deliver up any prisoner of their own motion and without demand. The Ordinance undoubtedly went beyond that and gave power to the Magistrate to make his warrant of committal on such an amount of evidence as would justify commitment for trial of a prisoner for an offence committed in Hongkong, but there had been no requisition by the Chinese Government, and the magistrate therefore had no jurisdiction, as the men were not legally in custody on any other charge, it being clearly the magistrate's duty, after the ruling in the Kwok Asing case, to discharge them at once when according to the evidence of the very first witness they had done nothing in Hongkong which rendered them liable to be proceeded against as dangerous to the peace and good order of the colony. The proceedings were therefore coram non judice. The whole proceedings from beginning to end, including the charge of the police constable that the men were dangerous to the peace and good order of the colony, were a sham, utterly groundless, and for the sole purpose of detaining the prisoners in custody in the hope or expectation that some application might be made by the Chinese authorities.
The Attorney-General rose to object to this language.
The Chief Justice said Mr. Francis was only using it arguendo.
Mr. Francis continued his argument. He contended that the provisions of section 1 of Ordinance of 1850 as to the commencement of an inquiry by the magistrate when it appeared in the course of another case that a crime had been committed in China could only apply when there was a bona fide case before him, while here there was none, as the magistrate ought to have discharged the men at once when it appeared they had done nothing in the colony.
Mr. Justice Russell said he presumed that if the men were murderers in China they would not be peaceable subjects here.
Mr. Francis said that point was authoritatively settled by the judgment in the Kwok Asing case, and again cited the passage already quoted. With reference to the other point, the unreasonableness of the length of the detention, he said he did not know that he could add anything to what had already incidentally dropped from their Lordships in the course of the case. The questions their Lordships had asked almost showed their views on the subject. Whatever might be the cause of the delay, whether they were waiting for a proper requisition for rendition or any other reason, there was no power in the Executive to detain them. The necessary conditions did not exist when the men were committed; there was no power to detain them until these conditions were complied with or until such formal requisition had been sent in.
The Attorney-General said a requisition was not made on oath and would therefore form no part of the proceedings returned by the magistrate on certiorari.
Mr. Francis said there were cases which showed that in England the absence of the warrant of the Secretary of State would be fatal.
The court reserved judgment and remanded the prisoners until Tuesday.
SUPREME COURT.
8th November.
CRIMINAL JURISDICTION.
BEFORE THE FULL COURT.
IN THE MATTER OF YUNG AKAM AND TWELVE OTHERS, PRISONERS IN VICTORIA GAOL.
The prisoners were brought up on remand on a writ of habeas corpus.
Mr. Francis, instructed by Messrs. Brereton and Wotton, appeared for the prisoners, and the Attorney-General (Hon. E. L. O'Malley), instructed by the Crown Solicitor (Mr. E. Sharp), for the Crown.
The Chief Justice said the court did not propose to deal with the case finally to-day. They had given it a great deal of consideration and they saw there was much that required very careful attention, and as the Attorney-General had offered to produce reasons for the detention of those men for the very long time they had been in gaol, they thought it would be well to give him an opportunity of doing so on affidavit. This was quite within the spirit of the extradition laws of the United Kingdom, because if after the lapse of two months the prisoners were not handed over or discharged, the officers of the Crown had to give the reasons. They thought, following that course, it would be well that the Crown should state by affidavit the reasons for which they had detained those men. The affidavits would be served on the other side, who would have an opportunity of answering them, and, if it should be desired, of cross-examining the witnesses. They therefore adjourned the case to give an opportunity of affidavits being filed and so on. The point was whether the magistrate had power to commit without a requisition from the Chinese authorities.
