Hongkong.
No 74
28 July 1877.
Geotruer
J. Pope Hennessy Esqy
to
The Right Honorable.
The Earl of Carnarvon)
Frauenutting some-
the Chief
observations of the Justice on the Reportation
Frdinance
+
¦
The
Daily Press.
HONGKONG, JULY 27TH, 1877.
SUPREME COURT.
July 26th, -
BEFORE THE FULL COURT.
The argument as to the validity of the warrant of deportation in the case of W Alook, who was sentenced to six months' hard labour at the Criminal Sessions for returning, this point being reserved, came on. The warrant was dated the 18th April but was not to take effect until the 25th, and the period for which the man was to be deported was five years.
The Chief Justice said the question he raised was whether the Governor by an order professing to be under Ordinance 9 of 1857, and not referring to any subsequent ordinance, confining himself by the limitation of his recital dated the 18th April, 1877, could by anything in the body of the order extend the prohibition to reside in the colony beyond the 18th April, 1882, whereas by this order the prisoner was prohibited from residing here until the 25th April, seven days beyond the five years; and whether the order being bad for that would not be bad for all.
The Attorney-General argued that although the order was dated the 18th the intention was to make it commence on the 25th, not the 18th; that between those days the prisoner had a right to remain here, and consequently the period of five years was not exceeded. The section relating to deportation in Ordinance 9 of 1857 had been amended by Ordinance 4 of 1871 by which certain words were expunged and the words "and may by the same or any subsequent order under his hand fix the time for the departure of such person from the colony." The section could not be read without this amendment and it was therefore clear that the Governor had the power to make an order to commence at a later date.
The Chief Justice-To commence seven years afterwards?
The Attorney-General-If he so pleases. It may be an absurd power to give to a Governor, but so it is.
The Chief Justice-Oh, no; I must interpret it as a sensible power.
The Attorney-General said the words of the ordinance were "during any space of time not exceeding five years," and those words evidently meant any space of time not exceeding five years the Governor might choose. He also argued that it was for the benefit of the party deported that the order should not take immediate effect but that he should be allowed a few days to arrange his affairs.
The Chief Justice said it would be necessary to negative the objection that the prisoner was not a natural born or naturalised subject of Her Majesty. It was part of his crime to be a Chinese.
The Attorney-General said the order was not a conviction.
The Chief Justice said it was of that nature.
The Attorney-General-It is not necessary he should have committed any offence whatever.
The Chief Justice-He is an alien.
The Attorney-General said that was not an offence, and he had known the same power to be exercised by a Governor without any legislative sanction whatever. The Crown had the power to prohibit aliens residing in the country, but whether that power extended to Governors of Colonies might be another question.
The Chief Justice said the ordinance of 1857 was passed in a season of panic, when a dreadful state of things existed and there was an attempt at general poisoning. It was an extraordinary ordinance, and must be construed with extraordinary caution.
The Attorney-General-It has never been suspended.
The Chief Justice-But it was a dead letter for a long time, and there was no punishment for deported persons coming back.
The Attorney General-But in 1871 the legislature thought it necessary to make it a little stricter. The learned Attorney then went on to argue that it would be for the party deported to show that he was a born or naturalised subject, as it must be within his own knowledge, and it was one of the axioms of evidence that where a thing is within the knowledge of the party himself it must lie with him to prove it; it cannot lie with the Government to prove a negative.
The Chief Justice asked how about our treaty with the Emperor of China.
The Attorney-General submitted that the Court was bound by the Ordinances and not by the treaty, as was decided in the American extradition case. The Chinese Government might have a complaint against Her Majesty's Government.
The Chief Justice-Yes, quite so; but it induces this Court to be more stringent.
The Attorney-General-Your Lordship will remember that in the extradition case the Courts held themselves bound by the Act of Parliament which had superseded the clause in the Ashburton Treaty.
The Chief Justice-Yes, because that was subsequent; here the treaty is subsequent to the Ordinance. His Lordship went on to say that a very serious political question arose out of this, for if the Governor was authorised to deport any one the Emperor of China was equally authorised to deport all our merchants, because there was a reciprocity clause in the treaty. This was not the first time this point had been raised and acted upon.
The Attorney-General said that was not a question for the court, but for the executive. As he submitted his Lordship's remarks went to the policy of issuing the Ordinance at all and had no reference to this particular case.
His Lordship said the policy made it imperative upon him to construe the ordinance in the strictest way.
The court would consider what the decision must be. It was a very important question and a very nice question.
(1st adjournment)
Page 464
Hongkong.
