a prima facie case, and had committed the prisoners to prison to await the Governor's orders, unless there were good and strong grounds sufficient to justify the Governor in Council in differing from the Magistrate.
to you that in giving my decision I stated what I considered to be my position in terms which, for convenience sake, I reproduce.
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 regards the defence for the prisoners. When a witness 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 counter 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 tending to entirely upset the story told by the witness, to test that story by the merits of the other information which the court has it in its power to produce.
So far, therefore, as the evidence of the witness Leong Ayow is concerned, I must, in deciding 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.
The Chinese Government were within their right in declining to enter into the question, but I must remember that they had the opportunity of doing so, and therefore I go by the evidence before me. By the light of that evidence, I consider Leong Ayow's story as absolutely unworthy of credence.
With regard to the whole case generally, 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 monotonous regularity, testify to certain points connected with each prisoner which, if true, would criminally compromise each one of them, but it is a singular coincidence 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 independent grounds to testify in the case.
Other points have been brought forward by Mr. Dennys in his analysis of the evidence gravely tending 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 keeping 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 identification 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 hesitation 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 deal 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 following 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 is probable cause for believing the accused has committed a crime.
The Privy Council in the case of the Attorney-General of Hongkong versus Kwok Ashing had to consider the provisions of this Ordinance and the powers and duties under it. The Judges speak of prima facie evidence and of the sufficiency of prima facie evidence to justify the Magistrate in committing.
There is no doubt that "probable cause" and "prima facie evidence" are synonymous.
By the Treaty of Tientsin, this Government is bound on certain terms, certain requirements being complied with, to deliver up criminals who have taken refuge in Hongkong, such proof of guilt as would warrant a conviction.
The Magistrates cannot require such proof. It is their duty, under the Ordinance above mentioned, to commit upon a prima facie case being made out, and His Excellency, in calling the attention of the Magistrates to the 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 arrangements of the Ordinance.
In the absence, therefore, of authoritative judicial dicta, 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 a prima facie case has been made out, is it competent for the other side to call witnesses for the defence?
I am clearly of opinion that to call witnesses for the defence would be travelling beyond 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, as it were, properly before the court.
Page 166
a
prima facie case, and had committed. the prisoners to prison to await the Governor's
orders,
the
handed over
prisoners
unless
were bound to be
there were
good
and
strong grounds sufficient to justify the
Governor in
in Council in
in
differing from
the
Magistrate.
to
you
that in giving my
decision
I stated
I have already reported.
what I considered to be my position in
terms which
for
convenience sake I reproduce.
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 defonce 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, baving information in its possession altogether teuding 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 far 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. The Chinese Government were within their right in declining to enter into the question, but I must remember that they had the opportunity of doing so. and therefore I go by the evidence before me. By the light of that evidence I consider Legng Ayow's story as absolutely unworthy of cred- ence. With regard to the whole case gen. erally, it is of s, highly unsatisfactory kind. There is a taint of collusion ruvning through the whole of it. Witnesses are brought forward who with monotonous 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 ward 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 bouse and keeping guard over another of the witnesses in the guard house, the only reason given in enghr 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 poyers. 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 Tientsiu. 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 deal 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 apon mo 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 thore is probable cause for belieting the accused has committed a crime. The Privy Council in the case of the Attorney-General of Hongkong versus Kwok Ashing bad to consider the provisions of this Orlin- aner and the powers and duties under it. The Judges speak of prima
prima facie av dence and of the suf ficiency of prima facie et donce to justify the Magistrate ia committing. Thereis un doubt! hat" 'probat la cause
prima facie e evidence"
nad
By the Treaty of Tientsia this Government is bound on are a tour nous terms. certain requirements being complied with to deliver ap criminals who have taken refuge in Hongkong. such proof of guilt an
The Magistrates cannot requiro anch
would warrant a conviction. It is their duty the Ordinance above mentioned to commit se apon 28 a prima facie case has been made ont, and his Excel- leney in calling the attention of the Magistrates to the 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 anretinents of the Ordinance. 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 primâ facie case been made out? And in deciding whether a primâ facie case has been made out is it compet- ent for the otherside 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-
166
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