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September 14, 1901.]
Again, was the plaintiff a party who had been committed for trial and was in custody awaiting trial, or was he a person who had been tried and was then undergoing imprisonment as the result of his trial? In my judgment, he was not. Further, was he a party detained upon a criminal charge for which he might be brought to trial? or was he a person in custody for an offence triable in some court where the offence was properly cognisable? or was he in custody for an offence for which he was by trial amen- able to law? Clearly not, in my opinion.
For the plaintiff it was argued that the ex- pressions of judical opinion which have been cited were mere dicta, and, as such, not binding. Assume that they were dicta, and that the opinions concerning dicta expressed by Jesse! M. R. in Quilter v. Heatly 23 Ch. D. at p. 49 ard in ex-parte Willey 23 Ch. D. at p. 127 should influence the Court. Yet, the Court may look to these dicta for guidance in examining the Act of Charles, and may adopt them as expressing its own view of the words of the Act: and having examined the words of the Act, I have no doubt that the correct interpretation of the expression "criminal or supposed criminal matters is contained in the already quoted opinions of the eleven judges.
It was further urged by Mr. Sharp that the dicta in question were conflicting.
One dictum may not go so far as another, but the diets do not present themselves to me as being in antagonison.
Another contention at the bar for the plain- tiff WBS that the Governor in Council, in exercise of a duly conferred power, had added the punishment of banishment and detention pending banishment. to the ordinary punish- ment inflicted by a Court of Justice, that this punishment had been added because the plaintiff had been convicted of criminal offences: and that plaintiff was therefore a person convicted and detained under a warrant and in respect of a criminal or supposed criminal matter under the joint meaning of the 5th section and of the Act generally.
The validity of this contention entirely depends on the meaning of the words "criminal or supposed criminal matter."
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CHINA OVERLAND TRADE REPORT. the words “criminal or supposed criminal! matter" are impliedly incorporated into section 5, and that that section is limited to matters specifically treated of in the Act.
The Court has hitherto dealt with the order as an execut. I warrant; but the plaintiff's counsel also alluded to the date of the order of banishment, riz, lat August, 1901, when it was an unexecuted warrant. On that date, he said,
the plaintiff was in fact a criminal in jail under sentence passed by a magistrate; and on that date the order was a warrant of detention for a criminal matter, viz., for attempted larceny from the person.
I do not grasp the argument to be founded on the fact that, when the order of banishment was made, the plaintiff was in person under a magisterial warrant of commitment.
There is no relation, beyond a coincidence in time, between the fact that the order of banish- ment was made on the 1st August and the fact that the plaintiff was in prison on the 1st August: the imprisonment of the plaintiff had nothing to do with the making of the order. Moreover, it is incorrect to say that the order of banishment was based on the ground that the plaintiff had attempted larceny from the person.
A careful examination of the statement of the grounds on which the order was made shows that one ground was that the plaintiff had been once convicted in the Police Court of this Colony for attempting larceny from the person and vagrancy.
It is clear, therefore, that one ground for the making of the order was the fact of rouriction | and not the fact of attempted larceny from the person
A conviction for a criminal matter, and the criminal matter for which there has been a con- viction are not the same thing. A conviction may or may not be an element in a criminal | matter: at the best it is nothing more than an element.
Accordingly at the time when the order of banishment was made, that order was not a warrant of detention for a criminal matter.
But further, as the order of banishment was not cognisable by this Court until it had been executed, I incline to the opinion that the real grounds of the order to be examined by the Court would be the grounds as they existed at the time when the hitherto dormant order, which was till then worthless, was executed, if any circumstances had supervened between the date of making the order and the date of its execu- tion to put a different aspect upon the grounds
of the order.
LAND COURT.
Saturday, 7th September.
BEFORE HON, H. E. POLLOCK, K. C. (PRESI
DENT), AND MR. H. H. J. GOMPERTI.
TO PROVE HIS TITLE.
Kam Po, alias Cheung Cum Po, of Su Poo Kak Hang, Kowloon, a farme›, was one of the principals in a rather interesting case. He was called upon by the Land Court to prove his claim to the island of Nam Fat Tong, which was bought from him aad is now owned by Mr. A. H. Rennie, merchant. The Government, we believe, has made offers to Mr. Rennie for the purchase of the island, which they wish to fortify, but these offers, for business reasons, have been declined.
Mr. E. Robinson, barrister-at-law (instructed by Mr. O. D. Thomson, solicitor), appeared ou behalf of the claimant, Kam Po, and Mr. Rennie was also present. Incidentally it may be remarked that the provisions of the particular Ordinance forbid the professional attendance of counsel at the Land Court, so that in Mr. Robinson's case a precedent has been established.
The claimant had previously lodged a declaration to the following effect: -I am the descendant of Choung Wing Ching, to whom an island locally known as Nam Fat Fong, otherwise known as Lam Tong or Tam To or Tang Lung, was originally granted by a Chinese deed of perpetual lease about two hundred years ago. Cheung_Wing Ching bought the island through a Chinese petty military officer of the garrison of Tai Pang (at one time situated on Nam Fat Tong), upon the same terms as those under which they had been held ever since by the descendants of Cheung Wing Ching, and as held by me up to the time of my selling the same to Alfred Herbert Ronnie, on 19th October, 1900.
