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Mr. SHARP communicated to Mr. FRANCIS the suggestions of the Chief Justice, and within a few hours after the Prisoner had been committed to Prison to await the Governor's Order as to his Rendition, the Chief Justice had issued a Writ of Habeas Corpus, and at a late hour of the evening snuumoned before him, the Captain Superin- tendent of Police, the Superintendent of the Gaol, the Crown Solicitor, and other Officers, and, I am informed, exhibited before them the same extraordinary excitement in relation to this Case which he manifested throughout the Proceedings.
It will be easily understood that the Prisoner's Attorney became the instrument and mouthpiece of the Chief Justice for the Defence of the Prisoner and there is no doubt that he acted throughout the Case in accordance with the intimations which he received from the Bench.
There being no Barrister in the Colony who would appear for the Prisoner, the Chief Justice permitted his Attorney to appear in person before the Supreme Court under the Provisions of Section VIII of Ordinance No. 14 of 1856.
This resulted in the Case being argued by me on one side and, practically, by the Chief Justice on the other, the Prisoner's Attorney. being ready of course to reiterate with great approval from the Chief Justice the views already expressed from the Bench, and to take all the necessary steps for carrying them out.
The re-arrest of the Frisoner on a charge of Piracy "jure gentium" after he had been delivered from Custody under the Chinese Extradition demand on the ground that he had committed "no offence whatever,” very much increased the mental excitement and irritation of the Chief Justice, and no time was lost by the Prisoner's Attorney in applying for a second Writ of Habeas Corpus, which was granted at once.
The Chief Justice in my hearing and that of other persons who are prepared to testify to the fact, referred to the 6th Section of the Habeas Corpus Act, and read over most pointedly the passage imposing the Penalty of £500, and stated that all Persons who had taken any part in the re-arrest or imprisonment of KWOK-A-SING on the charge of Piracy had rendered themselves liable to that penalty.
As a matter of course, the Prisoner was again discharged, and his Attorney imme- diately commenced actions against me and the Captain Superintendent of Police, for the recovery of the penalty imposed by Section VI of the Habeas Corpus Act.
(See Times of 161 V
There is a well known maxim which in a recent and important Case, the Chief Justice of England, thus expressed to the Jury: "In this sacred Temple of Justice, no s considerations save those of truth and justice ought for a moment to be admitted; no popular cry, no popular prejudice ought to be allowed to profane the sanctity or poison the administration of Justice.”
Who can doubt that Chief Justice SMALE has allowed his mind to be carried away altogether beyond the bounds of reason and common sense, by a "popular cry" in connection with the Coolie Trade?
From the Bench, he has held out Chinese Emigration as carried on under the Laws of Macao (which are quite as humane and stringent as the Regulations of the "Chinese Passengers' Act, 1855,") to be slavery, and he has judicially decided that Chinese Emigrants under Contracts of Service, may murder with impunity the Master and Crew of the Vessel in which they have agreed to embark. He has held that KWOK-A-SING "Committed no Offence whatever," and has publicly asserted that "under similar circumstances he would have acted in the same manner himself."
The result is that this man KWOK-A-SING who with his Confederates, has ad- inittedly killed nine Europeans (of whom one was an Englishman), within a few days' sail of this Colony, on board of a French Vessel which he plundered, is held up to
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public commendation by the Chief Justice of the Colony and is informed in open Court that he can take Proceedings for the Recovery of a Penalty of £500 against the Attorney General and all those who attempted to bring him to Justice.
I assured His Excellency the Lieutenant-Governor at the time the action was commenced that notwithstanding the Judgment of Chief Justice SMALE, I had incurred no liability under Section VI of the Ilabeas Corpus Act, but at the same time, that I entertained no doubt the Chief Justice would direct the Jury in point of Law to find a verdict for the Plaintiff, and that as there is no Appeal to the Privy Council, in Cases where the amount sued for does not exceed £500, (except where special leave to appeal is granted in England), it followed that the result of this Action and of other Actions which may be prosecuted under the ruling of the Chief Justice, would probably prove very remunerative to the Pirate and his Attorney.
The institution of such Actions as these by such Criminals as KwOK-A-SING against the Attorney General and the Chief of the Police, especially at the suggestion, it may be said, if not at the instigation of the Chief Justice, is a most regrettable event, and the impression which it must make upon the Chinese Community cannot fail to be very damaging to our Prestige and Authority among them.
Under the particular circumstances of this Colony, in which no man can be prosecuted for any offence without the assent of the Attorney General, who as Public Prosecutor discharges the functions of a Grand Jury, and by whom alone an informa- tion can be signed, I think the Legislature might well provide against Penal Actions being instituted without the consent of the Crown.
In conclusion, it is right to state that the Chief Justice constantly adverts both verbally and in writing to the difficulty he experiences in the discharge of his Judicial Functions owing to what he terms "the present state of his mental powers," and, certainly, the infirmity of which he complains, his singular irritability, and the extraor; dinary excitement under which his mind is laboring on the Coolie Trade question, may account, in some degree, for the want of consideration, and I may even say of courtesy, which he has exhibited towards me, from the commencement of these Proceedings, and for the annoyance to which I have been exposed, in the discharge of my public duties. On one occasion, for instance, he actually enquired of me "whom I appeared for," and on another occasion, when I applied in Court for a Rule to quash the second Writ of Habeas Corpus, he deliberately refused to give me precedence of hearing over the Pri- soner's Attorney, and such was his excitement that I had the greatest difficulty in getting him to expunge from his notes Passages utterly at variance with the facts, which he had written down as the grounds upon which he relied for his refusal to hear me,
These are little grievances, of course, which are scarcely worth mentioning; but I feel sure that when all the circumstances relating to the Case of KWOK-A-SING are known to the Secretary of State, His Lordship will not be surprised that those who are charged with the responsibility of administering the Government of this Colony, turned to him for advice and assistance at the very first moment that it was rendered possible by the opening of direct Telegraphic Communication with England.
Hongkong, 5th July, 1871.
JULIAN PAUNCEFOTE, Attorney Generai.
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