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THE HONGKONG TELEGRAPH, WEDNESDAY, MARCH 4, 1914,
•
2.
DEJEBRITY
unilateral extradition, that is, will be assumed to be the state-President's proclamation dis this Colony are busy men and this afford any basis for the defence Civil Courts by Military tribunals. irrespective of treaty. The abment of a Chinese offorce. missing Clan from office! But was a very long cabe, On the of a claim of right inthege
There is I think nothing in sence therefore of a schedule liet The next point is that the facts there is no doubt that he por 11th December when the witness Proceedings.
the objection that na foreign of crimes from the Treaty of proved did act amount either to ported to not apt did not as had finished, the Magistrate would "Cho object on that there can warrant has been produced. If Tientsin, and the fact that the larceny or embezzlement in Eng- an employee of the Provincial no doubt have done better if he list under the Ordinance is a lish law. Now the facts may be Treury and i have no difficulty had read over the evidence to him be us extradition to a country a foreign warrant is ilingual, does not prevent the shortly stated as follows. On finding that the Local Govern immediately. This might have where Mcial Law is in force under the Ordinance, that point principle of double criminality the 27th or 28th, July, that is to ment was continuous throughout have taken sometime, perhaps 20 was devided by us at the trial to is fully met by the Taiah's Order from applying.
say after the Governor General and was never displaced by minutes or balf an hour when the be outside the cognizance of this Exhibit 50 20. Now I think that under the had issued his manifesto of revolt,
interpretation as in this osse WAR Treaty of Tientsin and the the fagitive was appointed a local Ordinance, the Court must Superintendent of the Canton be satisfied that there has been a Treasury. orime under the law of China. If
the fugitive can show that the noted at the Treasury an order for of which he is aconeed is not on money signed by the Governor offence against Chinese law, he General in the following form: must of course, he discharged.
**Tutuh's order..
| Chan's manifesto.
14
It was objected that the Com- The cheques were obtained complicated by the witness speak Court. But the objection is folly from the Treasury of the Province ing a dialect in which he was met by the evidence of the Consul mittal Warrant was bad in that on an order which sated on the not at home.
General that Martial Law is not it did not eɔntain a statement
On the 2nd. August he present-face of it that the money was to Instead of rondling the evidence and has not been current in that the prisoner was a subject be remitted to Nanking for mil over immediately the Magistrate, Kongtung since the period of of China. The Warrant is how- itary expenditure. The fugitive moved perhaps by considerations used these cheques to buy drafts of the convenience of Counsel, the Revolution. Martial Law Ievac in the form pravil1 by the in his own name on Hongkong went straight on with the other, understand here to signify the Ordinance and stated therein to He bae made in 's civil action in witnesses."
suppression of the ordinary be valid and suficient. “ Was defendant an which he atidavit on the subject of bis the dealing with this mousy which is in evidence and which was not unfairly described by Counsel for the Crown as being a tissue of falsehood,
Bat there was no evidence on "Please at once pay in foreign this point tendered by the lugi-notes two hundred and fifty thou- tive and no suggestion that sand dollars and remit to Shang- embezzlement and hai to be sont in turn to Nanking stealing, fraudulent conversion, are not to be used na military expendi crimes under the law of China.
tare.
This is the Order. "To Commissioner of Finance. **Issue accordingly.' This paper the fugitivo eigood and sealed.
Then it seems to me that we'are bound by the decision of the Privy Council in Kwok A Sing's cana L.R.S.P.C. 179 and that we must assume that the offence charged if falling within those linary The Treasury dork informed crimes and offences which are him that only $150,000.00 was punishable by the laws of all left in the Treasury and the nations is also an offence under fugitive replied that he would the law of China. What was to take that amount,
an
'sivo.
·
name.
It may be that there was one continuous transaction ending with the receipt of the money in Hongkong pad the contention was that this, makes the whole transaction justiciable either here or in Canton but this contention seems to me wholly unsupported
He came to Hongkong on the 7th. August and caahed the draft for $50,000.00 lodging the proceeds with the International by authority.. Bankin bis own name,
7
evidence.
