CO885-(10-11) — Page 137

2027.

PUBLIC RECORD OFFICE

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Reference :--

C.O. 885

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

10PUBLIC RECORD OFFICE, LONDON

MY LORD DUKE,

No. 106.

(Hong Kong.)

LAW OFFICE to COLONIAL OFFICE.

Temple, February 21, 1862. We are honoured with your Grace's commands signified in Sir Frederic Rogers' letter of the 11th instant, stating that he was directed by your Grace to transmit to

us a copy of a Despatch from the Governor of Hong Kong, enclosing amongst other No. 215, documents a case which had been drawn up by the Chief Justice of that Colony, arising 13 Dec. out of the kidnapping of certain coolies on the coast of China, and their forcible 1961. detention on board the French vessel " Ville D'Agen."

Sir Frederic Rogers was also pleased to state that we should observe from these papers that two Peruvian subjects were tried before the Supreme Court of Hong Kong for being implicated in these atrocities which resulted in the murder of some of the kidnapped coolies but were acquitted for want of sufficient evidence.

One of them, however, named Juan Pastor had again been apprehended and com- mitted to gaol to await the Governor's order for the delivery of his person to the Chinese Government on the application of his Excellency Laon, Governor-General of Two Kwang.

Sir Frederic Rogers was also pleased to state that he was directed by your Grace to call our attention to the copy enclosed of a Hong Kong Ordinance, No. 6, of 1845, by the fourth section of which the laws of England are extended to the Colony, and to request that we would take these documents into our consideration and furnish your Grace at an early opportunity with our opinion on the two points raised by the Chief Justice, namely :-

1. Has the Governor of Hong Kong the power to surrender to the Chinese Govern- ment on application, if he shall think proper, any foreigner who may be found in Hong Kong after having committed a murder or other felony in the Empire of China, although by treaty between Great Britain and China the rendition of Chinese subjects only has been stipulated for?

2. If no such general right exists then, as in the present case, the prisoner did not intend to remain in Hong Kong but to pass on as soon as his ship could be made ready, had the Governor of Hong Kong the right to surrender him even although no such right may exist in the case of a resident owing at least a temporary allegiance to Her Majesty the Queen?

In obedience to your Grace's commands we have taken these papers into considera- tion, and have the honour to

Report

That 1. We answer this question in the negative. According to the law of England (which is also the law in Hong Kong) crimes committed in foreign countries by foreigners are not cognizable before British tribunals, so that it would not be com- petent to the Supreme Court of Hong Kong to try the Peruvian Juan Pastor for the outrages stated to have been committed by him in Chinese waters, or on land being portion of the territories of China. The power of mutual surrender of malefactors as between the British Government and any other State entirely depends upon treaty; and the Extradition Treaty between Great Britain and China is restricted to the surrender by either Government to the other of subjects of such other, and cannot therefore afford any sanction to the surrender of Peruvian or other foreign subjects.

2. No such general right existing as the former question describes, we are of opinion that, a fortiori, the right does not exist with reference to persons at Hong Kong, not as fixed residents, but only finding themselves there as birds of passage. For in the latter case, if any difference is to be held to obtain, it would in reason be in, abridging rather than extending the power of the local executive.

We have, &c. (Signed) WM. ATHERTON,

ROUNDELL PALMER

His Grace the Duke of Newcastle,

&c.

&c.

&c.

D 16278.-30. 25.-9/86.