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Observations of the Acting Attorney General.
The case against Shum in order to succeed must show that Shum committed some act in China.
1.
The charge that he organised a cultural expedition to Japan can therefore be ignored except in so far as it might be material to show an intent to assist the enemy. In point of fact there is no evidence of this charge and it is strenously denied. There is no reason to disbelieve the denial.
3.
It is further alleged that Shum established an office in Canton to collect and distribute propaganda for the Wah Kiu Yat ro. Per se this cannot constitute an offence and indeed it is put forward not as a separate offence but in conjunction with the charge that as publisher of his newspaper he acted in the interests of the enemy, i.e. it is put forward as showing that he committed an act in China for which surrender could be ordered. Viewed in this light it is best considered with the allegation that the paper was distributed in China.
4.
It is further alleged that Shum went to Canton in 1945 and paid personal calls on puppets, enemies and liaison officers. Pre se this does not constitute an offence. It is not substantiated by any reliable evidence and is strenously denied. See page 4 of Shum's answers to the questionnaire. In fact, Shum denies that he ever went to Canton.
5.
It is next alleged that Shum while in Canton personally re- organised and expanded pro-Japanese cultural propaganda in Canton under the direction of his newspaper. This could constitute an offence but is not supported by reliable evidence, is strenously denied. (page 4 of answer to questionnaire). Shum admits that an offer was made to him to start a newspaper in Canton with substantial privileges but states he refused it and that it was subsequently accepted by another Hong Kong newspaper. (page 4). In my view the charge has not been substantiated. It is worthy of note that the only evidence as to Shum's activities in Canton is contained in allegations made in a petition to Marshal Chang ra Kwei signed by four people and that the Prosecutor does not even state that he has found these allegations to be true.
6.
Having disposed of what I may term the minor or ancillary charges, I turn to the main charge, which the minor charges seem intended to support, that in his capacity of publisher of the wah Kiu Yat Po, Shum acted in the interest of the enemy and denounced China and her Allies. I have already pointed out that in order to succeed it must be shown that this act was done in China and for this purpose the previous charges are relevant from the point of view of establishing whether or not the sale or distribution of the Wah Kiu Yat Po in China can be laid at Shum's door.
7.
The allegation that Shum established a branch of his news- paper in Canton is denied and Shum states that far from that being the case, he, in fact, according to local custom, sold the whole distribution of his newspaper. See pages 3 and 4 of his answers to the questionnaire. While he quite obviously must have contemplated that his newspaper would be circulated in China, if the evidence is accepted it was entirely within the discretion of a person other than Shum where and to whom the newspaper would be distributed. This other person was not on this footing acting in any way as the servant or agent of Shum and therefore in my opinion his act cannot be said to be the act of Shum.
8
In my view, therefore Shum cannot be said to have done an act in China within the meaning of Section 3 of the Ordinance and accordingly the Governor in Council has no jurisdiction to surrender him under the Ordinance.
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