HONGKONG.
ENCLOSURE No. 3
in C. S. O. No. 1796.
Extracts from the Judgments in
the Case of PISANI
v. LAWSON (8 Scott, 180. 8 Dowling, P. C. 57.
6 Bing, N. C. 30,
3 Jurist, 1153.)
The Daily Press.
HONGKONG, JUNE 19TH, 1869.
SUPREME COURT.
CRIMINAL SESSIONS.
BEFORE CHIEF JUSTICE SMALE.
The June sessions were opened yesterday morning at 10 o'clock, and shortly after the Chief Justice gave judgment in the case of Regina v. Souza. He said :-
The Criminal Sessions having again been opened, it is incumbent on me to deliver my decision on the objection taken by Mr. Hayllar, for the defendant, to the information filed in this case. The questions are difficult. Ever since the argument, my attention has been much drawn to other important cases almost daily, so that I have not considered the case as fully as I could wish, and my arguments are less perfect than they would be if I had had more time or more robust health.
In this case, the Attorney-General has signed an information (the form here ordinarily substituted by Ordinance for a "true bill" by the grand jury in England) against the defendant for a misdemeanor. First count, in having published a defamatory libel in a newspaper, O Echo do Povo, in the Portuguese language, concerning Mr. Pereira, Procurador at Macao, at Victoria, on the 3rd of May last. Second count, for the same libel setting out the words charging Mr. Pereira with bribery, extortion, and corruption in his office at Macao, and with other acts as being punishable by Articles 318 and 314, of the Penal Code in force there.
The Attorney-General having declined to do so, Mr. Pollard, retained by Mr. Pereira, conducted the prosecution as one by a private person. Mr. Hayllar appeared for the defendant on the 18th of May last. He read an affidavit, dated the 18th of May, by defendant, in which it was deposed that Mr. Pereira was a domiciled inhabitant of Macao, under the jurisdiction of Portugal, and a Portuguese subject, and that he was resident in Macao, and that he was then in Hongkong solely for the purpose of this cause, and he asked that the information might be quashed on the ground that Mr. Pereira had no locus standi here to prosecute as a private prosecutor, and also that there was no power whatever to prosecute for this libel in this Court on several grounds, the main ground being that a libel on this foreigner, however respectable, is not distinguished as to be a subject for an ex-officio information.
In England, as tending to war, it was not within the Criminal Jurisdiction of this Court. At the conclusion of the argument, I reserved the benefit of the objection to be taken in arrest of judgment. On the 19th of May last, Mr. Hayllar pleaded a justification under Lord Campbell's Act, and thereupon issue was joined. The Defendant filed an affidavit to show that delay was necessary for his defence, and the prosecution filed an affidavit in answer. I adjourned the case until these June Sessions.
On this, Mr. Pollard urgently requested me to allow the question of Jurisdiction to be re-argued. I had in May great doubts as to my jurisdiction: but I thought it due to the prosecutor, Mr. Pereira, to allow him to make manifest the falsity of the libel, of paramount importance to all honourable minds, as I thought. If my decision had been left as it was, the innocence of the gentleman and lady charged by this libel might have been made manifest (assuming, as Mr. Pollard did, their entire innocence, which I do not question), and with strong moral grounds, which sometimes turn the scale in doubtful legal questions, the question of Jurisdiction might afterwards have been decided by me.
Taking the position the prosecutor by his Counsel took, he has forced on for decision the legal before the moral question in this case. The question was re-argued on the 3rd instant. I should far exceed the limits of propriety if I were to comment fully on the able arguments on both sides, on the questions raised.
First—whether any libel on any non-resident foreigner, not being "distinguished" according to the meaning of that word in Libel Law, can be the subject of criminal prosecution in any form in our Courts? Second—whether any such libel can be the subject of prosecution by the libelled prosecutor in a criminal prosecution conducted by and under the responsibility of himself alone, especially in this Colony, where there is, as I believe, a public prosecutor, the Attorney-General?
Recurring eventually to the arguments on each side, but not discussing them specifically, I proceed to decide so much of the law as is necessary as to the points raised. Mr. Starkie divides remedies in respect of libels into two classes. First, "Of a Civil nature, which give a remedy in damages to the injured individual." Second, "Of a Criminal nature, which are devised for the security of the public."
Now it is not necessary to consider the civil remedy of an alien for a libel very minutely. Mr. Pollard contended at great length that every alien friend resident abroad, as in France or Portugal, has a remedy by action for a libel published in England against him. Cases considered to support the right of action for libel by non-resident foreigners were cited.
Of these, one case was, that of the Duke of Brunswick v. Harmer, 14 Q. B. 185, and the case, or rather series of cases, of the Duke of Brunswick v. Gregory were referred to; but in all these cases it was apparent that the Duke was resident and had a place of residence in England. And Pisani v. Lawson, 8 Dowl. P. C. 57, is, I believe, the only authority cited to the effect that an alien, never naturalised, but resident abroad at the date of the libel, can come into this country afterwards and sustain an action for the libel published while he was out of the jurisdiction.
