November 25, 1907.)
prior to habeas corpus being granted, was totally irrelevant to the decision arrived at in the two cases quoted. authorities cited by his weut, there
839
bis mind when he rejected the evidence of these two men. The Attorney-General submitted to his Lordship that under no circumstances could the disturbance oreated by the prisoner be de- scribed as a political offence within the meaning of the act.
His Lordship reserved his decision.
Monday, November 18th.
IN CRIMINAL JURISDICTION,
BEFORE MR. A. G. Wish (ACTING CHIEF JUSTICE).
UTTERING Forged NOTES.
Chenng-Yuk-Heung was charged on three indictments of altering forged notes.
The Hon Mr. W. Rees Davies, Attorney defended. General prosecuted, and the prisoner was un-
The jurors empanelled were :— -Messrs A. Hutchison, J. A. Young, H. P. Jertrum, O. A. H. Milroy (foreman), A. 8. Carrie, W.
H. W. Kew and T. J. Richards,
The case against the prisoner was that on October 2nd he went to a money changer's shop in Queen's Road and there asked for the rate of Singapore notes. He was told there wAS A premium of ten dollars. He then presented what purported to be two 850 notes, issued by the received $110 in twen'y cent pieces. About three' Government of the Straits Settlements and
hours later it was discovered that the notes were clever forgeries, having been altered, from 10 to 50 dollars. Next day the prisone e called at the shop to change more money and was arrested. On his being searched three genuine unaltered notes were found on him.
CHINA OVERLAND TRADE REPORT. for years a merchant in the Straits Settle- | should a fugitive be surrendered unless an enga- ment, and he was a man of stanɛing at Johore ❘gement had been given. The next point wis and the Straits The presumption was there- what was a political offence? fore in his favour; it was an unlikely thing that the uncontradicted facts respecting the He submitted that this man was the leader of a gang of case of the fugitive in leading the people of that robbera. The offence which he admitted was district against the town of Wongkong, captur- that which any man of high character might being it, and subsequently engaging in armed con- guilty of the political offence of a reformer. He flict with the statute forces of the Government put it to the Court that this man came was distinctly a political offence. Here was before the magistrate with a presumption in his a man directing a revolt against the administra. favour which the magistrate had unfairly dis- tion of the Government of a province in China. regarded. Was such a man, who for years had The causa causens of the rising was immaterial. been a merchant, to be held capable of being sa As a matter of fact it was said by the prisoner armed robber upon the testimony of such wit. to be due to maladministration of the laws of nesses as appeared before the Police Court ?
ths province. There could be no question of The other witness WAS an old, semi-bliud the fact that this was a political disturbance. woman, who might very well believe every Counsel concluded his address by asking bis word she said, and who naturally, after her Lords ip to graut a writ of habeas corpus. husband had been robbed and killed, was The Attorney-General stated that Sir Henry anxious that the person who robbed and killed Berkeley had asked his Lordship in the event of him should be punished; who came with her his being against him upon the point he raised, to mind prejudiced at every point, and who reserve it for the consideration of the Full Court, could be coached and tanght easily by the but he thought that reference to the two cases male witness. The case entirely turned on the his learned friend had cited would show that evidence of this so called teacher who was he had put a wrong construction upon them. alleged to be a yamen ranner, and if he in the I he question whether an engagement was enter. course of his cross-examination either disore-ed into, or whether an arrangement was made dited himself entirely or besmudged himself, then the Court ought not to take the step which was practically sending the fugitive to
As far as the his death. "The Court ought not to send the
learned friend prisoner back to China except on evidence of a
WAR nothing to say that trustworthy character. The witness was au- no engagement should be entered into, except worthy of credit after deliberately and boldly prior to the surrender of th fugitive. he denying in Court that he had used Manda- coutended that it was purely an executive rin words. On the ground of these facts the matter. In the first place the magistrato bad prisoner ought to be discharged, because to investigate the case in the same way as be he produced before the magistrate what would inquire into a crime committed in Hong. ought to be regarded as conclusive evidence kong. The defendant now cam- before his to refute the cbarge against him. He called Lordship on an application of hab as corpus two witnesses to prove that at the time he was and that question his Lords ip had to decide supposed to be leading a band of armed robbers OOP way or the other. in the event of his on April 16th he was in Hongkong, and the Lordship discharging the rule, the case would account he himself gave on oath, and that of the then lie with the executive authority to witnesses he called, was consistent with reason surrender the fugitive, but subjet to the and pro ability. He stated that he was engaged requirements of section 4, subsection X, with others in organising this riot, IIe had That was a matter beyoud the purview of come to Hongkong sometime previously, and this Court to decide. It appeared to him on was in Hongkong until May. Was that not reading subsection 1 of section 4 that the probable ? Must there not have been some pre- ultimate right to surrender was in the hands of paration for this riot ? Was it not much more th Governor. As to the questions of fact upon likely that a man who acknowledged that he which the magistrate decided the case, he sub- was the leader of a riot would be in Hongkong misted that the question of fact was one for the on April 16th preparing for the riot which magistrate, and that the authority which he took place a few weeks afterwards, in May? cited in his judgment stated the position which Was it not more likely that this would be was the duty of a magistrafe to take the case, rather than that he would be in
on the question of deciding whether Pingohow running over the country and would commit the defendant or not. robbing people at night? His story was The question of fact was one for the magis corroborated by two respectable witnesses, one trate, and one upon which bis Lordship of whom had been the head foreman in Jardine's would not enter. is learned friend, after Sugar Works for about fifteen years. That arguing on the unsatisfactory evidence put for evidence was disregarded by the magistrate, who ward by the prosecution, drew a distinotion did not even take the trouble to notice it in between a man tried in Hongkong and a man his judgment, while the evidence of the unworthy tried in China. The law for the purpose of this witness who perjured himself before the case drew no distinction whatsoever. The magistrate was accepted. These two witnesses, question as to what view a Chinese Court might if they spoke the truth, conclusively showed that take of it had nothing to do with the case. the prisoner was not one of those who robbed He submitted that there was conflicting evidence the house at Swatow. In an extradition case sufficient to raise in the mind of the Court a the magistrate ought, on the evidence, to be strong and probable presumption of satisfied of the guilt of the accused.
