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I may mention that I have already made arrangements for Mr. Werner to leave Kiukiang the day, early in November next, his leave his due, as he appears to have succeeded in antagonising the majority of the residents there.
I have, &c.
Inclosure 1 in No. 1.
Memoranda by Mr. Wilkinson.
(A.)
J. N. JORDAN.
Death of Yu Fa Ch'eng: Rex (Yu Tsu Shing) v. John Meurs.
THIS case was begun by a complaint on oath sworn the 31st July, 1909, in His Majesty's court at Kiukiang.
The decision of the judge of the provincial court, Mr. Consul Werner, dated the 12th August, is that the evidence for the prosecution is not sufficient to put the accused upon his trial.
The Chinese authorities are dissatisfied with the decision and with the conduct of the trial, and desire to have the case reheard.
Although the conduct of the trial was open to criticism and the decision unfortu- nately worded, there is, I think, no legal method of revising the decision, which was, I think, in itself correct on the facts.
Article 6 of "The China and Corea Order in Council, 1904," provides that all His Majesty's jurisdiction exercisable in China or Corca for the hearing of criminal matters "shall be exercised under and according to the provisions of this order, and not otherwise."
This case was not officially reported to the Supreme Court as pending for direc- tions, nor was it removed into that court in accordance with article 25 of the order in council.
The offence charged was manslaughter, and therefore not of necessity triable on a charge before the Supreme Court with a jury (see article 45 of the order in council).
Mr. Werner conducted a preliminary examination in accordance with article 49 (1) of the order in council.
Rule 44 of the rules of court, 1904, in dealing with preliminary examination, provides that--
"At the conclusion of the evidence of the witnesses for the prosecution, if the court is of opinion that it is not sufficient to put the accused party on his trial for any indictable offence, it shall forthwith order the accused to be discharged as to the complaint then under enquiry.”
In accordance with this rule the accused was discharged. Certain persons who wished to attend the hearing, including a reporter, were unfortunately excluded by the court, and this has been naturally complained of by the Chinese authorities.
Rule 42 provides, however, that a preliminary examination may be held in any convenient place, and such place shall not be deemed an open court; and the court may at its discretion, for reasons to be recorded in minutes, order that no person shall be admitted or allowed to remain without permission, except the witnesses of the prosecutor and accused and their legal practitioners.
Appeal in criminal cases is dealt with by articles 85 to 87 inclusive of the order in council, and by rules 67 to 69 of the rules of court, 1904.
Appeal on a point of law on a case stated, either at the instance of the person convicted or reserved by the court, is alone provided for.
Article 35 of the order in council provides that, "subject to the provisions of this order, criminal jurisdiction under this order shall, as far as circumstances admit, be exercised on the principles of, and in conformity with, English law for the time being, and with the powers vested in the courts of justice and justices of the peace in England, according to their jurisdiction and authority
It has been suggested that, in accordance with English law, the decision of IIis Majesty's consul-general at Kiukiang may in some manner be reviewed. In England
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there is a right of appeal by a "case stated "against the dismissal of a complaint as well as against a conviction, but this appeal by case stated" must be upon a point of law. The Magistrate must, in performing the functions of a jury, decide whether any evidence is to be believed or not. It has been held that the question whether there was any evidenre for the decision of the justices may be raised, but not the question whether or not they decided rightly. (See "Oke's Synopsis," vol. i, 14th edition, p. 129, et seq.) If a justice refuses to do any act relating to the duties of his office, a "rule may be applied for, but there would be no rule in the case where the justice has exercised his jurisdiction. (See Oke, p. 140, et seq.)
A "mandamus" will not be granted by English law if the justices have heard and determined the application, and, on the merits, have declined to grant it. If a magistrate has bona fide exercised his discretion, although his judgment may be wrong in law or in fact as to whether a legal offence has been made out, a mandamus will not lie. (See Oke, pp. 142 and 143.)
It has been suggested that the complainants may have a further remedy, by themselves preferring an indictment in the Supreme Court at Shanghae. It is true that at common law any person was at liberty to prefer a "bill of indictment" before a grand jury against another for any indictable offence without any previous enquiry before a justice into the truth of the accusation, and by "The Vexatious Indictments Act, 1859," section 2, a complainant in certain specific cases, of which manslaughter is not one, may insist on a magistrate, who has refused to commit the accused, taking bis (the complainant's) recognizance to prosecute the charge by indictment; but if an accused has been tried for an offence and acquitted, he cannot afterwards be indicted for the same offence. It is immaterial whether the first acquittal wore in a summary proceeding or on indictment. (Cf. Wemyss v. Hopkins.)
"The Summary Jurisdiction Act, 1879," which empowers a petty sessional court under certain circumstances to try summarily persons charged with certain indictable offences, provides in section 27 (3) that "the conviction for any such offence shall be of the same effect as a conviction for the offence on indictment "; and in section 27 (4) that, "where the court have assumed the power to deal with the case summarily, and dismiss the information, they shall, if required, deliver to the person charged a copy certified under their hands of the order of such dismissal, and such dismissal shall be of the same effect as an acquittal on a trial on indictment for the offence."
His Majesty's court at Kiukiang has jurisdiction under the order in council, 1904, in cases of manslaughter. In this case a preliminary enquiry was held, and on the conclusion of the evidence for the prosecution, the judge, in accordance with the provisions of rule 44, quoted above, discharged the accused.
In my opinion the judge assumed a summary jurisdiction and exercised a discretion on the facts before him which he was, under the order in council and rules of court, 1901, entitled to assume and exercise, and therefore Mears cannot legally be again tried for the death of Yu Fa Cheng,
Peking, September 21, 1909.
(B.)
Death of Yu Fa Ch'eng.
The Chinese authorities, being dissatisfied with the result of the joint enquiry in this matter, were desirous that the case should be tried by His Majesty's Supreme Court, even though the Crown Advocate had informed them that on the facts available he could not initiate criminal proceedings, and was certain that no jury could convict.
His Majesty's Provincial Court at Kiukiang was the proper court to apply to in the first instance, and accordingly on the 31st July last a complaint on oath was filed therein charging John Mears with manslaughter.
According to article 25 of “The China and Coren Order in Council, 1904," where any case, civil or criminal, commenced in a provincial court appears to that court to be one which for any reason ought to be tried in the Supreme Court, the provincial court reports the case to the Supreme Court for directions.
It was the wish of His Majesty's Minister that the case should be dealt with by the Supreme Court, and the acting judge of that court had considered what steps should be taken to provide for the hearing, if and when the case was reported from Kiukiang.
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