Then, when the Court rose,
evidence Was
still not read
#88 not one till next morning and it was then that the witness made
This over.
of
tin the presence of Counsel but intho presence of the prisoner the The charge of larceny as alterations or correction that are servant falls within the decided how complained of. When the case of I. v. Perry 1 Deng 71, case came on in the afternoon, the the conversion taking place Magistrate called the attention of when the fugitive. used the Counsel to this new evidence cheques to buy drafts in his own which was at once objected to.
Now I will say immediately The obarge of larceny as a that I do not agree that the new be deemed to be such ordinary On the 4th. August a Treasury hailee is covered by the principle matter was inadmissible. On the orimes and offendee is now an-slip was made out headed noticef R. v. Oenham 13 Cox 348, contrary the Magistrate would swered for us by the schedule to of payment out of the Treasury and R. v. Aden 12 Cox 612. not have been justified in exclud- the Chineno Extralition of Kwongtang. It bears the I'will take next the third, chargeling it. Ordinance of 1889.
I do words
that of embezzlement of two sums Then the point is taken that! not see how we can go, behind "By order of the Tutub, pay of $100,000.00 and $50,000.00 these corrections, made on the
express ruling by the meat for remittance, to Nankin
This charge it seems to me is fallowing day, and after the Privy Council on this very point. through Shanghai in aid of not, supported by the, evidence. witness had listened to the The proceedings before the Ma-military expenditure, in Hong: The prisoner got from the Banka evidence of other witnesses, make gistrate are not a trial, they are kong notes, the Bum of in Canton not money, but drafts. the whole testimony of this witness nothing more than a preliminary $250,000.00. Pay on the first Bat a charge of ombezzlement so unreliable that it should never enquiry and the fugitive will be instance $150,000.00, piue of money 14 not supported have been given credence to: and able at the trial in China to set $15,000.00 being amount of by the proof of embezzlement should not now be accopted by up any legal grounds of defence premium. The fugitive fixed his of drafts, Bee R. v. Garner this Court. which may be open to him, seal to this slip and thereupon. and R 303, and section. 21, of As to that I bave to remark We must assume that the pro- cheques for $100,000.00 and the Criminal Procedure Ordit that the whole of the evidence, cedure there will be in accordance $50,000.00 respectively
taken and were ance. No money was received that originally with the practice of other isaned to him by the Treasury. in Canton.
that, given on the follow- friendly Statoa with whom the On the 6th. August be obtain-
ing day, is before as
The ques King entertains treaty relations. ed two drafts for corresponding
tion: of its oredibility W88 However in any case it seems amounts in his own name on
strenuously argued at the Police to me that the affidavit by the Hongkong from the banks con-
Court, and the Magistrate who Chief Justice of Kwonglung cerned.
saw the witness and could note covers the whole ground and that.
his demeanour, bas chosen to being uncontradicted it is conclu-
believe him. I am perfectly clear that, it was competent for the The next point is that there was
Magistrate to rely on this no specific charge laid ander Chi-
I need any nothing as to the evidence if he saw fit to nese Law. But shortly this objec- The proceeds of the other 4th. charge except that I entirety do so and that it is not tion can be sinted ne follows,
the jurisdiction draft be placed with the Russo- agree with the Magistrate's con- within Specific charges under Chinese Olinsee Bank partly on fixed clusion. At this stage I will this Court to interfere with his La are necessary to ensure that deposit and partly on current advert shortly to the contention finding. I may add that as a the fugitive may know what case account,
that this was a political offenos, matter of practice Magistrates he has to meet, the charges : The first charge. alleges what
The question is entirely one of should be careful to alter nothing against him must he contraven- would be in our law a larceny of motive to be inferred from the in the evidence already taken tions of the Law of China, and until the cheques.
