1914-03-04 — Page 7

Full Text of the Judgment. ((Continued from first Extra) he was soon to take the book into the street and that it was never returned or seen again, nor was the fugitive. The sugges tion presumably is that he took the book to screen himself from the discovery of defalcations all though there was no evidence of it. I am unable to say that there

dont could have been committed

for trial on an indictable charge,

As to the contention put for

ward on behalf of the fugitivo

THE HONGKONG TELEGRAPH.

EXTRA

HONGKONG, WEDNESDAY, MARCH 4, 1914.

on

7th. August and subsequently cal have has regarded as a political He came to Hongkong on the nor the keen controversy of politi While Chan remained in office described as contriving to rebel the insuraction ia Canton

A ··-matter

08

t:

realized the "drafts.

obeques and the proceeds thereof

There was another charge; of stealing a payment book the pro- ment, but I will deal with that perty of the Provincial Govern- later on.

The usual documente having been issued, the case came op for hearing at the Magistracy, and the prisoner was-committed to Victoria Gaol on all four charges.

There are several grounds on which the application to discharge the prisoner are based. uke them in order, leaving bow- I will ever the paint as to Martial Law on one side for the present.

behoves. all

.

expenses.

vince neserted a control it had never really lost on the flight of Chen and the appointment of a loyal Governor.

A

It appears that the adminis

CHUNG SÄU-NAM CASE tination of the money it found

On the 2ad, August, 1913, he discharge their duties as hereto tention of removing the head of he was inclined to put it. But ce. Money that had passed out itself in the personal possession presented at the Treasury an fore and shall not be permitted to the State from his position by agree with the contention of could I think be followed up and of the fugitive here outside the order for money purporting to be leave their respective posts with force of arms was undoubtedly learned counsel for the Crown recovered by the Province while jarisdiction of China and further signed by the Govornor General. out my consent as such Tatuh ass political act. It is spoken of that the case for the fugitiveit still remained in the hands of that the explanation given by the

On the 4th. August he received aforesaid and in default thereof by the witnesses and referred to in manat be put at least as high as its servants and at fugitive io regard is disproved from the Treasury two bearer shall be subjected to the closest the Proclamation of Governor this if it is to be of any avail. There is not therefore any evid olieques for $100,000.00 and for inquiry.

The next proposition, that the General So and the order of the ence upon which this Court en $150,000.00

Now the first criticism I have rebellion in Kwongtang we put respectively find that the intention was to Banks drawn on. Banks in Sha-Fresont attempt on the part of ation of Independence. remit the money to Nanking for

It is hereby declared that the Provisional President as a Declar-to make is that the authors of the down by the forces of manifesto never meant apparently the Central Goverment is. I If there and

meon, Canton.

the Province of Kwongtang is military purposes.

Again the so-called Black to set up a Government in think equally antenable. True" On the 6th. August the fagi to saver all connection with Yusn List" issued by the Central dependent of the rest of China. been any reliable evidence in

the President made hasto to support of it I am not prepared tive changed these cheques at the Shi-Kai and anch attitude is Government at Peking treated The purpose of the movement pablish a counter blast to the to Fay that in the state of affairs respective Banks for drafte in his neither an itfeeling between the Chan as a rebel and issued as stated to be the impeachment manifesto iesved by Chan.

north and south of the country reward for his apprehension.. is no evidence of larceny which then existent in China it may not own name for similar amounts.

sad punishment of Yuan who is But all the evidence shows that will justify this Court in saying offence within the authorities laid that the Magistrate in this parti

parties and it therafore and after he had by his manifesto against the Republic and to break collapsed by its own inherent cular has exceeded his jurisdic-down in Castionile case and in re

persons whether severed the area under his up the federation. The solidarity weakness: and before the tion, or that there was no prima Meunier (1894) 2 Q B.D. 415. On these facts the requisition natives of this or other provinces administration from that remain-of Kwongtang with the northern arrival of the troops of the cen-