The declaration went on to give particulars that are contained in the evidence of Kam Po ( very old man), which was as follows :- I am the claimant in this case for the Nam Fat Tong Island, which was left me by my ancestors. I was born on Nam Fat Tong, and Assume the correctness of the statement that
an now 80 years of age (Chinese reckoning). the Governor in Council had added a punish-
I lived on the island until I was eighteen or ment to the punishment inflicted by a Court of
nineteen years of age, during which time I en. Justice and that such punishment was added
gaged in farming and fishing. I then left the because the plaintiff had been c nvicted of
island, and became a seaman, working on board! misdemeanours, it still remained to be shown
fishing junks. This occupation I remained at that misdemeanours for which the punishment
for thirty years, then left the sea to return to inflicted by some Court where the offences were
farming, and settled down at Bha Po. My father properly cognisable had been suffered, were Mr. Sharp also argued that when the plain-died about nine yeaŝi ago;in 1892. During his within the meaning of the words " criminal or
tiff had completed his sentence of imprisonment life-time he lived sometimes at Kowloon and supposed criminal matter as copiously inter- under the niagistrate's warrant, the attempted sometimes at Nam Tong-the name applied by preted by the judges. On the 14th of August, larceny from the person would remain" a criminal fishermen to Nam Fat Tong. Formerly the at the time when he was under detention by the matter," though the plaintiff himself might cease Chinese authorities had a fort there, with defendant, ie., was undergoing punishment to be a criminal. Without staying to consider an official in charge. This official gave the under the order, the plaintiff was not in custody, the soundness of this argument, it is sufficient to | land to one of my ancestors named Chéung i.e., was not undergoing additional punishment, point out that even if the misdemeanour re- Wing Ching. My father was his son, and for an offence triable because he had already mained "a criminal matter and thus was "a I am the oldest sou of my father. I sold “ been tried. Nor was he in custody on account criminal matter on the 14th August at the Nam Fat Tong to Mr. Rennie, and to him only. of a criminal charge (to use the language time when the plaintiff was detained in the The boundaries of Nam Fat Tong are the of Pollock, C.B.), upon which he might | custody of the police by virtue of the order of be brought to trial: nor Was he in | banishment, nevertheless the fact remains that prison (to use the language of the eight on the 14th August the plaintiff was not detain judges reported at p. 634 of 9 Exchequer Re-ed, under the order, for "a criminal matter." ports), upon some charge for which he was liable to be tried: nor, lastly, was he a party who either had been committed for trial which he was awaiting under detention, or had been tried and was undergoing sentence of imprisonment.
It is my opinion, therefore, that the second detention on 14th August under the order of banishment as opposed to the first detention under the magistrate's warrant, was not a detention in respect of a criminal or supposed criminal matter " according to the judicial interpretation which has been placed on that
pression.
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but for a conviction for **a criminal matter."
For the reason, therefore, that the plaintiff's caso does not fall within the Habeas Corpus Act because he was not detained for a criminal or supposed criminal matter, ho cannot main tain this action for penalties under that Statuto. Judgment will accordingly be for the defen- dant, with costs.
The Chief Justice of the British Consular Court, Shanghai, is coming to Tientsin, says the China Times, in September, to conduct any There was no contention, so far as I remem-outstanding cases against British subjects, ber, that, because the expression in question is included in rhich will be the case agaiust H. F. not to be found in section 5 of the Habeas Piper, formerly of the N.-C. Diy News, Corpus Act, that expression was not to be read charged with robbery and obtaining Tis. 500 by into the section: nor was it, to my remem. means of threats and menaces, in company with brance, contended that the 5th section of the three Americans and a Dane, at Chang-ko- Act was not confined to matters arising within chuany, about 30 miles N E. of Peking, on or the Act, but extended to all matters for which, | about 25th Jane last. It will be remembered by the common law or by any Statute, a person that the three Americans with whom Piper is may be committed or imprisoned or detained.alleged to have associated were tried recently If, however, such contentions were advanced, I by the American consul at Tientsin and am of opinion that, by virtue of the scope of rå now fulfilling the sentence passed upon the Act into which I have already examined, them.
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waters. There was a deed of settlement for the land, but it was burnt. I. however, never saw it, and only heard about it from my father. who left another document bahind when he died—a new document. (Document produced.) There was a fire at my father's house once, but I did not see it. Some of the stones of the house still remain. I was about eighteen or nineteen when I saw the burnt ruins of the house, but it was destroyed before that.
Mr. Gomperts-Was it burnt before you were born?
Witness-Yes, before I was born.
In further evidence, witness stated that fisher- men were in the habit of drying their nets on a part of the beach running round the island, but never paid anything for the privilege beyond the gift of fish. Witness bad himself received fish, and so had his people for generations. He knew A man named Chu Po, who, as did others, leased a piece of land from him. Chu Po was watching sheep for Mr. Reunie, and also looked after the temple on the island of Nam Fat Tong. The old man was questioned and cross- questioned for over three hours, and finally became bafogged, with the result that he began to contradict himself.
Mr. Pollock-If this were not an old man, land possibly with a mind not so clear as a young man, I should certainly commit him to
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