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this evening would be perfectly good ground for granting & writ of habeas corpus.
His Lordship Of course the men are per- fectly safe here and it only means a delay of twenty-four hours.
Mr. Francis A writ would prevent pre- or illegal action on the part of the authorities.
His LordshiI do not see where it is all going to end. You might get any coolio to swear an information like this; but I certainly think there is prima facie case.
Mr. Francis think that is sufficient to justify the writ,iny Lord.
His Lordship then granted the writ of habeas corpus and made it returnable next morning.
20th May.
BEFORE SIR JOHN CARRINGTON,
(CHIEF JUSTICE.)
Mr. J. J. Francis, Q.C. (instructed by Mr. Wilkinson) moved that the four Chinamen brought to the court under a writ. of habeas corpus be discharged.
Hon. W. M. Goodman (Attorney-General), instructed by Mr. H. L. Dennys (Crown So- licitor), appeared on behalf of Mr. F. H. May (Acting Superintendent of Victoria Gaol) to oppose the motion.
The return of Mr. May under the writ was read. He certified that the men were taken by him as Superintendent of Police by virtue of an Order made by the Governor in Council under the provisions of the Banishment and Conditional Pardons Ordinance 8 of 1882, as amended by Ordinance 4 of 1885.›
The Order of the Governor in Council was also read. It set forth that it was deemed advisable by the Governor in Council that the four men should be prohibited under the conditions of the Banishment and Conditional Pardons Ordinance from residing or being in the colony for a longer space of time than one month from the date of the order, when the men shall depart from the colony. The grounds were that the men had been banished by the Government of Selangor for inciting their countrymen to resist the laws of the state and that their presence in this colony was. dangerous to the peace and good order of the colony.
The Attorney-General said he appeared for Mr. May, the gentleman who obtained the return of the writ of habeas corpus issued on the previous day, and he asked his Lordship if he might he allowed now, under Rule 243 of the Crown Office Rules, to apply for the prisoners to be remanded in custody on the ground that the return was good,
His Lordship said the way the matter appeared to him was this. The counsel for the prisoners obtained a writ to produce the bodies of the men. The return was made and if their counsel thought the return was a good one he might elect not to go on any further. If he thought the return was not a good one the ordinary course would be to move for the discharge of the prisoners.
Mr. Francis then moved that the prisoners be discharged. He submitted that the Order made by His Excellency the Governor in Council was as bad as bad could be. In the first place it waş dated the 10th of May when these four men were not in the colony and when the Go- vernor had no possible jurisdiction over them. The whole frame of the Order, necessarily im- plied that the persons with reference to whom it was made were within the colony and it was an Order that they shall depart from the colony -an Order that certainly could not be made until they were first in the colony. It was not Order that they shall not come into the colony; it was simply an order that they shall depart from the colony within one month after the date of the Order.
an
His Lordship here interposed and said an affidavit by the prisoners had just been handed to him by the Registrar.
The affidavit was read and it set forth that the men had resided in the State of Selangor in the Malay Peninsula and that they had com- mitted no crime or offence against the laws of that State. In April last they were arrested *by the Sultan of Selangor on suspicion of
having incited certain of their countrymen |
|
THE HONGKONG WEEKLY PRESS AND against the laws of the State, and on the 11th | May they proceeded from the Straits Settle ments and arrived in Hongkong on the 19th on their arrival they May. Immediately were taken to the Police Station and in- formed by Inspector Stanton that they would be sent to Canton. None of them had re- sided in Hongkong and none had committed any offence against the laws of the colony. Thoy feared that if they were taken to Canton the effect of their banishment would be con- sidered sufficient proof of their being criminal and they would consequently incur most severe punishment without any trial or inquiry being made.
Mr. Francis, continuing, said his second point was that the order was, as shown by the affidavit, incorrect in point of fact as it reçited that the men were banished by the Governor of Selangor, whereas there was no such person in existence. They were banished by the Sul- tan of Selangor. Counsel also submitted that there were no grounds mentioned in the order as was required by Ordinance 8 of 1882-no grounds were set forth showing why the prisoners had been ordered to be banished from this colony, and if any grounds were set forth they were wholly insufficient to justify such an order.
The Attorney-General pointed out that the affidavit set forth that it was the Government and not the Governor which had banished the prisoners from Selangor.
