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THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879.
the questions that have been raised, except to say that I believe that with regard to the question of the legality of deportation, I am responsible; but it is my business, sitting where I do in that Court, to take care that, punish-men how you will, they shall only be punished according to Law. And if I cannot punish them as I think they deserve, if I think the Law will not allow it, I have only to regret it, and say they must go unpunished. It is for this Council afterwards to say whether or not remedies shall be devised for any insufficiency of the Law, though I believe, on the whole, the Law pretty clearly provides for every wrong a remedy. I don't go into any of the questions, but I believe I am responsible for a good deal that has come out. (Hear, hear.) In the decision that the Court took I was certainly annoyed to find then deportation in the way it had been carried out was most illegal, and when it came before me I did not hesitate to say so. I am perfectly satisfied with the way in which the matter is dealt with now. I don't say there are not exceptional cases, but I must say there is no exceptional case on which the Governor does not do me the honour to ask the opinion of the Court. But it is no part of the business of the Judge to give advice, though he may do so if asked. If a man is sent to prison the responsibility of keeping him there, or the responsibility of letting him out early or late rests with the Executive. The judiciary ought never to express an opinion upon the propriety or impropriety of any conduct of the Executive. This is not my opinion; I don't in these questions generally give my own; I generally rest my opinion on that of eminent men; and though I go to a Colony for it, a Colony is perhaps the best for the purpose, and in Melbourne. that was said by one of the best judges I know. Ever since I read what he said I have felt it is not the place of the Judicial Department to pass an opinion upon the acts of the Executive. They have various reasons for what they do, as to which the judiciary ought not, after having passed sentence on a prisoner, to pass a sentence on the changed sentence which the Executive may pass. A Judge may be asked what reasons there are why mercy should not be shown, where there are reasons presented why mercy should be shown, and I am sure His Excellency will always find me ready to give advice to the Executive in such cases.
The Council was then adjourned sine die.
The following Despatches were referred to in the debate on Deportation and illegal Floggings.
[No. 44.]
Governor Hennessy to the Earl of Carnarvon.
GOVERNMENT HOUSE,
VICTORIA, HONGKONG, 23rd June, 1877.
MY LORD, I have the honour to lay before Your Lordship the papers relating to a proposed case of deportation in which I have felt myself compelled to decline acting on the unanimous recommenda- tion of my Executive Council.
2. The case arises under Ordinance No. 8 of 1858, entitled "An Ordinance for the Regulation of the Chinese People," and for other purposes. It begins with a recommendation by Mr. MAY, the 1st Police Magistrate, in which after reciting four convictions that had been obtained against a prisoner named CHAN TIN-LAM, Mr. MAY says:-
"The prisoner being an incorrigible thief and considered a person dangerous to the peace and good order of the Colony and having failed to give the security required of him I therefore respectfully recommend him as a fit subject for deportation under the provisions of Ordinance No. 8 of 1858, Sec- tion XXI."
For Your Lordship's information I here annex the Section in question:
"Section XXI of Ordinance No. 8 of 1858 any stipendiary Magistrate or Justice of the
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Peace may cause any Chinese person to find reasonable security for his appearance in
any Court for any purpose at an any time within twelve months, and every adju- "dication to that effect shall be made in open Court and reported forthwith to His Excellency: and such Chinese not finding such security shall be deemed a person dangerous to the Peace of the Colony, within the meaning of Ordinance No. 9 of 1857." This last mentioned Ordinance gives power to the Governor in Council to deport for five years any person not being a natural born or naturalized subject of Her Majesty.
4. In accordance with the practice I find prevailing here, this recommendation of the Magistrate under Ordinance No. 8 of 1858, Section XXI, is very properly accompanied, when sent around to the Members of Council and the Governor, by the depositions in the various cases alleged against the prisoner as the justification for the order of Deportation.
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