PUBLIC RECORD OFFICE
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13 PUBLIC RECORD OFFICE, LONDON
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We were also honoured with your Lordship's commands. signified in a further letter from Sir Julian Pauncefote of the 2nd ultimo, stating, with reference to his preceding letter of that date, relating to the case of 11 prisoners in Hong Kong, whose extra- dition was claimed by the Chinese Government under Article XXI. of the Treaty of Tien-tsin, he had the honour to transmit to us, by your Lordship's direction, a letter (which was inclosed) from the Colonial Office (July 26, 1884), inclosing a despatch from the Governor of Hong Kong (No. 207 of the 4th June 1884) respecting a further demand by the Chinese Government for the extradition of two Chinese fugitives charged with murder. That the prisoners had been committed to gaol, to await the orders of the Governor as to their extradition, and that the question was raised by Sir George Bowen and the Executive Council, whether in view of the Report of the police magistrate on the case, the crime charged against the prisoners was of such. a political character as to justify Her Majesty's Government in refusing their extradition.
That the same question also arose as in the other case of the 11 prisoners, whether Her Majesty's Government might properly insist on an undertaking in writing that no torture of any kind or for any purpose would be resorted to, and that Her Majesty's Consul should have access to the prisoners.
That Sir Julian was also to request that we would take the papers transmitted there- with into our consideration, and that we would favour your Lordship with our opinion on the questions submitted in that letter, and with any general observations which we might have to offer on the case.
We were also honoured with a further letter from Sir Julian Pauncefote of the 8th ultimo, stating that with reference to his two letters of the 2nd August, respecting the cases of the Chinese whose extradition had been claimed by the Chinese Govern- ment under Article XXI. of the Treaty of Tien-tsin, he had the honour to transmit to us, by your Lordship's direction, a despatch from Her Majesty's Minister at Peking, in which he called attention to the barbarous nature of the punishment inflicted upon five criminals by the authorities at Hankow. That Sir Julian was to request that we would take that despatch into our consideration, in conjunction with the previous correspondence submitted to us with his letters of the 2nd instant,
We were also honoured with a further letter from Sir Julian Pauncefote of the 19th ultimo, stating that, with reference to his letters of the 2nd and 8th August, he had the honour to transmit to us, by your Lordship's direction, a letter from the Chinese Minister in this country, renewing the applications he had previously made for the extradition of certain Chinese subjects who were detained by the authorities at Hong Kong.
That Sir Julian was, at the same time, to call our attention to the extracts marked in the accompanying despatches, addressed to the Colonial Office by the Governor of Hong Kong, giving an account of the Triad Society, to which some of the prisoners were said to be affiliated; and that Sir Julian was to request that we would take those papers into our consideration, together with those previously referred to us, and that we would favour your Lordship with our opinion upon the case at our early convenience.
We were also honoured with a further letter from Sir Julian Pauncefote of the 26th ultimo, stating that, with reference to the letter from your Lordship's Depart- ment of the 19th August, marked "Immediate," and to previous correspondence, be had the honour to transmit to us, by your Lordship's direction, a letter from the Colonial Office, inclosing copy of a further despatch from the, Governor of Hong Kong, requesting that instructions in the matter of the Chinese whose extradition was demanded might be sent to him as soon as possible.
That Sir Julian Pauncefote was to call our attention to the passage in the letter addressed to the Acting Colonial Secretary at Hong Kong on the 11th July by Messrs. Brereton, Wotton, and Deacon, in which it was stated that the provincial authorities of Canton were most desirous of yielding to the opinion of the British Government in such matters, so long as they were within the terms of the Treaty, or do not necessitate a wide departure from the laws and customs of the Empire, and also to the statement that the British Consul at Canton should have every opportunity and assurance for removing any doubt as to the strict fulfilment of the promise given. that no torture should be used in connexion with the trial or punishment of the prisoners.
That Sir Julian was to request that we would take those papers into our con- sideration, together with those previously referred to us, and favour your Lordship with our opinion on the questions submitted at our earliest convenience.
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In obedience to your Lordship's commands we have the honour to
Report
That the questions submitted to us present features of great difficulty, and the opinion we express is by no means free from doubt.
Dealing first with the more general question relating to the infliction of torture upon rendered criminals, we are disposed reluctantly to agree with the views expressed by the Attorney and Solicitor General in their opinion of the 25th November 1865, and we think that under the XXIst Article of the Treaty of Tien-tsin Her Majesty's Government cannot of strict right refuse to deliver a criminal on the ground that there is reason for suspecting that torture will be applied to such criminal. But humanity requires that every step shall be taken, possibly even to the extent of determining the Treaty, to prevent the action of the British Government assisting in any way the infliction of torture.
It appears from the letter of Messrs. Brereton, Wotton, and Deacon, dated the 11th July, that the Chinese Government are willing to extend the assurances already given, that no torture shall be inflicted on rendered criminals, and to afford to the British authorities practical opportunities for assuring themselves that the promises of the Chinese officials are fulfilled, and that no torture is inflicted. both in relation to the particular cases before us and to the general question, advantage We suggest that, should be taken of the opportunity afforded by this letter, and that the Representatives of Her Majesty's Government at Hong Kong should be instructed to consider the best practical means of maintaining communication with prisoners who have been rendered so as to ascertain if torture has or has not been inflicted. The result of such considera- tion should be communicated to the Chinese Government, and acquiescence in the proposed methods of protection from the infliction of torture should, if possible, be obtained.
In regard to the prisoners, the extradition of whom is now sought, we assume that if sufficient action can be taken in accordance with the terms of Messrs. Brereton and Co.'s letter to secure them from the infliction of torture, their cases ought to be dealt with apart from the consideration of the punishment which will be inflicted on them.
But as to the two men, Wong Ping Tai and Churn a King, the inquiry as to whose guilt has taken place before Mr. Wise, we incline to the opinion that if the offence charged prove to be one of a political character only, Her Majesty's Govern- ment would be justified in refusing to render a prisoner. In the case of those men, Mr. Wise reports that "does not disclose that the offence with which the prisoners are charged was in any way the evidence given before me "of a political nature" (and a perusal of the depositions confirms this view); but he proceeds: "But I have very strong reasons to believe that such was the case, and that "the prisoners were concerned in the Triad revolt at Moni-share in February last."
Upon the whole, we have come to the conclusion that the legal evidence ought to control this case, and that if no further inquiry be instituted and the case be con- sidered to be governed only by the evidence already taken, these two prisoners (the safeguards already mentioned being obtained) should be rendered to the Chinese Government.
In respect of the other 11 prisoners different considerations arise. directions were given by the Secretary of State for the Colonies on the 20th February Special 1884, "that the proof of guilt should be such as on the whole to satisfy the minds of the Council."
These instructions were carried out, and the Executive Council appear to have made a very full inquiry, and to have considered the evidence given on behalf of the prosecution and tho accused. They received, also, the assistance to be derived from the advice of the Attorney-General, and in the result the members of the Council, with one dissentient voice, have come to the conclusion "that the proof of guilt is not, on the whole, such as to satisfy the minds of the members." We feel great difficulty in advising that this decision should be repudiated, and we certainly do not feel com- petent to review the opinion thus given by the members of the Executive Council.
Again expressing an opinion which is not free from doubt, we think that the decision arrivod at by the Executive Council should control this case, and that those 11
prisoners should not be rendered on the ground that their guilt has not been proved within the terms of the XXIst Article of the Treaty of Tien-tsin.
We have, &c.,
(Signed)
HENRY JAMES.
FARRER HERSCHELL.
J. PARKER DEANE,
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