There was also a further conf Kwonglung requested the with

from the Provincial Government to live peacefully side by side ing under the Central Govern provinces is expressly affirmed. facie case upon which the delen"

tral power. one another. tention that as a claim of right extradition of the fugitive, on have been given to the various issued notes, gave orders which constant theme. Furthermore it

Ordere ment, be controlled the Treasury, The unity of the Republic is its If there was any seizure of the was set up by the fugitive there charges which may be stated Magistrates to severally probibit were recognised by the subor is pointed out that the word in Province by the new de facto public property of the could be no larceny Halsbury vol compendi usly as stealing the all attempts to take revenge on dinato

p. 628 says "To prevent the two chequer, embezzling two any person by any body: and on exercised the functions of a de "Province," easontially and in its that nothing of the sort over took officials and generally the manifesto which is translated Government and it seems to me that the Urown should have proved

taking from being felonions the sum of $100,000.00 and $50,- noncompliance thereof the guilty fecto ruler. the law of China which is appli- claim of right must be an honest 000.00 respectively; and frand-parties shall be arrested and

true meaning signifies not on place, even then, the rights of cable to the offences in question,one though it may be unfounded ulent conversion of the

The manifesto was an assump-independent state bat a territory property and of possession were intimated in the course of the "in law or in fact.. If the claim

two severely dealt with.

tion of power which was hereafter abordinate to the Itepublic of never divested or defeated by such hearing the view which I took.is not made in good faith, but

1. All taxes, duties on title effectively exercised ac matter for China, Similarly the expressions Wrongful seizure and the Pro- I have read the views which are is a more colourable pretence to

deeds and other revenue, how short a time. That is to say Tatub and Grand Tutuh indicate jully expressed by my learned obtain or to keep possession it

and also likin of varions on the 18th July there came into the governor of a anbordinate brother on the point nodea-will not avail as a defence.", In

stations now collected and being an independent state, a new province and not the head of an irely agree with the deductions so far as this claim is based on

to be payable, shall be re- political entity, the Republic of independent territory. which he has arrivod and I the factaset out in the fugitive's

mitted to the proper quarters Kwongtung, occupying a situa Again it is part of the case for

Next as to the suggestion that have cothing to add.

alavit which I have just

and no excuse ahall he action comparable to that of the the fugitive that Ohan revenue received by the Treasury On the contention that the a-referred, and, for the roñon

cepted for the delay in Confederate States at the com-sumed the title of Commander during the 16 days of the revolt eged offence, if an offence at all which i lave given there was,

payment thereof.

mencement of the War ofSecession in Chief of the expedition for became the property of the insur- a political que, I shall deal think smple justification for the

2. No persons shall without in America. True this new entity anishing Yuan, that he went gents. rith briefly. Firstly the onus of Magistrale rejecting it and hold-

consent exact any money never received international alegrams to other provinces: that

The evidence shows that no stablishing that the offence is oling that the claim is not made on

from merchants or other recognition nor was it even accord some other provinces joined the special subscriptions or con- political character is upon the good faith. In so far as the claim

persons under the pretence, ed belligerent status. But recogni- rebellion and that the order issued ribations, were received for the ugitive and if the Magistrate of right is based on the conten-

of raising funds for the par- tion is a consequenes of success, by him on the Treasury was for purposes of the rebellion. The edides that it is not of a political tion that the property is in the

pose of defraying military which is again a mere matter of aoney. för the payment of notes issued were those which haracter his decision is subject alleged rebel government it is

degree.

That the duration of the rebel troops at Naukin.

had already been printed and review by this Court. By ac disposed of in the view which I

After issuing this manifesto new state of things was brief is we On the facts before us it seems were being kept in the Treasury The two first in order of the so- the Governor General continued are told immaterial. on 4 of the ordinance a fugitive take of its non existence.

clear that the object of the move for the general purposes of riminal shall not be surrendered

called legal points are as follows. his ordinary duties but called in

Government.. It was also alleged by the

Then the Old, Government ment in Kwong.ung was to get the offence in respect of which earned counsel for the fugitive offence and if any offence was in the administration.

