June 3, 1905.]
rule absolute. This will not preclude any motion being made with regard to the return as to
any matter which may directly arise out ofthe return, and which could not have been raised on the motion in connection with the issue of the writ.
соприв
To apply this principle to the present case. The argument that the return is bad, or rather t' at the pris ner should be discharged because the warrant is bad, because the warrant does not disclose on the face of it that the prisoner whose extradition is claimed is a subject of China, manifestly i volres the same point as the argument that the writ of habeas should issue because there is no evidence that the prisoner is a subject of China. This statement of the argument in its two forms clearly shows that the practice established in England is the most convenient, as the question is then less likely to be cumbered with technical points. But as Justice Day pointed out in de Portugal's case, the Crown was within its rights; and so here the prisoner is within his rights in raising the same question a second time. It is only necessary to sette the procedure in order to prevent the inconvenience raising a second time. I propose, therefore, to hear, or rather to continue the hearing of Mr. Ferrer's argument in this cas, more especially as Mr. Justice Smith himself, unless I am mistaken, gave his deci-ion contemplating a further and fuller argument on the return, on which this Court might differ from him.
This point settled, am afraid at some length, a day will be fixed for continuing the argument: I have no doubt that the Crown will appear to discuss the questions of great importance which have been raised. I do not think it likely that the Crown will take up the attitude which has been hypothetically attributed to it, of standing by and allowing the proceedings to take their course.
The position of the Crown in extradition proceedings is intimately connected with the question which I have already referred to and which has still to be decided, whether the Chinese Gov-roment has any locus standi i these proceedings. In the first place, the locus standi for which Mr. Pollock cont nds is not bised on any rule of Court or statutor right if it existsit must be based, therefore, 01 general principles.
i he Colonial legislation does not, or could it, proceed on different principles to those on which the Act of the United Kingdom is based. The fundamental principles of extradition are, therefore, to be derived from the U. K. Act of 1870, 33 and 34 Vict s. 52. Now, so far as the fact of extradition is concerned, it is essentially an administrative matter between the two Governments. This Act does not allow the foreign government desiring the extradition of an offender against its laws to apply to the British Court for the necessary order: it provides that the requisition shall be made to a British Government, and that the Government should then set its own Courts in motion. The procedure traced out by s. 8. (2)—which was adopted in the present case-- which allows a warrant to be issued by a Magistrate without an order from the Govern- ment does not militate in any way from this general principle; for the last paragraph expressly provides that the fugitive criminal is to be discharged unless within a reasonable time an intimation is received from the Govern- ment that a requisition has been made by the foreign Government.This is introduced merely to enable the warrant to be issued
information received by
the cable, formal requisition following by a subs quent mail. This being the basis of the procedure, it seems to follow, that all subs-quent proceedings in the British Courts are to be taken by the British Government concern-d. The A ct ensures the Treaty provisions being complied with, and provi les the legal machinery by which the British Government may fulfil its Treaty obligations which involve the arrest of a person who has not offended against its laws, and a withdrawal in his case of what is gener ally and perhaps convenien ly called the right of asylum." The foreign Government will naturally, by its officers, furnish all the material necessary to enable the British Court to take the necessary action : but, beyond this, what has the foreign Government to do with the matter? If it had a loous standi before the courts, the true effect of the administrative order of the
on
X
CHINA OVERLAND TRADE REPORT.
British Government would be a permission to the foreign Government to conduct the pro- ceedings for extradition before the British Court. So unusual a course would require express legislative sanction. The grant of such authority is certainly not inherent in the Sovereign, for access to the British courts depends ou constitutional principles of law, and is independent of the executive. I do not meɛn to say that a foreign Government might not appear before the British Courts, just as it may appear, subject to special rules of procedure, before British civil courts. But, assuming this to be so, it can only be in matters within the jurisdiction of those Criminal Courts: that is to say, in proceedings connected with some breach of the British criminal law. But the hypothesis of extradition is that there has been no such breach: but, on the contrary, an alleged breach of the law of the foreign country, Neither by statute, rule of court, nor principle,
IN ORIGINAL JURISDICTION.
$47
A QUESTION OF PARTNERSHIP. John D. Hutchinson and Company, plaintiffs, claimed $5,748.25 from O. Yik Tong. Mr. H. E. Pollock, K.C. (instructed by Messrs Ewens and Harston) appeared for the plaintiffs and the Hon. Mr. E. H. Sharp (instructed by Mr. J. Hastings) for the defendants. The claim was for goods supplied by the plaintiffs to the Hang On firm. for which it was sought to make the de "endant responsible as a partner. The question for the Court to decide was whether the defendant was a partner in the firm or not. judgment were given in their favour on that point the other side had intimated that they would be willing to arrange for the accounts to be settled by the Registrar. The Hung On firm went into bankruptcy in 1904, and then some books were seized and kept in the possession of the Official Receiver. In one of these I see that the foreign Government books thera was the following entry for any locus standi in extradition proceed. January 23, 1904, "Received from O Yik ings. If it were otherwise we should find Tong as share money $4,500. There was also ourselves in this unpleasant dilemma: either evidence that the defendant was recognised as the British Court would stand aside, which the master of the Hung On, and he on one would not be in conformity with the occasion told Mr Fechico, a solicitor practising Ordinance, and allow the conduct of the pro-at Macao that he had opened a shop called the ceedings to be in the hands of the foreign Hung On at Hongkong, in partnership with Government, which the Ordinance does not some friends! contemplate, but rather the contrary: or both the British and the foreign Governments would appear, in which case there might be a conflict of opinion between them; a conflict which might involve the interpretation of the Treaty obligations as between the Governments, and thus questions essentially diplomatic might be raised before the Courts.
