609617-1928-Supplementary-Draft-Bill--Chinese-Extradition-Amendment — Page 5

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extraditable crime shall be de mel to be a national of China unless he proves the contrary". The paraphrase of the amended section will be, "a person accused under this Ordinance of an extraditable crime shall be deemed to be a national of China unless he proves the contrary".

10. Section 7 of this Ordinance adds four sections to the principal Ordinance. The new section 21 provides that the requisition shall be transmitted by the Governor to the Crown Solicitor and shall be admissible in evidence without proof upon production by the Crown Solicitor or any Assistant Crown Solicitor or any police officer not below the rank of sub-inspector.

11. The new section 22 provides that no objection to surrender is to be taken on the ground that no warrant has been issued in China for the arrest of the fugitive criminal, or on the ground that no accusation has been made against him in China. This is to meet an argument raised in Re Sun Ah Wan (1910) 5 H.K.L.R. 33, and in Re Lo Seung (July, 1918). It is true that in Re Sun Ah Wan the court pointed out that the Hong Kong legislature had apparently deliberately departed from the English Extra- dition Act, 1870, on this point, and expressed the view that a formal accusation in China was not a precelent necessary for surrender, but that view was stated only obiter. In Re Lo Seung the argument in question was overruled, but there is no report of that case. It is there- fore thought better to place the matter beyond doubt.

12. The new section 23 provides that no objection to surrender is to be taken on the ground that the extradi- tion crime is not described in the requisition, or in the Governor's order, or in the magistrate's warrant or order, in the rechnical terms of English law. Even in simple cases like murder or larceny the connotation of the Chinese term probably differs in details from that of the English term, and such technical distinctions as that between larceny and embezzlement may be wholly unknown to Chinese law. It ought to be enough that the documents referred to describe offences, or recite facts, which are or amount to substantially the offences for which the surrender is granted.

13. The new section 24 provides that where the extradition crime was committed on board a Chinese ship the fugitive criminal may be surrendered to any Chinese authority that in the opinion of the Governor will have jurisdiction to try the crime. Without such a provision it might be difficult in the present state of China to know to what authority the accused should be surrendered.

14. Section 8 substitutes in the Second Schedule of the principal Ordinance a new from of order by the Governor. Section 17 of the principal Ordinance provides that the forms in the Second Schedule may be used with such variatious and additions as circumstances may require. It seems therefore that it was unnecessary in section 8 of Ordinance No. 17 of 1927 to insert in the form the words "namely the province (or territory) of

and,

further, the insertion of those words might conceivably have been taken as a direction for their use in certain cases where they would have been the source of some embarrass-

ment.

15. Section 9 of this Ordinance is a temporary provision which applies the provisions of the amending Ordinance to the case of every fugitive criminal for whose surrender requisition is made after the commencement of the Ordi- nauce, whether the crime was committed before or after such amendment.

H. E. POLLOCK,

Attorney General.

30th August, 1928.