June 17, 1905.]
SUPREME COURT.
Tuesday, 13th June.
IN ORIGINAL JURISDICTION.
BEFORE MR. F T. PIGGOTT (CHIEF JUSTICE).
EXTRADITION CASE-RE WONG KA CHEUNG.
Sir Henry Berkeley (Attorney General) and; Mr. H. E. Pollock, K.C. (instructed by Mr. F B. L. Bowley) appeared for the Crown in this case, while Mr. H. N. Ferrers (instructed by Mr. Otto Kong Sing) appeared for the accused. His Lordship gave judgment, saying that the case should be argued before the Full Court, so as to ensure a correct interpretation of some fine points.
Mr. Ferrers applied that the prisoner be released on bail, on the grounds that for argument sake, supposing the man was guilty. he was deprived of the privilege of handing himself over to the Chinese authorities and! making a confession, so as to mitigate his punishment. As it was he could not help himself from 'aggravating the Chinese Govern. ment by putting them to an amount of trouble, so his punishment would. under those circumstances, be a harbaroas death. whereas if he were free to give himself up it might only be imprisonment. His Lordship had to be cautious, but the reasons were deserving,
The Attorney-General sail that this was without precedent. It had been previously argued that this man was innocent, and now his learned friend asked for bail on the ground that this innocent man might go to China and receive some mitigation of punishment for a crime he had not committed. If His Lordship allowed bail they wou'd never see the man a gain. His Lordship said he thought it a case for extreme care and caution. Bal was not allowed.
JUDGMENT
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The matter of Wong's extradition came before me again on Tuesday, June 6th, the Attorney Gener:1 appearing for the Crown, I Mr. Pollock, K.C.. with him and Mr. Ferrers for the prisoner.
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CHINA OVERLAND TRADE REPORT.
evidence of the prisoner's guilt sufficient to wariant his committal for trial as required by Article 10 of the Ordinance.
All these points are of considerable im portance. for, although it cannot be said that the liberty of the subject is involved, et they do involve the liberty of a person temporarily within the dominions and w.der the protection of the Crown, to whom the right of writ of habeas corpus has been specially granted. I now proceed to consider the first point. With regard to the extradition of fugitive criminals to China, the Treaty of Tientsin requires, and the Hongkong Ordinance enacts, that the person to be extra lited shall be a subject of China. In this, the law differs from extradi ion in its cominon form. which, so far as the Statute of the United Kingdom!is | concerted, extends to all persons who have committed crimes within the country to which extradition is allowed, irrespective of their nationality, with an exception. however, usually made in the Treaties, in favour of the subjects of the country from which the extradition is demanded.
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This is the law on the subject. The question as raised is, however, one of procedure. It is argued that the warrant or the return to the writ must state in terms that the prisoner is a subject of China. I agree at once that it would be better that the formal documents used for pross under any Legislative Act should shew on the face of them that all the essential requirements of the legislation have been comp- pled with. But the Ordinance of 1899 provides forms and the prescribed form has been followed in this case. If there were any doubt as to the validity of the form nsed, under such | circumstances, on general grounds, it is set at rest in the present case by the express words of Article 17, which provides that-
Instruments in those forms shall (as regards the form thereof), be valid and sufficient."
The form of the warrant of committal in the Ordinance has been copied from the English Extradition Act; this is unfortunate, as the two enactments differ in their fundamental prin- ciples. But I am of opinion that, as there is a statutory form. even if all material facts had been omitted from it. yet it is valid, and a warrant based on it is a good warrant aud all documents subsequent to it, which follow it in The Attorney General first moved for the form. are also good. Yet, it must appear in discharge of the order for the writ of hubes some way or other, from the proceedings, that corpus on the ground that a writ ad testi- the prisoner is a subject of China, for otherwise ficandum had been issued instead of the ordinary the requirements of the law would not be cam- writ ad suljiciendum. It became necessary, plied with. It must be shown; it oavust be however, to consider what the consequences of assumed. Neither a Chinesa name, nor the this slip in procedure might have been, as the wearing of Chinese dress, would be sufficient, for Attorney General waived the question, and the prisoner may have been born in Hongkong, recourse was of ce more had to the precedent and so a British subject, and a troublesome adopted in Ganz's case (9 Q.B.D. p. 93) to allow question as to the consequence of double nation. the argument to proceed as if everything ha|ality in respect of extradition might perhaps been regular. I should point out that. by this waiver, of au irregularity which was vital only in appearance. no one was prejudiced, for. under Article 12 of the Ordinance No. 7 of 1889, the Governor has full power to defer the order for surrender for a further period, during which another application for a habeas corpus could have been made. I have little doubt that, under the cirenmstances, further time would have been granted. The merits of the case were thereupon argued at length.
Five points were raised on the prisoner's behalf:-
First: That it was not shewn on the warrant,, or in the return to the writ of habeas corpus, that the prisoner was a subject of China, in accordance with the requirements of Article 21 of the Treaty of Tientsin and Article 2 of the Chines- Extradition Ordinance.