But did that case decide the broad question? Pisani being a servant of the Queen in the Embassy at Constantinople, was for all English purposes within the Queen's protection. Mr. Smith, the author of Leading Cases, argued the question for the Plaintiff on that ground, and was content to obtain the judgment of the Court on that ground only.
Without, however, professing to have any opinion on this point, I assume that an alien friend resident abroad may bring a Civil action for libel on him. Why? Because an action on the case for libel, like other actions for tort, is transitory, and might be laid at Macao with a videlicet in Victoria in Hongkong.
This principle, however, does not apply to a criminal procedure in our courts for libel. I must here recur to Mr. Starkie's second division as to libels, i.e., treating them as of a Criminal nature, for the security of the public. Now indictable libels are well divided in "Russell on Crimes," into nine classes, and it tends very much to the elucidation of the precise limits of Criminal Jurisdiction as to libel if the first eight of these classes are taken together, and considered in opposition to the ninth class of indictable libels.
In 1 Rees on C. and M., page 332, they are thus enumerated: 1. Against the Christian religion. 2. Against Morality. 3. Against the Constitution. 4. Against the King. 5. Against the two Houses of Parliament. 6. Against the Government. 7. Against the Magistrates and the administration of Justice. 8. Against private Individuals. 9. Against foreigners of distinction.
Every person must admit that the first seven classes above enumerated must be read (if expressed at full) with this limitation, within this country and not within any other country. Must the eighth class of libels against private individuals, be limited by the same words, within this country, and not within any other Country? This is the whole question.
Criminal Laws, as distinguished from Civil remedies, are solely to repress acts against the peace, contra pacem, and the reason given by Hale and other text writers is that the indictment lies to prevent assaults or other breaches of the peace by the injured party—a ground not applicable to foreigners who are beyond the Queen's peace.
If all foreigners were included under the words "private individuals," in the eighth class, the ninth class would be entirely unnecessary; but if no foreigner is included in class eight, then inasmuch as some, i.e., "distinguished" foreigners, are said to be for the benefit of the Sovereign protected from libel by the Criminal Law, this ninth class is necessary.
Page 250
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HONGKONG.
ENCLOSURE No. 3
in C. S. O. No. 1796.
Extracts from the Judyments in
the Case of PISANI
v. LAWSON (8 Scott, 180. 8 Dowling, P. C. 57.
6 Bing, N. C. 30,
3 Jurist, 1153.)
The Daily Press.
HONGKONG, JUNE 19TH, 1869.
SUPREME COURT.
CRIMIMAL SESSIONS.
BEFORE CHIEF JUSTICE SMALE.
The June sessions were opened yesterday morning at 10 o'clock, and shortly after the Chief Justice gave judgment in the case of Regina v. Souza, He said :-
The thiminal Sessions having again been opened, it is incumbent on me to deliver my de cision on the objection taken by Mr. Hayllar, for the defendant, to the information filed in this case. The questions are difficult. Ever since the argument my attention has been much drawn to other important cases almost daily, so that, I have not considered the case as fully as I could wish, and my arguments are less perfect than they would be if I had had more time or more robust health. In this case, the Attorney- General has signed an information (the form bere ordinarily substituted by Ordinance for a true bill" by the grand jury in England) against the defendant for a misdemeanor. First count, in having published a defamatory libel in a newspaper, O Echo do Povo, in the Portu- guese language, concerning Mr. Pereira, Pro- curador at Macao, at Victoria, on the Srd of May last. Second count, for the same libel set. ting out the words charging Mr. Pereira with bribery, extortion, and corruption in his office at Macao, and with others acts as being punish. ble by Articles 318 und 314, of the Penal Code in force there. The Attorɩey-General having theclized to do so, Mr. Pollard, retained by Mr. Pereira, conducted the prosecution as one by a private person. Mr. Hayllar appeared for the defendant on the 18th of May last. He read an affidavit, dated the 18th of May, by defendant, in which it was deposed that Mr. Pereira was . domiciled inhabitant of Macao, under the jurisdiction of Portugal, and a Portuguese sub- fect, and that he was resident in Macao, and that be was then in Hongkong solely for the purpose of this cause, and he asked that the information might be quashed on the ground that Mr. Pe- reña had no locus standi bere to prosecute as a private prosecutor, and also that there was no power whatever to prosecute for this libet in this Court on several grounds, the main ground being that a libel on this foreigner, however respectable, is not distinguished as to be a
ex-officio information. subject for an
