CO129-399 - Governor Sir May - 1913 [1-2] — Page 155

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The position and history of this case are very

2. The accused was sent down to Hongkong for trial on

a charge of murder under clause 50 of the China and Corea Order-in-

-Council 1904.

3. He came up for trial at the October Sessions and at

that trial owing to there being (so I am informed) certain persons

on the jury who were opposed to capital punishment the jury die-

-agreed and was discharged.

4. The accused therefore had tobe retried and he came

up for trial again at the November Sessions. The jury found him

guilty of murder.

5. Owing to this case being, so far as we know, the

first case which has been sent by His Britannic Majesty's Court in China for trial to Hongkong and also owing to the fact that the

accused is a native of Afghanistan it was natural that some attempts should be made by the defending counsel to raise some legal points. The Chief Justice reserved these legal points and they were argued on the 25th. instant before the Full Court. The Court has not yet given its decision but personally I have never attached any importance to these points and so far as I can see the Court ought to decide against the defence.

6. The points shortly are these

(a) that the Crown must prove the Treaty under which it is alleged that the China and Corea Order-in-Council 1904 was made.

suggestion

This question is in my opinion nonsense. The Order-in-Council depends on many other sources of jurisdiction besides a variety of Treaties and it would reduce legal proceedings to a farce if in proceedings founded on an Order-in-Council it was necessary for the Crown to endeavour to prove that the Order-in-Council was in fact valid. The presumption of course is that an Order-in-Council is just as valid as an Act of Parliament.

ANATO

(b)