PUBLIC RECORD OFFICE
חיון
C.O.8
Reference --
885
3 PUBLIC RECORD OFFICE, LONDON
No. 15.
English law of alicnage does not
apply in Hong Kong.
No. 16.
Legislature of Hong Kong con not, by Ordinance, abolish a material particular neres.
sary by the law of England to conti- tute the crime of perjury,
18
Secondly. It follows that the Supreme Court of Hong Kong has not the necessary authority to take cognizance of the case.
We have, &c.
The Right Hon. Sir J. Pakington, Bart.,
&c.
&c.
&c.
(Signed)
No. 15.
J. D. HARDING. FRED. THESIGER. FITZROY KELLY.
Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to the Duke of NEWCASTLE.
MY LORD DUKE,
Temple, April 24, 1854.
WE were honoured with your Grace's commands contained in Mr. Merivale's letter of the 9th of February last, in which he stated that he was directed by your Grace to send to us the enclosed despatch of the Governor of Hong Kong, covering an "Ordinance for the removal of doubts regarding the right of aliens to hold and transfer property within the Colony of Hong Kong."
That Hong Kong is a ceded Colony, having been acquired from China by the Treaty of 1842, and has a Legislative Council constituted of members appointed by the Crown, under the Governor's Commission and Instructions.
Mr. Merivale then stated that he was directed to request that we would report to your Grace our opinion whether the Ordinance in question was one which could lawfully be passed by the Legislature of Hong Kong (with the confirmation of the Crown), either under the provisions of the 10th & 11th Vict., cap. 83, or by virtue of its general legislative power.
And whether, if we were of opinion that such Ordinance did not exceed the power of the Legislature, it was one which Her Majesty ought, on constitutional grounds, to be advised to confirm.
In obedience to your Grace's commands, we have considered the said Ordinance, and have the honour to report that the English Law of Alienage cannot have any application to Hong Kong, and that, in our opinion, the Ordinance is right, and proper to be confirmed.
We have, &c. (Signed)
His Grace the Duke of Newcastle,
&c.
SIR,
&c.
&c.
No. 16.
A. E. COCKBURN. RICHARD BETHELL.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Mr. Secretary LA BOUCHERE.
Lincoln's Inn, March 10, 1857.
WE were favoured with your commands signified in Mr. Merivale's letter of the 21st ultimo, in which he stated that he was directed by you to request that we would furnish you with a further opinion respecting an Ordinance recently passed by the Legislature of Hong Kong, and entitled "An Ordinance for amending the Law of Evidence and Trial by Jury."*
Mr. Merivale further stated that some of the provisions of this Ordinance were made applicable by Sir J. Bowring to proceedings before Her Majesty's Consuls in China, and the Ordinance was on that account communicated by
And in
• No. 15, of 1856. him to the Foreign Office, and was submitted for the opinion of the Law Officers
of the Crown, in Mr. Hammoud's letter of the 1st of November last. their reply of the 15th of November, they recommended that the Ordinance should not receive the sanction of Her Majesty; stating that several enactments of the Ordinance, and in particular the 5th and 8th Clauses, were objectionable, as being at variance with the law of England, and not, as it appeared to them,
19
justified in the application to the Colony; and they added their opinion, that it is desirable, as far as possible, to keep the Criminal Law in Her Majesty's Colonies in conformity with that of the mother-country; that it is evident to you that, when this opinion was given, the Law Officers of the Crown had not before them any statement of the grounds on which the principal provisions of the Law (from Section 4 to Section 9 inclusive) were passed.
Mr. Merivale therefore stated that he was directed to request our perusal of the accompanying papers, including two Reports from the Attorney-General of Hong Kong, by which we should see that the mere administering of an oath fails entirely to secure truth from Chinese witnesses; that the present Ordinance is an attempt to effect that object, at least in a greater degree, by dispensing with oaths in the case of heathens (as is done in the territories of the East India Company), and facilitating, as much as possible, the punishment of false evidence; and that this method is stated by the Attorney-General to have been hitherto remarkably successful.
Mr. Merivale was pleased to add that, under these circumstances, and with reference to the Imperial Act 6th Vict., cap. 22, you wished to be informed whether we consider any of the provisions of the above-mentioned Ordinance (and if so, which of them) either to be illegal in such sense as that Her Majesty cannot lawfully sanction them, or (notwithstanding the explanations of the Attorney-General of Hong Kong) to be open to objection in point of expediency. In conclusion, Mr. Merivale pointed out that, in his letter of the 20th of November, 1856, the same Ordinance was referred to us for our opinion, upon a separate objection which was supposed to apply to its 1st Clause; and stated that no difficulty will arise in giving effect to the opinion expressed on this clause of the Ordinance in our letter of the 11th of December last, and that he merely alluded to it to point out that it has no connection with the Report he now brings under our consideration.
In obedience to your request, we have perused and considered the Ordinance passed by the Legislature of Hong Kong, and have the honour to report-
That the 6th Vict., cap. 22, gives a limited power to the Legislature of any British Colony to make Ordinances touching the admission of evidence in any judicial proceeding in such Colony, although such Ordinances may be repugnant to the law of England. This enactment is limited to the admission of evidence only, and the Act recognizes the obligation of Colonial Acts being in accordance with the law of England. But the 5th, 6th, 7th, and 8th Enactments of the Hong Kong Ordinance propose to alter most materially the established law of England in respect of the crime of perjury, and to make that punishable as perjury which by the laws of England does not amount to that offence.
This is, in our opinion, illegal. But even if it were within the power of the Colonial Legislature to make, and of Her Majesty to sanction, this Ördinance, it would, in our opinion, be highly objectionable and inexpedient.
It is quite repugnant to reason and justice to hold that a statement which
is immaterial and irrelevant to the issue shall, if untrue, be made the subject of an indictment for perjury. If this Ordinance were sanctioned, the crime of perjury would be one thing at Hong Kong, and a different thing in the rest of Her Majesty's dominions.
We cannot, therefore, approve of the 5th, 6th, 7th, and 8th Articles, or allow them, with our approbation, to be submitted to Her Majesty for confirmation.
We have, &c. (Signed) RICHARD BETHELL.
J. S. WORTLEY.
The Right Hon. H. Labouchere, M.P.,
&c.
&c.
&c.
No. 17.
Copy of a LETTER from the Attorney-GENERAL to Mr. Secretary LA BOUCHERE.
Lincoln's Inn, April 3, 1857.
SIR,
*
I WAS favoured with your commands signified in Mr. Ball's letter of the 21st ultimo, wherein he states that he was directed by you to transmit copy of
F
No. 17.
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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