1
nent." In Paley on Summary Convictions, p. 172, the author, in describing the general qualities of a conviction, makes remarks to the same effect. Of course, greater nicety is required in the cases of summary convictions, and where the commitment is in execution, than where prisoners are remanded or committed to prison for further disposal only. But I am of opinion that in cases of rendition, the accused are entitled to the protection of every formality the law throws around them, and that it is the duty of a court before whom they claim their discharge to see that there has been no shortcoming in this respect. After very careful consideration, I have come to the conclusion that there was no jurisdiction to justify the commitment of these thirteen men, and that the necessary formalities have not been complied with. There is no complaint, no information, no communication forwarded or made to the Magistrate. The learned Attorney-General refers us to Chitty's Criminal Law, page 11, 113, where it is stated that even if the warrant of commitment is informal, the Court will look at the depositions to see if there was sufficient ground laid to detain the party; and if a various offence is shown, they will not discharge or bail the prisoners. I certainly consider the commitment informal; but if I look at the depositions, I find still greater irregularities. No doubt, there is prima facie proof of murder, but I also find two charges rolled into one, their order being inverted. No information; no statement that the accused were called upon to plead. Above all, it does not appear that they were asked what they had to say in their defence, although they might have been able to show beyond a doubt either mistaken identity or an alibi, or some defence within the province of the Magistrate to hear. No opportunity was afforded them to do so. If the letter of the Chinese officials is to be relied upon to give jurisdiction, there is no proof that they are the persons mentioned in it. The return to the writ of habeas corpus shows that they were committed under names differing from those in the writ, and it is not sufficient that the Magistrate satisfied himself of their identity; proof is required.
I will only add a few words as to the reasonableness of the detention. Nothing can be more opposed to the laws of Great Britain, so jealous of personal liberty, than a lengthened imprisonment pending a penal destination. It is considered oppressive, and under a writ of habeas corpus, a discharge from prison may be obtained unless the accused is brought to trial within a certain time. This does not exactly apply in cases of rendition in this Colony or elsewhere, but the spirit is shown in the French and American Convention Acts, where the accused was protected from a long detention; and in the Extradition Act of 1870, it is provided that in the case of fugitive criminals in British possessions, a judge of any court exercising the like powers as the Court of Queen's Bench exercises in England may exercise the power of discharging a criminal when not conveyed within two months out of such British possession. By a recent Ordinance providing for the mutual surrender of criminal fugitives in Macao and Hongkong, the limit of detention is one month. It is to be regretted that the Extradition Act of 1870 is not extended to this Colony, or that our Ordinance 2 of 1850 is not repealed and re-enacted in clear and precise terms.
I am, however, of opinion that the Court is bound by the provisions of the Ordinance, which makes it lawful for a Magistrate to commit such person (i.e., one who there is probable cause for believing, being a subject of China, has committed a crime or offence against her laws) for safe custody to prison, and to direct the gaoler to detain him until he shall receive some order from the Governor of Hongkong, relative to his further detention, discharge, or transmission. The law, therefore, places the discharge of persons so committed in the discretion of the Governor, who is alone responsible that their detention does not exceed reasonable limits, and I think that the Court has no power to interfere on this ground. I am, however, of opinion that the Magistrate had no jurisdiction; that the proceedings were bad ab initio, and therefore that, however much it may be regretted that persons who have, on the face of the depositions, been guilty of the murder of three of their fellow creatures should escape from the punishment which by the law of our own country is awarded to their crime, the prisoners must be discharged. We, therefore, order them to be discharged.
Mr. Justice Russell said—I am likewise of opinion that the prisoners must be discharged on the ground that the return to the writ is insufficient and not according to law, and that the whole proceedings were coram non judice. The jurisdiction given to the magistrate in this case is special, as in all extradition cases, and must appear clearly on the face of the warrant of committal. We cannot, I think, look behind the commitment to sustain it as in other cases (of offences against the laws of our own country—ex-parte Bosset 9 Jurist & G),
But even if that were possible, nothing is to be obtained here from the conviction or order, for the depositions returned to the writ of certiorari show that the prisoners were illegally before the magistrate in the first instance, being arrested not by a Justice of the Peace but by a Police Constable without any authority from a Justice of the Peace and simply on the information of a Chinese who told him that there were thirteen men in a certain house who had committed murder on the mainland some time before.
Referring shortly to the law warranting the arrest and rendition of refugee Criminals to China, the first provision that we have is contained in the Treaty of the Bogue 1843—art. IX, which is as follows:—"If lawless natives of China, having committed crimes or offences against their own Government, shall flee to Hongkong or to the English ships of war, for refuge, they shall, if discovered by the English officers, be handed over at once to the Chinese officers for trial and punishment; if it should be ascertained or suspected by the officers of the Government of China whither such criminals and offenders have fled, a communication shall be made to the proper English officer in order that the said criminals and offenders may be rigidly searched for and on proof or admission of their guilt, delivered up," (then as to surrender of British Criminal fugitives.). It will be seen that the terms were very wide and that apparently no legal procedure was necessary—and there is no law or Ordinance that I can find for the carrying out that stipulation until Ord. 2 of 1850, which is an Ord. entitled: "An Ordinance to provide for the more effective carrying out of the Treaties between Great Britain and China in so far as relates to Chinese Subjects within the Colony of Hongkong.”