gailt. A prima His learned friend drew attention to the fact facie case was not sufficient. Counsel asked his that the story one of the witnesses told Lordship to grant the writ on the facts before amounted to an llegation of murder. He submitted that the prisoner must It might be so! Possibly it was 80 ! Bat the be discharged by the Court There was Chinese authorities having regard to the no evidence that the Chinese Government | information given that thirteen or fourteen men had given an engagement, which according to section 14 subsection 3 of the Chinese Extradition Ordinance was a condition precedent to the surrender of the fugitive. There was no inherent prerogative in the sovereign of Great Britain to arrest and send out of the country an alien political offender. His Lordship-There is statutory power. Sir Henry Berkeley-Yer, and statutory power must be strictly observed. If there is no power in the executive of England, there cannot possibly be any power here.
The Attorney-General-The Ordinance vests power in the Governor, not in the Court.
him.
Sir Henry Berkeley, continuing, said this was not a question of veating power in anybody. The hubsection did not invest his Lordship with
■ right to surrender the prisoner. Section 5 said that the surrender should be in manner, provided by the Ordinance. The Ordinance provided that under no circumstances
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entered a house that night and committed robbery, might have supposed that there was not sufficient evidence to pick out particular man and charge him with the offence of murder. At any rate it was not material to the question before the Court. As to whether the prisoner was one of the robbers who raided the house that night, Sir Henry Berkeley relied a great deal on the respectability of his client. At any rate, according to the statement which the fugitive gave before the magistrate, he was a leader of a gang of men seeking to bring about disturbance, and which according to his own showing brought about bloodshed. The Attorney General was not concerned to disones what his character w, or anything else, but he submitted that it tremely improballe the prisoner spent his time in Hongkong in the house of two men who were in such a very much inferior position than he, Probably the learned magistrate had that in
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The jury returned a unanimous verdict of guilty and the prisoner was sentenced to are years' imprisonment with hard labour on each cunt, sentences to be concurrent.
IN SUMMARY JURISDICTION.
BEFORE MR. H. H. J. GoмPERTZ (ACTING PUISNE JUDGE),
ALLEGED MALICIOUS PROSECUTION.
Action was brought by Chan Sam to recover from Lo Kam of Sassoon's cowshed, Pokfulamr the sum of $200 for malicious prosecution by the defendant on or about the 8th September. Mr. E. J. Grist (of Messrs. Wilkinson and Grist) appeared for the plaintiff, while the defendant was represented by Mr. Crowther Smith (of Messrs. Almada and Smith).
Mr Grist informed the Court that in reply to a request from his friend for particulara, he wrote informing him that the defendant, unde, a sworn information, had caused the plaintiff to be arrested ou the charge of having stolen clothing, jwellery and money to the value of about $150. The prosecution terminated in the discharge of the defendant. It was brought maliciously and without reasonable or probable grounds.
Chan Sam was called and told his Lordship she lived with the defendant. There was trouble between them early in September in conse. uence of which the defendant beat her, and she reported the matter to the police. I»quiries were instituted by the Registrar-General, the defendant being with her at his office, where he accused her of stealing three pieces of clothing and some jewellery. The Registrar-General told the defendant that if he did not want the woman he could send her away, but he had provided the clothing and jewellery for her. On September 12th plaintiff was arrested noder warrant and charged at the Police Court with stealing a sum of money. When the magistrate heard the case he discharged her.
Cross-examined-Defendant did not give her any jewellery, and there was no jewellery of his that she was in the habit of wearing. Defend- ant told lies if he said he had three wooden boxes in his room. Plaintiff did not employ a solicitor to defend her in the larceny charge, and was put to no expense.
This concluded the plaintiff's case, and Mr. Smith called for the defence
Lo Kam, who said the plaintiff was his sweet- heart. On September 8th he saw plaintiff wrapping up a parcel of clothing and told her
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