1914-03-04 — Page 5

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THE CHUNG SAU NAM

EXTRADITION CASE.

(Continued frem Page

the duty of a Magistrate is identical with that of a Magistrato sitting under the, Indictable Offences Act, ie, to consider whether there is a prima facie cash against the accused of the prime of which he is #acoused according to English Law and if

Vong Ka Cheonghen the fudgment in case adopting this post-

tooommit him.

Jon

says:* But Section - 10 of the xtradition Ordinance must clearly be read bject to Section 78 of the Magistrates dinance of 1890. And by the second part that article the Magistrate is to commit he prisoner if in his opinion the evidence sufficient to put the accused upon his trial for an indictable offence or if the evidence given raises a stronger

Probable presumption of the guilt of accused This provision is copied verbatim from the English Act, 11 and 12 Vict, C. 4o, Section 952 Then Clarke on Extradition as to the duties of a Magistrate appears to regard the discretion of a Magistrate in Extradition as more limited than on an ordinary indictable charge. He says at p. 116 :—-” It must be remembered that the Magistrate Investigating a case of demanded extradition is not quite in the same position as if hó wore deciding on a charge of crime com- mitted within his own jurisdiction. In the Intter case he has full discretion; he may and often does discharge a prisoner because, although there is prima facie evidence of guilt, the oircumstances are so obscure, the intent so doubtful, the testimony so conflict- ing, that he thinks a jury would not be likely to convict; but in a case of extradi- tion he 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 evidence before the Magistrate must have created a doubt, and that therefore it could.

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of the Federal States during the war in its early stages, and that Chau's declaration was effective to divest possession from the government and to vest it in the robel government. Further, that at Chan's declaration of Independence the Provincial Government came to an end, and that with the subsequent cancellation of Independence by Yuan Shih-kai the authority of the Central Government revived and any rights which are consequent are in the Central Government.I am unable to see how McRae's case is an authority for these pro- positions.

It appears that Chan Kwing-ming fed from Canton probably on the 4th August,

After referring to rights in and he arrived in Hongkong on the 5th August. It was stated in evidence by one property appn the suppression of a rebellion of the Canton Treasury officials, Chung seized during such rebellion, Sir W. James Siu-lam, that he (the witness) continued in V.C. said, "I apprehend it to be the clear the service after the Proclamation of public universal law that any government. Independence by Chan Kwing-ming, that he which de facto succeeds to any other govorn worked for the Government, that the Treament, whether by revolution or restoration, sury worked as usual during Chan's régime, that after his proclamation he recognised his orders on the Treasury, that some Government notes were issued a few of which bore a special mark To Un' (Perish Yuan): it was also in evidence that the rebellion affected many provinces.

conquest or reconquest, succeeds to all the public property, to everything in the nature of public property, and to all rights in respect of the public property of the dis phited power, whatever may be the nature or origin of the title of such displaced power Any-nich public money in any treasury, any fuch public property found in warehouses, forts or arsenals, would, on the surons of the new or restored pawer, vest

Any

not have raised a strong and probable pre- and directing his arrost. The order stated sumption of guilt, and, further, that if there is a bond-fide doubt the Magistrate should that Chen Kwing-ming coerced the mem serer commit, and we were asked to say here of the Provincial Assembly to doclate upon this reasoning that the Magistrate has independence at the assembly" and that he exceeded his jurisdiction and that this Court had raised a rebellion," and a Proclama has the power to interfere with his decision. tion (Exhibit 24) was subsequently issued by There is in my opinion no authority for order of Commander So Shun-cho, who had such a proposition and I can find nothing temporarily and after the departure of Chan in the judgment which warrants the con- assumed the duties of Tutuh, stating that tention that he has abused or exceeded his the doclaration of Independence of this powers. It is true that the Magistrate has Province in heraby withdrawn. for the purpose of arriving at conclusion on the evidence presupposed that a jury was investigating it, and I fail to see how this constitutes an abuse of his pawers. As I have already pointed out, the procedure under the Extradition. Ordinance is useimil ated to the preliminary enquiry on an indictable offers, and Section 76 of the Magistrates Ordinance duthorises a committa! subject to two alternatives" if in the opinion of the Magistrate such 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 stewend. Surely the consideration of whether the "evidence is sufficient to send the accuset for trial involves the question of whether a would or, would ant bo likely on the entitl to convict upon it. In so far as the services of an imaginary jury were invoked on determining the questions of law, eg,

