CO537-2192 — Page 107

3.

16.

Passing lastly to the question as to whether or not Shum has produced satisfactory evidence of his being a British

The first of these subject there are two statutory declarations. made by Shum's elder brother states that Shum was born on the 6th of July 1897 at an address in Victoria and that declarant was present shortly after the birth and also attended the full month celebrations. The second declaration is made by the Chief Assis- tant of Li Cheung Hing (No.113, Queen's Road West), corroborates the former as to date and place of birth and as to the full moon celebration. Both deponents are of an age when they might be expected to have some knowledge of the facts (65 in the former case and 71 in the other). On the other hand, it is by no means, inconceivable in view of the absence of registration that birth took place outside Hong Kong although Full moon celebrations were held here. There is no evidence by a doctor or midwife but in view of the age of Shum this is hardly to be expected. On the whole, the evidence cannot be considered as entirely satisfactory. Unlike the Deportation of Aliens Ordinance, the Chinese Collabora- tors (Surrender) Ordinance, contains no provision shifting the burden of proof of showing that he is a British subject on the alleged collaborator and accordingly in my view before making an order for surrender the Governor in Council should be satisfied that the Chinese National is not a British subject. This is possi- bly a defect in the Ordinance. In the present case however I do not consider an order for surrender could be made without further in- vestigation on this point.

17.

On the general question as to how the discretion vested in the Governor in Council by section 3 of the Ordinance should be exercised, I am of opinion that the Governor in Council is not restricted to the mere inquiry whether a Chinese National who is not a British subject has in dhina done an act, etc. Such inquiry is a necessary prelimiary. Having been answered in the affirmative it is still for consideration whether having regard to all the cir- cumstances the order should be made. In my view, the following considerations are material:

(a) Is the application made in pursuance of the mutual

agreement to bring traitors to book or is it a cloak for persecution of a pokitical refugee or for some other ulterior motive of which there is sufficient evidence?

(b) where the principal acts of collaboration have taken

place in Hong Kong are they acts for which the colla-

If so, is borator would be prosecuted in Hong Kong?

the collaborator although not a British subject, a Hong Kong man?

The above considerations are not exhaustive. They are mentioned because I think the principle is important and because they appear

I do not propose to express an to have a bearing in this case. opinion as to how far they should be relied upon in any particular case. A great deal naturally depends on how far there is clear evidence of serious collaboration and how far ulterior motive is substantiated. In the present case there are in my view other grounds which are sufficient to dispose of the case.

sd. George Strickland

Acting Attorney General.

11th December, 1946.