CO129-233 - Acting Governor Cameron - 1887 [6-8] — Page 138

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of both sides as to the course to adopt and

stated that my own opinion was that the

rendition case should be postponed until

the case arising out of the proceedings had been determined. No objection to this course was raised on the part of the Coun ael representing the Chinese Goverment, while the other side asked for the imme- diate discharge of the prisoners in this case. My idea in postponing the case was that I thought any action taken in this case might he calcula ed to prejudice the perjury case in one way or another, and that therefore i would be advisable to stand by and wait until the other case was concluded. Accordingly the case has been postponed from week to week until yesterday, when it was further adjourned until to-day. During the last few days I received a letter from the Government instructing the to abide in my action by opinion of the Attorney General "which In that coin- was transmitted to me. munication the Attorney General says —

• I submit that the Magistrate acted irregularly and contrary to all practice in postponing the rendition case until after

me

the trial of the witness. Leung Ayou, for perjury. I will therefore now resume the We case at the point where 1 left it off. left off at the point at which the witness, Leung Ayon, was being cross-examined as to the marks which he had upon his arm.

I said then before the prosecution was com) – menced against him for perjury that 1 would hear the evidence with regard to this mark and would then allow tho other side to bring rebutting evidence. I will now ask Mr Dennys to produce any further evidence he wishoa to bring bear-

ing on the evidence of this man, and I

will give the other side what opportunity they wish to bring further rebutting evid ience.

Extract from the Daily Press.

His Worship-In the first place, with regard to the proceedings that have been taken so far, it! will have been noticed that throughout I have made a distinction between taking evidence as regards the prima facie case and evidence as re- ;

gards the defence for the prisoners. When a wit- ness was produced before me on the part of the prosecution whose evidence was of immense weight in making out a prima facie case, seeing that cross-examination was allowed and that in the course of that cross-examination it became likely that the story told by the witness was untrue from beginning to end and that he was merely personating somebody who might have been an important witness in the case I thought it was my duty to test the truth of the coun- ter statement put forward in the course of cross-examination. I can scarcely think that this court is to be regarded simply as a court of registry for statements made on oath by Chinese and that it is not competent for the court, having information in its possession altogether terding to entirely upset the story told by the witness. to test that story by the merits of the other in- formation which the court has it in its power to produce. So for therefore as the evidence of the witness Leong Ayow is concerned I must, in de- ciding whether a prima facie case has been made out, look at it by the light of the whole of the evidence which has been adduced regarding that

man.

ence.

The Chinese Government were within their right in declining to ontor into the question, but I must remember that they had the opportunity of doing 80, and therefore I go by the evidence before me. By the light of that evidence I consider Leoug Ayow's story as absolutely unworthy of cred

With regard to the whole case gen- erally, it is of a highly unsatisfactory kind. There is A taint of collusion running through the whole of it. Witnesses are brought forward who with monotonons re- gularity testify to certain points connected with each prisoner which if true would criminally com- promise each one of them, but it is a singular co- incidence that of the men arrested under the eight warrants of arrest these three should be the ones who happened to be specially connected with the tying up and keeping guard over the particular witnesses who have come down on in- dependent grounds to testify in the case. Other

points have been brought forward by Mr.Den- nys in his analysis of the evidence gravely tend- ing to discredit the whole of their evidence. Considering the doubtful testimony in the case

on its own merits it becomes a point of great significance that the second prisoner should have been identified as at one and the same time keep- ing guard over one of the witnesses in Ma She's house and keeping guard over another of the witnesses in the guard house, the only reason given in each case for the identi fication being that he was so keeping guard.

If, therefore, I felt that the decision of the case finally rested with me I should have no hesita. tion whatever in deciding that the case was not made out. But at this point I am brought up

by a consideration of what there is before me to guide me as to my powers. Of course I am bound by the Ordinance No. 2 of 1850 read in conjunction with Ordinance No. 2 of 1871 and the Treaty of Tientsin. The language of that Ordinance is capable of a good deal of variety of interpretation, and in the absence of any ruling of interpretation by a court competent to dest with such matters I feel it would not be proper for me to strain my powers, but that I should leave doubtful points for decision to be forced ! upon me by mandamus from the Supreme Court

or by such other constitutional ways as there are for enforcing orders on the magistrate. For my own information and guidance I have the follow- ing extract of a letter from the Government :- His Excellency desires to call the attention of the Magistrates to section 3 of Ordinance No. 2 of 1850, according to which the Magistrate is to commit when there in probable cause for believing the accused has committed a crime. The Privy Council in the case of the Attorney-General of Hongkong versus Kwok Asbing had to consider the

ance and the powers and visions of this Ordin. 1

under it. The Jadges! evidence and of the saf

Magistrate

apoak of prima Aciency of primaj

ma facie evidenco to justify the

in committing. There is no doubti hat "probable cause And prima facie evidence" are

are synonymous terms. Be the Treaty

Creaty of

float in this Goveroment is bound on

certain requirements being complied with to deliver

up criminals who h have taken reings in Hongkong. The Magistrates

tes cannot require Bach

guilt

ILF

proof of would warrant a conviction. It is their duty under the Ordinance above mentioned to commit as soon as

nt, and bis Excel-!

FL

to

the

a prima facie case has been made ont, leney in calling the attention of the Magistrates Ordinance and to the case above cited would suggest that they should restrict their inquiry accordingly, as he is of opinion that to require complete proof would be going contrary to the provisions of the Treaty and the clear enactments of the Ordinance.

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In the absence, therefore, of authoritative judicial dieta I take my stand upon the principles laid down for my guidance in what I have just read. The question then arises, has a prima facie case been made out? And in deciding whether s prima facie case has been made out is it compot- ent for the other side to call witnesses for the defence? I am clearly of opinion that to call wit- nesses for the defence would be travelling be. yond the province of my powers in this case; it would be constituting me judge of the merits of the whole case rather than judge of the point whether a case for the prosecution was es-}