CO882-(3-4) — Page 424

PUBLIC RECORD OFFICE

Reference:

CO. 882

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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As regards case No. 7, I have to report that I was under the impression the prisoner was in gaol for felony under Ordinance 5 of 1871; I now see he came under Ordinance 4

I therefore committed an error. of that year;

In the case of No. 10, the man was guilty of disorderly conduct in singing while undergoing a sentence of solitary confinement for a previous offence, being convicted as a rogue and vagabond, which it appears is only a misdemeanor. I was in error in passing a sentence of flogging. I would, however, point out that on the 2nd August 1866, when Superintendent of the Stone Cutters Island Gaol, I drew attention to the exemption from flogging prisoners in gaol for a misdemeanour, enjoined and urged that Ordinance 4 of 1863 should be modified so as to include this class of offenders; Sir It will be noticed that the new Richard McDonald approved of this being done. regulations makes no distinction in the class of prisoners liable to corporal punishment except in the case of 1st class misdemeanants and debtors.

I respectfully repeat what I before stated in 1866, that many of the prisoners convicted of a misdemeanour are the worst class of criminals received in this gaol.

Lastly, in the case of No. 12, I had so much trouble with the prisoner that I awarded the punishment; I see now I should have called in a Visiting Justice; the prisoner would then no doubt have received a much severer punishment. I beg to state that during the period these sentences were passed the gaol authorities had an unusually large number of the most troublesome class of offenders to deal with; on many occasions I had upwards of 30 cases of misconduct to inquire into daily. While admitting that I have committed an error of judgment in some of these cases, I beg to submit a return which will show that the corporal punishments awarded during my two years tenure of office were very far below the number of previous years.

I have, &c. (Signed)

No. 10.

G. L. TOMLIN,

Acting Superintendent.

GOVERNOR HENNESSY, C.M.G., to the EARL OF CARNARVON. (Received

November 5th, 1877.)

(No. 122.) MY LORD,

Government House, Hong Kong, September 22, 1877.

I have thought it desirable to lay Your Lordship's despatch No. 72 of the 20th of June*, together with some of my own on the subject of prison discipline, before the Legislative Council. In doing so I made some observations on the criminal returns and gaol system.

2. I have the honor to transmit a copy of my remarks for Your Lordship's information. 3. I also enclose some copies of the despatches that were laid before the Council.

I have, &c. (Signed) J. POPE HENNESSY,

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

No. 11.

Governor.

GOVERNOR HENNESSY, C.M.G., to the EARL OF CARNARVON. (Received November 26th, 1877.) (No. 142.) MY LORD,

Government House, Hong Kong, October 17, 1877.

I have the honor to acknowledge the receipt Your Lordship's despatch No. 104 of the 28th August, 1877,† respecting certain floggings that bad been imposed on a prisoner named Chan tin lum and a recommendation of the 1st Police Magistrate that he should be deported.

• Not printed.

† No. 9.

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2. In my despatch No. 44 of the 23rd of June* I had reported to Your Lordship that on the whole I entertained such grave doubts as to the convictions and sentences in this case that I declined to add to the various imprisonments and floggings which Chan tin lum had fully undergone the further punishment of deportation, and pointed out to Your Lordship, what was patent on the face of the depositions, that the sentence on the 16th of July, 1875, of 24 strokes was illegal as the local law precludes a sentence by a Magistrate in such a case of more than twelve strokes. On this, however, Your Lordship

remarks-

"With regard to the punishment of 24 strokes awarded in the second conviction, I "observe that the charge was stealing from the person and not simple larceny, and as "under Ordinance 6 of 1862, which was then in force, the Magistrate had a general power of awarding 36 strokes, I cannot determine that there was any illegality in this case in the absence of any explanation from the Magistrates; and I do not find that you drew the attention of Mr. Russell to this point or called upon him for any ex- "planations."

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With great regret I venture however to re-affirm that the sentence was illegal. The Ordinance dealing with such cases was not, as Your Lordship supposes, Ordinance No. 6 of 1862, but the later Ordinance No. 9 of 1867.

3. On the receipt of Your Lordship's despatch I made the following minute-- "Refer the depositions in the case of Chan tin lum to Mr. Russell drawing his atten- "tion to the second conviction for stealing from the person-16th July 1875-when he "was sentenced to four months imprisonment with hard labour and to be flogged "'24 strokes with a rattan on the breech, and enquire under what provision of our law "that sentence was passed.”

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The following is a copy of Mr. Russell's memorandum in reply:-

"This case was reported on from this department on 2nd June last, and to those reports I beg to refer. It was then pointed out that, although on the face of the pro- ceedings the prisoner's age as given by himself was 21 years, yet that only 7 months "before he had given his age as 15 when he was previously convicted, as appears in " evidence by the incorporation of case No. 6726 of 1874.

"The provision of law under which I sentenced the prisoner was the then existing "Section 6 of Ordinance 9 of 1867.

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My note is '4 months H. L. and 24 strokes of rattan privately on the breech.' By some oversight I neglected to state in two instalments' of 12 each. This is a mistake "which I much regret.

"This blunder might have been detected by the first clerk or the Superintendent of "the gaol at the time, but their not noticing it is not so surprising considering that it escaped His Excellency and the members of the Executive Council (as would appear "from His Excellency's memorandum to us of the 22nd June) as well as Mr. May and

myself on review in June.

JAMES RUSSELL,

Police Magistrate."

"Magistracy,

15th October, 1877.

(Signed)

4. According to the gaol records this illegal flogging of 24 strokes was administered on He the 16th July, 1875. Mr. Russell expresses much regret for the mistake he made. thinks his blunder might have been detected by the first clerk or the Superintendent of the gaol; and he refers to the fact that it appeared for a time to have escaped my

attention.

That it should, at first, have escaped my attention is not surprising, for, though I detected other illegalities in the proceedings, I had hardly time (not being then four weeks in the Colony) to make myself acquainted with Section 6 of Ordinance 9 of 1867. But that cannot be said for the experienced officers to whom I referred the case. My first minute is transcribed in paragraph 7 of my despatch No. 44 of 23rd June*, and Your Lordship will see that it was perfectly general; that it expressed surprise at some of the sentences, and asked the Attorney General to report on each of the four convictions and

sentences.

5. The subsequent reference to the Magistrates was in these terms→→→

"Refer to the Magistrates,

(Signen) J. P. H.

30th May, 1877."

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From what preceded that minute it was clear that, though the Magistrates were expected to report especially on the question of ordering a flogging when the age of the convicted person was stated in the proceedings themselves as above 16, they were also expected to report on the other circumstances bearing on the four sentences.

• Not printed.

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