diftofo in such power; and it would have the right to call to acconst any fiscal or the de facto government is nihil ad rem and possession in

other agent, or any debtor or accountant to the alleged stolen property,

or of the persons who had exercised and and on be properly daret

disregarded

effective. That with the cancellation of to the

had ceased to exercise the authority of a Then another contention as to abuse

Independence the authority of the Central of the Magistrate's powers was based on Government revived and any rights which government, the agent dentar, or accountant cortain remarks in the judgment which reflect on the action of the fugitive in notare consequent are in the Central Govern having been the agent, debtor or accountant one of such persons in their character or pre- Bat tendering evidence to rebut the presumption Numerous authorities were cited in argu- tended character of a government. of guilt. If the Magistrate's decision had keen based on this conception it would act. Hall on International Law (1880 Ed), this right is the right of succession, is the clearly have raised serious questione as to P. 27, states," As soon, it is said, as a right of representation, is a right not the improper exorcise of his jurisdiction, but considerable population is arrayed in arms paramount, but dorived, I will not say an examination of the judgment shows that with the professed object of attaining under, but through, the suppressed and the Magistrate considered the evidence put political ends, it resembles a state too nearly displaced authority, and can only be enforced forward by the Crown was calculated to for it to be possible to treat individuals in the same way, and to the same extent, raise a strong and probable presumption of belonging to such population as criminals; and subject to the some correlative obliga guilt. He says; I shall here, therefore, it would be inhuman for the enemy totions and rights as if that authority had while allowing that further evidence may execute his prisoners; it would be still more not been suppressed and displaced and was put a new aspect on the matter, express the inhuman for foreign States to capture and itself seeking to enforce it. The de facto opinion that the evidence before me if pre- hang the crews of warships as pirates; government here referred to is clearly the sented to a jury in its present form is humanity requires that the members of such United States Government and not the

Confederate Government... calculated to raise a strong and probable a community shall be treated us belligerents, prosumption of the guilt of the accused in and if so there must be a point at which In United States of America v. Priolean,

of these charges (Nos, 1, 3, they have a right to demand what con-

96 LJ., Ch. 7, it was decided that where respect to any 4 and 5).".

As the Confederated States of America had sent This is a clear and decisive exercise of the fessedly must be granted. atqu Magistrate's discretion, with which, in so far belligerent community is not itself a legal goods held by them as public preporty ta person, a society claiming only to be England under a contract that the United States could not after the Civil War was over

interfere.

It was argued by the learned Counsel for the fugitivo, stated briefly, that these facta coupled with Yuan Shih-kai's Proclamation, which was an act of State, established

that the seizure of power was actual and de facto Government in the rebel party and

ment.

goods. N

Now, can it be contended than Chan King-ming's action over established a de Was there only facto government at all?

as the facts as distinguished from the labelligerent, and not to have permanently are concerned, this Court has no power to established its independence, can have no repudiate the contract and recover the

The learned Counsel for the fugitive niso rights under that law. It cannot therefore

Counsel for th complained of an irregularity committed by demand to be recognised upon legal grounds, the Magistrate as to the mode of making and recognition, when it takes place, either cortain corrections in the deposition of one on the part of a foreign government, or of of the witnesses, and we thought it desirable that against which the revolt is directed, is final success to constitute Independence as to afford the Magistrate an opportunity in from the legal point of view a concession distinguished from rebellion?

to resent us.

