September 16, 1907.]
4
presumption of the guilt of the accused. I now come to the defence set up that the requisition was made with a view to try and punish him for an
"offence of a political character." Section 4, sub-sections 1 and 3 of the Chinese Extradition Ordinance, 1889, are as follows:- Sub section 1 "A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character or if he proves, to the satis faction of the magistrate or of a judge of the Supreme Court, if brought before the court on a writ of Habeus Corpus, or of the Governor, that the requistion for bis surrender has in fact been made with a view to try or punish him for an offence of a political character or for an offence which is not an extradition crime." Sub-section 3-" A fugitive crimioal shall not in any case be surrendered unless an engagement is given by the Chinese Government that he shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions be detained or tried in China for an offence committed before his surrender other than the extradition crime on which the surrender is demanded."
There is no provision in the Treaty of Tientain of 1858 with respect to political offenders but section 4, sub-section 3, of the Ordinance affords absolute protection to political offenders, subjects of Chins, from rendition It is moreover a principle of international low that a prisoner whose extradition has been obtained can not be tried for say crime but that men. tioned in the demand for surrender. This principle is
now incorporated into every extradition treaty and affords absolute protection to political offenders. In Sir Edward Clarke's Treatise Upon the law of Extradition there is the following note on 'political offences" at page 257 of the Appendix: "With regard to political offences there is no great difficulty. It should be provided that no surrender should be granted except on the declaration of the Minister of the foreign power that the fugitive is wanted for trial for the offence charged in the depositions used against him and no other. If treaties are made, there are abundant models for a clause which would protect political o ffenders from rendition."
is not
As to the present case there is no evidence before me to warrant my coming to the con. clusion that the requisition for extradition is made with a view to punish the defendant for an offence of a political character. The sug gestion by the defence that the requisition was really not made to punish defendant for au armed robbery but for an offence of a political character amounts to an allegation that the said demand for extradition was not made in good faith nor in the interests of justice. Apart from the fact that there was nothing in the evidence to sup- port such a suggestion it was decided in re Arton (1896, 1 Q. B. 108), that such an allegation enters into the political aspect of extradition and it for
competent В court of law to consider the matter. The decision of Lord Russell, C.J., in re Arton on this point is as follows: "I now come to the third and last ground upon which the rule has been moved that the demand for extradition is not made in good faith and in the interests of justice. It has been pointed out by myself and my learned brothers during the argument that this is in itself a very grave and very serious statement to put forward and one which ought not to be put forward except upon very strong grounds; it conveys a reflection of the gravest possible kind not only upon the motive and actions of the responsible govern- ment but also impliedly upon the judicial au- thorities of a neighbouring and fr.endly power. Is it open to us at all to consider such a sug- gestion? In my judgment it is not and I have already stated the grounds for my opinion. This question bears upon the political as- pect of extradition and it must be determined upon a consideration of matters into which this court is not competent and has no authority to. enter. Such considerations if they exist at all must be addressed to the executive of the country and ought not to enter into the judicial consideration of the question which in this case turns solely upon the construction of the ex- tradition sot and the treaty.
ກ
What are the circumstances proved with re- gard to the disturbances which the defendant alleges to be of a political character? Shortly
CHINA OVERLAND TRADE REPORT.
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after the usual caution was administered to him they are important, but the suggestions made after the defendant's arrest in Hongkong and will probably involve questions as delicate as he made the following statement:-"I did not above arise upon the face of the enactment." commit armed robbery. It is because that on the eleventh day of the fourth moon at Chiu political character" there must be two or more In order to constitute an 14 offence of a
city there was a rebellion as rice was dear.government in its hands. Chau in the Yam Ping district magistrates' parties in the state each seeking to have the The officials did not do their duty properly. Denman J. in re Castioni on this point is ap The decision of
darins. I am arrested and accused of fighting case within the words of the Act and to The Kap Ping tong fought with the man- follows: "I think that in order to bring the with the mandarins. Chan Hung Sing led as exclude extradition for such an sot as murder people to fight with the mandarins." The which is one of the extraditional offences it defendant was put in the witness box and must at least be shown that the act is done made inter alia the following statement:-"I in furtherance of, done with the intention of as- know that a rising took place at Wong Kong sistance, as a sort of overt act in the course of in the Yam Ping district. I was second head acting in a political matter, a political rising or this rebellion was that rice was very dear and which is to have the government in its hands, man who got up this rebellion. The cause of a dispute between two parties in the state as to scarce in that part and had been so for about before it can be brought within the meaning time and would not take any steps to make the Cave J. in the case of in re Meunier (1894, a year. The authorities knew this the whole of the words used in the Act." The decision rice any cheaper. They know well the laws 2 Q. B. 415) on this point is as follows:“ It kind. and duties cast upon them in cases of this appears to me that in order to constitute an and let them
They simply ignored the people offence of a political character there must be starve. Members of the two or more parties in the state each seeking to robbery." Reform Party were imprisoned for armed impose the government of their own choice on which took place. His party also captured the one side or the other in pursuance of that objectit Witness then described the fighting the other, and if the offence is committed by city of Wong Kong but eventually dispersed as is a political offence, otherwise it is not." In the they were short of rations. stated in cross-examination that in this rebellion state each seeking to impose the government of The defendant also present case there were not two parties in the they had no idea of doing anything except tot eir own choice on the other. punish the local mandarins. The defendant also of opinion that the rising or disturbance in which I am therefore stated he was a member of the Reform Party. the defendant was concerned cannot be described
What is the meaning of the expression offence of a political character ?" The defini. meaning af the words used in the Chinese an offence of a political obaracter," within the tion given in Stephens' History of the Criminal Extradition Ordinance 1889. The defendant Law of England, Volume 2 page 70, is the one will, therefore, be committed to Victoria which was adopted by the court (Denman Gaol to await the further order of His J., Hawkins J. and Stephens J.) in the Excellency the Governor. well known and leading case of in re Castioni | (1891, 1 Q. B. 149). "The following is the definition given at History of the Criminal Law:
page 70 of Stephens' meaning of the expression" an offence.
