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Colonial Cases

Attorney General of Hong Kong v. Kwok A Sing, 1872

[habeas corpus]

Attorney General of Hong Kong v. Kwok A Sing

Judicial Committee of the Privy Council
1 February 1872
Source: The Times, 2 February, 1872

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, Feb. 1.
(Present - Sir J. Colville, Lord Justice Mellish, Sir H. Napier, and Sir M. Smith.)
THE ATTORNEY-GENERAL OF HONGKONG v. KWOK-A-SING.
  This was an application on the part of the Government for leave to appeal from a decision of the Chief Justice of Hongkong under very peculiar circumstances.
  The Solicitor-General, the Queen's Advocate (Sir Travers Twiss, Q.C., and Mr. Archibald appeared for the Crown; Sir J. Kerslake, Q.C., and Mr. H. M. Bompas were in the case.
  In this case there had been two writs of habeas corpus, on both of which Kwok A-sing, a Chinese, had been liberated. On the 30th of September, 1870, a French vessel, La Nouvelle Penelope, sailed for Peru with 340 Chinese emigrants. While at sea Kwok A-sing and others, it was alleged, attacked the captain and crew and murdered them, and then took possession of the ship and returned to China. Kwok A-sing was arrested on the charge, and a writ of habeas corpus was applied for, and he was set at liberty on the ground that he as a slave was justified in the course pursued to regain his liberty.  Subsequently an ordinance was passed, and Kwok A-sing was arrested on a charge of piracy in connexion with the vessel and committed.  Another writ of habeas corpus was sued out in his behalf, and in May last the Chief Justice ordered him to be released. It was against the order setting the prisoner at liberty that leave to appeal was asked.
  A discussion arose on the law, and various authorities were cited by the learned counsel in support of the application.
  Their Lordships granted leave to appeal, and ordered notice to be given to the other side.

 