The treaty of the Bogue was abrogated in 1858, and the Treaty of Tientsin of that year contained a provision in its 21st Article of a much more guarded description—"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.” Up to the year 1871, the extradition of all Chinese criminals was carried out under the provisions of Ordinance 2 of 1850 and the 21st section of the Treaty, but in that year, the application of the Ordinance to the Treaty was much discussed in the Kwok A-sing case, and it was decided by the Chief Justice that the Ordinance had ceased to have any effect. Ordinance 2 of 1871 was then passed, re-enacting Ordinance 2 of 1850 and declaring it to apply to the Treaty of Tientsin. The position, therefore, is that the provisions of Ord. 2 of 1850 are those which govern the legal tribunals of the Colony in questions of Chinese extradition—assuming for the moment that such provisions are co-ordinate to those of the Treaty.
The first Section of the Ordinance shows three ways in which the magistrate may be placed in the position of having to investigate and commit. (1) If moved, as I read the section, by a complaint; by an information or a communication from a Chinese officer to ask for an order of arrest, or as the Chief Justice prefers to read it, by the "Complaint" or "information" of any one—or a Chinese officer. (2) If during the investigation of some charge against A, he finds that B, a Chinese subject, is in the Colony, a fugitive criminal, he will issue his warrant for arrest. 3rd—If, whilst investigating a charge against A already in custody, it transpires that A is a Chinese fugitive criminal, then he may investigate the crime that he is charged with in China. Again, under section IV, an order of arrest may be issued by the Governor corresponding to a Secretary of State's warrant under the Act of 1870—which may put the magistrate in motion.
Now, by the terms of the ordinance, if at the end of his investigation, which must be conducted as if it were an indictable offence, the magistrate should find that "there is reasonable and probable cause for believing &c." he is required to commit to prison pending the orders of the Governor; and he is also required to forward to the Governor all the proceedings in the case—Sec. III. It has been pointed out by the learned Chief Justice that the prisoners were not before the Magistrate in any of the four ways warranted by the ordinance, and the papers returned under the writ of certiorari do not show that the proceedings were forwarded.
534
1
nent." In Paley on Summary Convictions. p. 172, the author in describing the general quali ties of a conviction, makes remarks to the same effect. Of course, greater nicety is required in the casos of summary oonvictions, and where the commitment is in execution, than where pri- soners are remaodel or committed to prison for further disposal only. But I am of opinion that in cases of rendition the acoused are entitled to the protection of every formality the law throws around them, and that it is the duty of a court before whom they claim their discharge to see that there has been no shortcoming in this respect. After very careful consideration I have come to the conclusion that there was no juris. diction to justify the commitment of these thir. teen men, and that the necessary formalities bave not been complied with. There is no complaint, no information, no communication forwarded or made to the Magistrate. The learned Attorney. Geuoral refers ns to Chitty's Criminal Law, page 11, 113, where it is stated that even if the war. rant of commitment is informal the Court will look at the depositions to see if there was suffi cient ground laid to detain the party; and if a various offence is shown they will not discharge or bail the prisoners. I certainly consider the commitment informal; but if I look at the deposi tions I find still greater irregularities. No doubt there is prima facie proof of murdor, but I also find two charges rolled into one, their order being inverted. No information; no statement that the accused were called upon to plead. Above all it does not appear that they were asked what they had to say in their defence, although they might have been able to show beyond a doubt either mistaken identity or an alibi, or some defonce within the province of the Magi. strste to hear. No opportunity was afforded them to do so. If the letter of the Chinese offi- cials is to be relied upon to give jurisdiction, there is no proof that they are the persons men. tioned in it. The return to the writ of habeas corpus shows that they were committed under Dames differing from those in the writ, and it is not sufficient that the Magistrate satisfied himself of their identity; proof is required. I will only add a few words as to the reasonableness of the Retan- tion. Nothing can be more opposed to the laws of Great Britain, so jealous of personal liberty, than a lengthened imprisonment pending a ponal destination. It is considered oppressive, and under a writ of habeas corpus a disobarge from prison may be obtained unless the accused is brought to trial within a certain time. This does not exactly apply in cases of raudition in this Colony or elsewhere, but the spirit is shown in the French and American Convention Acts, where the accused was protected from a long detention; and in the Extradition Act of 1870 it is provided that in the case of fugitive eri. niuals in British possessions a judge of any court exercising the like powers as the Court of Queen's Bench exercises in England may exercise the power of discharging a criminal when not conveyed within two months out of auch British possession. By a recent Ordinance providing for the mutual surrender of criminal fugitives in Macao and Hongkong the limit of detention is one month. It is to be regretted that the Extradition Act of 1870 is not extended to this Colony, or that our Ordinance 2 of 1850 is not repealed and re-enacted in clear and pre- cise terms. I am, however, of opinion that the Court is bound by the provisions of the Ordi. uance, which makes it lawful for a Magistrate. to commit such person (ie, one who there is probable cause for believing, being a subject of China, bas committed a crime or offence against her laws) for safe enstody to prison, and to direct the gaoler to detain him until he shall receive some order from the Governor of Hongkong, relative to his further deten- tion, discharge, or transmission. The law therefore places the discharge of persons so committed, in the discretion of the Governor, who is alone responsible that their detention does not exceed reasonable limits, and I think that the Court has no power to interfere on this ground. I am, however, of opinion that the Magistrate had no jurisdiction; that the pro ooedings wore bad ab initio and therefore that. however much it may he regretted that persons who have on the face of the depositions basn guilty of the murder of three of their fellow creatures should escape from the punishment which by the law of our own country is awarded to their crime, the prisoners must be disobarged. We therefore order them to be discharged.
