Their Lordships were referred to the Imperial Extradition Act of 1870 and Ordinance No. 1 of 1881, which provided that a prisoner committed under an extradition warrant was entitled to discharge if not delivered up within a certain period. The Ordinance No. 1 of 1881 was directly applicable to prisoners claimed by the Macao Government, with a delay sanctioned of one month only.
The counsel submitted that the proceedings before the magistrate were without authority, as the essential communication or information from a Chinese officer was lacking. The magistrate's authority to take cognizance of the proceeding was derived from such a communication, as stated in Ordinance 2 of 1850.
The section of the Ordinance cited stated that if a complaint or information was made by a Chinese officer, or if it appeared during an investigation that a Chinese subject had committed a crime, the magistrate could issue a warrant for arrest. However, there was no such communication, and the arrest by the police constable was deemed illegal.
The prisoners were charged with being dangerous to the peace and good order of the colony, but the counsel argued that this charge was not justified, as they had done nothing within the colony. The case of Kwok A-sing was cited, where the Chief Justice decided that a person could not be charged with being dangerous to the peace and good order of the colony except for something done within the territory.
The Attorney-General opposed the motion for discharge, arguing that the court could look beyond the warrant and examine the depositions. He contended that the commitment was valid if there was substantial ground for it, even if the proceedings before the magistrate were irregular.
The Ordinance allowed for the detention and investigation of a person already in custody, and the Attorney-General argued that the prisoners were in custody, regardless of the legality of their arrest. The investigation was held, and the magistrate concluded that there was a prima facie case against the prisoners.
The Attorney-General submitted that the commitment was valid, as the depositions disclosed an offence committed by Chinese subjects against Chinese law. He also argued that the question of reasonable detention was a matter for the Executive, as the Ordinance vested the decision in the Governor.
The relevant sections of the Ordinance were cited, which provided for the committal of the prisoners to prison until the Governor issued an order regarding their further detention, discharge, or transmission to Chinese authorities.
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spirit, and meaning, and intention of the law he! would refer their Lordships to the Imperial Extradition Act of 1870, by which it was specially provided that if a prisoner committed under an extradition warrant were not delivered up to the Government olaiming him within a poriod of two months he was absolutely entitled to his discharge; and to our own Ordinanco No. 1 of 1881. directly applicable, however, only to the case of prisoners claimed by the Macao! Government, in which the delay sanctioned was one mouth only. That referred to the first point, In the next place, he submitted that the whole of the proceedings before the magistrate were without any authority whatever. The very first essential. the one thing requisite, to give the magistrate any authority ander Or- dinance 2 of 1850, which regulated Chinese X- tradition, did not apparently exist. The magis trate's sole authority to take cognisance of any such proceeding as this was derived entirely from a communication or information addressed to him by some Chinese officer. The first section of the Ordinance said-"If any com- plaint or information or any communication by any officer of the Chinese Government by made or forwarded to any magistrate or court (other than the Supreme Court) desir. ing the arrest of any person being a Chinese subject and then within the colony of Hongkong. and alleging that such person bas committed, or is charged with having committed any crime or offence against the laws of China" it should be lawful for the magistrate or court to isano a warrant for the arrest of such person. There having heen, so far as appeared, no such commu- nication, he contended that the magistrate had no jurisdiction. There was another branch of the section he had cited which was as follows-" Orif it shall appear in the course of any investiga- tion before such magistrate or court that any person being a subject of Chias has committed any such crime or offence," the magistrate or court might take the. same action as ander the other branch. Now there were no propor proceedings in which the magistrats bad any jarisdiction pending or going on before him at the time. It appeared from the state. ment of the police constable at the beginning of the depositions that he arrested these thirteen wen within the territory of Hongkong on some strange Chinaruan, not an official, coming to him and stating they had done something on Chinese territory. That arrest by the police constable was utterly illegal; the man had committed no offence against the laws of Hongkong which justified it. They were charged with being dangerous to the peace and good order of the colony. The question as to whether persons could be charged with being dangerous to the peace and good order of the colony, they having done nothing whatever within the colony to justify any such complaint against them, was raised and formally decided by tae Chief Justice in the case of Kwok Asing. No portion of his Lordship's judgment in that case was overruled though his decision ou a second writ of habeas corpur was overruled. In the case of Kwok Asing, also, the prisoner was charged before the Police Courtas being a person dangerous to the peaceand good order of the colony, the sole ground for the charge being, not anything he had done in Hong- kong or anything known of him in Hongkong, but the simple fact that he was charged with committing a murder ontside the territory of Hongkong, and the Chief Jastice decided in that case the proceedings were wholly ille- gai and that no man could be charged with being dangerous to the peace and good or der of the colony except in respect of something done hy him within the territory of Hongkong. The prisoner was charged ander Ordinanc 9 of 1857, and his Lordship said, "No attempt was made to prove so act or word within the colony by the prisoner so as to bring him in the remotest way within either the words or the spirit of that Ordinance." The learned counsel argued that the commitment was bad as it did not disclose the authority of the magistrate, and in conclusion said he left the oase in their Lordships' hands. simply putting it on those two grounds, that the whole of the proceedings and the commitment in the ärst instance were wholly without authority and illegal, that neither of the conditions necessary to give the magis. trate power to proceed existed; that assuming the proceedings to bare been regular and the warrant of coinmitment good at the time it was signed. an utterly unreasonable time had been allowed to slapse, and the prisoners were now entitled to their discharge.