(a) That this was a political four Commissioners to assist him having come to an end with theid of the provisional president is surrender is demandled is one that martial law is in force in the committed it was against the

issue of the proclamation of who was regarded, I suppose, astration was not disturbed: the a political character or if he province of Kwongtung and that Central Government which is not mained at their posts and we effective alienation from the Old ad aiming at a despotism. post as the department formed Other officials seem to have re- ladepeudouce, there was an hostile to Republican principles Treasury clerka remained at their Toves to the satisfaction of the being the case extradition treaties asking for the

agistrate that the requisition are suspended and therefore the authorising it.

surrender or have no evidence that there was Government to the new of all there is no evidence whatever of the even tenor of its ways, or his surrender has in fact been claim for extradition must fail.

any change of local policy.public property seized by it. an intention to separate Kwong-ordinary payments were made (b) That there is no property However the title ade with a view to try to punish Wo gave it as our deliberate in the Kwongtung Government Governor General was altered Government came to an end by Again and this is very important, as in the days before the agitation. of the So when this new Independent tang from the other provinces, and ordinary revenus brought in im for an offence of a political opinion during the argument that as alleged, and that the fugitive to Commander in Chief of the the action of the President whatever their haracter. The onus of proof is this question is not for the is not a servant of the Kwong-Expedition for punishing Yuan, and the fight of its supporters have been it seems clear that the departments, onstems, excise,

plane may

I suppose that the military pon the person who seoks to be Court to investigate but it tang Government as alleged. ischarged (See judgment of is

On the 27th day of July there public property which had been insurgents never aucceeded in and the Post Office continued to awkin J. at p. 162 in ro Cas- which the respective government go a little more closely into the ment Gazette a notification by the in the old Government of the Pro Government or anything like it.

Here it becomes necessary to appeared in the Peking Govern-seized by the rebels did not revert ratablishing an independent exercise their normal functions. oni, 1891, 1 Q.B.). Then what is alone can take cognisance, and circumstances of the case,

How can it be maintained that e evidence? The Tutah's or to this view I adhere. Both His It appears that there was in Jnly dismissing Chan Kwing-ming quest to the Central Government in order to attain the dignity of

President of the Republic vicce but pasied as by right of con- ! rebellion bas to be sucosasfal revenue sa collected was in any er Exhibit 8) upon which the Majesty's Consal General

ay contributed ro ear marked rafta were received to remit Canton and the Acting Chief itself the Kwok Man Tong which depriving his military titles, rebellion.

at last a party in the States calling from the post of Governor General. of China which had quelled the revolution then it is clear that for any special political purpose. e money to Shanghai to be sent Justice of the Province had etat was hostile to Yuan Shi-kai, then describing him as the leader of a

Chan and his followers were

The next question I have to turn to Nanking to be used, as ed by affidavit that martial law the provisional President of the rebellion and offering a reward Province of Kwong-tung has no

The local Government of the ever more than were rebels,

consider is whether the offence ilitary expenditure." The is not in force and at the re-Chinese Republic.

The Government in Kwong charged against the fugitive is afts as already pointed out were iterated request of the learned

for his apprehension.

property in this money, no claim ung at any rate was hopelessly one of a political character. On the 4th.

The August Chan to the possession of it and con- abortive and never got beyond the ade out at Canton to the fugitive counsel for the fugitive who eaming who was then and had been Kwing mingleft Canton hurriedly séquently no right to ask for the stage of a paper rebellion. In adopt the definition given in ie whether, to his own name and were subtirely challenged our decision on since 1911, Military Governor for Hongkong on a French vessel surrender of this fogitive. quently negotiated by him and this point and with a desire to of the Province, declare himself of war.

