687298-1879-Meeting-of-Lesg-Council-6th-November-Finances-of-the-Colony-Finance-Votes-Supplementary-Appropriation-Ordinance-1878-Naval-Yard-Police-Amendment-Bill-Survey-of-Steam-ships-and-Boilers-Bill-and-Merchant-Shipping-Consolidation-Bill- — Page 14

i.>

THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879. 665

Then comes another despatch, also communicated by Sir MICHAEL HICKS-BEACH to Parliament. MY LORD,-Adverting to my despatch of the 17th October, I have the honour to lay before your Lordship a copy of the Attorney General's opinion on the illegal flogging that had been inflicted on the prisoner CHAN TIN LAM.

Having, for the third time, referred the depositions in this case to the Attorney General, together with Mr. RUSSELL'S memorandum, Mr. PHILLIPPO at length recognises the fact that a mistake was made by the Magistrate, and that the prisoner received a greater number of strokes in a single flogging than the law allowed.

The Attorney General now says, "After Mr. RUSSELL'S admission in this case, I have no doubt "that the greatest care will be taken that no similar mistake should occur again in future."

I have no doubt the Attorney General is right in thinking that greater care will be taken by the Magistrates in future. Bearing in mind, however, the exceptional and severe code of laws in this Colony for the flogging, branding, and deportation of the Chinese, I shall certainly not relax my own efforts to prevent any illegal addition to the severity of that code.

I have &c.,

J. POPE HENNESSY,

Governor.

Now I am told, forsooth, that though this man has been illegally flogged, that though in the opinion of the Magistrates he was a juvenile offender and the deportation sentence was illegal, I should have acted on that sentence, or have devised some means, after the full term of imprisonment had been served, of punishing him, some means such as twisting or stretching or breaking the Law. All I can say is that no influence, here or elsewhere, could induce me to do so. As long as I have the honour to represent the QUEEN I shall not break the Law myself to punish the meanest of Her I have subjects, nor shall I allow others to do so within the Government committed to my care. very little doubt what will be the opinion of those who have already read these papers. They are laid, by command of Her Majesty, before both Houses of Parliament. I am ready to abide by the verdict of that High Court.

The Honourable member has called attention to another case, that of MoK A-KWAI. That, too, possesses many features deserving of the attention of this Council. The Honourable member thought the man had been let out, because I gave instructions on a certain day that no prisoner arrested by the Police for returning from deportation was to be prosecuted without my sanction. Why did I give these instructions? My Honourable and learned friend the Chief Justice knows well how it happened. He will remember what took place in a prosecution in reference to which he represented to me the inconvenience of the Executive being placed, as it were, in opposition to the Judicial Authorities, and he said:"Before a man is brought before me to be prosecuted for returning from deportation, why not look into the matter and see whether the sentence is legal? Well, I acted on that advice. But, I took the advice of others beside the Chief Justice. Here is an extract from the proceedings of the Executive Council on the subject.

35

"With reference to the Deportation Warrants, some of which were declared by a recent decision of the Supreme Court to be illegal, His Excellency remarks that in the cases of deported Chinese returning to the Colony, before sending round papers relating to them to Honourable members, on having them charged before the Magistrate, he first sent the papers marked "Immediate" to the At- If the Attorney torney General to ascertain at once whether such men had been legally deported or not. General decided that the deportation had not been according to law the prisoner was at once dis- charged.

"The majority of the Council agreed with His Excellency that that was the best and most expe- ditious course in such cases.

"The Governor would take this opportunity of again referring to the subject of branding which he had previously brought to the notice of the Council.

"His Excellency said he believed that Honourable members agreed with him that with the prac- tice of photographing prisoners, and with the proved efficiency of the Chinese Police, and the appoint- ment of Chinese Warders in the prison, the time had come when the practice of branding prisoners might be abandoned.

"Honourable members concurred with His Excellency in thinking that with the greatly extended facilities for detecting old offenders branding might be safely abandoned.

"The Council also concurs with His Excellency in his intention of expunging from the Consoli- dated Deportation Ordinance No. 8 of 1876 the provision in Clause XV which empowered a Magistrate at his discretion to order any person convicted of an act of mendicancy to be flogged to the extent of thirty-six strokes.”