Mr. Justice Russell said that in Ordinance 2 of 1871 it was stated that the Treaty of Tientsin was to be read as though it had been in existence when Ordinance 2 of 1850 was passed, and in the 21st section of the Treaty of Tientsin it stated that "if criminals, subjects of China, shall take refuge in Hongkong, or on board the British ships there, they shall, upon due requisition by the Chinese Authorities, be searched for, and on proof of their guilt, be delivered up." It apparently made it clear there that before the law was put in motion, there should be a requisition by the nation demanding them. By Ordinance 2 of 1850, the positions were, first, that a complaint or information was made by an officer of the Chinese Government; secondly, that some other case was going on in which the magistrate learned there was some person in the colony who had committed an offence against the laws of China, upon which he issued his warrant; thirdly, there was some person in custody and it appeared there had been an offence committed against the laws of China. The question arose under that third section, could the magistrate get rid of the prisoner by committing him and say, "I put it now in the power of the Governor to detain him until he gets a requisition from the Chinese." While the prisoner was under remand, he was under the control and jurisdiction of the magistrate; could the latter put him out of his jurisdiction by handing him over to the Governor to rendite him before he had got, either directly or indirectly, a requisition from the Chinese Government? because in the second section of the Ordinance it said-In any such warrant of arrest or any subsequent warrant of committal—that was the case here—it shall be sufficient to describe the crime or offence of such person in terms the same as, or similar to, those contained in such complaint, information, or communication aforesaid." The question was, did not that contemplate that before there was a final committal warrant, there should be before the magistrate a requisition stating what was the crime said to have been committed in China? That was the point. All the cases he had seen seemed to show that the magistrate had before him a requisition for the surrender of the accused, and where that was not the case, the committal was held to be bad. He could not find that this was clearly decided in the Kwok Asing case; there was a good deal of discussion there in the Chief Justice's judgment, but it was not clear. He understood Mr. Francis to contend that was so.
Mr. Francis said that particular point had not struck him, but he thought he saw what was in his Lordship's mind. His contention was that there must be a requisition in every case.
Mr. Justice Russell said the magistrate had complete domination over the case as long as it was under remand, but immediately he committed it, it was out of his hands. The point was, whether, if there was no requisition placed before the magistrate, the committal was not bad.
Mr. Francis-In other words, whether, though he can detain under the second branch of the section, he can commit without a requisition.
Mr. Justice Russell-Yes; whether he can put the prisoner out of his control. In the Kwok Asing case, there was a requisition made through the Colonial Secretary.
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deliver up any prisoner of their own motion and without demand. The Ordinance undoubtedly want beyond that and gave power to the Magis- trate to make his warrant of committal on such au amount of evidence as would justify commit- ment for trial of a prisoner for an offence com- witted in Hongkong, but there had been no re- quisition by the Chinese Government, and the ma gistrate therefore had no jurisdiction, as the mon were not legally in custody on any other charge, it being clearly the magistrate's duty, after the ruling in the Kwok Asing case, to disobarge them at once when according to the evidence of the very first witness they had done nothing in Hongkong which rendered them liable to be proceeded against as dangerous to the peace and good order of the colony. The proceedings were therefore coram non judice. The whole proceedings from beginning to end, including the charge of the police constable that the men were dangerous to the peace and good order of the colony, were a sham, utterly groundless, and for the sole purpose of detaining the prisoners in custody in the hope or expecta- tion that some application might be made by the Chinese authorities.
The Attorney-General rose to object to this language.
The Chief Justice said Mr. Francis was only using it arguendo,
Mr. Francis continued his argument. He cou tended that the provisions of section 1 of Ordi- natee of 1850 as to the commencement of an inquiry by the magistrate when it appeared in the course of another case that a crime had been committed in China could only apply when there was a bona fide case before him, while here there was none, as the magistrate ought to have discharged the men at once when it ap- peared they had done nothing in the colony.
Mr. Justice Russell said he presumed that if the men were murderers in China they would not be peaceable subjects hero.
Mr. Fraucis said that point was authoritatively settled by the judgment in the Kwok Asing case, and again cited the passage already quoted. With reference to the other point, the un- reasonableness of the length of the deten. tion, he said he did not know that he could add anything to what bad already incidentally dropped from their Lordships in the course of the caso. The questions their Lordships had asked almost showed their views on the subject. Whatever might be the cause of the delay, whe ther they were waiting for a proper requisi tion for rendition or any other reason there was It no power in the Executive to detain them. the necessary conditions did not exist when the men were committed there w no power to detain them until these conditions were complied with or until such formal requisition had been sent in.
The Attorney-General said a requisition was not made on oath and would therefore form no part of the procae lings returned by the magis trate on certiorari,
Mr. Francis said there were cases which showed that in England the absence of the war. rant of the Secretary of State woul! be fatal.
