>
152
THE HONGKONG WEEKLY PRESS AND
REL
|
[arch 2, 1908.
the Colonial Legislature to deal with matters not left to the "authorities," but the engage. Government has no desire to evade the affecting the peace, order and good govern- ment is required, and I am bound to say pro-safeguards with which the law surrounds ment of the Colony, therefore if this provision | perly required, from the Government itself - the fulfilment of our treaty obligations to has the effect contended for, it must clearly that is the Government at Peking. I said in it; and it has only to be informed that the be limited to those things which the Colonial | Wong Ka Cheong's case, and I still think, that engagement will be in future required Legislature has power to deal with. But nư there seems to be a latitude given to the Exe- with the requisition or as soon after as hypothesi this matter of extradition does not | cutive of the Colony to accept a general en- possible in order to prevent fugitives being fall within the grant in the charter; there-gagement if it so chooses; but it has not done released on habeas corpus. In Wong Ka fore it cannot be affected by this limitation. As to whether the delay involved in get- Cheong's case I expressed an opinion on This much must be added on this point. The ting an engagement from Peking in each case this point which was in favour of the exist limited power of a Colonial Legislature, the would be to circuitous, that is not for the ing practice, but the point was not very absence of any power on its part to pass | Court to consider: though I may remark that fully argued. extra-territorial legislation, depends entirely as extradition is so often followed by decapita on the express limitation of its powers, and¦tion the opposite of circuity might without im- undue haste." The on nothing else. Parliament has, but I think propriety he called within certain well-defined limits, a power of Legislature has said that the Chinese Govern extra-territorial legislation even in respect of ment must give the undertaking; it is for the foreigners abroad.' So I take it must the Legislature to decide whether it will be King also have within his own domain of satisfied with a delegates power to be legislation; and this power he has not ceded exercised by the Viceroys,
to
*
TOCOSSETY
-
his Crown Colony legislatures. With
The second question is more difficult. regard to what the limits of extra-territorial agree with my learned brother that it is not legislation are, it is no doubt a matter of governed by the decisions in re Bourier and great uncertainty but this no one could Pe Woodhall. The corresponding provision of deny that legislation passed in order to the English Act is that the fugitive shall not carry out the King's own obligations entered | be surrendered unless this very into by him with a Foreign State falls well | provision is made by the law of the country within them. On all grounds, and looking | making the requisition or by arrangement, at the question from every point of view, our Ordinance therefore the word therefore, I am of opinion that this Ordin- | "engagement" stands in the place of “provi ance is intra vires,
sion by law or arrangement.
Lhave gone thus elaborately into the ques- tion which was argued with much learning, because it is recondite, and it is well that matters of such high importance should, if] possible, be put on their true basis. Since writing this part of my judgment my atten- tion has been called to a recent decision of the Privy Council in the case of Attorney General of Canada v. Cain, in which an almost, if not this identical point was decided. The argument I have used arrives by a somewhat different route at the same
|
|
In
..
|
The next question raised deals with the procedure which has been followed in this case and renders a close analysis of the Ordinance necessary.
One point of minor importance may be dis- posed of at once. The order to the Magistrate given by the Governor, in this ense the Officer Administering the Government, must under Section & be "under his hand and seal." This means the Governor's official or private seal, preferably his official seal, if he has one. In this case the seal of the Colony was used ; but that does not make the order invalid. It is no more than what I may call an excess of wax. There are authorities to show that a lump of wax merely impressed with anything will constitute a seal. If the Governor were to borrow the Colonial Secretary's seal the chemarnt would still be under his hand and seal, within the meaning of those words.
Now, the main argument in re Bonnier was AS 10 whether the facts which the Curt
Next as to the form of warrant issued by the had before it explanatory of the law of
Magistrate. During the first day's argument France amounted to a provision made by law," and it was of opinion that they dil.ere was no evidence forthcoming as to what information the Magistrate had before him The same point was decided in the same way when he issued the warrant. As his action. in re Wodkhall, where the Court held that a
waschallenged on this ground we were clearly decision of the Supreme Court of the United entitled to know. Mr. Hazeland therefore States binding on all other Courts in themed an affidavit, from which it appears that States also satisfied the condition, and the
the information was to the following effect. Court held that this also was a "provision of
The information and complaint of Tseng the law." But Lord Coleridge, C. J., said, if result as their Lordships: but after reading the requirement of the Act has been complied Kai Ying: Lam sub-lieutenant in the Chinese that judgment I do not think it necessary to with the prisoner must be given up: if the after my reasoning. It covers the case of requirement of the Act has not been complied Canada, for that comes within the definition with he cannot be, but the rule for the of a coded colony. The only point about corpoes must be made absolute. Under the which there may still be run for argu- English Act, as WO SOU, there is an alternative ment is how far the assent of the Crown in condition – provision by law or arrangement, a settled colony would make extra-territorial | and it is certainly legitimate to argue that legislation intra vires.
what is true of the provision by kaw must I pass now to a matter of great import- | also be true of the arrangement and that if ance. By Section 4 (3) of the Ordinance --No. Į there is un provision by law and no arrange. 7 of 1889-it is provided that a fugitivement the requirement of the Act has not beettreasonable grounds for supposing the accused criminal shall not in any case be surrendered | coądied with the prisoner must be given up. unless an engagement is given by the Chinese goverment that he shall not he detained or tried in China for any offence committed before his surrender other than the extradition crime on which the surrender is demanded, until he has been restored or had an opportunity of returning to the British dominious.
