CO129-233 - Acting Governor Cameron - 1887 [6-8] — Page 204

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The Daily Press.

HONGKONG. MAY 24TH, 1487.

IN ORIGINAL JURISDICTION.

MOTION FOR A WRIT OF HABEAS CORPUS,

Mr. Dennys applied for a writ of Habeas Corpus in the matter of Leong Afu, one of the defendants in the Chinese Rendition case, aud who is at the present time detained in Victoria Gaol. Mr. Dennys stated that he was unable to secure the services of counsel. There were at pre- sent only three counsel acting as such in the Colony of these Mr. Francis was proseenting in this case. Mr. Brereton stated that he was retained by the Chinese Government, and Dr. flo Kai had been applied to by the hinese #Government but had refused to act for either side. He therefore put in an affidavit which he bad filed. The affidavit stated that Leong Afu was at present detained in Victoria Gaol under a warrant signed by Mr. Wodehouse, although the said Leong Afu had not been found guilty of any offence against the laws of this Colony or those of China. He had been charged with others with robbery and murder committed in Chinese territory on the night of 9th October, 1886. That he had stated that the evidence of Li Loi and Leong Ayau, the chief witnesses for the prosecution. had been guilty of subornation of perjury and of perjury and at the, request of the Magistrate had called witnesses to! prove that Leong Ayan was not the person he represented himself to be, but a convicted and branded criminal. He had afterwards charged Li Loi and Leong Ayau with per- jury, and that while that case was proceeding without any previous notice to himself or any enquiry as to how far he was able to support his charge, the Acting Attorney-General stoppad the farther bearing of the case against Li Loi. That Leong Ayan had been committed for trial at the Supreme Court, but that the Acting Attorney. General caused him to be discharged by proclama- tion. That at the conclusion of the case against Loung Afa, although the Magistrate stated be believed Laung Ayau's evidence to be un- worthy of belief he the Magistrate), acting under instructions from the Government, refused to re- lease Leong Afu. That he bad since applied to the Acting Governor for the immediate dis- charge of Leung Afu but had been informed that it had been decided to surrender the accus- jed to the Chinese Authorities. That the Acting Governor so far as be was awars had made no enquiries as to the guilt or innocence of Leong Afu nor examined any witnesses who could give evidence in his behalf.

Mr. Denueys then put in and read the warrant by virtue of which Leung Afa is detained in Victoria Geol.

Mr. Dennys based his argument against the acoused being given up on article 2 of the Trea tv of Tientsia, which he said distinctly stated that a prisoner should only be deliverad over to the Chinese authorities when he had been tried and found guilty of the offence imputed to him. Leang Afa had not been found guilty, and there- fore his Lordship would be quite justified in granting the writ asked for.

hata tardship granted the writ and adjourned the farther bearing of the cass to 30th May.

The Daily Press.

HONGRONO, June 1st, 1887.

THE CHINESE RENDITION CASE-APPLICATION

FOR DISCHARGE OF LEUNG AFU,

Mr. Donnys applied for the discharge of Leung Afa, one of the defendants in the Chinese ren- !

dition cane.

Mr. J. J. Francis. Q.C., instructed by Messrs. Caldwell and Wilkinson, appeared on behalf of the Chinese Government to oppose the dis- charge; Mr. Wodehouse, the Magistrate by virtue

of whose warrant the defendant is detained. ap. beard on his own behalf; and the Aoting Attorney-General watched the case on behalf of the Gorarement.

Mr. Dennys objected to Mr. Francis appear- ing for the Chinese Government. They had no :locus standi in the matter. The case was simply

between the Supreme Court and the Gaol.

The Court decided in favour of Mr. Francis being allowed to appear for the Chinese Govern-

ment.

Mr. Dennys said he applied for the return of a writ of certiorari and for the discharge from custo- dy of Leung Afn as he was not detained under any legal warrant of conviction or eommittal. The warrant was bad on the face of it. It did not cite any offence over which the Magistrate had jurisdiction. Again, the warrant said "whereas Leung Afa having been duly con- victed, &o," but the defendant had not been couvicted of any offence.

The Acting Chief Justice said that the Ma- gistrate had committed the man to Gaol pending the orders of the Governor.

Mr. Dennys said he was quite prepared to show that the warrant of commitment must contain a recital of the conviction.

Mr. Francis said that it was the usual practice for the writs for certiorari and habeas corpus to be applied for at the same time aud both dealt with together.

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The Acting Chief Justice said he did not soe why this rule had not been followed in this case. Mr. Dennys said on that point he must ask for the consideration of the court. He then weat on to say that he should show to their Lordships! that the Magistrate bad not done his duty inas- much as he had refused to hear witnesses who were willing to give evidence on behalf of the defendant. He should also call their Lordships' attention to bis aff lavit which. so far as he was aware, had not been contradicted.

Mr. Wodehons said that his object in appear- ing was that if the weit of certiorari were granted certain documents as well as the de- positious be put in. Tusse doourants woul·l show how he was somewhat inflnonood in the I decision he had come to in the case.

His Lordship said he thought the documents might be put in.

Mr. Francis said that he thought all doca- monts having reference to the case should be 'admitted.

Mr. Denays said he had no objection to the documents being put in, but as he had not seen them it was impossible for him tosay whother they had to do with the case or not. "Continu- iny, he said that nnder Ordinanos 2 of 1871 and Ordinance 2 of 1850 tho Magistrate was held to be in the position of a jury as regards the pri- sonor, and when any doubt existed that doubt was to benefit the prisoner. He would like to call their Lordships' attention to the three phra- ses in the second Ordinause," investigation," "probable cause of belief", and "proof of guilt." With reference to the words "proof of guilt," he thought the same construction must be pat on thom as was done by the Privy Council in the case of the Attorney-General e. Kwok Shing. The Magistrate in trying the case must have ench

a proof of guilt as would justify him in comunit ting the prisoner had the offence been commit- ted within the jurisdiction of Hongkong. There might be links in the chain of evidence want. ing, but there must be no reasonable doubt in his mind that those links would be fanud when the case was heard against him in that binase courts, He would ask their Lordships to refer to the affidavit before them, and they would see that there was no such proof of guilt in this case. The Magistrato had said distinctly that if he were a jury he would not convict upon such evidence.

The Acting Chief Justice-The Magistrate does not exactly say that. He is not in the same position as a jury. He says if the final decision were to rest upon him he might perhaps give the prisoner the benefit of the doubt.

Mr. Dennys said that their Lordships could not hold that the Magistrate had reasonable grounds of belief that the defend sat was guilty. One wit. ness had sworn that in the middle of the night he had soon throngh four solid walls. At the time that statement was made

not they had gone far enough to see what were the facts of the case, but when other witnesses were called and the position of these walls determined, his, statement meant that or nothing. From his own statement as to where he was sleeping and from the place stated afterwards in evidence as the spot where the men broke into the house, it was perfectly plain that the witness, if he looked perfectly straight, saw through four solid walls. and if he looked crooked through five. Could the Magistrate with such evidence as that before him