881
187
(12)
୯
In the Governor's Instructions under the Royal Sign Manual and Signet (Art. XXIX) the provision of the Charter as to Pardons is recited, and the practice to be observed in such cases is laid down, and the Governor is forbidden to pardon any offender unless upon receiving the advice of the Executive Council thereon. Ordinance No. 1 of 1860 regulates the powers of the Governor as to Conditional Pardons, and defines exactly the conditions which he may annex to a pardon.
Since my return to the Colony in December, 1868, I have heard of criminals being liberated upon certain conditions as to Branding, Deportation, and Flogging, but I never was consulted until now as to the legality of these proceedings, and I have always been under the impression that the system was carried on in pursuance of Special Instructions from the Secretary of State.
Whether the system be objectionable or not, having regard to the exceptional conditions of the Colony as to crime, is a secondary consideration. The important question upon which my opinion is required is whether the Governor possesses the legal power to carry it out. I have therefore referred to the Despatches on the subject and the following appears to be the state of the case.
In 1866 an Ordinance was passed (No. 8 of 1866) which by Section XV provided that criminals might on their own petition be liberated on condition of being branded and deported, and it also enacted that if found again in the Colony, they were to be flogged and remitted to their original sentence.
Lord Carnarvon, who was then Secretary of State for the Colonies, objected altogether to this Clause, and directed it to be expunged from the Ordinance. The Duke of Buckingham, however, who succeeded Lord Carnarvon at the Colonial Office, after further correspondence on the subject, consented to permit the Clause to stand with the following modification, namely, that the flogging should not be inflicted unless the criminals not only returned to the Colony, but were again convicted of a crime.
His Excellency Sir Richard Graves MacDonnell thereupon caused Ordinance No. 8 of 1866 to be repealed, and it was re-enacted as No. 9 of 1867, but the provisions of Section XV were entirely omitted.
The Governor's reasons for leaving them out are given in his Despatch transmitting a copy of the new Ordinance; and in it he proceeds to state that as no power is now conferred on the Governor to deal with criminals in the manner proposed, "the Executive can only deal with them in accordance with engagements which they may voluntarily enter into."
I can find no trace of any further allusion to the subject, except in Paragraph 13 of the Governor's Report accompanying the Hongkong Blue Book for 1866, dated October 29th, 1867.
The Queen may extend her mercy upon what terms She pleases, and may annex to Her bounty a condition either precedent, or subsequent; but the Governor of a Colony can only pardon within the terms of the authority which is delegated to him, and therefore, in the absence of Special Instructions from the Secretary of State, a pardon granted by the Governor of Hongkong to a criminal upon conditions of branding and deportation, and of his being flogged in case of his return to the Colony, is not a pardon "subject to lawful conditions" within the meaning of Article XXIX of the Governor's Instructions, and is, in my opinion, illegal, whether the criminal assents to it or not.
23rd May, 1870.
JULIAN PAUNCEFOTE, Attorney General.
THE COLONIAL Secretary to the Superintendent of Victoria Gaol.
Mr. DOUGLAS must understand very clearly, that no engagements can hereafter be proposed to or made with prisoners by which they might be assumed to have submitted themselves voluntarily to branding or flogging.
Any such punishments, if legal, can only be inflicted under sentences pronounced in due course of law by the Judge or Magistrate.
25th May, 1870.
By Command,
(13)
RETURN of PERSONS who, according to the foregoing opinion of the Attorney General, were BRANDED illegally, or BRANDED and FLOGGED illegally in Hongkong.
NAME OFFENCE DATE OF SENTENCE SENTENCE DATE OF BRANDING AND DEPORTATION DATE OF FLOGGING Lee A-cheong Kidnapping 20th Oct., 1866 9th Nov., 1866 Low A-ping Rogue and Vagabond 1st Nov., 14th Nov., Wong A-soy Larceny from the Person 27th Feb., 1865 22nd Nov.,J. GARDINER AUSTIN, Colonial Secretary
881
187
( 12 )
୯
In the Governor's Instructions under the Royal Sign Manual and Signet (Art. XXIX) the provision of the Charter as to Pardons is recited, and the practice to be observed in such cases is laid down, and the Governor is forbidden to pardon any offender unless upon receiving the advice the Executive Council thereon. Ordinance No. 1 of 1860 regulates the powers of the Governor as to Conditional Pardons, and defines exactly the conditions which he may annex to a pardon.
Since my return to the Colony in December, 1868, I have heard of criminals being liberated up an certain conditions as to Branding, Deportation, and Flogging, but I never was consulted until now as to the legality of these proceedings, and I have always been under the impression that the system was carried on in pursuance of Special Instructions from the Secretary of State.