Mr. Francis admitted that he had made a mistake in regard to that. The fact of the men's banishment from Selangor was no justi- fication whatever for the action of the Governor in banishing them from this colony, where they had never resided and where they had committed no offence. The sole power that the Governor had under the Ordinance was to prohibit any person residing or being in the colony, and he went entirely beyond his powers when he or the executive officers of the Government had been done by Inspector attempted, as Stanton in this case, to force any man to leave the colony for any particular place, and Counsel asked for an expression of his Lordship's opin- ion as to whether the action the police were about to adopt was legal and proper. A banished man could go absolutely where he pleased, so long as he went within the time provided in the Order, and he could select what kind of vessel he would like to go by. A gross outrage would have been committed against these men if the application for a writ of habeas corpus had not been made, as they would have been forced against their will on board the Canton steamer. He moved that the prisoners be discharged and that the Order made by His Excellency the Governor in Council be declared wholly illegal and unwarranted on the ground that it was made at a time when the men were not within the jurisdiction and when no order to depart from the colony could (possibly take effect, and also that it did not set out the grounds which could warrant and justify the prohibition of residence in the colony.
His Lordship pointed out that the Ordinance also said "being within" the colony, in addi- tion to residing. "Residing" contemplated residence, but "being in " did not.
Mr. Francis said that in 99 cases out of a 100 the fact of men being sent to Canton on such an order as this would simply mean that they would be immediately led to the execution ground.
His Lordship said that as a matter of form it would be as well to deal with one man at a Chun Lum, time, and the case of the first man, was according taken,
May 29, 1897.
powers being conferred." The Governor in Council acted under a full sense of the rzepon- sibility involved in the exercise of such powers. The Ordinance required the Order of Banishment to set forth a statement of the ground upon which it was made. This requiro- ment was duly complied with, and the grounds mentioned that the man had been just recently banished from Selangor, and that his presence in this colony would be dangerous to the peace and good order of the colony, Mr. Francis contended the order was bad because first it was inaccurate; that contention was, however, given up. Next it was contended it was bad because it was made before the man arrived in the colony. But it was common practice to issue, for instance, warrants of arrest, though at the time the person mentioned in the warrant time. It was not in the colony at the
arrived only took effect when the persona here. So, too, the Banishment Order prevent- ing the man from "residing or being in" this colony was dated 10th May, to take effect from 19th May, the day on which he arrived. As regarded the object of requiring the grounds" to be stated, this was useful as the man might ask to be allowed to show he was not the man mentioned. In this case, he might ask to show he was not banished from Selangor, a friendly State with a British Resident. He knew, however, such was the case, and indeed the Secretary of State might wish to know the grounds. As regarded those grounds unless they were absurd or frivolous, and it would hardly be respectful to the Governor in Council to suppose he would act on such grounds, it ap- peared to the Attorney-General that the Court would not go into those grounds. The Court would not go into the facts of the case and re- view the decision of the Governor in Council or treat such a decision as if it had been the
"
decision of a Magistrate or an inferior Court. In this case, the matter had been carefully considered, the history of each of the four men had been gone into, and the Governor in Council bad decided their presence here would be dangerous to the good order and peace of the colony. The men were legally in custody. They were on their way to Canton when they arrived here, but if they wished to go elsewhere out of the colony they would not be prevented. They were natives of the Canton district, and got a free passage there. It was clear they might remain here for a month if they wished, but that by the Order and the Ordinance they would have to remain in custody. They never told the officer they did not wish to proceed to Canton, nor did they indicate their preference for any other place. In conclusion, the Attorney-General submitted that Mr. Francis had shown no valid ground for the issue of the writ of habeas corpus, but that the men were, on the other hand, in legal custody, and must remain so till they left the colony; and he asked that the prisoners, should be remanded back to that custody.
Mr. Francis, in reply, said the Attorney- Cage stood condemmed on his General's argument alone, He (Mr. Francia) was treat- ing this Order ass purely administrative Order, but the Attorney-General had spoken of the Council as an investigating tribunal. One of the fundumental principles of English law was that the Governor in Council had no right or power to come to any decision of this kind without first having heard the men. no case could an Order be made unless in the presence of the person concerned.
In
His Lordship-Where is there any indication of that P
Mr. Francis said there was no indication of The Attorney-General said he appeared for the Captain Superintendent of Police who had it, but bad practice did not make good law. It made his return to the writ of habeas corpus, in was a broad, general, fundamental rule applic- due form. The return shewed, he submitted, able in every case that no man could be that the men were properly in custody under a punished in any shape or form-and banish- Banishment Order made by the Governor in ment from this colony was a punishment Council under Section 3 of Ordinance 8 of without having an opportunity of answering the 1882, as amended and supplemented by Ordin-charge made against him. Counsel, after ance 4 of 1885. He admitted that such legislation further argument, again asked his Lordship to conferred exceptional powers on the Governor discharge the men on the grounds he had set in Congril, and that those powers were of great benefit to the community, as Hongkong was situated exceptionally; that is to say, at.the threshold of the southern part of the Chinese Empire with its teeming millions of people, some of whom were extremely turbulent. The exceptional difficulties were met with exceptional |
forth.
writ was |
His Lordship-In this case directed to Francis Henry May, the Acting Superintendent of Victoria Gaol. It.com- manded him to produce the body of this man, Chun Lun-because at present we are dealing only with his case-before this Court together
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