14
MINUTE BY THE ATTORNEY GENERAL.
The transactions referred to would not be recognized in our laws as giving any rights except perhaps as to guardianship, but I am unable to say that there is anything illegal in the matter beyond that. I do not think it is a criminal offence if it goes no further than the adoption of a child and the payment of money to its parents for the privilege.
31st May, 1878.
MINUTES BY HIS EXCELLENCY THE GOVERNOR.
G. PHILLIPPO.
Write to TSANG SAN-FAT saying he is entitled to the lawful custody of his child and refer him to the Police Magistrate.
Write to LEUNG A-TSIT saying that according to British law the father TSANG SAN-FAT is entitled to the lawful custody of his child.
J. POPE HENNESSY, 1st June, 1878.
No. 27.
ACTING POLICE MAGISTRATE TO ACTING COLONIAL SECRETARY.
MAGISTRACY, HONGKONG, 12th June, 1878.
SIR—I have the honour to request that the Attorney General's opinion be obtained as to what course the Magistrates should pursue with respect to the enclosed petition. From inquiries which I have made it appears the girl was sold in October last and in consideration of the purchase money $23.00 her father, the petitioner, signed a document renouncing all further claim to the girl. Notwithstanding this he now wants to get her back, but being unable to refund the purchase money the purchaser naturally objects to give up the girl, whom, having no children of his own, he had adopted as a daughter.
To
The Honourable J. M. PRICE,
Acting Colonial Secretary,
I have, &c.,
C. V. CREACH, Acting Police Magistrate.
St., &c., &c.
MINUTE BY THE ATTORNEY GENERAL.
The petition is not translated and I do not know what the Magistrate is asked to do. I know of no authority empowering the Magistrate to order the delivery of the child to the father. A writ of habeas corpus from the Supreme Court is the only means that I know of for enabling the father to obtain the possession of the child, if it is persistently refused.
G. PHILLIPPO.
14th June, 1878.
MINUTE BY THE ACTING POLICE MAGISTRATE.
The purchaser of the girl says he is quite prepared to give her up when his money is repaid but that, otherwise, he will not part with her unless compelled to do so by law.
C. V. CREAGH,
17th June, 1878.
MINUTE BY HIS EXCELLENCY THE GOVERNOR.
I fear the Attorney General does not recognize the gravity of this case.
Acting Police Magistrate.
I must trouble him to take steps to prosecute on my behalf the purchaser of the girl.
J. POPE HENNESSY. 19th June, 1878.
MINUTE BY THE ATTORNEY GENERAL.
I can find no evidence upon these papers to sustain a criminal prosecution and I am at a loss what charge to bring. If His Excellency will specify the offence which he considers has been committed, the case shall have my immediate attention. In my opinion, parties entering into a transaction of this nature in England would in no way bring themselves within the operation of the criminal law. I do not think Ordinances 4 of 1865, Par. 51, or 2 of 1875, the only local legislation that I know of on the subject, apply to the circumstances of this case.
His Excellency may remember the case of Dr. EITEL some months ago in which I gave similar advice as to the necessity of a habeas corpus to decide the rights of parties to the custody of a child.
G. PHILLIPPO.
21st June, 1878.
MINUTE BY HIS EXCELLENCY THE GOVERNOR.
I felt no difficulty in acting on the Attorney General's advice in the case to which he refers, of the girl who had been brought to the London Mission House, the daughter of a deceased Christian, but claimed by another relative of doubtful character. This case is not similar. The allegation is made by the father that his child is forcibly detained by a man who admits he had purchased her, and who the father alleges is about taking the child out of the Colony for the purpose of selling her.
Such is the allegation made by the father of the child in his first petition of the 24th of May, and again repeated in his petition of the 14th June. The father's evidence to that effect may or may not be trustworthy. But, if it should turn out to be true, the Attorney General in declining to comply with my instructions of the 19th June, will have incurred a grave responsibility.
J. POPE HENNESSY. 26th June, 1878.
MINUTE BY THE ATTORNEY GENERAL.