can
has
Looking at the question merely as one arising in connection with an application for a habeas corpus at common law, and assuming that interested parties may appear on such an application, I do not think that the Chinese Government could, as such, appear, for it cannot divest itself of the position in which the Extra- diion Ordinance has placed it. Its rights must be limited in every direction by that Ordinance. Mr. Pollock stated that the practice
The case was adjourned.
Thursday, 1st June.
IN BANKRUPTCY,
BEFORE MR. F. T. PIGGOTT (CHIEF JUSTICE).
YU FAT BANK EXPARTE LEUNG SO CHAI
In this case, a public examination by Mr. H. E. Wakeman (the Official Receiver); Mr. | P. W. Goldring represented the petitioning
creditor.
Ma Yuen declared-I am a partner in the Yu Fat Bank, of 131, Wing Lok Street. The partners are Ma Fat Ting, So Yau Sai, in Hongkong has always been for the Chinese Yeung Tak Cho and myself. There is no verament to appear. I did not understand partnership agreement. The capital of the hiato refer to proceedings other than those before bank is $40,000. The shares in the bank are:---- the Magistrate. And with regard to the proceed Ma Fat Ting, $15,000; Yeung Tak Cho. ings before the Magistrate, it would appear that $5,000; So Yau Sai, $15,000; witness, $5,000. what I have said should logically extend to all
The business of the bank was taking deposits procedure under the application for extradition. and lending out on notes. The bank com- I think it better, however. to limit my judg-menced business about the 23rd or 24th May. ment to the point actually before me, the position of the Chinese Government on the application for a writ of habeas corpus. This position might be somewhat altered in the case of the proceedings before the Magistrate. more especially where the warrant is applied for, as in this case, before the Governor has received a requisition from a foreign Court. That ques. tion must be considered when it arises. I am impressed by the fact that in the latest book on extradition (Byron and Chalmers) it is stated that notice of the motion of habeas corpus has to be given to the representative of the foreign Government. I know from my own not customary for experience that it is learned authors to make statements on such matters except after consulting the officials who are familiar with the practice, but there is no express reference given, nor does it follow as a matter of course that the giving of the notice implies the right to appear. It may be that it is given only by courtesy. On the other hand in none of the cases cited, nor in any of those referred to in Clarke. is there any trace of a foreign Government having appeared. Sir Edward Clarke it should be noticed is always particular to give the names of the counsel appearing in the cases he refers to. I am naturally very loth to upset any practice which has long been established in the Colony but the alleged practice has been directly challenged, and I am bound to give a decision. If I am wrong there will be an opportunity of setting me right in the next case by an appeal to the Full Court, where the point can be argued at greater length, But so far as this case is concerned, I am of opinion that the Chinese Government has no locus st-indi, not on the narrow ground that no no'ice has been served on its representative, but on the broader grounds which I have indicated in this judgment.
1900. We also dealt in bills of exchange, and sometimes received and sold gold coin. Young Tak Cho and I were the partners who attended to the business. The bankruptcy was caused by too much money out amongst the customers. When we received money clients on deposit from
no documents in particular were given except a deposit note. Interest was paid according to market rates. the lowest being 60 cents on a $ 00 per month. We lent out this money at market rates. The highest was 40 odd cents per $1,000 per day; and the lowest was 20-odd cents per $1,000 per day. We never lent out at a lower rate than we received.
The expenses were every year $6,100 or 86,200. The profit we made the first year was $2,000 after paying all expenses; second year, $3,000; third about $5,000; fourth, about $7,000; fifth. about $10,000. This $10,000 has all been let out to shops. The fifth year was up to the end of last Chinese year, last February.
This profit Some of the debts in the state- is up to then. ment of affairs can be recov red. Good and bad debts amount to $119,000. I have pressed for payment. One debt for $41,000 is due by the Wang Fang, guaranteed by the Hon. Wei Yak and another. This is good. Some of the Wei Yuk debts are due back as far as 1900. 83 000 in 1900 is the first on the list. This was due in 1900. I do not remember the last date on which the bank let out money, nor do I remember the last date on which we received a deposit. There were deposits in the second moon which We received these ends on the 4th April. deposits. I thought the money would have been repaid. I knew th n that money was tight, but it was only in the middle of the second moon that there was a run on the bank. This was because people in the street said that we had too much money out. The house, 131, Wing Lok Street, is in my name and Yeung Tak Cho's
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