May 29, 1897.1
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415
Mr. Francis-No, my Lord. I thank your Lordship for your expression of opinion on the point to which I called your Lordship's atten- tion.
Tho Attorney-General applied for costs. Mr. Francis opposed.
His Lordship said if the Attorney-General wished to proceed with the application be would hear it in Chambers.
19th May.
CRIMINAL SESSIONS.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE.)
FIXTURES. ·
CHINA OVERLAND TRADE REPORT. with the return of the day of his being taken Mr. Francis is that the order is invalid because deportation from the colony, and I think there and detained. The return made by Mr. May it was made at a time when the man was not is nothing in the Ordinance to sanction a man is to the effect that he took the prisoner on the in the colony and had no opportunity of being being taken forcibly and being put on board any 19th May and detained him by virtue of an heard against the making of the Order. Well, I vessel and sent to any place to which he does not Order made by the Governor in Council under do not think I can find any reason in the enact wish to go. Therefore I suggest to the Captain the authority of the Banishment and Conditional ments for thinking this ground to be well founded. Superintendent of Police that in these cases he Pardons Ordinance 8 of 1882, as amended by I do not see why the Governor in Council may should comply with the spirit of the Ordinance. Ordinance 4 of 1885. He produced the Order in not make an Order with respect to a person, and that a man should be allowed to go by what Council relating to the prisoner. Now the enact who is about to arrive in the colony, before his vessel he likes. If he does not go within the ments referred to in the return, and upon which arrival. It seems to me that that is a very nec-time allowed he is liable to be punished under the Orderin Council is founded, are Section 3 of cessary complement of this power, because it section 4. He can wait until the last day of the the Banishment and Conditional Pardons Or- may very well be that the Governor in Council time allowed and then he must take his departure some notorious by what vessel he likes and he can go where dinance of 1882 and Section 4 of Ordinance 4 receives information that of 1885. Section 3 is in the following terms pirate, or robber, or murderer from the main- he likes. I think his wishes should be consulted "The Governor in Council may, by order pro- land intends to come to Hongkong, and the in that respect. The result is that the motion hibit any person not being a natural born or provisions of this Ordinance clearly are for discharge must be refused and, of course, I
intended naturalized subject of Her Majesty from re-
to prevent
such person take it Mr. Francis will not make any motion
I think it with respect to the others. siding or being within this colony during any coming to Hongkong at all. space of time not exceeding five years, and may would be quite competent in such a case for by the same or any subsequent order fix the the Governor in Council to make an order on time for the departure of such person from the receiving such information as that and to make colony. Every order made under this section the order operative at the moment of the ar- prohibiting any person from residing or being rval of the person in the colony, so that prac within this colony shall contain a state-tically he would be arrested immediately on ment of the grounds upon which it is made." arrival and detained until he left the colony; Section 4, which was apparently enacted to meet in fact that he would not be allowed at liberty the difficulty of a person ordered to leave the in Hongkong at all. I think there is no ground to think the order invalid because it was made colony getting out of the sight of the police and possibly evading the order in that way, is as before the arrival in the colony of this man, follows:" It shall be in the direction of the Secondly, has the man any right to be heard Governor in Council to order that the person against the making of the Order? I do not think named in any such order be detained in custody he has. I think it is an executive power: It is of the police until he leaves the colony, and not a judicial proceeding; it is made on the such person may therefore be arrested and shall responsibility of the Governor in Council exer- be deemed to be under lawful arrest until he cising this power, and I do not think a person leaves the colony or until the final departure from is entitled to go before the Governor in Conncil the colony of any vessel in which he leaves. to be heard against the Order. It is essentially
The Attorney-General asked that a charge of Now these powers are very large executive an Order given in the discretion of the Gover-counterfeiting coin should be taken on Friday, nor in Conncil, and the party is not in any when he hoped Mr. Robinson, who was defend- powers. They no doubt were conferred upon the Governor in Council in view of the peculiar sense entitled to say "I must be brought before ing, would be able to appear. Of course if he oireumstances of this colony, as it is near the the Council and I must hear the grounds and could not he would have to do what other bar- mainland of China, where there are a consider have an opportunity of refuting them andristers had done-hand over his brief to some able number of terrible characters who might, giving evidence." The power is exercised, on
one else. With regard to the arson case, in if they lived in this colony, be dangerous to its the responsibility of the Governor in Council, which Mr. Robinson also appeared, the Attorney- peace and good order. The power is conferred the reasons for exercising it being stated. Mr. General suggested that it should be taken on in very large terms and a court of justice, Francis referred to the supposed inaccuracy Wednesday insead of Tuesday, which followed having regard to the object of the enactments in the Order with respect to the Government the Queen's birthday and was also mail day. It and to the largeness of the terms in which of Selangor, but I do not think he presses that would therefore be in the interests of the public they are framed, would no doubt be reluctant point.
