and often does discharge a prisoner although there prima farie evidence guilt, the circumstances are so obscure, the intent po doubtful, the testimony so conflict. ing, that he thinks a jury would not be likely to convict; but in a case of extradi- Mtion ho cannot consider these matters. If he finds sufficient evidence of guilt to justify a commitment, the question of a conviction is not for his consideration."
It was contended that in this case the ridanos before the Magistrate must have prested a doubt, and that therefore it could not have raised strong and probable pre- sumption of guilt, and, further, that if there is a bona fide doubt the Magistrate should never commit, and we were asked to say upon this reasoning that the Magistrate has exceeded his jurisdiction and that this Court has the power to interfere with his decision. There is in my opinion no authority for
■uch a proposition and I can find nothing in the judgment which warrants the con- tention that he has abused or exceeded his powers. It is true that the Magistrate has for the purpose of arriving at a conclusion on the evidence presupposed that a jury was investigating it, and I fail to see how this constitutes an abuse of his powers. As I have already pointed out, the procedure under the Extradition Ordinance is assimil- ted to the preliminary enquiry on &D ndictable offence, and Section 76 of the Magistrates Ordinance authorises a committal Jubject to two alternatives if in the opinion of the Magistrate auch evidence is sufficient to put the accused upon his trial! for an indictable offence or if the evidence given raises a strong or probable presump- tion of the guilt of the accused." Surely the consideration of whether the evidence is sufficient to send the accused for trial involves the question of whether a jury would or would not be likely or "be entitled" to convict upon it. In so far as the services of an imaginary jury were invoked ba determining the questions of law, e.ot the Ametu. government, and possession in the alleged stolen property, it is nihil ad rem and can be properly disregarded.
Then another contention as to the abuse of the Magistrate's powers was based on certain remarks in the judgment which reflect on the action of the fugitive in not tendering evidence to rebut the presumption of guilt. If the Magistrate's decision had been based on this conception it would clearly have raised serious questions as to the improper exercise of his jurisdiction, but an examination of the judgment shows that the Magistrate considered the evidence put forward by the Crown was calculated to raise a strong and probable presumption of guilt. He says: "I shall here, therefore, while allowing that further evidence may put a new aspect on the matter, 'express the opinion that the evidence before me if pre- sented to a jury in its present form is calculated to raise a strong and probable presumption of the guilt of the accused in respect to say of these charges (Nos. 1, 3, 4 and 5)."
This is a clear and decisive exercise of the Magistrate's discretion, with which, in so far 1 the facts as distinguished from the law ara concerned, this Court has no power to [ interfore.
The learned Counsel for the fugitive also complained of an irregularity committed by the Magistrate as to the mode of making certain corrections in the deposition of one of the witnesses, and we thought it desirable to afford the Magistrate an opportunity in the witness-box of explaining the irregularity complained of. My learned brother has dealt fully with this point in his judgment,. and I need only say that I entirely agreet with bis conclusions.
was
I now come to the question raised as to
in possession
It the property. contended that there was no property in the government of the Province of Kwang- tang and that the fugitive is not a servant Further of the Kwangtung Government.
it was contended that the burden was ob the Crown to show (1) that the Provinec, exists and what it is; (2) what the Provin- cial Government is and that there is such a thing: (3) that if it exists it is capable of
servantst holding property and having
1 respongible to it. These contentions may
as follows:-
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