CO129-403 - Governor Sir May Acting Governor Claud Severn - 1913 [8-10] — Page 303

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them for murder and piracy was en Siegal warrant and one beyond his jurisdiction, and that therefore the first order of the Lord Chief Justice for the release of Kwok A Sing was right and saght to be affirmed." In Stallmann's Base, which was an Extradition case, t

also held that the warrant upon the quiry before the Magistrate with respect to the first committal was itself invalid and the Court ordered the applicant to be set at liberty. In both Kwok A Bing's case and Stallmann's case it was decided that the second committa! could be made. The warrant of committal by Mr. Irving was a valid order and was within his jurisdiction. The offence in the present case is exactly the same offence as in the case before Mr. Irving.

I was referred by Mr. Hodgson, Crown Solicitor, to two decisions with

respect to a

a writ of Habeas Corpus in Extradition proceedings. The first of the

two cuses referred to by Mr. Hodgson wae fre Harsha, American and English

Annotated cases, Vol. VI., 496. This is a Canadiam ease and was decided in 1906. The head note in this case is as follows:- "Where a person has been arrested in Extradition proceedings for released on habeas corpus on the ground that forgery is there is no proper evidence showing the commission of the alleged offence or identify- ing the alleged forged document he may he re-arrested in subsequent extradition pro ceedings for the same offence upon the dis. covery of further and new evidence to supply the deficiencies."

"The doctrine of res judicata. farmer jeopardy, and autrefois acquit tre not applic eable to extradition proceedings.'

The English Habeas Curet (31 Charles II.. C2, paragraph 6)does not aply to extradition proceedings."

Our law is different The Habeas Corpus Act does apply to extradition proceedings. The second habeas corpus in Stallmann's case was under Section 6 of the hex Corpus Act. The prisoner was discharged with respect to the first proceedings by the High Court of Calcutta pursuant to a section in the It dian Code of Civil Pro ecedure 1808, wich is similar to res corps proceedings. In Kwok A Sing's case the second habeas corpus was under the Act. It does not state in the report whether the first habeas corpus was under the Act or at Common Law. It merely used the words "habeas corpus." I might #180

mention that the first committal was

in respect of extradition proceedings. In the second committal Kwok A Sing was to take his trial at the Supreme Court of Hongkong on a charge of piracy jurr gentium. In re parte Woodhall (20 Q.B.D. 827) it was decided by the Court of Append that oxtradition was a criminal matter. This was in 1888, and it was the Erst time that any of our Courts of Law had decided that extradition Was criminal matter. The next case referred to by Mr. Hodgson was in re Kelly 26 Federal reporter, p852. This is an Ameri- can ease and was decided in 1886. The bead note is as follows:

a

Where a

& party need of crime has been arrested had an examination before commis- sioner duly appointed and became discharged hy order of the Executive on the ground that the evidence was not sufficient to justify his extradition for the crime charged,

MAY

be again arrested for the same offence and compelled to submit to a second examination without the issuance of a second mandate by the Executive.

If the commissioner should commit the prisoner upon the second examination and it should be apparent that he had no clearer or are convincing testimony as to the truth of the charge than was presented at the former examination, the circuit court has power to review his testimony and correct his error."

With respect to the above case, I need only say that it has no connection with the present case, which relates solely to Section 6 of the Habeas Corpur Act.

As I have just stated, my decision in Point 4 is given in favour of the defen- dant, having regard solely to the con- struction to be placed on Section 6 of the Habeas Corpus Act. It is the same offence in the two cases. The order in the first case was a valid order and within the jurisdiction of the committing Magis. trate. Under these circumstances, "the section states that such person shall not be again imprisoned or committed. My decision with respect to Point 4 is there- fore in favour of the defendant, I order the defendant to be discharged.

At the conclusion of the reading of the decision the Crown Solicitor asked

Do I understand that in nutshell your judgment is in favour of the Crown, but that the matter is ces judicato, and order the defendant's discharge, on that point?

Mr. Hazeland-Yes.

(To Mr. Brut. ton)-You were going to raise a point about a political crime.

Mr. Brutton-Not now, your Worship. Mr. Hazeland (to the Crown Solici ton)-Are you going to file an application for a case stated?

Mr. Hodgson I do not know yet. I must consider that.

Mr. Brutton-Then in that case I hope your Worship will hear me on the point that there can be no appeal.

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