CO129-224 - Foreign Office - 1885 — Page 388

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properly be answered in the sense indicated by the Colonial Office in their letter to the Foreign Office of the 25th June.

That Sir Julian Pauncefote was to add that, with reference to paragraph 2 of the letter, that the Imperial Extradition Acts had not been applied by Order in Council to section 21 of the Treaty of Tien-tsin.

In obedience to your Lordship's commands we have the honour to report-- That our reply to the questions contained in the Colonial Office letter of the 25th June is as follows:-

1. The Extradition Acts 1870 and 1873 do not apply to the Treaty of Tien-tsin; but the provisions of those Acts, which might at any time, at the will of Her Majesty's Government, be applied to the Treaty of Tien-tsin, have some bearing on the controversy, as showing the measures taken by Her Majesty's Government to fulfil their Treaty obligations for the surrender of fugitive criminals to Governments other than the Chinese, and especially that in the case of other Treaties, the proof of the guilt of any person whose surrender is claimed is left to the Judicial and not to the Executive authorities.

2. The procedure in cases under Article XXI of the Treaty of Tien-tsin is at present regulated by Colonial Ordinances No. 2 of 1850 and No. 2 of 1871.

3. We think it is the intention of the Colonial Ordinance No. 2 of 1850 that the "proof of guilt" required by Article XXI of the Treaty of Tien-tsin shall be sub- mitted to, and judged of by, the magistrate. But we cannot say that the terms of the Ordinance excludes the exercise by the Governor of a discretionary power to discharge a prisoner who has been committed to prison by a magistrate. We are therefore of opinion that the discharge of the Chinese prisoners by the Governor of Hong Kong was not an infraction of British Law.

But we are asked a further question in your Lordship's letter. Whether the demand of the Chinese Minister shall be again refused ?

We must observe that the Treaty obligation of Her Majesty's Government to that of China cannot be diminished or qualified by the municipal law at any time existing in Hong Kong. Upon tendering "proof of guilt," the Chinese Governor is entitled by the Treaty to have a fugitive criminal surrendered.

As to what is "proof of guilt" under the Treaty, we concur with the opinion of the Law Officers in 1863, that "reasonable evidence ought to be accepted as sufficient, such, for example, as would lead a Grand Jury in this country to find a true Bill, where the evidence is ex parte only, or such as, with evidence on both sides, would: induce a magistrate to commit for trial."

This view is confirmed by the opinion of the Privy Council in the case of the Attorney-General of Hong Kong v. Kwok-a-Sing (5 L. R., P. C., App, 199), and in the despatch of Lord Granville to Marquis Tsêng of the 9th February, 1885, it is admitted that "proof of guilt" does not mean such absolute proof as would be necessary to support final conviction.

We think that in the present case such proof of guilt as is required by the Treaty has been brought forward by the Chinese Government. The two magistrates at Houg Kong who successively heard the evidence against the prisoners thought there was probable cause for believing that the prisoners had committed the crime alleged, and accordingly committed the prisoners under section 3 of the Hong Kong Ordinance No. 2 of 1850. The Governor of Hong Kong and the majority of his Council "concur with the magistrates who tried the case, and saw the demeanour of the accused and of the witnesses, that there is a prima facie case against the prisoners." They had, how- ever, received instructions from the Colonial Office that proof of guilt should be such as, on the whole, to satisfy the minds of the Council;" and this they seem to have erroneously understood to mean that it should be such as to support a final con- viction.

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We cannot therefore advise your Lordship upon legal grounds to again refuse the demand of the Chinese Minister.

There may be considerations of expediency which, in the judgment of Her Majesty's Government, justify such refusal.

We feel as strongly as any one that if it be the fact that prisoners so surrendered are subjected to torture means should, if possible, be taken to render it impossible that torture should be applied. We think, further, that it would be preferable that there should be no agreement for the surrender of prisoners to the Chinese Govern- ment as long as there is substantial reason to believe that the horrible practice of torturing accused persons is followed. But we, as the Legal Advisers of the Govern- ment, are bound, with great reluctance. to express our opinion that the Chinese

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Government have done what is requisite to entitle them under the Treaty of Tien-tsin to the surrender of the persons in question.

We have, &c.

(Signed)

RICHARD E. WEBSTER. J. E. GORST.

Report that the Ordinance No. 2, 1850, governs this case.

The Treaty of Tien-tsin, Article XXI, merely directs that Chinese criminals, upon requisition by the Chinese authorities, shall, on proof of their guilt, be delivered up.

The Treaty is silent as to the course to be taken with the view of deciding finally on proof of guilt.

The Extradition Acts, 1870 and 1873, do not apply.

The several Extradition Treaties can be referred to but as analogies, or illustra- tions, if they can be used even to that extent; they are binding only as between the two countries who enter into the particular contract.

The course of procedure must therefore be sought for, and is to be found in the Ordinance, which it was, I conceive, within the power of the Legislative Council of Hong Kong to issue.

Article 1 of this Ordinance gives the magistrate or Court the power to detain the person charged with the commission of a crime and to investigate the alleged crime.

Article 3 gives the magistrate, if there is probable cause for believing that the said person has committed the crime, power to commit him to prison for safe custody, and to direct the gaoler to detain him in prison until the said gaoler shall receive some order from the Governor relative to the further detention, discharge, or transmission of such person to the Chinese authorities. And the said magistrate or Court shall, upon making such committal as aforesaid, transmit to the said Governor the Minutes of such investigation, and all documents in his or its possession connected with the charge against such person, in order that such person may be dealt with according to the Treaties aforesaid.

This Article, in my opinion, gives the Governor authority to inquire into the charge and the evidence adduced before the magistrate or the Court. (The Minutes and documents are sent to him seemingly for that purpose.)

The Governor, in accordance with his view of the charge, and evidence in support of the charge, may order the further detention, discharge, or transmission of the person committed by the magistrate.

The Governor has in this instance, upon a review of the proceedings, ordered the release or discharge of the men.

I am unable to agree with the Attorney- and Solicitor-General in advising your Lordship that there are no legal grounds for refusing the demand of the Chinese Minister, for I consider that the demand may properly he refused upon legal grounds.

(A) Treaty of Tien-tsin, June 26, 1858. (B) Hong Kong Ordinance No. 2 of 1850. (C) Ditto No. 2 of 1871.

I have, &c.

(Signed)

List of Papers.

(D) To Law Officers, June 14, 1882, with Report attached.

J. PARKER DEANE.

Inclosures: Consul Hewlett, No. 14, of April 29, 1881; Colonial Office, March 2; dtto, May 5; ditto. May 8; ditto, May 19; ditto, May 27; to Colonial Office, April 18, 1882; to Sir R. Alcock, December 11, 1865.

(E) Law Officers, September 18, 1884.

Inclosures: Law Officers, February 24, 1863; ditto, November 25, 1865; Colonial Office, April 12, 1883; Law Officers, July 22, 1882; to Marquis Tseng, July 27, 1883; Colonial Office, January 15; ditto, February 8; to Colonial Office, February 23, 1884. (F) Law Officers, February 6, 1885.

Inclosures: Marquis Tseng, August 16; Law Officers, September 18; Marquis Tseng, September 24; to Colonial Office, September 30; Colonial Office, October 3; to Colonial Office, October 4; Colonial Office, October 7; to Colonial Office, October 9; Colonial Office, October 14; to Marquis Tseng, October 18; Colonial Office, December 5, 1884; ditto, January 15, 1885. (G) Marquis Tsêng, December 8, 1884.

(H) Ditto, June 18, 1885.

(1) Colonial Office, June 25, 1885.