented to the Viceroy of Canton in October last, and in which the name of Chung Sui-yung is specially mentioned, clearly shows them to have been in possession of the fullest and most minute evidence of his guilt in respect of both of the offences laid to his charge in the investigation before Commander Hastings.
In paragraph 12 of the Memorandum, which doubtless your Lordship and Mr. Secretary Chamberlain have seen, it is stated that the formidable organization called the Triad Society, of which Chung Sui-yung was the Chief, plundered the rich, and by means of intimidation extorted contributions from them; that its emissaries raided the cattle, pigs and other domestic animals of the inhabitants of the villages of Woo-Sih-yuen and Lung-hwa Szu; that they had requisitioned a sum of 40,000 dollars paid; and that from the people of Ping-tien, occupying the village until the money was on the 12th October, 1898, they had forcibly taken from the house of a rich man named Chen Yung-szu, a further sum of 4,000 dollars.
If anything were wanting to demonstrate the unsuitability of the present rules of procedure, and the advisability of returning to the Treaty and those which were in force when the Treaty of Tien-tsin was negotiated, it would only be necessary to point to the case of Chung Sui-yung. The Hong Kong authorities were in possession of the most positive and conclusive evidence of his guilt, and yet such was the faulty nature of the procedure, that his extradition could not be obtained. The fact that the offences of which he was accused were considered as having been committed in furtherance of a political object, was allowed to bias the decision of the Magistrate; otherwise the alibi, supposed to have been established by the evidence of the missionaries, would have been disallowed. It was immaterial whether the burglary had been committed by Chung Sui-yung in person, or, as seems to have been the case, by him through the instrumentality of the men who executed his orders. Equally immaterial was it whether he acted from a political motive or not. In 1858, when the Treaty of Tien-tsin was negotiated, British law made no distinction between political and non-political offences, and the Treaty making none, the only question for the Magistrate to determine was whether the presumptive evidence of his guilt was sufficient to warrant a commitment. The Acts of 1870 and 1878, which for the first time introduced this distinction, being inconsistent with the Treaty, cannot be admitted as applying to the case.
There is authority for this contention, it having several times been ruled that a Treaty may not only limit but even supersede a Statute. In the case of Wilson, whose extradition was demanded by the Swiss Government in 1877, Chief Justice Cockburn and Justices Mellor and Field held that the Act was limited by the Treaty. And in the case of Reg. v. Tubbee, Chief Justice Macaulay ruled that, so far as Great Britain, Canada, and the United States were concerned, the Ashburton Treaty had superseded the Statute of 3 Wm. IV, cap. 6. Having regard then to these decisions, there is no reason in law, and there certainly is none in expediency, for the continuance of a procedure at Hong Kong, which, in matters of extradition, tends only to frustrate the intention of the Treaty.
In the interest of the two countries it ought, therefore, to be discontinued, the case of Chung Sui-yung showing that, not only for China, but for Great Britain, it constitutes a source of danger. On the plea, that, in consenting to the extension of the Colony of Hong Kong, the Imperial Government had manifested weakness, and an incapacity to resist the encroachments of foreign nations; and on the pretext of coming to its assistance, but really with the intention of subverting the dynasty, he had raised the membership of the Triad Society to a very great number, estimated by the Governor of Hong Kong at from 40,000, to 50,000 fighting men. In addition to this formidable military force, he had a fleet of 100 sea-going junks, all fully manned and thoroughly equipped for war.
Perhaps this estimate of the strength of his forces may have been excessive, but after making every allowance for exaggeration, the number of men at his disposal must still have been very considerable; for 5,000 of them were known to be in receipt of daily rations and regular pay. The others, under the command of four principal lieutenants, were kept in readiness to be called out on short notice. Stationed in various towns and villages in the neighbourhood of Hong Kong, they held the surrounding country in a state of terror, murdering, plundering, and maltreating all those who refused to join them, or contribute to the funds of the Society. They were well armed and well supplied with ammunition. In their stores they had cannon and many thousand stand of arms of European manufacture, 20,000 suits of uniforms and as many sets of accoutrements. All this, and much more, is circumstantially set forth in the Memorandum of the Governor of Hong Kong, so that the decision of the Magistrate that there was no evidence of the guilt of Chung Sui-yung could scarcely have been based on other than technical grounds.
The Imperial Government, therefore, hope that orders may yet be given for his arrest, and that, to prevent the recurrence of a similar miscarriage of justice as happened in his case, the present faulty procedure in extradition cases may be amended. For the Imperial Government are firmly persuaded, that so long as this shall not have been done, and so long as the Colony of Hong Kong is allowed to be made an asylum for Chinese banditti, the difficulties of maintaining order and tranquillity in the districts abutted on the leased territory will inevitably go on increasing. Chung Sui-yung calculated on this, it having been part of his plan to excite disturbances on the Kowloong frontier, in the hope of, by means of them, embroiling the Chinese authorities in a dispute with the Colony of Hong Kong; and then of turning that to account in the furtherance of his sinister designs. It was in pursuance of this plan, that he afterwards burned down the sheds erected by the Hong Kong authorities, and opposed, by force of arms, the occupation of the leased territory; and had it not been that he was worsted in his encounter with the British troops, he would have attacked the island of Hong Kong itself.
In view of the gravity of the situation which these facts evince, I trust that Her Majesty's Government will take the subject of this despatch into their most serious consideration, and that they may see their way so to amend the procedure in extradition cases, that Hong Kong will cease to be a refuge for the criminal classes in the south of China.
The precedents hereinbefore alluded to proving the legal enactments, when at variance with a Treaty, are to be held as being subordinate to Treaty obligations, would, it seems to me, make this a matter of easy accomplishment.
I have, &c.
(Signed) LO TĂNG LUH.