No 74
28 July 1877.
Geotruer
J. Pope Siennessy Chely
to
The Right Honorable.
The Earl of Carnarvon)
Frauenutting some-
the Cheef
observations of the Justice on the Reportation
Frdinance
+
¦
The
Daily Press.
HONGKONG, JULY 27TH, 1877.
SUPREME COURT.
July 26th, -
BEFORE THE FULL COURT.
The argument as to the validity of the war- rant of deportation in the case of W Alook, who was sentenced to six months' hard labour at the Criminal Sessions for returning, this point being reserved, camo On. The warrant was dated the 18th April but was not to take effect until the 25th, and the period for which the mau was to be deported was five years.
The Chief Justice said the question he raised was whether the Governor by an order pro-¦ fessing to be under Ordinance 9 of 1857, and not referring to any subsequent ordinance, confining himself by the limitation of his recital dated the 18th April, 1877, could by anything in the body of the order extend the prohibition to reside in the colony beyond the 18th April, 1882, whereas by this order the prisoner was prohibited from residing here until the 25th April, seven days beyond the five years; and whether the order being bad for that would not be bad for all.
The Attorney-General argued that although the order was dated the 18th the intention was to make it commence on the 25th, not the 18th; that between those days the prisoner kad a right to remain here, and consequently the period of five years was not exceeded. The section relating to deportation in Ordinance 9 of 1857 had been amended by Ordinance 4 of 1871 by which certaiu words were expunged and the words "and may by the same on any subsequent order under his, hand fix the time for the departure of such person. from the colony." The section could not be read without this amendment and it was therefore clear that the governor bad the power to make an order to commence at a later date.
The Chief Justice-To commence seven years afterwards?
The Attorney-General-If he so pleases. It may be an absurd power to give to a governor, but so it is.
The Chief Justice-Oh, no; I must interpret it as a sensible power.
The Attorney-General said the words of the ordinance were "during any space of time not exceeding five years," and those words evidently meant any space of time not exceeding five years the governor might chouse. He also argued that it was for the benefit of the party deported that ¦ the order should not take immediate effect but that he should be allowed a few days to arrange his affairs.
The Chief Justico said it would be necessary to negative the objection that the prisoner was not a natural born on naturalised subject of Her Majesty. It was part of his crime to be a China-
.
The Attorney-General said the order was not a conviction.
The Chief Justice said it was of that nature. The Attorney-General-It is not necessary he should have committed any offence whatever.
The Chief Justice-He is au alien.
The Attorney-General said that was not an offence, and he had known the same power to be exercised by a Governor without any legislativo sanction whatever. The Crown had the power to prohibit aliens residing in the country, but whether that power extended to Governors of Colonies might be another question.
The Chief Justice said the ordinance of 1857 was passed in a season of panic, when a dreadful state of things existed and there was an attempt at general poisoning. It was an extraordinary ordinance, and must be construed with extraor linary caution.
The Attorney-General-It has never been suspended.
The Chief Justice-But it was a dead letter for a long time, and there was no punishment for doported persons coming back.
The Attorney General-But in 1871 the legis. lature thought it necessary to make it a little strioter. The learned Attorney then went on to argue that it would be for the party deported to show that he was a born or naturalised subject, as it must be within his own knowledge, and it was one of the axioms of evidence that where a thing is within the knowledge of the party him- self it must lie with him to prove it; it cannot lie with the Government to prove a negative.
The Chief Justice asked how about our treaty with the Emperor of China.
The Attorney-General submitted that the Court was bound by the Ordinances and not by the tresty, as was decided in the American ex tradition case. The Chinese Government might have a complaint against Her Majesty's Govern. ment.
The Chief Justice-Yes, quite so; but it in. duces this Court to be more stringent.
T'ho Attorney-General-Your Lordship will remember that in the extradition case the Courts held themselves bound by the Act of Parliament which had superseded the clanse in the Ashbur ton Treaty.
The Chief Justice-Yes, because that was sub- sequent; hore the treaty is subsequent to the Ordinance. His Lordship went on to say that a very serious political question arose out of this, for if the Governor was authorised to deport any one the Emperor of China was equally au- thorised to deport all our merchants, because there was a reciprocity clause in the treaty. This was not the first time this point had been raised and acted upon.
The Attorney-General said that was not a question for the court, bat for the executive. As he submitted his Lordship's remarks went to the policy of issuing the Ordinance at all and had no reference to this particular case.
His Lordship said the policy made it impe. rative upon him to construe the ordinance in the strictest way.
The court would consider what the decision must be. It was a very important question and a very nice question.
(1. lactisure)
464
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