It is said that this section has not been
complied with in this case, if it has not, the section is obviously applicable; for whether the offence for which Tu Kai Shing says he will be punished when he gets to China be a political offence or not, he says it is an offence which is not the armed robbery for which his extradition is demanded. The importance of the question lies in this that it is the safeguard pro- vided by the law that in fulfilling the Treaty obligation of extradition the right of asylune shall not be vidated. It is therefore of the utmost consequence that the provision of the section should be rigidly complied with.
|
#1
and that the same principle must apply to the engagement required by the Hongking Or dinance. But Lord Coleridge did say that he was not dealing with the arrangement, {+1k that that must come afterwards, and these words may mean, when occasion arises, that question will be considered. And it may be that the argument does not apply to the arrangement. For it may be argued that a ["provision of the law" is something which must from its mature be pre existent to the requisition for surrender, and that arrangement or engagement may also from its nature, come after the requisition has been made. I dould if the argument is sound, The writ of thous campus is protective of liberty, the fact that the right to apply for it is expressly granted by the law assumes the possiblity of wrongful rendition. And if ther Should be, by accident or oversight, what is the remedy! It would be too late, and the Court could no longer give the man the protection which the law had guaranteed. The argument based on this section is two As I have said the whole question resolves fold. First, it is said that the engagement itself into one of protection of the in must be that of the Chinese Government, and dividual, and the Court is bound to see that not of any subordinate authority, such as the there is no loophole by which this protection Viceroy of the two Kwang; secondly, that this may be destroyed. I think there is a engagement must be given at the time of the tendency to assume that a fugitive criminal requisition, or at least, that if it has not been is what he is called, and therefore guilty of given at the time the halwas curpus is applied the crime with which he is charged. The for it is a good ground for making the rule for ¦ law of England which assumes a man in the writ absolute.
|
|
nocent until las is proved to be guilty applies As to the first point, I am clearly of opinion as well to such a fugitive as to anyone resid that the word “Government means what it
ing in the Colony. “Nor do I think that this says; that is, Government, and it a subordin
is a mere technicality. I shall therefore ate authority. The words “Chinese authoris content myself with saying that the ques ties" are used in the Ordinance with respect to tion is not absolutely within the English the requisition; but when it comes to this very decisions, and that 1 entertain a strong important provision, which is in favour of view that the engagement should accom- liberty, unless the Ordinance is carelesslypany the requisition. If it be so it is one drafted, which I do not assume, the matter is which is easy to comply with. The Chinese
|
Lam informed and have good cause to believe and verily do believe that Iu Kai Shing is Ki Shing, late of Wong Kong, aud now residing in this Colony is accused of the commission of the crime of armed robbery within the jurisdiction of China. I am ini formed and verity believe that a warrant has been issued in Wong Kong for the arrest of the said fu Kai Shing alias Ki Shing, that the Chinese Government will demand his extradition in due course, and that there are
may escape during the time necessary to pirescant the diplomatic requisition for his Surrender. I therefore pray on behalf of HE, the Viceroy of Canton that a provisional warrant to arrest the said Tu Kai Shing alias Ki Shing may issue under the provision of Ordinance 7 of 1989),
The whole of the form is printed excepţ of course so much as relates to this special
Case,
On this information the learned
Magistrate illled in another form heartedl provisional Warrant," the substance of which was as follows: Whereas it has been shown To me that Tu Kai Shing alias Ki Shing is accused of the commission of the crime of armed robbery within the jurisdiction oỀ China. This therefore is to command you forthwith to apprehend him and bring him before me to be further dealt with according
to law.
Thave looked in vain in the schedules of
the Ordinance for this form, but it is not there, and I have looked in vain through the Ordinance for some warrant for this ex- ceedingly summary mode of dealing with It is clear that applications for extradition. the procedure which has been adopted, ap- parently for a long time in the Colony, is based on the procedure by way of provisional warrant sanctioned by the Fugitiv? Offenders Act. I will assume that for this purpose the information was sufficient, though I very much doubt it. Lallude to this because the same form of words to which I am now going to allude are used in Nee, 4 of that, Act. Let
11
say this however with regard to See. N, that there is no doubt whatever that it does provide a provisional procedure in order to prevent a fugitive criminal getting away before the necessary formalities have been completed. The nature of the subject of extradition demands that such a procedure
No comments yet.
Private notes are available after approval.