CO129-573-8 Disposal of prisoners sentenced by Supreme Court of China 3-6-1938 - 25-8-1938 — Page 8

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6. It would appear, however, that during the fourteen

year period immediately preceding August, 1937, there were

two occasions upon which a departure was made from the general

practice outlined above. The circums tances were as follows:-

(1) On the first occasion, in June 1928, eight Indians

(2)

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were tried together by this Court sitting at Amoy

and sentenced to terms of imprisonment varying from

one year to five years with deportation ordered in

each instance (i.e. they were Class B offenders).

Apparently for the reasons (a) that there was no

suitable prison then available at Amoy; (b) that

any order which the Court might have made under

Article 90 (6) of the Order in Council would have

been ineffectual; and (c) that the transfer of the

offenders to Shanghai pending their ultimate

deportation to India would have involved considerable

additional expense to public funds, the Court thought

it expedient to send them for imprisonment to

Hong Kong under Article 70.

On the second occasion, in November 1934, an Indian

was sentenced by this Court sitting at Canton to

imprisonment for a term of two years (i.e. he was

a Class C offender). There was no suitable prison

available at Canton at the time and the additional

cost of sending the offender under escort to Shanghai

would have been considerable. In this case also the

Court thought it expedient to send the offender for

imprisonment to Hong Kong.

The case of Abdul Jabar, to which reference is made

in the concluding paragraph of His Excellency's despatch, was that of a Class A offender sent for imprisonment from Shanghai

to India. In this case the obtaining of the Indian Government's

consent and the making of the necessary arrangements for the

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warrants and escorts were matters which His Majesty's Consul-

General at Shanghai attended to; but as it was found necessary

to tranship the prisoner at Hong Kong the Government of the

Colony kindly arranged for his passage thence to India and

furthermore afforded him temporary accommodation in the

Hong Kong prison.

8. Since the outbreak of the Sino-Japanese hostilities

nine offenders have been sent for imprisonment to Hong Kong

in the following circumstances:

(1) On the 21st August, 1937, in consequence of the

Shanghai Municipal Council's decision that it would

be no longer practicable to continue the carrying on

of the Ward Road Prison as theretofore, it became

imperative immediately to evacuate fourteen convicted

British offenders who at that time were detained in

the Prison. The unexpired terms of the sentences of

eight of these fourteen offenders were thereupon

remitted by Your Excellency's predecessor under the

provisions of Article 71 of the Order in Council, and

they were set at liberty forthwith. The remaining six,

comprising five Indian Class A offenders and one

European Class C offender, were sent for imprisonment

to Hong Kong under Article 70 at the first opportunity.

The consent of the Government of India to the transfer

to India of these five Indian Class A offenders was

subsequently received by His Majesty's Consul-General

at Shanghai, and I understand that they have now been

sent from Hong Kong to India, the necessary arrangement

for passages and escorts having been made by the

Government of the Colony. The European Class C offender

still remains in prison at Hong Kong, but should be due for release about the 16th September, 1938.

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(2) In October, 1937, three Indian offenders were tried

together by this Court sitting at Tientsin and each

was sentenced to imprisonment for a term of five years

(i.e. each was a Class C offender). There being no

prison then available either at Tientsin or at Shanghai,

the Court thought it expedient to send the three

offenders for imprisonment to Hong Kong under Article

70.

The fact may be emphasized that not one of the nine offenders

referred to in this paragraph would have been sent for

imprisonment to Hong Kong had normal conditions prevailed in

Shanghai.

9. It will thus be observed that the power of sending

offenders for imprisonment to Hong Kong (a power first

conferred upon this Court by Article 79 of the China and Japan

Order in Council, 1865) is one which has been exercised, at

any rate in recent years, only in exceptional circumstances.

That the power continues to be a very necessary one is fully

demonstrated, I submit, by the events of the past year in

China. At the same time I have the honour to express the

view that if and whenever the power may be exercised in the

future in regard to an offender with a substantial sentence

who does not belong to Hong Kong, the burden of obtaining

the consent of the Government concerned to the reception of

such offender, and thereafter of making the necessary

arrangements for warrants, passages and escorts, should not

be thrown upon the Government of Hong Kong. In my view that

burden might well devolve upon His Majesty's Consul-General

at Shanghai in exactly the same manner as if the offender

were detained in the Shanghai prison.

10. Sir Herbert Phillips, to whom this despatch has been

submitted in draft form in the first instance, has been good

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