What is the
which might naturally be given to the expres a political character ? There are three seuses
sion standing alone. The first and most obvious sense is an offence consisting in an attack upon country where it is committed. High treason, the political order of things established in the riots for political purposes, crimes like the offences defined by the treason-felony act of 1848, seditious libels and conspiracies are in- stances of offences of this class. It is, however, difficult to interpret the expression in this sense because noue of the crimes referred to are extradition crimes. As therefore they are not within the rule, it seems difficult to suppose that the exception was intended to apply to them. The second sense in which the expression political offence can be used is any offence committed in order to obtain any political object. The exception thus interpreted would cover all crimes committed under the orders of any secret political society, such for instance as assassination, arson, robbery, or forgery. It is monstrous to suppose that this interpretation which can hardly give offence in the present day, To take an illustration it would have protected the wretch Fieschi, persous in the streets of Paris in au attempt to whose offence consisted in shooting down many murder Louis Philippe.
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"
can be the true one.
of
HONGKONG HOTEL COLLAPSE.
INQUIRY REGARDING THE DEATH8. The inquiry into the cause of death of a native who was killed in the collapse which occurred at the old section of the Hongsong Hotel on the Hazeland and Messrs. J. D. Morrison, H. L. 1st ultimo, was continued before Mr. F. A.
Muhle and F. E. McHugh, jurors, at the Magistracy on September 6th.
carry was
Mr. G. E. Morrell, Crown Solicitor, appeared on behalf of the Government; Mr. H. W. Looker, of Messrs, Deacon, Looker and Deacon, represented the Hongkong Hotel Co, and Mr. M. J. D. Stephens watched the case on behalf of Messrs. Kuhn and Komor. Mr. G. Blood was again called. Be said the dead load the pillars would have to carry would be about 140 lb. to the square foot. The total load each pillar would have to calculated at forty tons. It was impossible to say what the orushing weight would be. Previous to the collapse the hotel had been fitted with electric lifts. These started running the day before the collapse. They caused practically part of the building, north of the collapse. It no vibration. The engine room was in the old caused vibration, but not to any grest extent. the rear of Kuhn and Komor's shop was taken In the middle of July last a partition wall at
down. The removal of this wall did not The third meaning which may be given to the weaken the building. On the afternoon of the words, and which I take to ba the true one, is collapse, sboring was being erroted, not somewhat more complicated than either of those removed. Witness was superintending it. I have described. An act often falls under several different definitions. For instance is of blue brick pillars in the Colony supporting By Mr. Looker-There were quite a number civil war were to take place, it would be high two stories. Some of them had been in Every case in which a man was shot in action In the old days it was customary to build treason by levying war against the queen. existence from twenty to forty years. would be murder; whenever a house was burnt the first floor and walls of buildings with blue for military purposes, arson would be committed; brick. to take cattle, by requisition would be robbery. houses existing with blus brick walls carrying There were quite a number of Chinese
however, all such acts would be political offences, considerably; the best quality would be better According to the common use of language, the stories. The quality of blue bricks varied because they would be incidents in carrying on than red brick. Blue bricks were not much used a civil war. I think, therefor, that the expres in Hongkong now. It was not permissible sion in the Extradition Act ought (unless some under the Building Ordinance to build pillars better interpretation of it can be suggested) to and walls of blue brick if there was a storey be interpreted to mean that fugitive criminals above. This had been the case since 1902. are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances. I do not wish to might at any moment come under judicial enter into details beforehand on a subject which | standards. › consideration, and which, whenever it does so, I standards of the Building Ordinance ?—Yes.
By present day standards do you refer to the
What did you mean last time when you mid the present pillars were architecturally wrong?—I meant, wrong according to present day
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