Source: The Times, 15 May, 1873

LAW REPORT.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, May 14.
(Present - Sir J. Colville, Sir R. Phillimore, Lord Justice Mellish, Sir B. Peacock, and Sir M. Smith.)
THE ATTORNEY-GENERAL OF HONGKONG v. KWOK-A-SING.
  This was an appeal from a judgment of the Supreme Court at Hongkong dated the 29th of March, 1871, and an order made thereon, and also from a judgment and order of the same Court, dated May 22, 1871.  The appellant, the Hon. Julian Pauncefote, the Attorney-General for the colony, and the respondent, Kow-A-Sing, is a coolie, or labourer, and a native of China. The question raised on two writs of habeas corpus was of considerable importance.
  The Attorney-General, the Solicitor-General, and Mr. C. Bowen appeared for the Crown; Mr. Fitzjames Stephens, Q.C., and Mr. Arthur Stone for the respondent.
  On the 30th of September, 1870, a French vessel, La Nouvelle Penelope, sailed from Macao, in China, with 800 coolie migrants, bound for Peru, South America, such emigrants having been shipped in conformity with certain regulations in force in relation to Chinese emigration. The respondent, a subject of China, was one of the emigrants, and one of the headmen or corporals to keep order among the other coolies. On the 4th of October, while the vessel was at sea, Kwok-A-Sing with others of the emigrants made a sudden attack on the captain and some of the officers and crew, murdered them, and having thrown their bodies overboard, took possession of the vessel, and compelled the seamen whose lives they had spared to conduct the vessel back to the coast of China, where they landed and abandoned the ship, Kwok-A-Sing stealing and taking money and effects, it was alleged, the property of the captain. Some of the participants were arrested and beheaded by the Chinese authorities, and a reward was offered for the apprehension of the respondent. He removed out of the jurisdiction of China, and was afterwards found at Hongkong, where he was arrested, and charged before a police magistrate as  a suspicious character and remanded. While under remand an application had been received from Her Majesty's Court at Canton, claiming on behalf of the Chinese authorities the rendition of the prisoner, and that he was charged with participating in the murder of a portion of the crew of the Nouvelle Penelope. The prisoner was committed until further order of the Governor, and the charge was prosecuted before the magistrate and he was committed. An application was then made ion his behalf to Chief Justice Smale, of the Supreme Court at Hongkong, and on the return he was set at liberty, and one of the grounds was that the ordinance in question did not apply to the Treaty of Tientsin, and, that under  the circumstances described in the deposition, in support of the rendition of Kwok-A-Sing, the  Nouvelle Penelope was at the time of the alleged crime engaged in effect as a slave ship, and that he was confined as a slave, and justified in killing the captain in order to regain his liberty, and that the depositions disclosed no offence on the part of the prisoner.
  Since the judgment a declaratory ordinance of the Legislature of Hongkong had been passed to relieve doubts as to the ordinance mentioned. The rendition was also claimed on behalf of the French Government by the French Consul, but it was abandoned when the judgment was pronounced.   Her Majesty's Attorney-General at Hongkong, on the 26th of April, 1871, caused Kwok-A-Sing to bed arrested on the charge of piracy, jure gentium, with the view to his trial on that charge before the Supreme Court at Hongkong. Evidence was then given before the police magistrate, and the prisoner was committed for trial. A second writ of habeas corpus to discharge the prisoner was granted by Chief Justice Smale, and on the 2d of May, 1871, he was set at liberty on the grounds, among others, that the offence charged was the same, and that the magistrate had no authority to commit the prisoner for the same offence.
  Leave was obtained from Her Majesty in Council by the Attorney-General of Hongkong to appeal. Several reasons were set forth in support of the appeal as to the ordinances and the extradition treaties; and, further, that the prisoner ought either to be tried in the Supreme Court for the offences alleged against him, or given up to the Chinese Government in pursuance of the treaty. The reasons set forth on the part of the respondent were eight in number, and among them was that the right of appeal exists in a case where the Supreme Court, sitting as a criminal court, had exercised the summary jurisdiction of the Court of Queen's Bench at Westminster, and that the recommitment by the Attorney-General w as illegal.
