Artiebo
board the ou
of wearing apparel and ten watches the property of the oaid Master in and in ship and then in the custody and possession o
said Master Mariners and crev
against
and possession
ession and Master Mariners and crew
from
the Will
ofst the care and
of the said felcsionaly violently
did steal täple and
au
And
earry away atid
of
"the Court is also informed that at the
Piracy
teece
a bing
the said
the said Quot assault with intent to murder the
firatically
did fel
committing
felonionoly
felonienaly
ouide
Le Vigenrens the Master
of the ound ship and de and unlawfully throw the body of the The Vigoureux into the sea-
life of Ligoureux
wa o
whereby endangered.
the
A
the
(Digned ) Julian Pannafate Attorney General.
Pok
bing. Take Notice that
You
will be tried
022
this Information at the General Criminal
Session above mentioned to be holden at Mictoria in and
on the Nivelan
for the
thi Colony
Colony of HongKong day of may 1071
[liques) M. H. Alexander
Registrar
Inclosure Ne 3 in
Alloway Generali printed Report of 25. May 1871.
upin the case
of twok a Sing
(From the "Daily Press," May 23rd, 1871.)
SUPREME COURT OF HONGKONG.
May 22nd, 1871.
BEFORE THE HON, CHICP-JUSTICE SMALE.
COOLIES NOT CRIMINAL FOR RISING ON THE CAPTAIN OF A COOLIE SKIP FROM MACAO TO PERU.
IN NE KWOK ASING-JUDGMENT.
a house, in which he had been arrested, and in one of the charges to those in the other two towards which I presume he was proceeding documents:→→
as to his bone. Referring to what was said by the Court in re Douglas, in Q B. Rep. I make no observation, because in the view I take of this case to do so is unnecessary; but if neces- enry it is open to the prisoner to contend that such rest vitiated the whole of the subse- quent proceedings against him, or such of them as it is his interest to allege were unsustainable in faw. Such arrest was on a demand by the French Consul for the prisoner's arrest, nade pending the hearing on the writ of habeas cor ps before me, and upon a warrant granted for his arrest dated the 16th day of February last, at which time also that hearing before me was actually pending. An investigation upon this new demand by the French Consul proceeded in the Council Chamber before the Executive Council, but the Attorney-General on the 26th day of April, 1871. announced that the French Consul withdrew his demand, and that investi- gation terminated suddenly, the prisoner being The following judgment by Chief-Justice present. Immediately thereupon the Attorney- Smale, on the return to a second habeas corpus
General directed the Superintendent of Police of Kwok-a-sing, who had been committed by conneil Chamber, on a charge of piracy jure to arrest, and he did arrest, the prisoner, in the
Mr. May, Police Magistrate, for piracy jure gentium. Under this arrest the prisoner was gentium and murder, and against whom an in-brought before Mr. May, who coinmitted him formation for piracy and robbery and a deadly for trial before this Court in its Crminal Ses. assault on the captain and crew of th Nouvelle sins. On an appointment made by me at Chambers on the 10th of May, the Court sat Penelope at soa, had been filed, and had been on the 12th, specially to hear a motion for a served on the prisoner. This decision follows! writ of habeas corpus directed to the Superin- up and carries out to its logical consequences tendent of the Gaol, and ordering him to bring the decision of the same jodge on the 29th up the body of the prisoner. I granted the writ March last. The judge unhesitatingly declares and also a writ of ce tiorari for the depositions. Both write were returned into Court on the 15th, the right of coolies in the coolie atrips for Peru when I heard the motion on the second, the now to regain their freedom by any means in their pending, writ for the discharge of the prisoner. power. It will be noticed that the prisoner was The following are the words of the substantiul set at large.
part of the second warrans of commitment by Mr. May, of the 10th of May, 1871. Whereas the abore named dofondant was
Judgment.
Al ser.
Afterwards stealing a boat.
velle Panelove, and her apparel
atosling her at sea.
Feloniously seizing ship Nouvelle Penelope, and saniting,
in respect of which this second and tackle at sea.
Piratically and feloniously se "Habeas Cor, us" is pending. against prisoner on commitment No. 2.- Offence as set out stealing ship Nou-
"set at large." contmitment, from which on first No. 1.-Offence as sat out un "Habeas Corpus" prisoner was
out naming them.
certain of the Crew, with- Murdering Captain and
On 4th of Octo' er. 1870,
prisonor. information is filed against No. 3.--Offence for which
apparel and tackle at sea, xing ship Nouvello Penelope and Piratically and feloniously sei
throwing them into the sea. of the Crew, naming them, and Assaulting Captain and certain
outbreak, and before their death
10 watches, in custody .. within the few minutes after against will of Captain and Crew,
On 4th of October, 1870. Piratically stealing $10,000 and
on 4th October,
At sea, and in peace of the
Queen.
No subsequent charge.
In Jurisdiction of Admiralty at
sea, and is pence of the Queen.