Mr. Justice Russell said-I am likewise of opinion that the prisoners must be discharged on the ground that the return to the writ is in. sufficient and not according to law, and that the
whole proceedings ware coram non judice. The jurisdiction given to the magistrate in this case is special as in all extradition cases, and must appear clearly on the face of the warrant of committal. We cannot, I think, look behind the commitment to sustain it as in other cases (of offences against the laws of our own coun- try ex-parte Bosset 9 Jarist &G),
Bat sven
if that were possible nothing is to be obtained here from the conviction är order, for the depositions returned to the writ of certiorari abow that the prisoners were illegally before themagistrato in the first instance being arrested not by a Justice of the Peace but by a Police Constable without any authority from a Justios of the Peace and simply on the informa- tion of a Chinese who told him that there were thirteen men in a certain house who had com. mitted murder on the maialaud somə time before. Referring shortly to the law warranting the ar rest and rendition of refugee Criminals to China the first provision that we have is contained in the Treaty of the Rogue 1843-art. TX, which ia as follows:-" If lawless natives of Chios hav ing committed orimes or offences against their own Government shall flee to Hongkong or to the English ships of war, for refuge, they shall if discovered by the English officers be handed over at once to the Chinese officers for trial and paoishment; if it should be ascertained or sus- pected by the officers of the Government of China whither such criminals and offenders have led, a communication shall be made to the proper English officer in order that thesaid oriminalsand | offenders may be rigidly searched for aud on prosť | or admission of their guilt, delivered up,” (then | as to surrender of British Criminal fugitives.), It will be seen that the terms were very wide and that apparently no legal procedure was no- Dessary-and there is no law or Ordinance that I ou find for the carrying out that stipulation until Ord. 2 of 1850, which is an Ord. entitled ::
"An Ordinance to provide for the more effer- tive carrying out of the Treaties between Creat Britain and China in so far as relates to Chinaso Sabjects within the Colony of Hongkong.” The treaty of the Bogue was abrogated in 1858, and the Treaty of Tientsin of that year contained a provision in its 21at Article of a much more guarded description--" If Criminals, Subjects of China, shall take refuge in Hongkong or on board the British ships there they shall upon due requi sition by the Chinese Authorities bo searched for, and on proof of their guilt be delivered up.” Up to the year 1871 the extradition of all Chinese erimi als was carried out under the pro- visions of Ordinance 2 of 1850 and the 21st section of the Treaty, bat in that your the appli cation of the Ordinance to the Treaty was ninoh discussed in the Kwok Asing case, and it was decided by the Chief Justice that the Ordinance had ceased to have any effect. Ordinance 2 of 1871 was then passed re-enacting Ordinance 2 of 1950 and declaring it to apply to the Treaty of Tientsin. The position therefore is that the provisions of Örd. 2 of 1850 are those which govern the legal tribunals of the Colony in questions of Chinese extradition-ass- ing for the moment that such provisions are co-ordinate to those of the Treaty, The first Section of the Ordinance shews three ways in which the magistrate may be placed in the posi tion of having to investigate and commit. (1) IF | moved, as I read the section, by a complaint; by an information or a communication from a Chi nese officer to wsk› an order of arrest, or as the Chief Justice prafers to read it by the "Com- plaint" or "information” of any ons-or a Chi- nese officer. (2) If during the investigation of some charge against A he finds that B a Chinese subject is in the Colony, a fugitive oriminal, he will issue his warrant for arrest, 3rd-It whilst | investigating a charge against A already in oustody it transpires that A is a Chinese fugi. tive criminal then be may investigate the orime that he is charged with in China. Again, under section IV. an order of arrest may be issued by the Governor corresponding to a Secretary of State's warrant under the Act of 1870-which may put the magistrate in motion., Now by the terms of the ordinance if at the end of his investigation, which must be conducted as if it were an indictable offence, the magistrate should find that "there is reasonable and probable cause for believing &o." he is requried to commit to prison pending the orders of the Governor; and he is also required to forward to the Goveroor all the proceedings in the case-Soc. III. 4a has been pointed out by the learned Chief Justice the prisoners were not before the Magistrate in any of the four ways warranted by the ordinauce, and the papers returned under the writ of certiorari do not shaw that the proceedings were forwarded
534
No comments yet.
Private notes are available after approval.