CO885-(11-13) — Page 15

7546.

No. 721.

PUBLIC RECORD OFFICE

Reference :-

TILUC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

That we are of opinion that the restriction imposed upon the Legislative Council of Van Diemen's Land by the 12th section of 13 & 14 Viot. c. 59., remains in force upon the bodies which that council was authorised to create in substitution for itself.

If it be

It is an imperial restriction, and we are unable to concur with the Attorney General of Van Diemen's Land that it can be removed by Colonial legislation. thought desirable to remove it, as we gather from Mr. Holland's letter that it is, this can only, we think, properly be done by an Act of the same authority which imposed it, that is to say, the Imperial Parliament.

The Right Hon. the Earl of Kimberley,

&o.

&c.

&c.

We have, &c. (Signed)

R. P. COLLIER.

J. D. COLERIDGE.

(Нона Кома.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

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

Temple, July 29, 1871. letter of the 22nd instant, stating that with reference to the case of Kwok-a-Sing, a Chinese coolie, who was charged with murder and piracy on board the "Nouvelle Penelope," and to our reports to the Foreign Office of the 28th February and 29th April, and to the Colonial Office on the 15th of June, he was directed to bring under our notice the proceedings that have taken place in the case with a view of obtaining our opinion thereon. That it would be remembered that the rendition of Kwok-a- Sing was first claimed by the Chinese Government on the charge of his having murdered the captain and a portion of the crew of the French ship "Nouvelle Pene- lope" on the 4th of October. A copy of the minutes of the proceedings in the police court were enclosed. That a writ of habeas corpus to discharge the prisoner was granted by the Chief Justice, and a motion for a rule to discharge the writ was discharged on the 29th March. A copy of the notes of the argument of the Attorney General and of the judgment of the Chief Justice was also enclosed. That the ren- dition of Kwok-a-Sing was also claimed by the French Government on the charge of murder, but this claim was subsequently abandoned on the ground, as stated by the Attorney General, that after the judgment delivered by the Chief Justice, wherein he declares the crime charged to be no crime at all, but rather a commendable proceeding, and the "Nouvelle Penelope" to have been a slaver and her captain a pirate, it would be inexpedient to expose his Government to the mortification of seeing the prisoner again released. That the Attorney General thereupon filed an information against the prisoner for piracy under the provisions of an Ordinance No. 2 of 1867, which provides that

"for the purpose of bringing any criminal case under the cognizance of the Supreme Court an information, signed by the Attorney General, shall be as valid " and effectual in all respects as an indictment presented by a grand jury," and the prisoner was re-arrested. That the Chief Justice issued another writ of habeas corpus with a view of discharging the prisoner from custody, and upon motion for a rule to discharge the writ he delivered a judgment discharging the rule; and the prisoner was set at liberty. A copy of this judgment and of the report of the Attorney General was also enclosed. That it is not stated what has become of Kwok-a-Sing, and whether he is still in Hong Kong, but it will be seen that the Attorney General at the end of his report submits the expediency of an immediate application to the Judicial Committee of the Privy Council for leave to appeal against both judgments of the Chief Justice. Mr. Herbert was directed by your Lordship to request that we would take these papers into our consideration, and furnish your Lordship with our opinion on the following questions :—

*

1. Whether these judgments of the Chief Justice were right in law?

2. Whether, if these judgments, or either of them, be wrong in law, it is in our opinion advisable that an application should be made for leave to appeal against them, and if this question be answered in the affirmative, what steps should be taken to bring the case before the Judicial Committee?

In obedience to your Lordship's commands we have the honour to

Report

That we are clearly of opinion that the second judgment of Chief Justice Smale was wrong. We much question the soundness of many portions of his first judgment, and the matter being one of great practical importance we on the whole think it advis able to apply for leave to appeal against both, and we suggest that the Queen's Proctor should be instructed to prepare the necessary papers to support a motion for this purpose.

The Right Hon. the Earl of Kimberley, K.P.

We have, &c. (Signed)

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

• 16878-714 25,-5/86.

• Nos. 690, 704, and 716.

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