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THE HONGKONG GOVERNMENT GAZETTE, 12TH NOVEMBER, 1879.
Honourable W. KESWICK.-Well, I find in these papers the first case referred to is No. 1,157, that of CHAN TIN LAM, in 1877. The first conviction appears to be on the 9th November, 1874, the second on the 9th July, 1875, and the third on the 20th May, 1876. Mr. MAY applied to have this prisoner deported. I understand from the minutes that considerable discussion took place (hear, hear)-consideration I mean-consideration of the case took place and the Executive Council approved of the deportation. I think that subsequently it was supposed that the man had been whipped when he was under the age at which such a punishment ought to have been inflicted.
His EXCELLENCY.-One of the points was that he had received a larger number of strokes in a single whipping-twenty-four, the maximum number being twenty under the Ordinance for a juvenile offender than the Law allowed.
Honourable W. KESWICK.-However, a great deal of consideration appears to have been given to the subject, and the Attorney General at last made this minute. Before reading the minute I would ask your Excellency whether I would be in order in doing so.
His EXCELLENCY. It is documentary matter. I can have no objection to your reading it. Honourable W. KESWICK then read-
"I have perused these papers again and the additional papers forwarded to me.
There can be no doubt that it is advisable that His Excellency the Governor and the Executive should interfere with the Judicial Department as little as possible. This has been laid down over and over again within my knowledge by the Colonial Office. Magistrates when acting ministerially are subject to the directions of the Government; when they are acting judicially they ought to be almost, if not quite, as indepen- dent of the Executive as the Judges of the Supreme Court themselves. An appeal lies from the Magistrate's decision to the Supreme Court, and any party feeling himself aggrieved may take advantage of such appeal. If a Magistrate knowingly inflicts an improper punishment he may, under certain circumstances, be made to pay damages at the suit of the party aggrieved; or a criminal information may be obtained against him. Ordinarily, therefore, the Executive ought not to interfere with decisions of the Magistrates when acting judicially. In any case of apparent hardship, or upon receiving a petition from or on behalf of any person convicted, His Excellency may call for a report from the Judge or Magistrate who tried the case in order that he may consider whether it is advisable or not to exercise the power entrusted to him of pardoning the offender. If His Excellency has any reason to believe that any Judge or Magistrate, acting wilfully, or wantonly, have deliberately exceeded his powers, His Excellency may. call upon any such person for his defence before the Executive Council, and may suspend him from his office pending a reference to the Secretary of State for the Colonies.
"For mere errors in judgment or incorrect conclusions, which may be made or formed by any one, the law provides a remedy by appeal.
"In this case the question seems to me to have resolved itself into this. Did or did not the offender, in the opinion of the Court before whom he was brought, exceed the age of 16 years ? If he did not in the honest opinion of the Magistrate exceed the age of 16 years, then the infliction of cor- poral punishment was lawful, whatever his real age may have been and whatever evidence may have been tendered at the time or discovered afterwards and whoever may be of opinion that the Magistrate was in error. If there is any evidence, however, to show that either of the Magistrates, knowing that the offender was above 16, wantonly inflicted the punishment of whipping,. His Excellency would be quite justified in calling for a defence before the Executive Council. I cannot, however, conceive, from the papers before me, that any such conclusion could be possibly arrived at, having regard also to the great respect universally entertained for both the Magistrates, and the satisfaction they have given in the discharge of their duties apparently to all classes of the community, one of them at least for a lengthened period.
"I would therefore suggest to His Excellency that it would be desirable to let this matter drop. He might, I would suggest, issue a memo. to the Magistrates referring to the fact that he had had some doubts in some of the cases which had been brought before him, expressing his confidence that they would continue to take great pains to arrive at just conclusions, suggesting, with regard to some of the points raised, that it would be advisable, in cases where they had any difficulty, to apply for the opinion of the Law Officer of the Crown, and acknowledging the value generally placed on their services by the community in general,--
His EXCELLENCY.-Pray read on. Honourable W. KESWICK.-reads-
Unless His Excellency is prepared to charge the Magistrates with criminal conduct in the matter, to do more, as, for instance, to censure the Magistrates, in any way for the manner in which they exercised a discretionary power (His Excellency will, I am sure, excuse me for writing freely) would be, in my opinion, to repeat the blunder made by LORD LYTTON in India when he censured and punished the Magistrate and to some extent censured also the Supreme Court for leniency in a case where a native died after having been struck by a European.
"12th June, 1877."
"GEORGE PHILLIPPO."
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