The only evidence tendered by the prisoner on the subject was his affidavit on the file in the civil proceedings and by his solicitors. In his atidavit the fugitive alleges that after he obtained the drafts on the banks in Hongkong he reported to Chan Kwing- ming, who instructed him to proceed to Hongkong and cash them and hand the proceeds to him (Chan). He goes on to say that on or about the 7th August, he cashed one of the drafts for $60,000 on the Inter- national Bank and replaced the amount in the name of one of his aliases in that bank and that one or two days afterwards he saw Chan on board the str. Forck in this
harbour and, stated briefly, paid him $100,000 out of his own moneys in respect of one draft and that in regard to the deposit note for 850,000 he signed his name on the back and gave to Chan a letter addressedi to the International Bank authorising them to pay the same to him. In regard to this evidence the Crown called the Captain Superintendent of Police, who proved as a fact that Chan Kwing-ming left the Colony on the steamship referred to on the 5th August, which was before the alleged interview, and the sub-manager of the International Bank was called to prove that the deposit receipt is dated 9th August, which was some three days after Chan left the Colony.
This defence was not taken before the Magistrate, but I think the evidence establishes two things only, that whatever was intended to be the ultimate destination of the money it found itself in the personal powersion of the fugitive here outside the jurisdiction of China, and further that the explanation given by the fugitive in regard ta it is disproved. There is not therefore any evidence upon which this Court can find that the intention was to remit the money to Nanking for military purposes, If there had been any reliable evidence in support of it I am not prepared to say that in the state of affairs then existent in China it may not have been regarded as à political offence within the authorities laid down in Castioni's case and in re Meunier (1894), 2, Q.B.D., 415.
There was also a further contention that as a claim of right was set up by the fugitive there could be no larceny. Halsbury, Vol. 9, p. 628, says:—"To prevent the taking from being felonious the claim of right must be honest one though it may be unfounded in law or in fact. If the claim is not made in good faith, but is a mere colourable pretence to obtain or to keep possession it will not avail as a defence." In so far BE this claim is based on the facts set out in the fugitive's affidavit to which I have just referred, And for the reasons which I have | given, there was 1 think ample justification for the Magistrate rejecting it and holding that thạ claim is not made in good faith, In so far as the claim of right is based on the contention that the property is in the alleged rebel government it is disposed of in the view which I take of its non-existence.
It was also alleged by the learned Counsel, for the fugitive that martial law is in force in the province of Kwangtung and that being the case extradition treaties suspended and therefore the claim for extradition must fail. We gave it as our deliberate opinion during the argument that this question is not for the Court to investigate, but it is a matter as to which the respective governments alone can take cognisance, and to this view I adhere. Both His Majesty's Consul-General at Canton and the Acting Chief Justice of the Province have stated by affidavit that martial law is not in force, and at the reiterated request of the learned Counsel for the fugitive, who entirely challenged our decision on this point, and with a desire to afford every opportunity to the fugitive to demonstrate his opinion, we expressed the hope that the Consal. General might be able to attend for cross- examination
his on the allegation in affidavit. He did so and his evidence appears in extenso in the notes of the case, but, as I have said, in our opinion it is no part of the province of this Court to decide this issue of fact and I accordingly refrain from doing so.
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