10 days the insurrection in Can- R. V. Castioni, the sets on which e amount or part of it deposited afford every opportunity to the the leader of a party having for its

Then the watter is carried one ton had ollapsed apparently the changes is based were in his own account in a Hongkong fugitive to demonstrate his posi-object the removal of the Presid- local man was

The same day So Shan-teo a step further. It is pointed out without firing a shot of striking furtherance of, and done intend- ank,

tion we expressed the hope that ent from office.

elected by the that after Chan had repudiated a blow. Its troops wore in fighting to be in fartherance of a The only evidence tendered by the Consul General might be

guilds ae temporary Governor. He the President of the Republic, and its leader a refugee sheltering political object. Hé issued a proclamation issued at once e prisoner on the subject was able to attend for cross-examin-directed against Yuan Shi-kai disassociating himself from the ing an insurgent state, the Pro-ence before as it seems that there was a political rising in. Canton, proclamation and while he was a ruler govern undera foreign flag. On theevid- It is not disputed that there a affidavit on the file in the ation on the allegation in his which was posted in Canton and policy of Chan Kwing-ming," " vil proceedings and by his soli- affidavit. He did so and his toe suburbs and probably else-

vincial Treasury exercised its wae no revolt of the Province as a dispute between two parties tor. In his affidavit the fugi evidence appears in extenso is where in the Province.

That proclamation as far as is asual functions, notes were issued, a whole. A party in Canton opp. in the state BY material reads as follows. e drafts on the banks in Hong- have said in our opinion it is no proclamation are as follows:-

revenue, came in and moneys arently small in numbers and was to have the money" Again it 1. The Declaration of Inde- were paid out,

feeble in influence did desire to suppose unquestioned that hg he reported to Chan Kwing part of the province of this Court

pendence of this Province It is urged then that as to turn the Preedent out of office that if the fugitive had applied ing who instructed him to pro- to decide this issue of fact and triving to rebel against the

is hereby withdrawn. The funds in the Treasury the pro- they achieved a temporary show the money, the subject matter of ed to Hongkong and cash them we accordingly d hand the proceeds to him doing so.

refrain from the Republic and to break up the

army is hereby enjoined to ceeds of revenue collected by the of success seeina due merely to this charge, to subsidice the federation and whereas. I the

live peacefully and not to Insurrectionary Government, the the accident that one of their rebellion his conduct though Chan). He goes on to say that In regard to the contortion present Tutuh am entrusted by

cause "say disturbance, 2. Central Government was not on number was at that time holding probably a crime in China would or about the 7th. August he that the warrant of committal is the elders and brethren of the

In the matter of proclama- the reconqueat entitled by title the office of Governor of the be held in our Courts a political shed one of the drafts for $50, bad because it does not show that whole province with the task of]

tion. Whereas the Declara- paramount, but as successor only Province But it was the merest offence and not the subject of ex- 00 on the International Bank prisoner le a Chinese subject iraising an army to impeach and

tion of Independence has and to that extent recognising flash in the pan.

tradition. However I will deal d replaced the amount in the is bad because it does not show punish the said Yuan Shi-kai

been withdrawn, notice is the authority) of the displaced On the withdrawal of Chan a with this point, and with next, me of one of his aliases in that that prisoner is a Chinese sub and whereas I consider it a duty

hereby given that all the usurping Government,

new Governor loyal to Pekin wasat that the fugitive was not a ser ok and that one or two days jecs, it is in the form prescribed imposed upon me

military administration of In seeking to recover such once appointed by the merchants. vant of the awongtang Covern terwards he saw Chan on board by the Ordinance and is I think dence to carry out my task and by Provi-

Province of Kwong pro, orty from an agent of the The short lived revolt bad flicker-ment when I come to analyse the e steamship Yorck in this har-vali I (See judgment in Wong Ka whereas by a resolati n passed

Tung shall henceforth be displaced Government the central ed out but troops from outside charges themselves. our and, stated briefly, paid him Cheing 1.K.L.E. at p. 12)

under my control and I will Government can only do so to did not reach Canton until The next ground is that there 100,000 out of his own moneys

at the Provincial Assembly I Chan I think I have dealt with all Kwing-ming was appointed the

keep the place in order for the same extent, and subject to later. Is it possible to hold that was no proof of Chinese law ap respects of one draft and that the poiss of substance, which Great Tatah of the Province of

the good of the public. the same rights and obligations some new political entity came plicable to the offence." regard to the deposit note for were put forward in argument, Kwongtung and Commander in was succeeded by another local displaced and was itself proceed-government of the Province was practice which has obtained for

