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"Order in Council 1904 (c) that the Petitioner is a native of Afghanistan and at the commission of the alleged offence was a private soldier serving with Your Majesty's 126th Baluchistan Regiment (d) that the Petitioner had as such private soldier taken the oath of allegiance to Your Majesty and (e) that it was expedient for the Petitioner to be tried in the said Supreme Court: that the Treaty of Tientsin 1858 between Her late Majesty and the Emperor of China was not put in evidence nor were the terms thereof proved: that no evidence was adduced of any Treaty grant usage sufferance or other lawful means whereby Your Majesty's Courts have jurisdiction over offences committed by natives of Afghanistan in China: that the Chief Justice purported to try the Petitioner under powers conferred upon the said Supreme Court by the Foreign Jurisdiction Act 1890 Section 6 and the China and Corea Order in Council 1904 Sections 3 and 50: that the Petitioner submits that the Treaty of Tientsin conferred jurisdiction in China on Her late Majesty and Her successors over British subjects only and the powers purported to be conferred upon the Supreme Court of China and Corea and the Supreme Court of Hongkong by Section 50 of the Order in Council if they include jurisdiction over natives of Afghanistan which the Petitioner denies are not within the powers granted by the Treaty and are consequently and pro tanto null and void: that the Petitioner submits that whereas the Emperor of China and His successors with whom the Treaty was made have ceased to exercise sovereignty and power within the territories which formerly constituted the Empire of China and by reason thereof the Treaty is no longer in force and therefore the jurisdiction of Her late Majesty and Her successors in China has lapsed or is in abeyance: that neither the Treaty nor the terms thereof were put in evidence to show that the Treaty was not one which by reason of the facts mentioned ipso facto lapsed or fell into abeyance: that the Petitioner submits that by Section 2 of the China and Corea Order in Council the limits of such Order are stated to be the dominions of the Empire of China and therefore by reason of the facts mentioned such Order has become inoperative: that all these matters were raised by the Petitioner at his second trial on an application for a Writ of Habeas Corpus and on a motion in arrest of Judgment: that such matters were considered by the Full Court and decided against the Petitioner: that the Petitioner was sentenced to death on the 18th December 1912: that at the Petitioner's first and second trials the following evidence of an alleged confession was given by Major Barrett the officer commanding the Petitioner's regiment at Canton Q. (by Major Barrett in Hindustani) Why have you done such a senseless 'act' A. (by the Petitioner in Hindustani) For three or four days now 'he has been abusing me of course I shot him': that the confession was said to have been made whilst the Petitioner was bound with ropes and under a guard with loaded rifles: that by the law of Hongkong as laid down in the considered Judgment of the Full Court in the case of Rex v. Wong Chin Kwai and others ((1908) 3 Hongkong Law Reports 89] a
O J. 0.482,
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"confession is not admissible as being free and voluntary if it has been obtained by violence or if it is made in answer to a question (without a caution by a person in authority) which the accused believed he was compelled to answer: that the Chief Justice refused to be bound by the said decision and refused to reserve the question for the consideration of the Full Court but admitted the evidence against the Petitioner at each trial And humbly praying Your Majesty in Council to order that the Petitioner shall have special leave to appeal in formá pauperis from the Judgment of the said Supreme Court dated the 18th December 1912 or for such other Order as to Your Majesty in Council may seem just and proper :
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"THE LORDS OF THE COMMITTEE in obedience to His late Majesty's said Order in Council have taken the said humble Petition into consideration and having heard Counsel in support thereof and on behalf of Your Majesty their Lordships do this day agree humbly to report to Your Majesty as their opinion that leave ought to be granted to the Petitioner to enter and prosecute his Appeal in formi pauperis against the Judgment of the Supreme Court of Hongkong dated the 18th day of December 1912.
C
And their Lordships do further report to Your Majesty that the proper Officer of the said Supreme Court ought to be directed, to transmit to the Registrar of the Privy Council without delay an authenticated copy under the seal of the said Supreme Court of the Record proper to be laid before Your Majesty on the hearing of the Appeal."
HIS MAJESTY having taken the said Report into considera- tion was pleased by and with the advice of His Privy Council to approve thereof and to order as it is hereby ordered that the same be punctually observed obeyed and carried into execution.
Whereof the Governor Lieutenant-Governor or Officer achni- nistering the Government of the Colony of Hongkong and its Dependencies for the time being and all other persons whom it may concern are
to take notice and accordingly.
Printed by EYRE and SPOTTISWOODE. Ltd.. Printers to the King's awst Excellent Majesty. 1213. For His Majesty's Stationery Office.
govern
themselves
ALMERIC FITZROY