$
March 2, 1908.]
should be provided. But then the procedure which the law provides must be carried out.
Now, Sections 6 and 7 of the Ordinance provide the regular machinery by whichextra- dition proceedings are to be begun. There is to be a requisition to the Governor made by some officers of the Chinese Government; the Governor thereupon may issue his order to a Magistrate to issue his warrant; and on the receipt of the order the warrant is to be issued. Then comes Sec. 8. A Magistrate may also issue his warrant for the apprehension of a fugitive criminal on such information or complaint as would, in his opinion, justify the issue of a warrant if the crime had been committed in the Colony. The fugitive is to be discharged if the order referred to in the previous sections does not come within a reasonable time.
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CHINA OVERLAND TRADE REPORT.
already in custody, he is to issue his order to all necessary persons, to bring the fugitive | criminal before him to be dealt with accord- | ing to the Ordinance,"
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158
country." It is impossible. And now that the dictum has been referred to, I feel bound to say that I trust no such arrest will ever be made in this Colony, even if it were on d
as to this last provision was, that it means
The learned Attorney-General's contention telegram from the Viceroy, for an applica tion for habeas corpus the Court would with- that if the fugitive is in custody for some
out any hesitation release the prisoner. other crime then this procedure is to be Therefore I am of opinion that both on prin- followed, but that it does not apply to the ciple and on the plain construction of Sec. 7, case of a man in custody under a warrant
if a fugitive criminal should happen to be in issued by the Magistrate under Sec. 8, because, custody for some other offence and requisi- as I gather, it would be mere surplusage. Ition is received for his extradition, a war- cannot agree. The drafting of Sée, 7 has an
rant is absolutely necessary under this Or- evident relation to Sec. 8.
In fact the argu
dinance, and that another under the second part of See, 7, would be insufficient.
Then is it possible for this or any of the other defects in these proceedings to be cured by anything regular which may have subsequently happened? With regard to this Weils case was relied on. On the face of it that case has no application, for there a curative warrant had in fact been issued.
ment is refuted by the practice which has been adopted, which is a provisional procedure pending the receipt of the requisition. The plain meaning of Sec. 7 is that if the Magistrate has already issued a warrant on information These words seem to me to have a very de-
as to the commission of the crime without a finite meaning. Before he acts in an extradi; formal order, then the escaped criminal being tion case in the absence of a requisition and already in custody, in respect of the extradi order, he must receive such information, oftion offence and I desire to emphasise these The Court of Appeal seems to have been the same nature, quality or quantity, as he words, no further warrant is necessary, hut
of opinion that either the Irish Magistrate's would require and receive if he were applied to an order may be issued to bring him up to warrant for his apprehension, or the Bow for a warrant in the case of a crime committed the hearing. This form is given in the sche-Street warrant for his detention, cured the in the Colony. Now no Magistrate would dule, but no such order was ever issued.
illegality of the arrest. "If he was wrongfully in custody and there was proper evidence to justify his apprehension, Sir James Ingham was justified in issuing a warrant for hisdeten- deference which every Judge owes to the very tion. I must say that with all the greatest
eminent Judges who formed the Court in that case, I am glad I have not to express an opinion whether an illegal arrest in an extra- dition case can be cured by subsequent regular proceedings, for here there was nothing cura- lively regular at all. That decision seems to contain in itself a warrant for illegalities which I do not think the law can ever coun- tenance. There is no such maxim known to the law as that a wrong may be committed order that right may be subsequently done. Fallude of course to a wrong com- mitted an our own soil, for with wrongs done in connection with extradition in an- other country our Courts coull have nothing Our law boasts that for every wrong committed within its purview, there is a remedy But in this case illegality is said to be condoned by subsequent legality, irregu
Now let me take the procedure which has in fact been followed and see what it comes to. As I have said a provisional warrant, if it means anything, means that it is something which requires completion; and that al though it may serve its purpose for the time being it is not a real warrant and cannot become a real warrant until some further order is made completing its efficacy. Assum ing the information to have been sufficient and the only defect to have been the name Provisional Warrant," it is not impossible that this might have been cured by the order of the Magistrate under Sec. 7 to bring ]] {{ fugitive to the hearing. But there wing no such order in this case this hope of rectifying these proceedings falls to the ground.
