CO885-(11-13) — Page 10

5931.

PUBLIC

RECORD OFFICE

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TIL C.O. 885

MY LORD,

No. 716.

(Hong Kong.)

LAW OFFICERS to COLONIAL OFFICE.

We are honoured with your Lordship's commands, signified in Mr. Holland's

Temple, June 15, 1871. letter of the 12th instant, stating that he was directed by your Lordship to transmit to us a copy of a telegram received from the Governor of Hong Kong relating to the case of the Chinese prisoner who was claimed by the French Government under the Extradition Treaty on the charge of murder, and upon whose case we had reported to the Foreign Office on the 28th February and 29th April last.*

We would observe that the question is raised in the telegram whether the pirates can now be brought to trial; it was not stated whether on the charge of murder or piracy.

And with reference to that point he was to refer us to an opinion of the Law Officers in 1852, which was to be found in Mr. Forsyth's book, page 229, and to our obser- vations upon that opinion in our report of the 28th February last, and to transmit to us copies of the depositions taken before the police magistrate at Hong Kong, when the prisoner was claimed by the Chinese authorities on the charge of murder.

And that he was to request we would take the papers into our consideration, and inform your Lordship, at our earliest convenience, what answer should be returned to the question whether these pirates could be brought to trial.

In obedience to your Lordship's commands we have taken the papers into our con- sideration, and have the honour to

Report

We are of opinion that the Chinese prisoners can be properly brought for trial before Her Majesty's Supreme Court at Hong Kong for piracy.

We are not informed as to the provisions of the Hong Kong Ordinance, No. 2 of 1869, under which the information is stated to have been filed on the second occasion, when it appears that the Chief Justice decided that the second arrest was for the same offence.

We are, therefore, unable to pronounce any opinion whether the Chief Justice was warranted in point of form in declaring the second arrest of the prisoners to be illegal, but we should be disposed to say that if the parties were arrested for piracy after their discharge from their previous arrest, which had been made upon the application of the Chinese authorities for their extradition, the second arrest was made alio intuitu, and they ought not to have been discharged by the Chief Justice, nor was the Attorney General liable to penalties under 31 Car. II. c. 2. 8. 6. We have already reported to your Lordship that the opinion of the Law Officers in 1852, which is to be found in Mr. Forsyth's book, p. 229, appears to us to be correct as regards the jurisdiction of a British Colonial Court to try a question of murder, and we may add of trespass, com- mitted by foreigners on board a vessel on the high seas under a foreign flag, but your Lordship will find in the same volume, p. 117, the opinion of Mr. Justice Blackburn, cited in re Ternan, 33 Law Journal (M. Ĉ.) J. P. 211," that when the crime consists in having overpowered the ship" (which in that case was an American ship) "it becomes "a crime within the jurisdiction of every civilized nation." We consider that the Supreme Court of Hong Kong has jurisdiction under 12 & 13 Vict. c. 96. to try any party within its jurisdiction for piracy under the Law of Nations; we think it right also to add that any actions which may be brought against the Attorney General under 31 Car. II. c. 2. s. 6. (the Habeas Corpus Act) should in our opinion be defended.

The Right Hon. the Earl of Kimberley.

We have, &c. (Signed)

R. P. COLLIER. J. D. COLERIDGE. TRAVERS TWISS.

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16276.-718. 25.-5/86.

• Nos. 690 and 704.

11 PUBLIC RECORD OFFICE, LONDON

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