in England, as tending to war was not within the. Criminal Jurisdiction of this Court. At the conclusion of the argument I reserved the benefit of the objection to be taken in arrest of judg ment. On the 19th of May last Mr. Hayllar pleaded a justification under Lord Campbell's Act, and thereupon issue was joined. The Defendant filed an affidavit to shew that delay I was necessary for his defence and the prosecu- tion filed an affidavit in answer. I adjourned the case until these June Sessions. On this Mr. Pollard urgently requested me to allow the question of Jurisdiction to be re-argued. I had In May great doubts as to my jurisdiction: but I thought it due to the prosecutor, Mr. Pereira, to allow him to make inanifest the falsity of the libel, of paramount importance to all Toporable minds, as I thought. If my decision had been left as it was, the innocence of the gentleman and lady charged by this libel might have been made manifest (assuming as Mr. Pollard did, their entire innocence, which I do not question), and with strong moral grounds, which sometimes, turn the scale in doubtful legal questions, the question of Jurisdiction might afterwards have been decided by me. Taking the position the prosecutor by his Counsel took, be has forced on for decision the legal before the moral question in this case. The question was re-argued on the 3rd instant. I should far exceed the limite of propriety if I were to comment fully on the able," the most allspurgåients undoth sides, on the questions raised, First--whether any libel onany non-
250
In9649/64
resident foreigner, not being "distinguish- ed" according to the meaning of that word in Libel Law, can be the subject of criminal prosecution in any form in our Courts ? Se- cond-whether any such libel can be the subject of prosecution by the libelled prosecutor in a criminal prosecution conducted by and under the responsibility of himself alone, especially in this Colony, where there is, as I believe, a public prosecutor, the Attorney-General ? Recurring eventually to the arguments on each side, but not discussing them specifically. I proceed to decide so much of the law as is necessary as to the points raised. Mr. Starkie divides remedies in respect of libels into two classes. First, "Of a Civil nature, which give a remedy in damages to the injured individual." Second, "Of a Cri minal nature, which are devised for the secu-
rity of the public.” Now it is not necessary to
consider the civil remedy of an alien for a libel very minutely. Mr. Pollard contended at great length that every alien friend resident abroad, as in France or Portugal, has a remedy by action for a libel published in England against bim. Cases considered to support the right of action for libel by non-resident fo- reigners were cited. Of these, one case was, that of the Duke of Brunswick v. Harmer, 14 Q. B. 185, and the case, or rather series of cases, of the Duke of Brunswich v. Gregory-were refer red to; but in all these cuses it was appa- rent that the Duke was resident and had a place of residence in England. And Pisani v. Law son, 8 Dowl. P. C. 57, is, I believe, the only au thority cited to the effect that au alien, never naturalised, but resident abroad at the date of the libel, can come into this country after wrds and sustain an action for the libel: published while he was out of the jurisdiction But did that case decide the broad question ?. Pisani being a servant of the Queen in the Embassy at Constantinople, was for all English purposes within the Queen's protection. Mr. Smith. the author of Leading Cases, argued the question for the Plaintiff on that ground, and was content to obtain the judgment of the Court on that ground only. Without, however, professing to have any opinion on this point, I assume that an alien friend resident abroad may brin z Civil action for libel on him. Why P. Because an action on the case for libel, like other actions for tort, is transitory, and might be laid at Macno with a videlicet in Victoria in Hongkong. This principle, however, does not. apply to a criminal procedure in our courts for libel. I must here recur to Mr. Starkie's second division as to libels, .e., treating them as of a Criminal nature, for the security of the public. Now indictable libels are well divided in "Russell on Crimes," into nine classes, and it" tends very much to the elucidation of the pre- cise limits of Criminal Jurisdiction as to libet if the first eight of these classes are taken together, and considered in opposition to the ninth class of indictable libels. In I Rees on C. and M., page 332, they are thus enumerated:4 1. Against the Christian religion. 2. Against Morality. 3. Against the Constitution. 4. Against the King. 5. Against the two Houses of Parliament. 6 Against the Government. 7. Against the Magistrates and the adminstra- tion of Justice. 8. Against private Individuals. 9. Against foreigners of distinction. Every person must admit that the first seven classes above enumerated must be read (if expressed at full) with this limitation, within this country and not within any other country. Must the eighth class of libels against private individuals, be limited by the same words, within this country, and not within any other Country? This is the whole question. Criminal Laws, as distinguished from Civil remedies, are solely! to repress acts against the peace, contra pacem and the reason given by Hale and other text writers is that the indictment lies; to prevent assaults or other breaches of thể peace by the injured party-a ground fot applicable to foreigners who are beyond the Queen's peace. If all foreigners were included under the words "private individuals," in the eighth class. the ninth class would be entirely un- necessary; but if no foreigner is included in class cight theninasmuch as some, ¿,e., "distinguished? foreigners, are said to be for the benefit of the. Sovereign protected from libel by the Criminal Law, this ninth class is necessary. The express
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