CO129-379 - Governor Sir Lugard - 1911 [8-9] — Page 346

7

OPY.

Your Excellency,

A.

Minute by the Chief Justice.

C

31593

RESP

344

Rrof 29 SEP 1

I regret that I am quite unable to agree with

the advice which has been given to the Secretary of State on the

subject of the amendment of the Foreign Offenders Detention Ordi-

-nance, 1872. That Ordinance was introduced to deal with a

situation resulting from the geographical position of Hongkong in regard to China Canton especially. Prisoners were sent from the Consular Courts to their own country to be tried: but they passed through Hongkong waters sometimes were landed. Their detention was illegal, and the fact that they were in lawful custody by their national law did not make it legal. This Ordi- -nance was therefore passed to make it legal. It has no relation to extradition; and I am of opinion that no Court could possibly order the release of such a person on habeas corpus on grounds based on the Extradition Act. That Act is not incorporated or even referred to; and the suggestion that it is incorporated by inference would lead to great complications, as all the details would have also to be applied e.g. not merely that the crime was not an extradition crime, but for example, that the offence was political Nor do I think that it was intended to put the Ordinance

Ordinance Order on the same footing as an Extradition Order. It is analogous to the simpler case of transit of extradited offenders, through third countries which is occasionally referred to in Extradition Treaties: that subject is dealt with simply, and I do not think that it has ever been suggested that where transit through a third State is necessary, and it has been legalised there, as of course it must be, the transitory detention is to be treated as an independent extradition from the third State. The subject is briefly referred to in my book on *Extradition" at page 163.

*

•

I should point out that this Ordinance deals with a question which lies outside the scope of extradition: the prisoner, for example, a Frenchman, is being removed from the

French