TNAG-0028-FCO40-64-Relations-with-China-1968 — Page 187

257

Article XV of the Hong Kong Letters Patent is in the usual form in which the Crown's right of granting free or conditional pardon is delegated to colonial governors. We are here concerned only with the Governor's power to grant to a convicted offender a pardon subject to lawful conditions, since the effect of a free pardon is to cancel the conviction and the sentence, so that the person to whom it has been granted is not a "convicted" person.

2.

The answer to your query depends upon the true interpretation to be put upon the words "subject to lawful conditions" in the context of Article XV. My resourches have failed to discover ɛny expression of judicial opinion on the point. The only relevant comment I have been able to find in modem books of reference in relation to the topic of "conditional perdons" is that they are in the nature of a commutation of sentence and are usually employed to substitute a term of imprisonment for a sentence of death.

3. In the older law books, however, there are to be found certain expressions of opinion, some emanating from Law Officers of the Crown who held office about the middle of the nineteenth century, which shed some light on the matter. Here are a few instances:-

(a) In Chitty's Prerogatives of the Crown (1826) the following passages occur at pages 96 and 97:-

"By the common law, the King may annex to his bounty a condition either precedent or subsequent, on the due performance whereof the validity of the pardon will depend. Therefore, if « prisoner is pardoned on the condition that he find security for his good behaviour, and he accordingly enter into a recognizance, the law tacitly annexes a condition to such pardon, that, if the recognizance is forfeited, the original judgment remains in force and may be proceeded upon ... ... As (the King) may pardon a criminal on certain conditions, there is no objection to the condition being the offender's submission to a less severe punishment. The punishment which the law has inflicted is certainly altered by this prerogative; but the power of pardoning or punishing is left by the British Constitution very generally with the King." (b) In a case from British Guiana (1849), the Governorfa commission authorised him to grant to any offender 'a free and unconditional p ardon, or a pardon subject to such conditions as by any law in force in the said colony may be thereunto annexed." The Law Officers of the Crown, in England, to whom the case was referred, expressed the opinion that the Governor possessed the power to extend to an offender the mercy of the Crown, subject to the condition of imprisonment for life, a punishment recognised by the

recognof