1852-12-23 — Page 1

23rd December, 1852.

Present:

His Excellency The Acting Governor,

The Honorable The Acting Chief Justice,

The Honorable The Colonial Treasurer,

The Honorable J. F. Edger, Esquire.

The Council met today by Special Summons.

The Minutes of the last Council were read and approved.

His Excellency The Acting Governor laid on the table a Despatch from The Right Honorable Sir John Pakington, No. 30 of 11th October 1ast, conveying Her Majesty's approval and confirmation of ordinances No. 3 of 1852," to amend the Law of Evidence", and No. 4 of 1852, "to facilitate the administration of Criminal Justice". With regard to the latter, upon which His Excellency, at the time of transmitting it home for confirmation, had reported that it was taken from the Imperial Act, 14 and 15 Victoria, Cap: 100, and differed only in two points of trifling importance from the original, The Secretary of State observes that, in addition to this deviation, he finds the provision contained in the Imperial Act authorizing Judges to direct persons guilty of perjury in giving evidence before them to be prosecuted, has been omitted in this ordinance; and wishes to be informed of the reason of the omission.

The question being put, The Honorable the Acting Chief Justice stated that, as regards the Supreme Court, the power of directing a prosecution to be instituted against Witnesses guilty of perjury, or of punishing them by imprisonment or fine, if the offence be committed in open Court, is already vested in the Chief Justice by Section 28 of ordinance No. 6 of 1845, establishing that Court, (independent of the power derived from Common Law); and, on the other hand, with respect to that power being exercised in the Colony by the inferior Courts or Magistrates as is the case at home by virtue of the Provision of the Imperial Act, the Acting Chief Justice remarked, that the granting of a Similar jurisdiction in Hongkong was not desirable, because, if allowed, it would necessarily conflict with the authority of the officer holding the appointment of Attorney General, who, according to the constitution of this Colony, is the Public Prosecutor, and consequently the originator of all such proceedings. Hence, when cases of perjury are brought to his notice by any of the inferior Courts, Magistrates, or Coroners, the prosecution or non-prosecution of the offender rests entirely with that officer. For these reasons, the acting Chief Justice added, the provision of the Imperial Act was omitted in local ordinance, as, otherwise, the powers exercised by the Attorney General, who is also the Grand Jury of the Colony, would have been materially impaired, and thereby placed to some extent under the control of those inferior Courts or officers, which is deemed extremely unadvisable.

The Acting Attorney General being in attendance at the time, fully concurred in the views expressed by the Acting Chief Justice.

The foregoing observations appearing to His Excellency and the other Members of Council explanatory of the cause of the omission pointed out by The Secretary of State, it was Resolved that the same should be brought to his notice by the Acting Governor.

His Excellency then called the attention of the Honorable Members to another Despatch from The Right Honorable Sir John Pakington, Military No. 4 of 21st September last, having reference to Desertion from the Garrison, and particularly to the case of Thomas Coghlan a Private of the 59th Regiment, who was kidnapped from Hongkong in December 1851, and taken to America on board an American Ship; and pointing out the necessity of stringent Enactments being passed by the Colonial Legislature for the suppression of crimes of a similar nature should it be shown that they have occurred more than once in the Colony.

Whereupon as ordinance No. 2 of 1852, for the prevention of Military Desertion, which passed the Council on the 18th May, and was recently confirmed by Her Majesty, (as appears by Despatch Military No. 3 of the 27th August last) has hitherto been found in practice, from the stringency of its provisions to be effective towards preventing the Commission of the Crime against which it was directed; and furthermore, as no Act of kidnapping Soldiers has occurred since the passing of that Enactment, it was unanimously agreed that the ordinance No. 2 of 1852 as now confirmed, called for no amendment in its provisions, until such period as an altered state of circumstances may appear to the Council to require a still stronger Enactment for checking the evil. His Excellency accordingly undertook to submit the above decision for the consideration of The Secretary of State, and the Council was adjourned.

(Signed) Mr. Jervois

(Signed) S. G. Bonham

Read and approved this 22nd day of February, 1853.

(Signed) L. d'Almada e Castro,

Clerk of Councils.