  The Attorney-General and the Solicitor-General addressed their Lordships yesterday in support of the appeal, and commented on the judgment of Chief Justice Smale, who had expressed a strong opinion when he discharged the prisoner on the two applications. The Chief Justice should have allowed the trial for piracy, jure gentium, to proceed before the Supreme Court, and not have considered whether the prisoner was justified for the acts he had committed on the applications for writs of habeas corpus. The respondent had been concerned in the murder of the captain and others, and it was strange conduct on the part of the Chief Justice to hold that he had committed no crime for which h he ought to be tried. The man was a refugee from Canton, was found at Hongkong, claimed by the Chinese authorities to be given up on serious charges, and yet the Chef Justice, without a trial, on applications on writs of habeas corpus, had ordered him to be set at liberty. In conclusion, they prayed their Lordships to allow the appeal and reverse the judgment of the Chief Justice.
  Mr. Fitzjames Stephen proceeded yesterday to address the Court on the part of the respondent. He was not aware that the respondent could not be tried, although he had been set free on two writs of habeas corpus.  He had not been tried, and probably could now be tried. The learned Attorney-General and Solicitor-General had indulged in remarks on the judgments delivered by the Chief Justice Smale which he considered those judgments did not deserve. He would apply himself to the other branch of the case, the extradition of the respondent from Hongkong to the China authorities, which had been claimed.
 Mr. Fitzjames Stephen, continuing his argument today, submitted that their Lordships would be slow to reverse a judgment of Chief Justice Smale, which he had formed on a reasonable discretion, holding as he did that the evidence before the police magistrate, on which Kwok A-Sing was committed for trial, was not sufficient, and the prisoner being released on the return of the writ of habeas corpus. He proceeded to consider the effect of the Extradition Treaty, begged their Lordships' attention to the facts as disclosed, and said the Chief Justice had felt there was no evidence of a crime on which the prisoner should be given up to the Chinese authorities.
  The judgment of the Chief Justice had been criticized by his learned friends. There was one portion, as to the execution of 16 Chinamen who had been given up, which was, perhaps, given with more warmth than was commendable, but he was not the one who would throw stones at a Judge who had thus indignantly expressed himself. It was clear that the authorities of China tortured men delivered up, and assembled a crowd to witness their execution, and it behoved the English Government to require proof before they gave up persons to the Chinese Government. He contended that on the Ordinance and Treaty there was no evidence of guilt, and the Chief Justice had entertained that opinion and discharged the prisoner, when he was committed for trial, in return to a writ of habeas corpus.
  A discussion arose as to whether there was evidence that the respondent was kidnapped, and whether what he had done to regain his liberty was to be considered as justifiable homicide. A question was also raised whether the respondent went voluntarily on board the ship, and whether he had been kidnapped.
  Lord Justice Mellish remarked that Kwok A-Sing had not been kidnapped.
  Mr. Stephen admitted that he had not been; some 100 of the coolies had been kidnapped, the condition on board the vessel was coercion, and the result had happened as it was believed it was a slave vessel.
  Sir Barnes Peacock thought there was no evidence that Kwok A-Sing had been forced on board against his will, and therefore justified in regaining his liberty in the manner he had done.
  Mr. Stephen begged their Lordships to bear in mind that the men were in a very low state of civilization - [on] board a French vessel, and who believed they had been deceived, and more than 100 of whom had been kidnapped. The learned counsel submitted that on the law and the facts the judgment of the Chief Justice ought to be affirmed, after discussing the ordinances and treaties.
  The Solicitor-General, during the argument, put in one legislative enactment to make the Ordinance binding in cases like the present.
  Sir R. Phillimore said the Act was passed between the judgment of the Chief Justice and the appeal.
  Mr. Stephen submitted that their Lordships should not consider the new colonial enactment, as it could not be retrospective. It would have been much better to have waited until this appeal had been decided.
  Lord Justice Mellish was of opinion, that the new Act which he held in his hand was to apply to future cases, and he read the words of the enactment.
  Mr. Stephen said the enactment was passed after the last judgment of the Chief Justice, and should not be considered by the present Court of Appeal. Further, he contended that the offence imputed - the alleged murder of a Frenchman by a Chinaman - did not come within the Extradition Treaty, nor the other crime of piracy in a French vessel on the high seas. One point in the case was whether the trial for piracy, jure gentium, must not be tried by an English Court.
  Mr. Arthur Stone followed on the same side until the rising of the Court.
  The further hearing of the case was adjourned.