On 4th of October, 1870.
of the Crew, narning them. Murdering Captain and ecrtain
the
Excluding
consideration at pre-
entirely from
charged before me on the testimony of credible sent N3. and considering only No. 1 and Kwok-a-sing was committed to Gaol by war-witnesses for that the said defendant, on 4th No. 2, Mr. Francis contends that they describe vant of Mr. May. Police Magistrate, dated the 7th October last past, with a number of other evil the same offence," and no other, and he con- of February, 1871, in which it, was set forth as fol- disposed persons unknown, with arins upon the tends that under sec, 6 of the Habeas Corpus Act the prisoner is entitled to be discharged lowe:-"That a communication having been re-bigh seas within the Jarisdiction of the Ad ceived requiring the rendition of the defendant miralty of England, in and on board a certain from custody. Neither for or against the pri- ahip or vessel called the Nouvelle Penelope soner has any case as a precedent in point beon on behalf of the Chinese Government as a sub- upon the high seas then being in and upon one found in the books in this Colony. I am, there- ject of China who has committed certain crimes Vigoreas, the auster of the said, the officers fore, driven to work out for myself the precise Now, considering that and offences against the Laws of China, by and seamen of the said ship in the peace of meaning of see. 6. participating in the murder of the crew of God and our Lady the Queen, then and there the act was passed inter alia to prevent op- being piratically and feloniously did make an pression by repeated arrests for the same the French ship Nouvelle Penelope, and it ap-assault and the said ship, and the apparel and offence, I read the operative words of section pearing to the
apon investigation of the tackle of the said ship, feloniously and violent. 6, as applicable to this prisoner, thus: That case that there is cause to believe that the said ly didsteal, take and carry away; and immediate no person set at large upon any habeas corpus shall be again imprisoned or commit ed "for defendant is a subject of China and has com-ly before the commission of the said felony, the milted the said crimes against the Laws of said defendant and the evil disposed persons the same offence" by any person, other than
aforesaid did feloniously, wilfully and of their by the legal process of the court having ju China by feloniously seizing the said ship al seu, malice aforethought, kill and murder the said risdiction of the cause." I am of opinion that and by murdering the Captain and certain of the Vigorenx, the master, Manfiflent, the chief the subsequent part of this section which crew of the said ship on the 4th October last past, officer of the said ship, and Le Jusaat, Paul gives a right of action need not be referred to at sea; and further that after committing the Gigot, Francis Labert, Edmund Mongaret for the purpose now before me. Now, as I and Ishmael Alphonce, seamen, and a certain have said, I am bound to believe the un- said crimes did feloniously seize a boat belong Manila seaman, whose name is not known, of contradicted affidavit that the offence men- ing to the said ship, and land at a place called the crew of the said ship, and it was tioned in each of Mr. May's commitments Pahka, in Chinese territory, on the 4th October, thereupon ordered that the said defendant is one and the same, and no other. Moreover, aforesaid, and it was thereupon adjudged that the should be committed to prison to take his the bad act which is the meaning of "offence” as set out in each colnain appears to me to be said defendant for the said offence shonld be trial for the said offence at the next Cri-
minul Sessions of the Supreme Court." the same in substance. Now who or what has committed to guol for detcution pending the re- Mr. Francis deroses that the piratical and anthority given to him or it to again imprison ceipt of orders from H.E. the Lient.-Governor felonious acts deposed to against Kwok-a-sing or arrest the man set at large? The "Court as to his further disposal." I believe the prac-on this second occasion are the same felonions having jurisdiction of the cause," and no other. tice has been without exception for the Go-acts, and no other, as those in respect of which Can Mr. May, or can his Court, be so designated? vernor on such a finding to deliver up the per- he was on the 7th of February committed. He Cox v. Coleridge, 1 B and C, 87, but which I al- son claimed to China. A writ of habeas corpus of My committed by Mr. May, and the offence
also deposed that Kwok-u-sing was on the 10th ways read in 3 Burns Jus. by Chetwyn, 1825, a most instructive case, with which I was more was obtained, and the prisoner was brought charged in that warrant is the same, and no
familiar some thirty or forty years ago than before me, when the Superintendent of the other, as that for which he was committed on now, shows that although when sitting to Gaol adduced the warrant, the purport of the 7th of February last. No affidavit in cou- punish under a statuto, Mr. May sits as a which I bave just read, as the cause of deten.tradiction or explanation having been filed, Court, yet that when be sits as a magistrate tion. On the same occasion Mr. May, in obe- must take these statements so far as they with a view to committal for trial before thia dience to a writ of certiorari, returned to me sions of law, as established for the purposes
are statements of facts, and not conelu Court his magistracy is not a Court. His is a preliminary inquiry" and not a "trial." But the depositions on which his warrant was of the prescut decision. I may bere note that concede it to be a Court," has it or can it founded. After protracted arguments and af. for the prosecution reliance is also placed on have jurisdiction of the cause." Now juris- diction is an authority jusdicere, which has ter very much consideration the prisoner was, the fact that an information equivalent to e on the 18th of April, 1871, by this Court, to use been filed. I have drawn out in a
true bill on an indictment by a grand jury has been well translated to pronouncejudgment- tabular to give a judicial decision that is to end and the words of section 6 of the Habeas Corpus Act, form the several charges on the first com determine the cause, which Mr. May certainly ** delivered and set at large upon” that "habeas mitment, which I held to be bad, and has no authority to do. This simple etymological corpus." The prisoner was, as I understand, on the second commitment on the writ of analysia conclusively to my mind excludes Mr. May's power to commit as an exception to the immediately after his having been so set at habeas corpus now under consideration, and as large," seized within a gun shot of the Court, torney-General now also relied on. The fol. contained in the information filed by the At-
general prohibition of a second commitment in the 6th section, I beard a cross motion by as he was proceeding towards Taipingshan, in lowing Table shews the sateness of the charge the Attorney-General to quash the writ of
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