Second:
That the prisoner's surrender, though asked for an extradition crime, had in fact been made with a view to try him for an offence which is not an extradition crime, Article 4 (1) of the Ordinance.
Third That no engagement had been given by the Chinese Government as required by Article 4 (ii), that the prisoner should not be detained or tried in China for any offence other than the extradition crime for which his surrender had been demanded.
Fourth hat the prisoner's guilt had not been proved as required by Article 21 of the Treaty of Tientsin.
Fifth That the evidence given before the magistrate did not amount to prima facie
arise. There must. therefore, be some direct evidence before the magistrate of nation. ality. Mr. Ferrers argued that there onght to be a definite finding by the magistrate to this effect. Under the English Extradition Act, such a finding is unnecessary, for nation- ality is irrelevant in ordinary cases, the commis. sion of the crime in the country asking the extradition being the important fact. But if the person is a subject of the extraditing country and so within the exception of the treaty, it is for him to show it. The burden of proving that the prisoner does not fall within the exception could not be laid upon the Crown. This, I take it, is the true meaning of that part of the decis. iou in Gang's case which refers to this point; it was also expressly so decided in re Guerin, (37 W. R. 269),
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The witnesses speak of Wong being resident in China from boyhood, and he is described by Wong Lung Tun as a clansman of the same village as himself, Further, the proclamation by a high Chinese official (put in evidence by the prisoner) de cribed him as a descendant of the Wong Po branch of the village of Hau Kal. in the Tung Kun District.
La tly, and most material, is the fact that the prisoner did not tender any evidence to shew that he was not a Chinese subject. I think that there was a good prima facie case of Chinese nationality before the magistrate, and as the prisoner did not rebut this in any way. but, on the contrary, referred to Hau Kai as
my village. I think that the magis rate was justified in the description he gav-, and tha', in so doing, he meant to describe him as a Chinese subject, Further, there is to conflict of evidence on the point, and it is unnecessary to direct an issue to be tried as to the man's nationality, as was done in Guerin's case.
On the second point-That the surrender has been asked with a view to try the prisoner for another aud non-extraditable crime I e tertain considerable doubts, and I think it advisable that there should be a re-argument.
The ques- tion has not, I believe, been raised before and, as it seems to be full of difficulty. it is better that I should have the assistance of my brother jadge, so that the question may be re-argued before the Full Court. It may, however, be of assistance to the learned Attorney General, and counsel engaged, if I indica'e briefly the drift of the difficulty which I find in interpreting Article 4 (i) of the Ordinance.
First the effect of the words, view," has to b⚫ determined.
in fact with a
At first sight it appears as if they were used merely as words of reference, and without special emphasis or legislative intent; bat it may be that they are used to connote an ulterior inten. tion. In such a sentence as this- A man is
cruel to his child but, in fact, he so acts with a view to its ultimate good."
A.
Tho words in question carry with them an ulterior intention, and it may be that they are used in this sense in the Ordinance
Secondly, the words which reler to the offence not being au extradition crime, are not used in
the corresponding section of the English Act, but the interpretation of these words with regard to non-extraditable crimes, should presumably be the same as the interpretation of them with regard to political offences.
Thirdly, the case of In re Arton requ ires further consideration.
I am by no means clear that Lord Russell did not assent to the principle that, although the surrender was, in fact, demanded for an extradition crim. yet the ulterior intention of punishing for a political offence might be shewn, and it is to be observed that the argument as to the mala-fides of the Foreign Government was specially directed by the Court to be argued after the argument as to ulterior intention in order, it would seem, to keep these two points
distinct.
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The third point raises a question of practice. In order to limit the consequences of extradition to the crimes for which the prisoner has been extradited, the law imposes a safeguard by providing, in the English Act, that the criminal shall not be surrendered, unless pro- vision is made by the law of the requesting state, or by arrangement (presumabl arrange- ment between that State and the British Government) that the criminal shall not be c'etained or tried for any other offence committed prior to his surrender. It may be that this provision has some bearing on the second point. but it must be considered as an independent subjects to China from Hongkong being what question. In the case of China, the Hongkong it is, I think it certainly would be better that Ordinance provides that an engagement" to there should be an express finding by the this effect must be given by the Chinese magistrate that the prisoner is a Chinese sub-
Government. Haring in view the difference ject, bat the Ordinance does not require it, and in the term used, it was argued that this pro- I cannot hold the proceedings bad because there vision meant that there must be an engagement is no such finding It must be sufficient within given in each case, and that the term "engage- the law if the proceedings before the Magistrate ment" cannot be equivalent to the term show that the prisoner is a Chinese subject."arrangement," which may be of a general The points dwelt on by the Attorney General in this respect were:-
The law as to the extradition of Chinese
1. That the warrant described the prisoner as Wong Ka Cheung, of Tung Kun District, and
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That this description was borne out by
the erigance.
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nature. I do not agree; there is nothing in the word "engagement ' which limits it in the manner suggested. It seems to that it is left to the executive to deter- mine whether the engagement required from the Chinese Government shall be general or spec- ial. No general engagement has been given by
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