bat to append any fresh state- this is proved no case is made out," It was objected that it has not
The fugitive was an official of ment made at the end of the when offences justiciable by the been shown that there was any the Treasury, who having obtain deposition with an explanatory law of the country applying for property in the Provincial Governed public money estensibly for a note to say whether the new extradition have been established ment and that this Court does not publio purpose abscends to Hong matter is an addition, an alter- it is then necessary to show that know and
་ cannot recognise kong and banks the money iaration, or a correction. the act charged amounts also to the Government of a Province. his own name. an English orime. But the charge Now the Chinese Extradition
The Magistrate has found on effect to the Magistrate when he should in the first instance allege Ordinance recognises for pur- the facts that there is a strong appeared before us in the witness a Chinese offence. This is also poses of extradition the Viceroy and probable presumption of box. important because of the water or other officer administering & guilt against the accused: that is I may here state that on the taking required from Foreign Provincial Government and we that he acted with a dishonest in- Judgment as a whole I agree Governments that the fugitive were informed by the British tention and there seems to me to entirely with what has been said on surrender shall not be put on Consul General that his Majesty's be no material whatever on which by the learned Chief Justice as trial for any crime other than that Government does recognise the we can say that the Magistrate to the exercise of his powers by for which bis extradition has been Provincial Government absolutely was wrong and that the acts the Magistrate. demanded. Now when we look and habitually. The evidence charged were done with a political The next point is as to the at the charges before the Magis showed that the Province had a motive.
claim of right. We were referred trate and at the description of note issue and a Treasury. I I come next to the remaining to Balebing Laws of England the offences in the committal war-sea no difficulty is believing that charge that of larceny of an to- Vol. 9, p. 628 para, 1275 rant, it appears that these sums of money drawn for an count book.
where I find the following offences are stated more or less alleged public parpose from the The evidence is to the effect statement of
law. the in terms of English Law. So it Provincial Treasury on a Treasury that this book was a record pay- To prevent the taking from was pointed to us that as the Order signe 1 by the Head of the menta cut from Ist. August 1912 being felonious, the claim of right fugitive has never been charged Administration, were in fact the to 30th. June 1913, and the must be an honest one, though with any offenes against the Law property of the Government of prisoner was in the paying out it may be unfounded in law or of China the proceedings were the Province.
department during that period. in fact. If the claim la not made bad ab initio and he must be dis- Next, are the facte provod such Some $10,000,000.00 would in good faith but is a charged.
as would establish a prima facie pass through the book. On the colourable pretence to obtain or The answer must be I think case of larceny either at common th. August 1913. the book was to keep possession, it will not that there is nothing before us to law or under the Larceny Act 18617 handed to the fugitive at his avail në a defence.. show that the charges are not Mr. Potter contended that there request by a clerk in the Treasury Now this ground of defence is statements in English of equiv. was evidence on which it might shortly after 10a.m.
based upon the evidence of the alent offences under Chinese Law. be found that the fagitive took
The book not having been fugitive's solicitor to the effect Stealing, embezzlement and she cheques in the first instance brought back by 11.00 .m. the that civil proceedings are pending fraudulent conversion are state- with a dishonest intention, this clerk Ngai went to look for the against the fugitive with the ments of English crimes which would then of course Lo a case of fugitive in his department but object of recovering sums may readily have their counter-simple larceny. If on the other could not find him or the book. money in respect of which these parts in the criminal avstems of band he received the obeques The witness reported the loss of extradition proceedinge are other nations. It has never been innocently then his subsequent the book on the same day. brought. alleged that these charges are dealing with them justifies O Subsequently the fugitive was no, and for all we know they finding of larceny as a bailca or seen to leave the office with the may well be, a rough English as a servant.
book in his hand. He never re- version of articles of a Chinese Now I must confess that turned, and when on the 18th, code. Whether such a code speaking for myself should have the records of the office were ex- exists in Chinese we do not had some difficulty in coming to amined this book was the only of coures know and I think the conclusion that there, was one found to be mesing. its existence is really immia evidence that the fugitive received
The decision of the Magistrate tarial: think the point is fully the cheques dishonestly at first. on this charge involves a finding the intentions of the prisoner is covered by the affidavit of the Bat there is in my opinion that he regarded the evidence as untrue and not bona fide, and that Chief Justice of Kwongtungwhich ample evidence to support & trustworthy and that on the the fugitive's intentions were states that each of the several verdist of larceny, either as a whole facts of the case there was dishonest. On this point I see offences with which the fugitive bailes or as a servant, and this a strong and probable presump. no reason to disagree with him. was charged at the Magistracy is is sufficient to justify the finding tion of the guilt of the As regards the affidavits made. a crime under the law of China, of the Magistrate on the first Counsel for the fugitive laid by the adlicitor, certain Another answer is that the prin- charge,
great stress on certain corrections issues of fact and law arising
·
We gave an intimation to this
mere
of
The grounds appear in affidavits made one by the fugitive himself, and by his solicitor.
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