The Daily Press.
HONGKONG, August 15тa, 1877.
SUPREME COURT.
Angust 14th.
CRIMINAL SESSIONS.
BEFORE THE FULL COURT.
REGINA V. CHUN AFTK.—JUDGMENT, Mr. Justice Snowden now delivered the follow. ing judgment on the points reserved in this caso. As all the important documents and facts are set out in his Lordship's judgment, which I have had the advantage of seeing, it is not neces- sary that I should do more than refer to them. I understand the question reserved by his Lord- ship on the trial of the prisoner to be this: "Whether the Order in Council prohibiting the prisoner from residing or being in the Colony during a space of five years next ensuing from the 25th of April is to be held to begin from the date so fixed for his departure, or from the date of the order itself, the 18th of April. If the! order takes effect from the 18th, then the period of banishment will be seven days in excess of the time limited by the Ordinance No. 9 of 1857, Section 7, which says that "His Excellency in Council may by order under his hand prohibit any person not being a natural born or naturalized subject of Her Majesty from residing or being within this Colony during any space of time vot exceeding five years." Moreover the order would be in excess of the powers vested in the Governor by this ordinance, and so would be illegal and bad, and the prisoner could not be i convicted of the offence for which he was tried, namely, being found within the limits of the Colony before the expiration of the term of his banishment without lawful authority and excuse. * The state of the law seems to be as follows: The Ordinance No. 9 of 1857 Sec. 7 was amended by Ordinance 4 of 1871 Sec. 2, which enacts that Sec. 7 of Ordinance 9 of 1857 is thereby amended by oxpunging therefrom the words "following, that is to say--(I need not quote the words, but it is enough to say that in case of disobedience of the order they provide for the arrest, imprisonment, and deportation of the offender). It goes on to say ond in lieu thoreof the follow. ing words shall be substituted in the said section, "And may by the same or any subsequent order fix the time for the departure of such persov from the Colony." This law here confers upon the Governor very arbitary powers, only to be exercised with great care and discrimination, but at the same time, if so used, no one who has had any experience of this Colony can doubt that they are wholesome and raluable. Situated as this Colony is separated only by a narrow strait from China, it is always liable to become the resort of criminals coming here for the purpose of refuge or plunder. These persons may be dangerous to the peace and good order of the Colony (to use the words of the preamble of Ordinance No. 4 of 1871), and a power to remove them promptly is essential to its well-being. Notwithstanding that, the rule must prevail that these ordinances being highly penal, must be construed most strictly in favour of the persons affected by them. Bearing this in mind. I have studied most carefully the language of those ordinances, and I regret to say that I cannot bring my mind to share the doubts entertained by his Lordship the Chief Justice as to the validity of the Order in Council for dis- obedience to which the prisoner is put on his trial. I will state the gronds of the conclusion I have come to as shortly as possible, Section 7 of No. 9 of 1857 suys, His Excellency in Council may by order under his hand prohibit any person (not being a natural born or natur- alized subject of Her Majesty) from residing and being within the colony during any space of time not exceeding five years. Now any time!
Gov.
9800
can only mean presont or future time-so an order for a period of banishment to begin at a future date would not per se be in excess of the powers conferred by this, ordinance even if it stood alone. It is amended by section 2 of No. 4 of 1871 which expunges certain words and say: in lieu thereof the following worde shall be sub- stituted in the said section, "and may by the same or any subsequent order under his hand x the time for the departure of such person from the colony." It seems to me clear that these words become part and parcel of section 7 of No. 9 of 1857, just as much as if they occurred in print in that ordinance. They are "aub : stituted," which means "put in the place of the words expunged " The powers of the Go- vernor, therefore, are to make an order of banishment, and in it if he thinks fit to fix the time of departure, or merely to make the order generally and by a subsequent order fix the time. In the case before the court the time is fixed (and if I am right it may be any future time) in the same, order which prohibits residence in the Colony. I cannot see anything irregular or beyond the powers of the Governor in this order. The date of the general order (if I may so term it may be in another document. Tu the subse- quent order, as an ordinary practice I suppose, the day on which the Governor puts his hand to the paper would appear too, but it would be in- material so far as the validity of the order fixing the time of banishment is concerned, and might be omitted altogether. A. warrant of commit. ment omitting the date on which it was granted has been held to be good on the ground that it is a matter of evidence at hat date the prisoner was received into cuftody, and the period of im. prisonment must be calculated from that time in re Bowler, 120 B. 612, cited in Justice Burns, vol. 1. p. 1,157. Moreover the language of section 3 of No. 4 of 1871 shows that either one or two orders were contemplated. It says if the banished person "shall be found in the Coloug after the date of such order or after the time fixed for his departure." These words 1 understand to mean either a general order of banishment in which the time of depar- ture is not mentioned and which would operate from its date, or an order in which the time is fixed, in which case this would be the date from which the five years would run. One reason for giving this power is to be found in section 4 of the same ordinance, which provides a new order of banishment to take effect at the expiration of. any term of imprisonment to which a person found at large in disobedience to any order of banishment may be sentenced. Another reason may be that, where the order is an original one under section 7 of Ordinance 9, of 1857, and not a new one, unnecessary hardness and severity are avoided by fixing a future date. Under a general order the banished man would be only allowed the necessary time to leave the Colony from the date with the least delay. For these am of opinion that the point reserved
reasons
at the trial minst be decided for the Crown. His Lordship raised another point at the hearing of this argument which I think soareely comes within the range of the present appeal. As I understand the question it is this-Is the order bad for not setting out that the person banished is not a natural boru or naturalized subject of Her Majesty I do not think that the absence of the negative affects the validity of the order which reviles that the prohibition is made under the provisions of Ordinance No. 9 of 1857, and that ordinanoo by express enactruent provides that this law shall not apply to natural born or naturalized subjects. The absence of this negative averment would not even affect the validity of the information on a trial for such an offence, because the ordinance makes the act of being in the Colony within the five years a general offence, and in the same clause makes an exception for a particular class. This therefore i would be matter of excuse or defence only. Had this question arisen with regard to the validity of the information the Court could have euter- tained it.Queen v. Webb, 18 L.J.M.C., p. 36-- but the same rule would apply. The form of the order might be altered with much advantage. as it is defective; but I do not think that the omission to mention Ordinance 4 of 1871 can!
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