was advised that this argument was not sound, and that,
though the employer of a mui tsai had no right whatever
of retaining possession of the girl as against the girl's
parents or as against the girl herself, yet her care and
charge of the child was not unlawful and might be treated
as a lawful care and charge for the purpose of proceeding
against the kidnapper. Unfortunately, so far as I know,
no decision has ever been given by the courts on the above
argument, because the case has always gone off on some
other ground, and there appeared to be an impression abroad
that the defence was a good one, and some officers, in the
belief that it would be useless to prosecute in such a case,
might have failed to act. The position was much the same
with regard to adopted children. In order to dissipate
this impression, and also to place the legal position
beyond all possible doubt, it was decided to amend the
section so as to make the point clear. Accordingly,
paragraph (e) of section 2 of this Ordinance provides that
for the purpose of section 45 of the principal Ordinance,
i.e., for the purpose of proceeding against the kidnapper,
the adoptive parent of a child under fourteen, and the
employer of a child under fourteen, including the employer
of a
mui tsai under that age, shall be deemed to have had
the lawful care or charge of the child. The paragraph also
provides (a) that nothing in the sub-section in question is
to be construed as affecting any rights of guardianship
vested in the Secretary for Chinese Affairs, and (b) that
nothing in the sub-section in question shall be construed
as conferring on any adoptive parent or employer any right
of retaining possession of a child as against the child's
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parent or guardian or as against the child.
3. The opportunity was taken of making two other
amendments of the same section. One of these two
amendments is effected by paragrpah (a) of section 2 of
this Ordinance.
Section 45 of the principal Ordinance
formerly read, "Every person who unlawfully, either by force
or fraud, takes away any child". Some little difficulty
has sometimes been felt about the words underlined above
in the case of very young children where it could hardly be
said that either force or fraud was necessary for the
kidnapping.
Accordingly paragraph (a) of section 2 of
this Ordinance deletes the words "either by force or fraud"
and substitutes the words "by any means".
4. The other amendment is made by paragraph (b) of
section 2 of this Ordinance. Section 45 of the principal
Ordinance formerly provided that "no person who has claimed
any right to the possession" of the child and no person who
"has claimed to be the father of an illegitimate child",
should be liable to prosecution on the ground of having taken the child out of the lawful charge of some other person.
No doubt these words referred to bona fide claims but it
has been thought better to provide expressly that the claims
must be bona fide.
5.
Section 3 of this Ordinance is an attempt to legislate
for a matter which has been discussed off and on for fifty
years. This section makes it an offence to take any part in any transaction the object of which is to transfer the possession of any minor under eighteen for any valuable
consideration, unless the accused can prove that the
transaction was bona fide and solely for a purpose of a
proposed marriage or adoption in accordance with Chinese