GOVERNMENT HOUSE,
HONG KONG 18th July, 1930.
PROEIVED
1 8 AUG 1930
TOOL. OFFICE
My Lord,
I have the honour to request that I may have
Your Lordship's directions in the matter of the procedure
that should be adopted in the case of persons concerning
whom a special verdict of guilty but insane at the time
concerned has been found by a jury.
2.
I attach for ease of reference a copy of the
relevant sections of the Criminal Procedure Ordinance of
1899 which are based upon section 2 of 46 and 47 Vict. c.38.
3. It would appear that detention in such cases
may be ordered either in the Lunatic Asylum or, if it should be more convenient, at the Victoria Gaol; but in the latter
case it would in my opinion be irregular that imprisonment
with hard labour should be imposed in place of such simple
detention.
4.
I shall be glad of definite instructions on
this point as there is at present in Victoria Gaol a prisoner who was in 1917 ordered to be detained there under
section 76 of the Crdinance quoted above, the order in
question bearing the Governor's endorsement "to be imprisoned
with hard labour for life".
THE RIGHT HONOURABLE
LORD PASSFIELD,
&c.,
&c., &c.
5.
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5.
There is another similar case where a prisoner
was in October 1929 ordered detention on the same terms and
who is now certified as being fit to leave the Asylum.
6.
In both of these cases I am issuing instructions
that hard labour should not be imposed, as it appears to me
that no power lies with the Governor so to alter the order
of the Court under the section quoted.
7.
There is the further question of the authority
necessary for the ultimate release of such persons, on
recovering their sanity, from the detention imposed in
accordance with section 76 of the Ordinance.
8.
Article XV of the Letters Patent give such
wide powers to the Governor in the matter of the grant of
pardon that I would have no doubt that these include the
cases now under review were it not for the specific mention
of His Majesty in the order of the Court.
9.
I shall be glad therefore of Your Lordship's
instructions as to whether I am to exercise in such cases the
powers granted under Article XV of the Letters Patent, or
whether each case is to be referred to you for an expression
of His Majesty's pleasure in the matter.
10.
An alternative suggestion has been made that
the word "Governor" might be substituted for "His Majesty"
by an amendment of the section quoted, on the analogy of
section 3 of the Trial of Lunatics Act of 1883.
I have the honour to be,
My Lord,
Your Lordship's most obedient,
humble servant,
Live
Governor, &c.
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