609617-1928-Supplementary-Draft-Bill--Chinese-Extradition-Amendment — Page 4

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5. The present defi ition, taken in conjunction with the definition of the term "Jurisdiction of China," seeins 10 make it necessary to prove in every case that the crime was committed within the jurisdiction, of some particular

Chinese authority." It may, however, he

very difficult to ascertain who was the · Chinese authority” On Any particular date. For example, a murder or robbery, which had no political significance whatever, might be committed at a time of transition of authority, and it would be very unformate if such a crime conid not be dealt with. The new definition, therefore, mcludes the enze of crimes com- mitted in any rovince or other area or place which in the opinion of the Governor forms or at any time has formed part of the Republic of China." This is intended to avoid Chinese the necessity of having to certain the actuai anthority" at the date of the crime. It is not. of course, intended that sets duly authorized by a government sub- sequently ousted should be made the subject of extrudition proceedings.

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6. The present definition of fugitive eriginal” restricts the term to persons who are in Hong Kong or who are suspected of being in Hong Kong. The strict effect of this is that a magistrate is not entitled to issue his warrant under section 8 of the principal Ordinance if the accused is only believed to be on his way to the Colony.

The new definition. therefore, extends the to m to the case of persons who are, or who are suspected of being, on their way to the Colony.

7. Paragraph (3) of section 4 of the principal Ordinance provides that a fugitive criminal shall not be surrendered unless an engagement is given against his being tried for an offence "other than the extradition crime on which the surrender is demanded". Demands are sometimes made before the facts are completely known. Further, the categories of English law and Chinese law do not neces- sarily fully correspond to one another, It is possible accordingly that the requisition may describe a crime which `differs in vcrtam details from the crime subsequently dis- closed by the evidence. The surrender is eventually made in respect of the crime disclosed in the evidence, and it is to that crime that the proceedings in China subsequent to surrender should be confined. Accordingly, section 4 of this Ordinance substitutes the words, "other than the extradition crime or crimes proved by the facts on which the surrender is granted" for the words in the present section, other than the extradition crime on which the surrender is demanded". The phrase now substituted is in fact the phrase used in the English Extradition Act, 1870.

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8. Section 6 of the principal Ordinance provides that the Governor may issue his order to the magistrate upon receiving a requisition by a · Chinese authority" It is arguable that this means that the authority making the requisition must have been previously declared by the Governor to be a "Chinese authority". This was not the intention when drafting Ordinance No. 17 of 1927, and, whatever the soundness or weakness of the argument may be, it seem desirable to set the doubt at rest. The new section 6 which is substituted by section 5 of this Ordin- ance, therefore, is intended to make it clear that the decla- ration of the Governor may be made either previously, or subsequently.

9. Section 18 of the principal Ordinanes, as amended by Ordinance No. 17 of 1927, provides that every fugitive criminal whose surrender is demanded shalt be deemed to be a national of China unless he proves the contrary. Now the term "fugitive criminal" is defined as meaning a national of China who is accused of an extraditable crime. It seems therefore more correct to substitute the word " person for the words "fugitive criminal" in section 18 of the principal Ordinance, so as to avoid the possible paraphrase, a national of China aceused of an

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