CO129-149 - Lieut Governor Whitfield - 1871 [1-4] — Page 306

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IN THE SUPREME COURT OF HONGKONG,

IN CHAMBERS.

J3302

In re Kwok-ÅSING.

Notes of the Argument of the Attorney General against the 7 Points raised in support of the Writ of Habeas Corpus ad Subjiciendum granted by the Honourable J. Sinale, Chief Justice, to discharge the above Prisoner, who had been committed to Gaol by the First Police Magistrate to await the order of His Excellency the Governor in pursuance of the Treaty of Tientsin and of Ordinance No. 2 of 1850.

1st Point.-Apart from Ordinance No. 2 of 1850 there is no Jurisdiction in any Magistrate or Court in the Colony to deal with the Prisoner, he being a Chinese subject, and the only offence charged against him having been committed entirely beyond the Jurisdiction of the Colonial Court.

The Prisoner was originally brought up before the Magistrate as a person dangerous to the peace and good order of the Colony, under Section VI of Ordinance No. 9 of 1857.

In the course of the investigation into this charge, application was made by the Chinese Authorities to this Government through the British Consul at Canton, for the rendition of the Prisoner under Art. 21 of the Treaty of Tientsin. The application was communicated by the Colonial Secretary to the Magistrate, who in See letter annexed to the pursuance of Section I of Ordinance No. 2 of 1850, detained the Prisoner and at the close of the investigation, committed the Prisoner to Gaol until farther order of the Governor, as provided by Section III.

The Prisoner was claimed by the Chinese Authorities for the Murder of the Captain and a portion of the Crew of the French ship La Nouvelle Penelope, under Article 21 of the Treaty of Tientsin, which is in these terms: "If criminals, sub- jects of China, shall take refuge in Hongkong or on board the British ships there, they shall, upon due requisition by the Chinese Authorities, be searched for, and, on proof of their guilt, be delivered up." It is submitted, therefore, that the Court can only consider whether the Prisoner is a Chinese subject who has committed a crime and whose surrender has been demanded by the Chinese Authorities, and whether there is "probable cause" upon the face of the deposi- tions for his committal under Section III of Ordinance No. 2 of 1850.

If these conditions are established, any questions which may arise as to the expediency or propriety of his surrender rest solely with the Governor.

2nd Point.--Ordinance No. 2 of 1850 is null and void, being “ultra vires” of the

Colonial Legislature.

By Article 3 of the Charter of Hongkong, the Colonial Legislature is e- powered generally to pass Ordinances for the good government of the Colony, subject to instructions conveyed to the Governor under the great Scal.

The Ordinance in question is purely a local one, as the Treaty of Tientsin only provides for the surrender of criminals taking refuge in Hongkong,

The following Acts and Ordinances of Colonial Legislatures now in force to carry out Extradition may be instanced:-

The

Canada, Malta,

Antigua,

St. Cristopher,

British Honduras, Labuan,

Acts of 1850, e. 89.

Ordinance No. 1 of 1863.

Act No. 105.

Act No. 679.

15 Vic. c. 3.

No. 1 of 1857.

power of Colonial Legislatures to pass Extradition Acts and Ordinances

is recognized by the "Extradition Act, 1870," (Section XVII.)

See also 28 & 29 Vic. c. 63. (Colonial Laws Validity Act).

3rd Point.-Ordinance No. 2 of 1850 is now inoperative, the Treaty it was passed to carry out having been abrogated in 1858, and a new and different Treaty having been then entered into with China for the rendition of eri- minals, which Treaty has had no Legislative sanction.

It is manifest from the Preamble and from the very terms of Ordinance No.

2 of 1850, that it was passed not simply to give effect to the only Treaty then in force which contained a Provision as to Extradition, viz., the Supplemental Treaty of Nanking, (6 Hertslet 265), but to all Extradition Treaties in force for

the time being.

Depositions.