The Attorney-General said he appeared to oppose the motion for the discharge of the prisoners. As to Mr. Francis's point that the
aathority of the magistrate was not stated in the warranthe contended that on a writ of habeas cropus the court could go behind the warrant and look at the depositions, and if it appeared to them that though the warrant was irregular there was greand for the commitment substantially the same as that stated in the commitment they would not discharge the prisoner; if on the other hand, the commitment was regular in form, but it appeared to the court that there was no substantial cause for the commitment, then they might tako the opposite course and quash the conviction for the purpose of discharging the prisoners. The question which had to be con- sidered, therefore, when bringing the depositions to bear on the commitment, was, not whether the proceedings before the magistrate were regular, but whether in the form in which they appeared they did substantially disclose an offence bad been committed for which a commitment of that kind would be warranted. The Ordinanco said, "Or if such person be already in custody it shall be lawful to detain such person and to investigate the alleged crime or offence in the same manner as if such person were charged with a crime or indictable offence committed within the Colony." Now it did ap- pear that when this investigation took place these persons were in custody, and that was all that was necessary to enable the magistrate to proceed. The prisoners were in custody, he cared not on what charge, and he cared not whether legally or illegally; that was to say, whether it should turn out they were guilty of the offence of being dangerous to the peace and good order of the colony or not; that could only appear ou investigation, and though it might appear to the magistrate who conducted the investigation that the suspicion was unwarranted, yet he sub. mitted it would be stretching terms to say that when brought up for the purpose of investigation the men were not lawfully in charge, But the Ordinance did not say, "shall be lawfully in charge," but "shall be already in custody," and he should say, applying the ordinary principles of interpretation, those words, "being in oustody," were to be understood in their popular sense. 48 their Lordships knew, when they had got a prisoner, his presence night cure all sorts of informalities in the way of getting him. Well, there the pri soners were, as appeared on the proceedings, in custody on two charges; whether rightly or wrongly apprehended, at all events they were thou in custody, and it was not necessary then for the magistrate to wait for any communication from the Chinese authorities. An investigation was held, and it must be taken that investigation was directed to two points, first, whether they were guilty of this charge, and, secondly, whether thoy were dangerons to the peace sud good order of the colony, and at the close of that investigation it appeared to the magis. trute a case was made out against them. He sub. mitted that was all that was necessary to warrant the commitment. He submitted they had here depositions disclosing substantially in every re- spect an offence committed by a subject of China against the law of China; they had an investiga. tion held upon the chargs, and they had the magistrate's conclusion thereupon that there was a prima facie case. Those were substantially sufficient groun is to warrant the commitment, and he submitted the commitment was a good one. Then with regard to the other point, that the detention of the prisoners had become unreason. able, and as to the construction of the Ordinance. Section 3 said it shall and may be lawful for such magistrate or court to commit such person for safe eastody to prison, and direct the gaoler to detain such person in prison until the said gaoler shall receive some order from the Governor of Hongkong relative to the further detention, disobarge, on transmission of such person to the nearest Chinese authorities or to such other Chinese authorities as to the Governor shall deem fit." What the ganlar had to consider was whether or not he received an order from the Governor, but thore was nothing providing for the time within which the Governor should give such order. Section 4 also said "It shall be lawfully for the Governor to issue his warrant or order to any magistrate, gaoler, or officer of police, for the apprehension, detention, examina- tion, transmission, or otherwise of such Chinese subject." Therefore the question as to the reason- able disposition to he made of the persons com- mitted to the keeping of the gaoler under this Or. dinance was as distinctly as words could put it re- posed in the Executive, and it was not for thecourt to deal with the question simply as one of deten. tion. In the old times the great struggle was us to the efforts of the Crown, or the King. rather, and his officers, to detain persons whose liberties were secured by the law, or ought to have been secured by the law, and the whole
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