CO882-(3-4) — Page 425

PUBLIC RECORD OFFICE

Reference:

LICO. 882

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

4PUBLIC RECORD OFFICE, LONDON

28

1

6. I cannot accept Mr. Russell's view that such a blunder as he admits having made in this case might have been detected by the gaol officials at the time. It was only last week that I had a conversation with Mr. Russell as coroner respecting an inquest he held on a prisoner named Moka Kwai who died in gaol of phthisis on the 28th of last month. He admitted (though no reference is made to it on the proceedings of the inquest) that the prisoner had been illegally flogged four times and otherwise illegally punished by the then acting Superintendent. He appeared to be fully sensible of the fact that the gaol officials at that time were not over scrupulous in the treatment of Chinese prisoners.

7. On the question of Chan tin lam's age, in which I also think the Magistrate made a mistake, I shall do myself the honour of addressing Your Lordship in another despatch.

8. In the despateh now under reply Your Lordship says--

"Neither the power of deportation, as the order of punishment is usually called, not "the sentence of flogging for crimes of violence, are penalties which in ordinary cases or "for venial offences are in themselves desirable, but the circumstances of Hong Kong are

peculiar, &c."

I venture to point out that the sentence of five floggings on Chan tin lum were not for crimes of violence. Floggings for crimes of violence are imposed by the Supreme The Magistrates in this case never alleged that their sentence had anything to do with crimes of violence. The accused was an ordinary pickpocket who, according to the depositions, carefully avoided using any violence.

Court.

9. I take the liberty of asking Your Lordship's particular attention to the consequence of the illegal flogging in such cases as this. The Magistrate now says that the first clerk or the Superintendent of the gaol might have detected the blunder; and there can be no doubt whatever but the gaol officials must have been aware that the number of No laws are better strokes given was in excess of what the law allowed in such cases. known in Hong Kong than the flogging laws, so that the criminal himself and the other prisoners knew also that it was illegal.

10. I need not dwell on how far the knowledge of such a fact and of its painful con- sequences in the recent case of Mok a Kwai must necessarily affect the discipline of the prison.

11. Unless I can receive Your Lordship's support in putting a stop to these illegalities, I fear labours in endeavouring to reform the discipline of the gaol and to diminish

my crime will be seriously increased.

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

The Right Hon. the Earl of Carnarvon,

Governor.

&c.

&c.

&c.

No. 12.

GOVERNOR HENNESSY, C.M.G., to the EARL OF CARNARVON. (Received December 7, 1877.)

(No. 148.) MY LORD,

Government House, Hong Kong, October 31, 1877. In my despatch No. 142 of the 17th instant", I alluded to a case in which a prisoner named Mok a Kwai, who had been four times illegally flogged, had died in gaol of phthisis, on the 28th ultimo. I have now the honour to lay before your Lordship copies of the proceedings of the inquest, of a special report from the Colonial Surgeon, the opinion of the Attorney General, and some other papers relating to the case.

2. The following is the whole of the evidence of Dr. Ayres, the Colonial Surgeon, as recorded in the proceedings of the inquest :-

"I am Colonial Surgeon and medical officer of the gaol. The deceased was known "to me as an old offender, and consumptive. I recollect his banishment. It was partly "a reason for letting him out of gaol that he was in hospital a great portion of the "time.

"He has been in hospital ever since his commitment, and I certified that he was "unable to attend at the present criminal sessions. He died yesterday in the gaol

hospital of phthisis. He has been suffering from phthisis for years."

• No. 11.

29

3. On the 4th of August 1873, “for making a noise," Mok a Kwai received six strokes of the regulation cat on the back by order of the Superintendent of the gaol. On the 6th of October 1873 he was punished in the same way for "making a noise." On the 13th of December 1873 he received three strokes of the cat on the back for "making & noise."

4. Looking to Dr. Ayres' report enclosed in my despatch No. 61 of 13 July 1877*, to the effect that blows upon the back of the Chinese and other orientals led, in all cases that had come under his notice, to congestion of the lungs, and in some instances to incurable phthisis, it is possible, although the blows administered in 1873 were only fifteen in number, that they may have sown the seeds of the disease from which the prisoner subsequently died.

5. Though frequently treated for apparently trifling ailments, such as bronchitis, he was not actually admitted to hospital for phthisis till May 1876, when he remained in hospital till October 1876. He was let out of gaol in that month and deported, partly, as Dr. Ayres states, because he had been in hospital so great a portion of his time.

6. On the morning of the day he was thus deported, the 30th of October 1876, the prisoner received a flogging on the back, six strokes of a rattan for "having prohibited articles." He was on the sick list at the time.

7. Nine months after this he is again arrested for returning from deportation. In his special report Dr. Ayres says, on re-appearing in gaol Mok a Kwai was put in hospital in the last stage of phthisis. He was too ill to go to trial, and died on the 28th of September."

8. Having ascertained that the prisoner at the time when he had been flogged was in gaol, not under a conviction of felony, but for having failed to get security, I caused all the papers to be referred to the Attorney-General, who, in his letter of the 27th instant, reports that in his opinion the corporal punishments so inflicted were not authorised by law.

9. It also appears that the three floggings this man received in 1873 were illegal for another reason, in addition to that given by the Attorney-General. Those floggings were inflicted with the "regulation cat," whereas the Local Ordinance No. 6 of 1862 says The present acting that all floggings for prison offences must be with the rattan. Superintendent, Captain Ducat, has prepared a return showing that the total number of such illegal floggings in the gaol in that one year (1875) was two hundred and twenty-five.

10. From the enclosed documents your Lordship will see that another unauthorised proceeding was committed in this case. When (partly, no doubt, on the Colonial Surgeon's representations) the Governor ordered that Mok a Kwai be discharged from custody and banished, the deportation warrant then signed by the Governor set forth: "that the said Mok a Kwai be discharged out of custody, and be prohibited from "residing or being within the said Colony for the term of five years from the date hereof. And for so doing this shall be your warrant. Given under my hand in "Executive Council at Victoria, in the said Colony, this 21st day of October 1876."

In spite, however, of this he was not discharged out of custody on the 21st of October, but was kept in gaol till the 30th of October, on which day be was flogged and deported.

C

11. In the case of the prisoners In a Man and Au a Fu, whose wounds were not closed for thirty-two days after the flogging they received on the 10th of May this year, 1 reported, in despatch No. 55 of the 8th of July,† that this result may have been partly due to the fact that the flogging had been immediately preceded by a course of penal diet. In the case of Mok a Kwai who, according to the Colonial Surgeon's evidence at the inquest, "had been suffering from phthisis for years," a similar system was adopted. On the 24th of October 1876 he was sentenced (by the late Acting Superintendent) to three days solitary confinement on rice and water, and again the same day he was sentenced to another three days solitary confinement on rice and water, so that he was on rice and water for the six days immediately preceding the date of the flogging.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

I have, &c. (Signed)

J. POPE HENNESSY,

Governor.

• No. 4.

↑ No. 2.

D 3