Whether the system be objectionable or not, having regard to the exceptional conditions of the Colony as to crime, is a secondary consideration. The important question upon which my opinion is required is whether the Governor possesses the legal power to carry it out. I have therefore referred to the Despatches on the subject and the following appears to be the state of the case.
In 1866 an Ordinance was passed (No. 8 of 1866) which by Section XV provided that criminals might on their own petition be liberated on condition of being branded and deported, and it also enacted that if found again in the Colony, they were to be flogged and remitted to their original
sentence.
Lord Carnarvon, who was then Secretary of State for the Colonies, objected altogether to this Clause, and directed it to be expunged from the Ordinance. The Duke of BUCKINGHAM, however, who succeeded Lord CARNARVON at the Colonial Office, after further correspondence on the subject, consented to permit the Clause to stand with the following modification, namely, that the flogging should not be inflicted unless the criminals not only returned to the Colony, but were again convicted of a crime.
His Excellency Sir RICHARD GRAVES MACDONNELL thereupon caused Ordinance No. 8 of 1866 to be repealed, and it was re-enacted as No. 9 of 1867, but the provisions of Section XV were entirely omitted.
The Governor's reasons for leaving them out are given in his Despatch transmitting a copy of the new Ordinance; and in it he proceeds to state that as no power is now conferred on the Governor to deal with criminals in the manner proposed, "the Executive can only deal with them in accordance with engagements which they may voluntarily enter into."
I can find no trace of any further allusion to the subject, except in Paragraph 13 of the Governor's Report accompanying the Hongkong Blue Book for 1866, dated October 29th, 1867.
The Queen may extend her mercy upon what terms She pleases, and may annex to Her bounty a condition either precedent, or subsequent; but the Governor of a Colony can only pardon within the terms of the authority which is delegated to him, and therefore, in the absence of Special Instructions from the Secretary of State, a pardon granted by the Governor of Hongkong to a criminal
the upon conditions of branding and deportation, and of his being flogged in case of his return to the Colony, is not a pardon "subject to lawful conditions" within the meaning of Article XXIX of the Governor's Instructions, and is, in my opinion, illegal, whether the criminal assent to it or not.
23rd May, 1870.
JULIAN PAUNCEFOTE, Attorney General.
THE COLONIAL Secretary to the Superintendent of Victoria Gaol.
Mr. DOUGLAS must understand very clearly, that no engagements can hereafter be proposed to er made with prisoners by which they might be assumed to have submitted themselves voluntarily to branding or flogging.
Any such punishments, if legal, can only be inflicted under sentences pronounced in due course of law by the Judge or Magistrate.
25th May, 1870.
By Command,
13 )
RETURN of PERSONs who, according to the foregoing opinion of the Attorney Generul, were BRANDED illegally, or BRANDED and FLOGGED illegally in Hongkong.
NAME.
1866.
Lee A-cheong,..... Low A-ping, Wong A-80y, Koong A-hoong, Wong A-cheong,. Chea A-hon,... Chun Tai-ha, Foong A-wa, Lew A-see, Lum A-ming, Taug A-yung, Chun A-tye,... Cheong A-choo,
Chin A-chung..
Tsang A-leong,
Lum A-ming, Lam A-sow....
Loo A-fun, Lai A-boong,
Shek A-hing, Lai A-bing, Lee A-hong, Wong A-kow,
Loo A-ling. Chu A-choy,
1867.
Ewan Kap-hing... Chun A-kit, Wong A-Fook, Wong A-pang.. Chow A-kai,.. Chum Kom-chi,
Chum A-bang,..
Yung A-ling,
Teang A-ng....
Cheong A-pang,
Cheang Tin-choy, Cheang A-on,
Lam A-woh, Lam A-qui, Chow A-sing, Joze Petro,.. Tsong A-khe,
Leong A-yow,
Ng Hop-chin, Mak A-ler,
Tang A-cheong,
Chun A-fook,
Wong A-chee,
Wong A-ting,
Leong A-sur,
Chea A-on,
Yum A-choy,
Yip Kwong,..
Ling A-loong,
Wong Fak-lin,..
Yip A-sow,
Lee Sow,
Cheong A-sow,
Leong Kwok-chee,
Kwok A-hoe,..
Kwok Hoy-kit,
Chun A-you,
Lye A-khe,
Leong A-ping.. Chum Se-kum,
Wong Ping,
Leong A-yan,
Lee A-yau,
Cheong Sing-chow,...