Source: The Times, 16 May, 1873



  This case was resumed and concluded, on the argument, having occupied three days and raised important questions as to the law relating to writs of habeas corpus.
  The Attorney-General, the Solicitor-General, and Mr. C. Brown were for the Crown; Mr. Fitzjames Stephen, Q.C., and Mr. Arthur Stone for the respondent.
  The appeal was to set aside two judgments on the return of writs of habeas corpus, by which a Chinaman, named Kwok A-Sing, who was charged with murder and piracy, and who was committed for trial, was liberated by Chief Justice Smale, of the Supreme Court, on the ground that he had not committed an offence because he found himself on board a French slave vessel bound for Peru, America, and a question was raised whether he and other coolies or labourers had not as emigrants been kidnapped.
  Mr. Arthur Stone, in continuing his address, urged that the appeal was against orders made in a criminal proceeding two years ago, under which Kwok a-Sing had been discharged, and had remained at liberty, and therefore it was not a case in which their Lordships would be disposed to interfere. Further, that the Colonial Extradition Act was founded on the Treaty of Bogue, which was a contract, and when that contract was rescinded then the statute, which was a consideration for it, was impliedly repealed; and though the Act and Treaty did not describe the crimes for which criminals should be surrendered to China, it was intended that proof should be given of the Chinese law to show that its Government claimed to punish murder committed by Chinese subjects on the high seas on board a French vessel. And with regard to the second order discharging the prisoner that, though the reasons given by the Colonial Judge might be wrong, yet their Lordships would not disturb the decision, as it appeared on the face of the depositions that there was no jurisdiction in the Court at Hongkong to try the offence as there was no ground for saying that the seizure of the French ship and the murder of the coolies was piracy jure gentium. The learned counsel, in the course of his effective speech, cited a number of authorities to show that the seizure of the ship under the circumstance - a foreign ship by foreigners - was not piracy which could be tried in an English Court except where the offenders were English subjects or the ship an English vessel. He also read evidence given by Sir Thomas Henry before Parliament under the Extradition Commission, and supported the view which Chief Justice Smale had expressed when he discharged the prisoner.
  Sir James Colville observed in the course of the discussion that the question was whether the Chief Justice was, in fact, to sit as an Appellate Court on a commitment by a police magistrate on the return to the writ of habeas corpus, and to consider whether there was sufficient evidence of the charge made to commit for trial for piracy jure gentium.
  Lord Justice Mellish declared that it would be a shocking conclusion to arrive at, that although murder had been committed, yet because it was in a foreign ship by foreigners, they could not be punished.
  The Solicitor-General, in reply, said that there was little difference whether the man who was at liberty was to be tried at Hongkong or Canton, because whatever was the result of the appeal to reverse the order which the Chief Justice had improperly made, it could not be permitted that for such crimes as charged against the respondent he was to escape trial. He contended; that there had been a good deal of confusion introduced in the case as to what was piracy. By authorities piracy was to take possession of a vessel, which Kwok A-Shing had done, and change the dominion of the ship. Then it became piracy wherever committed on the high seas.  The Chief Justice had no right on the return of the writ of habeas corpus to consider whether the evidence before the police magistrate was sufficient to commit on the charge of piracy jure gentium. All that was required before a police magistrate was a prima facie case upon which to commit. The man had not been tried but set at liberty, and the Chief Justice after committal for trial had thought proper to say there was no evidence of the alleged crime.
  Lord Justice Mellish remarked that it might be better if their Lordships thought that the man should be tried, to express no further opinion on the case.
  The Solicitor-General said that all their Lordships had to say was that the Habeas Corpus Act did not apply to the case. He submitted that the moment the vessel was seized it ceased to be a French vessel; the prisoner had by the act destroyed the French territorial possession, and by compelling the men to steer the vessel had committed an offence. There was no authority for saying that the nationality of the parties made any difference. The magistrate, when the prisoner was arrested, was not to decide whether the man was to be given up; the Governor-General was to decide that question on the construction of the Ordinance, and the Chief Justice had no power to consider it on a question of habeas corpus.
  Lord Justice Mellish thought a Supreme Court had power to consider whether a magistrate had exceeded his authority.
  The Solicitor-General undertook from the words of the Ordinance to show that the Supreme Court had no such power. His contention was that their Lordships had only to look at the last Ordinance to gather the intention of the law. It was a declaratory and not an enacting statute; it simply explained what the meaning was.
  The question whether the last Ordinance passed since the Chief Justice had given his judgment was to be considered by their Lordships on the appeal was discussed at some length.
  Lord Justice Mellish said it was an ex post facto law, and in a criminal case ought not, in his opinion, to prevail.  In civil matters, or questions of indemnity, it was different.
  The Solicitor-General merely wished their Lordships to read the declaratory Act, which explained that the former Ordinance was meant to be. He supposed no one liked ex post facto law; but in some instances they were properly made.
  Lord Justice Mellish undertook to say that no case could be found where Parliament made a law to declare an existing decision wrong.
  The Solicitor-General, after further discussing the matter with their Lordships, left it with them to say whether the declaratory Act, as he called it, was to be considered by them. In conclusion, he asked the Committee to consider that the seizure of the ship, the compulsion to bring it to land, the landing in China, and escaping to Hongkong from Chinese jurisdiction, was not an offence, which was to be tried, and in which the chief Justice had no righty to interfere by discharging the man. That was an offence cognizable under the Extradition Treaty. Numbers of desperate characters escaped from China to the English colony of Hongkong, and were they not to be dealt with when sufficient was shown to deliver them up? He further asked their Lordships to reverse the judgment of the Chief Justice; but, whatever might be their decision, he could state that the man would be taken again and put on his trial.
  Sir James Colville announced that their Lordships would take time to consider their judgment.