L
the
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issue a warrant if someone were to come to him. and say "Ki Shing has committed the crime of armed robbery in Kowloon." He would want to know more about it. He would want, at least, some evidence, however little, some information about the details of the crime. Warrants are not launched in so promiscuous a fashion, at least I hope not, in the case of crimes alleged to have been committed in the Colony. The word information is not a technical word: it expresses the fact that the Magistrate has received some information about the crime alleged to have been commit ted. And the case is really no different if the word "complaint" is taken by itself. In this document the words used are "The informa- tion and complaint"; in fact there was a com- plaint but na information, and from either point of view the fact is that the Magistrate had nothing before him on which a warrant could go in the case of a crime alleged to have been Committed in the Colony. But it was said - Oh, this is an extradition case, and that makes all the difference. In point of fact the informa tion was merely that Ki Shing was "accused | tive happens to be in custody for another larity justified by subsequent regularity. of the commission of the crime of armed rob- offence all that is required is this onder under bery in China." So that this warrant has been | Sec. 7 to bring him up to the hearing. I dis Extradition proceedings issued in express disregard of the provisions of the section, which are that this procedureby depend on statute alone. It is not sufficient the Magistrate without order from the invernerely to have got the man in custody for nor shall not be used merely because the Chinese Government have accused the fugitive and mean to demand hisextradition, but solely when there is some information as to the com- mission of the crime itself. The cases which deal with the discretion of the Magistrate in the
matter of how much evidence or information
say so;
But there is something much more import ant than mere form involved in this ques absence of this order in Sec. 7 is fatal and that tion, which leads me to the opinion that the
the man is in illegal custody Attorney-Gšneral contends that if the fugi
sent altogether.
The learned
some other offence, and them to start extra
dition proceedings against him on such an order as this: for there would be nothing to support those proceedings. The requisition is nothing but the foundation of executive action; the order of the Governor is nothing but the executive request to the law tre act the warrant is the first and only step on which extradition proceedings i
Call he started Without a warrant everything which is alone is absolutely had.
.
he may require have no application to this case, for here there was no information as to the facts at all. As I have said if it be thought
No Courts in any coun necessary that such provisional procedure he
try have the smallest jurisdiction `in the adopted in order to make extradition proceed. ings effective, by all means let the Legislature matter of crimes committed in another coun but the Executive and the Magistratry. The treaty gives them noue, but only ture must not invent it, even though, as I am
the legislative act which authorises the exe told, it conforms to instructions sent from cutive and judicial acts necessary to fulfil the home. The Court cannot look into those in treaty obligation. And when that det sars that a wariant is necessary, a warrant there structions because the question before us is
must be, and that is all about it If there not whether they are, in the first place, applicable to this special Ordinance, and if no warrant the proceedings are bad of they are whether they have been complied with; only whether the Ordinance has been complied with or exceeded. And, further, what a "Provisional Warrant” may be which is not sanctioned by an Ordinance, and is not followed up by a complete warrant. I have not the remotest idea. I shall have to revert to this point presently. Lam therefore of opinion that the warrant is bad at all
But this is not points,
the end of the
story.
:
[
CATE
SORTIE TULPUTES. or
intere I have heard it said that if you get hold of a criminal by other the Courts can act
+1
It certainly 15
Theat in extradition proceedings, and of this I am certain that no policeman could arrest the fugitive without a though there were a requisition and Gover nors under thereon
warrant, even
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i With very great respect I must entirely
dissent from a die tum of Brett L. Jin Wrad's | case where an Irish police officer of a telegram from a private
›
tive in New York had arostuduiry deter
A man at
I cannot understand the doctrine.
of
State of the "right of asylum" in any special case Extradition is the voluntary surrender by the
under & treaty. This right is no ardent figure
spa ch; it is the consequence of the funda mental doctrins that all ocime is local, that or minal laws are territorial, and that no country will enforce the criminal laws of any other country. The "right of asylum" menus even more than bie It means that the fugitive is a fre man, and is entitled to participate with subjects in so far as the text is not limited to subjects, in the liberties of the prople; liber, tie which were infringed by such action s Was condoned ia Weil x case.
To all this extradition forms an +xception. The Legisla- are bas tak-n the watter in baud, and bas indiested the prooedure which may and must be adopted to give effect to it That procedure must be followed. I decline to subscribe to the doctrine, which is practically the argument forced upon the Clown in this case owing to The practice which has grown up in the Colony, that soy procedure will do so long as the fugitirs is caught, and so long as some regular step is taken during the proceedings at some time or other. The fugitive has a right then and there to come to the Courts to be set at liberty, and I do not coderstand how, because
sometime
and
the "maller
before mast elgen can be fully gone into, that is to be looked прод
L A period of grace during which irregularitua
informalities may be pat straight. But bere there was nothing
There was regular at all.
order made sa on receipt | required by section 7, and sa indicated in the forms in the schedule, nothing more then the asual slip of papir directed to the Superintend- out of the Jail, * The andermautioned prisoner is required für re examination at this Curt. Remanded saan No. 3 2. Delvadaat, In Kai. shing." This is ab-olutely the only donument which was and after receipt of the Governor's But a little more examination reveal order. what actually took place. After the magistrate had issued his provisional warrant the pri-
A requisition from the Chinese Government was in fact received, and the order of the Officer Administering the Government sent Queenstown on a charge of forgery in to the Magistrate in due form, as I have York. The Lord Justice said, “I doubt whe already indicated. Now this order required; ther there has been any irregularity what the Magistrate to issue a warrant. And the ever in these proevelings. doubt much issue of it is regulated by Sec, 7, which is in two ! whether a policeman is not justihed in arrest parts. On receipt of the order the Magistrate, ing a man without a warrant ou rasmalde | is to issue the warrant; or, here comes the grounds of suspicion of his baying done that second case, "if the fugitive criminal is which would be a felony if committed in tius
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