Chun A-chow,
Chan A-siog,
Chun A-fook,
Lam A-poe, Wong A-wah, Choy Foo-hee, Cheong A-ling, Chan A-sow, Lai Fat-kun, Ya A-mahn,. Kwok Luk, Wan A-ku,
J. GARDINER AUSTIN, Colonial Secretary,
Hu A-tuk,... Tang A-ling, Kwok Yow, Yip Yee,
OFFENCE.
Kidnapping,
Rogue and Vagabond, Larceny from the Person,
Do., Do.,
Robbery, Robbery with Violence, Suspicious Character, Robbery with Violence. Larceny, Compound Larceny, Piracy,
Do.
Suspicions Character,
DATE OF SENTENCE,
SENTENCE.
Years. Mos. Days.
20th Oct., 1866,
1st Nov.,
27th Feb., 1865,
11th Mar.,
23rd Dec.,
31
"
22nd June, 1864,
20th June, 1862,
3
7th Nov., 1866, 2nd July, 1857, #1st Oct., 18th Oct., 1858, 18th June, 1869, 12th Nov, 1866, 16th Nov., 9th Nov.,
Do.,
Do
12th Nov.,
Dies
#
DO
Do..
d,,
Do.,
Do.
Do.
Do.,
Du..
Larceny from the Person,
Do.,
Do
Child Stealing,
Larceny From the Person, Larceny,
Obtaining Goods by False Pretences,
Larceny in a House,
Breaking and Stealing in a Shop,
Violent Assault,
Felony,
Rogue and Vagabond,
Do,,
Do..
Suspicions Character, Robbery with Violence,
Do.,
Forgery,
Highway Robbery,
Larceny,
Larceny,
Extortion,
Demanding Money with Menaces,
Larceny,
Larceny and Escape,
Robbery with Wounding,
Piracy and Escape,
Piracy,
DO.
,
16th Nov.,
26th Dec., 1885,
4th Oct.,
33
28th Dec., 1864,
15
15
10
10
DATE OF BRand- ING AND DEPORTATION.
12
9th Nov., 1866,
on sa kú co co co do a wow ! GR
14th Nov,, 71
++
22nd Nov.,
29
6th Dec.,
77
35
25
+
}}
13
13
**
1
23rd Jan., 1867,
>1
18th Jan..
72
DATE OF FLOGGING,
18th Apr., 1885, į
25th Apr..
14th July, 1866,
6
23rd Jan,
12
20th Feb.,
18.
11
18th Dec., 1885,
"
ያት
7J
19th Sep., 1867,
12th Jan.,
}}
12th Oct., 1866,
12
23rd Jan.,
12
5th June, 1867.
7th Aug.,
71
T
12
16th Nov.,
4
12
35
20th May, 1861, 20th Jan., 1862,
24th June, 1864, 21st July, 18th Aug.,
*
1
ول
$7
Burglary,
21
19th Aug..
Highway Robbery,
24th Nov.,
Do..
33
Larceny from the Person, Larceny, Do.
10th May, 1865,
"J
19th Nov.,
18th Dec.,
27th Nov.,
19th May,
26th Nov., 1861,
21st Nov., 1861,
2nd Aug., 1857,
16
20th Sep.,
A
Lat Sep.,
15
3rd Jan..
n
18th Dec., 1858,
15
J
18th June, 1859,
10
10
17
18th June, 1870,
10
20th Sep..
10
少女
10
19th May, 1862,
6
19th Aug.,
6
19th Nov.,
6
19th Feb., 1803,
5
TO
DO.
Do.
DO
Do.,
Do.,
Robbery with Violence, Cutting and Wounding, Robbery with Violence, Burglary. Piracy, Burglary, Child Stealing, Larceny and Escape, Suspicious Character, Forgery, &c.,
Rogue and Vagabond, Do.,
Robbery from the Person, &c.
Do.,
Do.,
Larceny,
Lum A-sing Wong Tai-choy, Leung A-wai, Chun A-iye,
Kidnapping,
Larceny in a Dwelling House, Extortion,
Larceny in a Dwelling House, Larocuy from the Person,
Assault,
Rogue and Vagabond,
Larceny,
18th Junc, 1859, 19th Feb., 1863, 21st June, 1864, 23rd Nov., 12th Jan., 1867, 24th Nov., 1866, 19th Oct.,
71
15th Jan., 1865,
19th Mar., 1866,
5th Apr.,
19th May,
נז
15th Jan.,
4th Feb.,
21st Mar.,
*
19
17
"
22nd May,
18
18th May,
18
17
79th July,
18
33
27
| 21st Nov., 188ð,
18
**
12th Feb., 1866,
20th June, 1867,
29th June,
20th Aug., 1866,
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