Was there

the witness-hot of explaining the irregularity of pure grace Wo were referred to any suppressed and displaced authority?" complained of My learned brother has Historicus, where Sir William Harcourt states In my opinion there was not. The evidence dealt fully with this point in his judgment, in regard to the Civil War in America so far as it goes shows that during the and I need only

that I

I entirely agreeWhen a sovereign State, from axhaustion fortnight in question payments were made with his conclusions.

or any other cause, has virtually and into the public Treasury 26 usual, the I now come to the question raised na ta substantially abandoned the struggle for government officials remained in their offices possession in the property. It was supremacy it has no right to complain if a performing their duties as usual, and as the contended that there was no property in foreign State treat the independence of its Magistrate I think rightly observed, the the government of the Province of Kwang former subjects as de facto established; nor one act of administration which can be tung and that the fugitive is not a sortent can it prolong, its sovereignty by a more claimed by the rebel Governor-General is of the Kwangtung Government. Further, paper assertion of right. When, on the that he depleted the Treasury. And the it was contended that the burden was on the Crown to show (1) that the Province other hand, the contest is not absolutely or most I think could be fairly contended is exists and what it is; (2) what the Provin permanently decided, a recognition of the that the possession as distinguished from the cial Government is and that there is such a inchoate independence of the insurgents by dominion of the property in question was thing; (3) that if it exista it is capable of a foreign State is a hostile act towards the in the rebel Chan for the period in question. holding property and having servants sovereign State which the latter is entitled The circumstances are clearly and wholly breach of neutrality and different from those under consideration in responsible to it. These contortions may I think be summarised as follows:

friendship. The true rule is that laid down McRae's case and Prioleau's case, and (1)-Was the alleged property in question in the old distich, Rebellion, until it has there is no real analogy between them. As in the Provincial Government of Kwangtung, succeeded, is Treason, when it is successful, to the question whether as a fact the alleged or was the property ousted by the alleged it becomes Independence. And thus the rebellion was put an end to by the Central de facto government?

only reel fest of independence is final Government or by the Provincial authorities (2.)-If the property was in the Provincial success. Accepting this rule that the in the view which I take of the case, 18., Government is it necessary for the Crown real test of Independence is final success" of the failure to establish the existence of to prove in a criminal proceeding what the can it be contended with any show of a de facto government, it becomes unneces Provines and the Provincial Government is authority that the rebellion erer succeeded, sary to determine

I should, however, add tant evidence was Well, then, what is the evidence as to the or that it permanently established indepen usurpation of power by the alleged de facto deneo? to use the language of Hall tendered by the Crown which bears on the Government? It appears that on 21st July, United States of America. McRae, 8 Eq., status of the Tutuh of a Province. Referring Chan Kwing-ming, who was then Governor-75, was relied on. This esse was decided in to the Proclamation of Chan Kwing-ming General of the Kwangtung Province, issued 1869, some fire years after the close of the official of the Government of the nproclamation-Exhibit 21-which states Civil War in the United States of America, Province of Kuangtung who says in his inter alio that Tuan Shikkal is contriving and claimed an account of money which affidavit, he has been deputed by to rebel against the Republie and to break came to the hands of the defendant es agent the Governor-General of the said Province Data

BA follows: up the Federation and that the present of the pretended Confederate Government to take charge of the extradition proceed Tutuh is entrusted by the cldors and during the late insurrection, and it was ings, further states brethren of the whole province with the task decided inter du that upon the suppression have seen exhibit 21 put in in the Pollos of raising an army to impeach snd punish of a rebellion the restored legitimate Govern Court proceedings, being the Froclamation 省 the avid Yugo Shih-kat." He then declares ment is entitled as of right to all moneys, issued by Chan Kwing-ming; the word "" himself responsible for the peace of the goods and treasure which were public pro- used throughout the Proclamation translated province and for protection of lives and property of the government at the time of the as Province is a word which essentially to the 2 perty and prescribes certain rules to be in outbreak; auch right being in no indicates territory subordinate

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force in pursuance of the proclamation, affected by the wrongful moizure of the Republic of China and could not indicate an It appears, then, that the President property by the usurping government Now Independent State It is quite distinct pro tem." Yuan Shih-kai issued an order it was contended on behalf of the fugitivs (Exhibit 17) five days afterwards dismissing that the position of the province of Kwang Chau from the post of Tutub of Kwangtung tung was identical or analogous with that

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