I did not refer to Dr. EITEL's case as being exactly similar to the present one, but only for the advice given to His Excellency on that occasion. In many respects however I think it was similar, as in that case, if I remember rightly, the mother claimed the child and the widow of the deceased was disposed to give her up upon being refunded a certain amount which she stated had been spent on the child. I am not aware that I have ever declined to comply with His Excellency's "instructions," I only wished to know in what respect His Excellency considered the law had been broken before I directed any specific charge to be brought. Upon perusal of His Excellency's Minute of 26th June, 1878, I gathered that His Excellency considered that a charge could be substantiated against LEUNG A-TSIT of forcibly detaining the child under Ordinance 4 of 1865, Par. 51, with a view to selling her in some place out of the Colony. I thereupon immediately instructed Mr. SHARP, the Crown Solicitor, to see the father of the child in order to get a statement from him upon which to found an application to a Magistrate for a Summons or Warrant. Mr. SHARP has seen both the father and mother of the child and I forward herewith the statements made by them to him. If His Excellency thinks upon perusing these statements that any case can be substantiated against LEUNG A-TSIT under Section 51 of Ordinance 4 of 1875 (taking into consideration also the proviso at the end of the Section which directs that no person claiming any right to the possession of a child shall be liable to be prosecuted by virtue thereof on account of the getting possession of such child or taking such child out of the lawful possession of any person having the lawful charge thereof) or upon any other charge, in deference to His Excellency's view, I will at once instruct the Crown Solicitor to make an application to a Magistrate for a Summons. His Excellency will observe now that there is no evidence, not even hearsay, according to the mother's statement of any intention of selling the child even if we could prosecute for a bare intention.
I have no hesitation in repeating my deliberate opinion that in a case of this sort the Magistrate has no jurisdiction—that at the most he could only use a little moral pressure and that if His Excellency desires to suppress the practice of parties adopting children or taking them as servants on giving gratuity to the parents, by the institution of criminal proceedings against parties obtaining possession of children from their parents, under such circumstances it will be necessary to introduce special provisions for the purpose.
In the numerous cases which have appeared in England where the recovery of a child has been sought the proceedings have always been by habeas corpus and no instance can be found of proceedings being taken under 24 and 25 Vict., C. 100, Par. 56, corresponding to our Ordinance 4 of 1865, Par. 51, for the punishment of a person to whom the parents have voluntarily transferred a child, even, where their consent is subsequently revoked and the child is detained as in the present case.
6th July, 1878.
G. PHILLIPPO.
Attorney General.
14
MINUTE BY THE ATTORNEY GENERAL.
The transactions referred to would not be recognized in our laws as giving any rights except per- haps as to guardianship, but I am unable to say that there is anything illegal in the matter veyond that.-I do not think it is a criminal offence if it goes no further than the adoption of a child and the payment of money to its parents for the privilege,
31st May, 1878.
MINUTES BY HIS EXCELLENCY THE GOVERNOR.
G. PHILLIPPO.
Write to TSANG SAN-FAT saying he is entitled to the lawful custody of his child and refer him to the Police Magistrate.
Write to LEUNG A-TSIT saying that according to British law the father TSANG SAN-FAT is entitled to the lawful custody of his child.
J. POPE HENNESSY, 1st June, 1878.
No. 27.
ACTING POLICE MAGISTRATE TO ACTING COLONIAL SECRETARY.
MAGISTRACY, HONGKONG, 12th June, 1878. SIR-I have the honour to request that the Attorney General's opinion be obtained as to what course the Magistrates should pursue with respect to the enclosed petition. From inquiries which I have made it appears the girl was sold in October last and in consideration of the purchase money $23.00 her father, the petitioner, signed a document renouncing all further claim to the girl. Notwith- standing this he now wants to get her back, but being unable to refund the purchase money the pur- chaser naturally objects to give up the girl, whom, having no children of his own, he had adopted as a daughter.
To
The Honourable J. M. PaICE,
Acting Colonial Secretary,
I have, &c.,
C. V. CREACH, Acting Police Magistrate.
St., sc., &c.
MINUTE BY THE ATTORNEY GENERAL.
I know of
The petition is not translated and I do not know what the Magistrate is asked to do. no authority empowering the Magistrate to order the delivery of the child to the father. A writ of habeas corpus from the Supreme Court is the only means that I know of for enabling the father to obtain the possession of the child, if it is persistently refused.
G. PHILLIPPO.
14th June, 1878.
MINUTE BY THE ACTING POLICE MAGISTRATE.
The purchaser of the girl says he is quite prepared to give her up when his money is repaid but that, otherwise, he will not part with her unless compelled to do so by law.
C. V. CREAGH,
17th June, 1878.
