TNAG-0028-FCO40-64-Relations-with-China-1968 — Page 189

4.

Du need "which punishment was death, when it was not decreed

advisable to carry the sentence of death into execution, the court, from an early period, was to grant a pardon on condition of the convict being transported to some settlement or plantation.*

But this could only be done with the consent of the felon. The Crown cannot compel a man, against his will, to

submit to a different punishment from that which has been awarded against him in due course of law ..."

The above excerpts from Law Officers' opinions have been reproduced from Forsyth's Cases and Opinions on Constitutional Lew (1869). Incidentally, the view expressed in the last sentence of the opinion at paragraph 3 (a) appears to be supported by two old decisions, R v. Miller (1772); R v. Madan (1785), reported in Vol. 168 of the English Reports at pages 139 and 214 respectively.

5. The systems of release or licence and of suspended sentence have been set up by legislation. Some dependent territories have enacted ordnances providing for the release of convicts on licence, Such legislation contains provisions relating to the action to be taken against an offender who breaks the conditions upon which he was released on his sentence was suspended, Such being the case, andhaving regard to the authorities to which I have referred, I have reached the opinion that Article XV of the Hong Kong Letters Patent cannot properly be used and was not intended to be used, for the purpose of applying, by the imposition of conditions upon the grant of a conditional para on, a system of release on licence or of suspended sentence which has been elsewhere instituted by appropriate legislation.

See Terence Watson's case (639) 112 English Reports at page 1411.