if the case was taken on Wednesday. to curtail their operation by interfering un- necessarily with the discretion of the Governor in Council in carrying them into execution. At the same time. I think it is competent for this Court in proceedings on a writ of habeas corpus to consider the order and to see whether or not it complies with the law. For instance, supposing a person arrested and detained satis- fies the Court that he is a natural born or naturalized subject of Her Majesty; then clearly the power conferred by these enactments could not be applied to him, and the order made proceed to form the opinion that the against him would be illegal and the Court
presence in the colony of that man banished would disregard it and order the person's release. from a friendly State would be a danger to the The recital by the Governor in Council in
peace and good order of the colony. I think the order that the person named in the order is it must be assumed that a man banished from a not a natural born or naturalized subject of friendly State is a dangerous character and that Her Majesty would not preclude this Court there must be some good cause for his being from inquiring into the statement and finding banished. If he were banished for the sake of what the particular fact was. Then in regard the peace and good order of a friendly State to the question of the grounds. It is required he may well be banished for the peace and good by Section 3 that the order must state the
order of this colony also. Therefore I think grounds on which it is made. No doubt it is the grounds set forth in the Order are quite intended primarily, I should think, for the sufficient to support the Order. I think, there- purpose of giving the person affected by the fore, the Court must find that this Order is a order information of the reasons for which he valid and good one and the Court sees no rea- Jis to be banished in order that he may move the
son to go behind it or to in any way affect Governor in Council to rescind the order by its operation. The practical result is that the saying that the grounds are not correct and that
motion for the discharge of this man must be the order has been made under a misapprehension. refused. But Mr. Francis referred to another I think also that the provision of the grounds point upon which he asks the opinion of the being necessary is probably to give the Court Court. It is the question of the sending away or power, if the order is good, to consider if the getting out of the colony of this man. Strictly grounds are reasonable and such as can sustain speaking it is not for the Court to express any the Order. I feel clear that if the Order con- opinion on that point, but still, as Mr. Francis tained frivolous grounds they would be no has, on behalf of his client, appealed to me on grounds at all, but at the same time I feel that point, I think it is not going too much equally clear, as Mr. Francis has, in fact, ad-outside one's functions to say that it appears mitted, that if the grounds are reasonable and to me quite clear that when an order for such as can sustain the Order the Court will banishment is made against a person he not go behind the Order. The Court must as-is not a criminal. He is, so to speak, sume that the Governor in Conncil has exercised left in possession of his freedom of move. this large power with a due sense of responsi- bility so that no injustice should be done. The power is intended here for the good of the public and it must be taken that the Governor in Council is administering it for the good of the public. The specific ground mentioned by
Mr. Francis-No, my Lord, it was a mis- reading.
His Lordship-Well, then, the last and most material point is, are the grounds set forth in the Order of the Governor in Council such as can sustain the Order? I think they are. I think the fact, which is not disputed, that this man was banished by the Government of Selangor, that is to say, the Government of a friendly State, may be taken as a sufficient
Governor in ground for the
Council to
ment except that he must leave the colony within a limited time, and if the Governor in Council thinks fit he may be detained during that time. But the words used in the Ordinance clearly contemplate his free departure from the colony; they clearly do not refer to any forced
His Lordship agreed and said he would take the counterfeit coin case to-morrow and the arson case on Wednesday.
WES
The Attorney-General said he hoped Mr. Robinson would not think he was unduly pressing the coining case, but it a case of some importance and there were a number of witnesses to be called, and it was absolutely necessary in the public interest that the sessions should terminate some time... CHARGE OF BRIBERY: A CURIOUS CON- TRETEMPS,
Cham Wing was charged with unlawfully, wickedly, and corruptly offering a bribe of $30 to a Chinese police constable on the 30th April.
Hon. W. M. Goodman (Attorney-General), instructed by Mr. H. L. Dennys (Crown Solicitor) prosecuted and Mr. M. W. Slade defended, being instructed by Mr. Gedge, of Messrs. Johnson, Stokes, and Master's office.
The jurors were-Messrs. J. M. Guttierez, E. Mirow, G. T. Rivers, T. B. Powell, A. M. Barrados, J. A. Guttierez, A, H. Alemao.
The case for the prosecution was that the prisoner was apprehended by a Chinese constable on a charge of being in unlawful possession of six and a half bags of sugar and that he then offered the constable $30 as a bribe to let him go. The constable refused to be bribed and the prisoner was taken before the Magistrate and fined £5 for the unlawful possession of the sugar and committed for trial on the charge of bribery. The fine was paid and notice of appeal was given..
3
As far as the parties on both sides know thè case stood in this position yesterday morning. It was not entil the case had been proceeding nearly an hour and a half thabit was discovered by the Attorney-General, who looked over the original depositions in the unlawful possession case, that the Magistrate had reviewed his decision in the unlawful possession case and had quashed the conviction, the accused thus being considered not guilty. It seems that when he was arrested he had a book in his pos- session showing where he was taking the st to, but this book was not put in evidence at the police court.
sugar
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