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His Excellency on his arrival here introduced many changes into the then existing methods of dealing with crime and criminals as appears by the papers before me and by documents previous y published; all changes, however good the ultimate results may be, are attended with some temp. ary inconveniences until the new machinery moves smoothly in the new lines. In the present case, the changes were not generally * approved of; but it seems to me that the inconveniences were short in duration and small in fact.
It is unnecessary to restate the facts, which appear sufficiently clear upon the Reports and Tabular Statements, and I will confine myself to the statement of the conclusions I have come to upon these figures and reports and upon my own observations as Chief Justice.
1st. His Excellency Governor HENNESSY has restored the rule according to which Sir HERCULES ROBINSON dealt with convicts. When I was Attorney General, and up to 1866 the Court in passing a sentence knew that it would be carried out to the full extent except that each prisoner whose prison character was good was considered to be eligible for--but not entitled as of right to--a remission of one third of his sentence. Sir HERCULES ROBINSON treated good conduct as the normal condition of prisoners and not as something exceptional for which they were to be rewarded. He looked at it not as merit but as absence of demerit. Each application for remission of sentence was dealt with on its individual merits. I am not quite certain but I believe that no criminal was released without the consent of the Chief Justice.
Piracy and other crimes of the period overcrowded our gaol. An old man-of-war hulk and the gaol on Stone Cutters' Island were provided for the surplus. In 1866, the Executive in order to avoid the expenses of a second gaol gave conditional pardons, without reference to myself as Chief Justice, to hundreds of prisoners after having served very short portions of their sentences, the condition being that they should leave the Colony and this practice was followed subsequently. Most of these men returned to the Colony and to that I attribute the formation of an enlarged criminal community from which the Colony has never since been freed. His Excellency Governor HENNESSY, since about the end of a year after his arrival, re-established the rule of Sir HERCULES ROBINSON and referred the cases to the Judges as Sir HERCULES ROBINSON had done. Thus mercy to those deserving of it has always been shown whilst really dangerous characters have been kept in prison. Thus also the Judges act on the assurance that the precise sentence will be carried out subject only to remission according to settled rulcs.
It has long appeared to me that the Judge is responsible for the due trial of and sentence upon accused persons. There their functions cease, if the Executive do them the honour to consult them, it is their duty to give the best advice they can; but it seems to me that the responsibility of dealing with convicts rests exclusively with the Executive. These views are confirmed by a Report No. 2 on Penal and Prison Discipline, a parliamentary paper printed in Victoria, 1871, which contains most valuable facts and observations.
2nd. Although by law, the Supreme Court has long been enabled by special provisions adequately to punish old offenders twice previously convicted, a practice prevailed at the Magistracy to deal with such offenders by repeated sentences of short terms of imprisonment. His Excellency Governor HENNESSY, however, being impressed with the entire uselessness of these proceedings induced the At first this raised the Magistrates to send all such old offenders for trial in the Supreme Court. number of prisoners for trial there greatly. The first monthly calendar after the change raised the number of prisoners for trial to, I believe, forty, but when the adequate punishment of old offenders became known, subsequent calendars soon returned to the usual rate, and some of the worst characters in the Colony were subject to long terms of imprisonment without any sensible increase in the inmates of the gaol.
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3rd. Flogging as an additional punishment for crimes accompanied with violence was introduced by Ordinance immediately after Chief Justice ADAMS, and I had gone home on sick leave. He and I had ways opposed its introduction. I am bound to say that on my return, after trial for a year, the universal satisfaction expressed at the result induced my reluctant acceptance of the system.
I, however, was prepared to consider with very great earnestness, the objections of His Excellency the Governor to flogging in public supported as he was by the highest authority at home. Flogging being brutal and brutalizing it appeared to me that flogging in private had both these characteristics, whilst it was largely wanting in the deterrent element addressed to the eyes of the lowest brutes in society which, to me, had been its chief if not its only recommendation. I rarely sentenced men to be privately flogged, but I soon became convinced as I now am that although the Ordinance might well remain unrepealed, it should be had recourse to, only in very exceptional cases, and that with rare exceptions flogging may be avoided altogether.
4th. Mr. TONNOCHY's Report is, (especially para. 4) to my mind, the best answer to all objections to the reforms which His Excellency the Governor has introduced. The decrease of diet and the in- creased introduction of the separate system, as reported in p.p. 6-7, shew that a near approach to a sufficiently deterrent punishment has been attained. Within ten months ending 30th November 1879, 103 prisoners had been subjected to this discipline and within the three months following only three had been imprisoned again. In para. 9 I find that there has been no flogging for a gaol offence for a period exceeding 7 months to the 10th March, whilst from personal observation and report I am satisfied that strict discipline has been maintained.
I am not prepared to add that the precise deterrent limit as to diet and labour and solitary con- finement has been attained. I feel that much tentative effort remains for Mr. ToNNOCHY to suggest and for the Executive to direct.
5th. Whatever may be the civilization of the higher Chinese life which at best, I fear, is of the Lord CHESTERFIELD surface character, the extent and debasement of criminals in China so affect the character of crime in Hongkong that we must hope rather to repress it by deterrents towards which much progress has been made, in preference to seeking the reformation of individual criminals, the great aim of prison discipline in England and every where under English law whenever practicable. In England we can speak intelligibly to the prisoner and call up in him latent associations of good. Here
purposes of moral reformation the prisoners are as if they were uneducated deaf and dumb.
for
Having had matters requiring immediate attention I have not until just now been able to give that continuous attention to the facts necessary to a correct expression of opinion. I now beg to offer the foregoing observations on the results of the changes which have been effected. Mr. Justice FRANCIS and I have each considered the facts, and I may add that he concurs in general in the conclusions I have expressed.
An able writer on this subject has said "I am against repeated short sentences; to punish a ma "as some have been punished, seventy times! with the same small fine or short term of imprisonment The Honourable "is a farce."
* With reference to this statement, His Excellency the Governor has directed the despatch transmitting the resolutions of the Public Meetin of October, 1878, and the despatches transmitting the views of the Chinese community on the subject, to be appended to this letter,
THE COLONIAL SECRETARY,
Hongkong.
I have the honour to be,
Sir,
Your most obedient Servant,
JOHN SMALE, Chief Justice.
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