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it was clear in the case of Sung Man Cho from the interrogations by the S.C.A. official, whose affi- davit counsel proceeded to read, that the applicant was an Aunamite revolutionary leader.
Funishable by Death.
THE HONG KONG WEEKLY PRESS &
The new affidavit filed by the applicant before the day's proceed- ings, was then read by counsel. It contained the following statement:
(6
I am 36 years of age. I was born at Tong Hing City in the Province of Kwangtung, China.
"I have been closely identified with the revolutionary movement in Annam and Indo-China gen- erally, which movement has for its object the overthrow of all French Governmental authority there, which is supreme, and to substitute therefor ટી. National Government under native autho- rity. I was actively engaged in
for this movement
some time prior to the date of my arrest in Hong Kong on June 6, 1931.
"To take part in such a move- ment is to be guilty, according to such Governmental authority, of an offence warranting punish- ment by death,
'I am wanted by the French authorities in Indo-China for this offence.
third interview with At my the Assistant Secretary for Chi- nese Affairs, he told me that the petition referred to in paragraph 6 of my affirmation sworn on the 14th August, 1931, was undeniable proof that I was Nguyen Ai Quoc and that the best advice he could give me and the best thing I could do was to admit that I was the man. He said. It will be favourable for your defence.'
"At the same interview the same official showed me a news- paper cutting reporting an item from a foreign newspaper that although extradition for a poli- tical offence is contrary to inter- national law the Hong Kong Government could hand Nguyen Ai Quoc to the French by send- board French ing him steamer. He told me: that is what we will do.'
on
a
C
The true object of the Hong Kong Government in taking pro- ceedings to deport me is to secure my surrender to the French autho- rities of Indo-China in order that I may be dealt with by such authorities for the aforesaid offence.
"
Avoiding Court Proceedings. Elaborating his fourth point, Mr. Jenkin said that if extradition pro- ceedings had been carried through and the applicant had been dis- charged, the Governor was debarred from sending the man to the re- The claim quisitioning territory. now made that the Crown were entitled to send him to a place which had asked for his extradition, counsel submitted, was a subterfuge to avoid the carrying of the pro- ceedings through Court.
Dealing with non political points, Mr. Jenkin said that the Governor- in-Council had power to make one deportation order only against any named person, with the exception that he could make a further order was found in the if the person Colony after the expiration of the term of banishment. There could not be two ords in existence at the same time against the same
|
person and for the same purpose. There was no jurisdiction to issue a second order until the first order had been discharged. Assuming that the first crder had been dis- charged, the man could not be re- arrested after a successful applica- tion by writ of habeas corpus.
Counsel continued that the second order was made 011 Saturday, August 15, at the eleventh hour when it was realised that the man would be discharged. That could not place the Crown in a better position by the employment of that subterfuge. If the man was arrest- ed upon the same cause or pretext the second time, then that second arrest was illegal.
"Abuse of Power." The Ordinance allowed the Governor-in-Council to make a summary order in a special case if he deemed it to be conducive to the public good. That must be the sole motive in making the order. If the Governor-in- Council was not moved by any considerations at all, then the making of that order was an abuse of power. Counsel sub. mitted that it was an order made on Saturday, August 15, when the Crown were in their death-throes in regard to the last order, and that the second order was a patent substitute to circumvent their certain and imminent defeat.
[August 28, 1931
70
conceivable that the Governor-in- Council on Saturday (August 15) obliterated from the mind every- thing which had gone before and started de novo and as though no If the inquiry had taken place. material vitiates the first order it must vitiate the second.
CROWN REPLIES TO POINTS RAISED.
ATTORNEY GENERAL "HATES USING EPITHETS."
Legal arguments were brought to a close on Tuesday when the Attor- ney-General replied to the points raised by Mr. Jenkin, for the ap- plicant, the previous day.
After dealing with the legal points raised, Mr. Alabaster said the Governor-in-Council might, at de- any time, summarily issue a portation order in certain events. He might also, at any time, issue a deportation order under certain circumstances. Counsel said he stressed the words "at any time" and the word "also."
"
"I cannot find any suggestion in the language of that section,' said Mr. Alabaster, "to say that, having adopted one course, the Government is precluded from making provisions to deal with him in the other way, should the pro- cedure by the first method selected for any reason prove to be nuga- tory. The Governor-in-Council, it is in evidence, has here utilised both sections, firstly the power to issue a deportation order against the applicant after an enquiry.
Proceeding to deal with the powers of the Governor-in-Council, Mr. Jenkin referred to the instruc- tions laying it down that the Exe- cutive Council had to be duly con- vened with a quorum of three mem-
"It became apparent in this case bers. Instruction 8 stated that the that the enquiry was irregularly Governor should attend and pre- held, which would make the order side unless prevented owing to ill-under Sub-Section 2 bad, not as ness or other grave cause.
from the date of your judgment but from the very beginning. was a cartridge, but it was a cartridge from the start.
was
Mr. Jenkin said that he quite in the dark and did not know what happened in Government circles in August 15. The Attorney- General had stated that the order was made and served on that day. | Counsel added: "We have been favoured under the present régime with what one might call a Court Circular, which one peruses with a varying degree of interest every Monday morning, and it states that the Governor presided over a meet- ing of the Executive Council. One finds difficulty in finding that a meeting took place on that Satur- day, and if they tried to hold one they would have found difficulty in getting a quorum.
The Attorney-General being tem porarily absent from the Court, the Chief Justice pointed out that the matter could be explained on his return. Mr. Jenkin agreed and proceeded to his last point.
Improper Interrogation. Dealing with the interrogation of the applicant at the Secretariat for Chinese Affairs, Mr. Jenkin said that he would put it to their Lord- ships that if the improper inter- rogation of Sung Man Cho, which that Court had already upheld, re- sulted in the Governor-in-Council having before him, and having it prior to making the second order, material which should never have been put before him, that must in- validate the second order as well
as
the first. He (Mr. Jenkin) would put it to their Lordships with some confidence that it was not
|
Faulty Investigation. Your Lordships had given intimation during the
course
It
dud
an
of
the case of a reason why this or- should be considered der
bad ab initio, and enquiries made had resulted in showing us that the enquiry at the Secretariat for Chinese Affairs was also bad for another reason.
"Your Lordships, at one of the earlier sittings in this case, stated to me that it seemed highly im- probable that the answer to Ques- tion 1, actually given by the ap- plicant, was in the form in which it was represented to be in the document which was prepared for submission to the Executive Coun- cil and, indeed, the applicant has deposed to the fact that the reply he gave to the question was not in the form in which it appears.
"Mr. Jenkin also asked that the original notes should be looked at. I promised to enquire about them. but I stated at the time that I did not know if they were
still in existence. Enquiries have been made and the notes have not been preserved, but sufficient recollec- tion of what had passed remains for it to be impossible for me tc contend that the answer to Ques- tion I was limited to what he had said in reply to the question—that is to say the last part, as to the possession of the final alias, Nguyen Ai Quce. I mean that he did not state the final alias,”