So hold office for one day and asif that government had not been into being and that the old

It appeared that, following a 50,000 be signed his name on Ia my opinion the rule must Chief of the army raised for the man Cheung Ngo Ham, also ing against the e back and gave to Ohan be discharged but following the said purpose of subduing the said elected by the guilds.

agent. We non existent during these 10daya? many years in the Colony no ster addressed to the Interna-course adopted in re

referred to the cases of U; 8. v. i Aa Governor General, Chan had evidence as to Chinese law, was Artou Yoan Shi-kai which ssid resolu onal Bank authorising them to (1893. 1. Q.B.D. at p. 518) we tion has been placed on record, 1 succeeded by a Governor General But there is, we are told, no some control over

On the lith August be was Morne and U. S. v. Príoleau, probably before this robellion, given before the Magistrate, y the same to him. In regard propose to remit the warrant of hereby proclaim as follows: I appointed by the President; the avidence other than that furnish funds, That control be retained and after the point bad, been the public During the argument borer this evidence the Crown called committal to the Magistrate bold myself responsible for the present Tatah Lang, e Captain Superintendent of expressing the view of the Court peace and good order of the

ed by the fugitive himself of the temporarily after his manifesto, takon an affidavit as to the Ch lice who proved as a fact that that so much of the charge on whole province and for the referred to in the evidence as the were entrusted to him, and it departure from the city. But he the Crown Now it was pointed On the 28th, October a list purposes for which these moneys and up to the time of his fool nese law applicable was filed by hon Kwing-ming left the Colo- which the committal was orderes protection of the lives and Black List" was published in cannot he assumed that he has never seemed to not otherwise out that the hazit principle of ex-

on the steamship referred to as relates to the crime of om- property of pereone regardless of the Peking Gazette the 5th, August which was bezzlement should be eliminated. the question whether they are

dealt with them otherwise than than as Head of the Province and tradition is the act done on se- fore the alleged interview and The Palane Judge's judgment natives

It states that certain persons according to the instructions of by virtue of his appointment by count of which the extradition is is sub-manager of the Interna was ne follow-

or foreiguera and I had committed the crime of his Official Superior.

the Provincial Assembly.

demanded, must be considered as onal Bank was called to prove

hereby earnestly hope that you rebellion and should be arrested This was an argument on a will not be frightened or distar- and

I am not sure, that in this True by virtuo of his position & crime by both States, the at the deposit receipt is dated rule nisi for s. habeas corpus. bed in ay way. All rules and for judgment.

despatched to Poking statement of his position he purported during the short demanding and the surrendering h. August which was some three Thy elementary outline of the regulations to be in force as The list which follows, is heading orgament of Sir Francis Pig-to allot certain sums to the pur- tive of there being a treaty or I have done justice to the interest time that he remained in t office State, and that this is so irrespec- ye after Chan left the Colony, facts which I take from the enumerated for information as ed by the name of Chan Kwing gott. But I am of course compel pose of the new movement. But agreement and the existence of s This defence was not taken evidence given before the Magist follows 1. All civil, military, ming. fore the Magistrate but I think rate is as follows,

led to condense and I hope that I there was nothing in this tem bilingual schedule of extradition bevidence establishes two The fugitive was formerly public service of the Province of the fugitive was put as follows. I have perhaps puthig osas as to ownership of the taxpayer,

and police officers attached to the Now this part of the case for fairly stated the salient points.porary control to cost the general crimes. inge only, that whatever was Superintendent of the Canton Kwongtang and also officers

The cases of Canada, Oypras, fended to be the ultimate des Provincial Treasury,

The manifesto of Chan Kwing the how de facto Government of Money in the Treasury remain and the Straits Settlementa were Holding olives shall optique to ming which proclaimed the in an a little more strongly than ed the public funds of the Provins referred

to as intances of

be alleges that after he obtained the notes of the case but as

On July 18th, Chan Kwing-

The material parts of this

Whereas Yuan Shi-kai is con-

the

-

teat

to

ין

which