MINUTE BY HIS EXCELLENCY THE GOVERNOR.
I fear the Attorney General does not recognize the gravity of this case.
Acting Police Magistrate.
I must trouble him to take steps to prosecute on my behalf the purchaser of the girl.
J. POPE HENNESSY. 19th June, 1878.
MINUTE BY THE ATTORNEY GENERAL.
I can find no evidence upon these papers to sustain a criminal prosecution and I am at a loss what charge bring. If His Excellency will specify the offence which he considers has been committed, the case shall have my immediate attention. In my opinion, parties entering into a transaction of this nature in England would in no way bring themselves within the operation of the criminal law. I do not think Ordinances 4 of 1865, Par. 51, or 2 of 1875, the only focal legislation that I know of on
subject, apply to the circumstances of this case.
His Excellency may remember the case of Dr. ErTEL some months ago in which I
gave similar advice as to the necessity of a habeas corpus to decide the rights of parties to the custody of a child.
G. PHILLIPPO.
21st June, 1878.
MINUTE BY HIS EXCELLENCY THE GOVERNOR.
I felt no difficulty in acting on the Attorney General's advice in the case to which he refers, of the girl who had been brought to the London Mission House, the daughter of a deceased Christian, but claimed by another relative of doubtful character. This case is not similar. The allegation is made by the father that his child is forcibly detained by a man who admits he had purchased her, and who the father alleges is about taking the child out of the Colony for the purpose of selling her.
Such is the allegation made by the father of the child in his first petition of the 24th of May, and again repeated in his petition of the 14th June. The father's evidence to that effect may or may not be trustworthy. But, if it should turn out to be true, the Attorney General in declining to comply with my instructions of the 19th June, will have incurred a grave responsibility.
MINUTE BY THE ATTORNEY GENERAL.
J. POPE HENNESSY. 26th June, 1878.
I did not refer to Dr. EITEL's case as being exactly similar to the present one, but only for the advice given to His Excellency on that occasion. In many respects however I think it was similar, as in that case, if I remember rightly, the mother claimed the child and the widow of the deceased was disposed to give her up upon being refunded a certain amount which she stated had been spent on the child. I am not aware that I have ever declined to comply with His Excellency's "instructions," I only wished to know in what respect His Excellency considered the law had been broken before I directed any specific charge to be brought. Upon perusal of His Excellency's Minute of 26th June, 1878, I gathered that His Excellency considered that a charge could be substantiated against LEUNG A-TSIT of forcibly detaining the child under Ordinance 4 of 1865, Par. 51, with a view to selling her in some place out of the Colony. I thereupon immediately instructed Mr. SHARP, the Crown Solicitor, to see the father of the child in order to get a statement from him upon which to found an application to a Magistrate for a Summons or Warrant. Mr. SHARP has seen both the father and mother of the child and I forward herewith the statements made by them to him. If His Excellency thinks upon perusing these statements that any case can be substantiated against LEUNG A-TSIT under Section 51 of Ordi- nance 4 of 1875 (taking into consideration also the proviso at the end of the Section which directs that no person claiming any right to the possession of a child shall be liable to be prosecuted by virtue thereof on account of the getting possession of such child or taking such child out of the lawful pos- session of any person having the lawful charge thereof) or upon any other charge, in deference to His Excellency's view, I will at once instruct the Crown Solicitor to make an application to a Magistrate for a Summons. His Excellency will observe now that there is no evidence, not even hearsay, accord- ing to the mother's statement of any intention of selling the child even if we could prosecute for a bare intention.
â
I have no hesitation in repeating my deliberate opinion that in a case of this sort the Magistrate has no jurisdiction-that at the most he could only use a little moral pressure and that if His Excellency desires to suppress the practice of parties adopting children or taking them as servants on giving gratuity to the parents, by the institution of criminal proceedings against parties obtaining possession of children from their parents, under such circumstances it will be necessary to introduce special pro- visions for the purpose.
In the numerous cases which have appeared in England where the recovery of a child has been sought the proceedings have always been by habeas corpus and no instance can be found of proceedings being taken under 24 and 25 Vict., C. 100, Par. 56, corresponding to our Ordinance 4 of 1865, Par. 51, for the punishment of a person to whom the parents have voluntarily transferred a child, even, where their consent is subsequently revoked and the child is detained as in the present case.
6th July, 1878.
G. PHILLIPPO.
Attorney General.
E
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