The court reserved jadgment and remanded tbe prisoners until Tuesday.
SUPREME COURT.
8th November.
CRIMINAL JURISDICTION. BEFORE THE FULL COURT.
IN THE MATTER OF YUNG AKAM AND TWELVE OTHERS, PRISONERS IN VICTORIA GAOL, The prisoners were brought up on remand on a writ of habeas corpus.
Mr. Francis instracted by Messrs. Brereton and Wotton, appeared for the prisoners, and the Attorney-General (Hon. E. L. O'Malley), in- structed by the Crown Solicitor (Mr. E. Sharp), for the Crown.
The Chief Justice said the court did not pro- pose to deal with the case finally to-day. They had given it a great deal of consideration
and they saw there was much that required very careful attention, and as the Attorney-General had offered to prodaco reasons for the detention of those men for the very long time they! had been in gol they thought it would be well to give him an opportunity of doing so on affidavit. This was quite within the spirit of the extradition laws of the United King. dom, because if after the lapse of two months the prisoners were not handed over or discharged the officers of the Crown had to give the reasons. They thought, following that course, it would be well that the Crown should state by affidavit tha reasons for which they had detained those men. The affidavits would be servad on the other side, who would have an opportunity of answering thom, and, if it should be desired, of oroas. examining tho witnesses. They therefore ad- journed the oase to give an opportunity of affi davits being filed and so on. The point was whe. ther the magistrate had power to commit without s requisition from the Chinese authorities.
Mr. Justice Russell said that in Ordinauce 2 of 1871 it was stated that the Treaty of Tientsin was to be read as though it had been in existence when Ordinanse 2 of 1850 was passed, and in the 21st section of the Treaty of Tientsin it stated that "if oriminals, subjects of China, shall take refuge in Engkong, or on board the British ships there, they shall, upon due requisition by the Chinese Authorities, be searched for, and on proof of their guilt, be delivered up." It apparently made it clear there that before the law was put in motion there should be a requisi- tion by the nation demanding them. By Ordi- Inance 2 of 1850 the positions were, first, that a complaint or information was made by an officer of the Chinese Government; secondly, that some other case was going on in which the mszis- trate learned there was some person in the colony who had committed an offence against the laws of China, upon which he issued bis warrant; such, thirdly, there was some person in custody and it appeared there had been an offence committed agalust the laws of Chios. The question arose under that third section, could the magistrata get rid of the prisoner by committing him and say, "I pat it now in the power of the Governor to detain him until he gets a requisition from the Chinese." While the prisoner was u ider remand he das under the control and jurisdiction of the magistrate; could the latter put him out of bis jurisdiction by handing him over to the Governor to rendite him before he had got, either directly or indirectly, a requisition from the Chi nese Government ? because in the second section of the Ordinance it said-In any such warraut of arrest or any subsequent warrant of com- mittal "that was the case here-it shall be sufficient to describe the crime or offence of such person in terms the same as, or similar! to, those contained in such complaint, ia- formation, or communication aforesaid." The question was, did not that contemplate that be fore there was a final committal warrant thero shonld be before the magistrate a requisition stating what was the crime said to have been committed in China? That was the point. All the cases he had soon seemed to show that the magistrate had before him a requisition for the surrender of the accused, and where that was not the case the committal was held to be bad. He oould not find that this was clearly decided in the Kwok Asing case; there was a good deal of dis- cussion there in the Chief Justice's judgment, but it was not olear. He understood Mr. Francia to contend that was so.
Mr. Francis said that particular point had not struck him, but he thought he saw what was in his Lordship's mind. His contention was that there must be a requisition in every case.
Mr. Justice Russell said the magistrate had complete domination over the case as long as it was under remand, bat immediately he committed it it was out of his hands. The point was, whe- ther, if there was no requisition placed before the magistrate, the committal was not bad.
Mr. Francis-In other words, whether, though he can detain under the second brauch of the soction, he can comunit without a requisition.
Mr. Justice Russell-Yes; whether he can put the prisoner out of his control. In the Kwok Asing ease there was a requisition made through the Colonial Secretary.
530
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