 

Source: The Times, 20 June, 1873

LAW REPORT.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, June 19.
(Present - Sir J. Colville, Sir R. Phillimore, Sir B. Peacock, Lord Justice Mellish, and Sir M. Smith.)
THE ATTORNEY-GENERAL OF HONGKONG v. KWOK-A-SING.
  Lord Justice Mellish gave an important decision on two writs of habeas corpus. The case was reported in The Times on two former occasions.
  The Attorney-General, the Solicitor-General, and Mr. C. Bowen were for the Crown; Mr. Fitzjames Stephen, Q.C., and Mr. Arthur Stone for the respondent.
  His Lordship said, this is an appeal of the Attorney-General of the colony of Hongkong, from a judgment  of the Supreme Court of that colony whereby the respondent, Kwok-A-Sing, a Chinese coolie, who had been brought before the court by a writ of habeas corpus, was ordered to be released from custody, and an order made thereon dated the 18th of  April, 1871, and also from another judgment and order of the same Court, dated the 11th of May, 1871, whereby he was again ordered to be released from custody. The first writ of habeas corpus was issued on the 7th of February, 1871, and was directed to the keeper of the gaol at Victoria, Hongkong.  The return to the writ was dated the same day and set out a warrant of a police magistrate, which was as follows:-
  Whereas the abovementioned defendant was on this date duly convicted before Charles May, Esquire, one of Her Majesty's Justices of the Peace for the said colony, for that a communication having been received requiring the rendition of the defendant, on behalf of the Chinese Government, as a subject of China, who has committed certain crimes and offences against the laws of China by participating in the murder of a portion of the crew of the French ship Nouvelle Penelope, and it appearing to me, upon investigation of the case, that there is cause to believe that the said defendant is a subject of China, and has committed the said crimes against the laws of China  by feloniously seizing the said ship at sea, and by murdering the captain and certain of the crew of the said ship on the 4th of October last past at sea; and, further, that after the commission of the said crime, did feloniously seize a boat belonging to the said ship, and land at a place called 'Pakha,' in Chinese territory, on the 11th of October aforesaid. And it was thereupon adjudged that the said defendant, for the said offence, should be committed to gaol for detention pending the receipt of orders from, His Excellency the Lieutenant-Governor as to his further disposal.
  These are therefore to command you, the said constable, to take the said defendant and safely to convey to the said gaol, and there to deliver him to the said superintendent or keeper, together with this precept; and I do hereby command you the said superintendent or keeper to receive the said defendant into your custody in the said gaol, and there to imprison him as aforesaid.
  Given under my hand and seal at Victoria aforesaid, this 7th day of February, in the year of Our Lord One thousand, eight hundred and seventy-one.
C. May, Police Magistrate.
  This warrant was issued under an Ordinance of the colony, No. 2 of 1850.   By the 9th Article of the Supplementary Treaty of Nankin, dated the 8th of October, 1843, called the Treaty of the Bogue, it was agreed that, if lawless natives of China shall flee to Hongkong, a communication shall be made to the proper English officer that the said criminals and offenders may be seized, and in proof or admission of their guilt be delivered up.  Ordinance No., 2, of 1853, was passed by the Legislative Council of the colony, and the material parts of it were as follows:-
  Whereas, by the Treaties between Great Britain and China, provision is made for the rendition for trial to officers of their own country of such subjects of China as have committed crimes against their own Government, and afterwards taken refuge in Hongkong.
  One. Be it therefore enacted and ordered by his Excellency the Governor of Hongkong, with the advice of the Legislative Council thereof, that if any complaint or information, or any communication by any officer of the Chinese Government be made or forwarded to any magistrate or Court (other than the Supreme Court) desiring the arrest of any person being a Chinese subject, and then within the said colony of Hongkong, and alleging that such person has committed, or is charged with having committed, any crime or offence against the laws of China, or if it shall appear in the course of any investigation before such magistrate or court that any person, being a subject of China, has committed any such crime or offence, it shall and may be lawful for such magistrate or court to issue  summons or warrant for the appearance or apprehension of such person; or, if such person be already in custody, it shall be lawful to detain such person, and to investigate the alleged crime or offence in the same manner as if such person were charged with a crime or indictable offence committed within the said colony.
  Third. And be it further enacted and ordered, that if, at the close of the said investigation, it shall appear to the said magistrate or court that the person as aforesaid is a subject of China, and that there is probable cause  for believing that the said person has committed such crime or offence, it shall and may be lawful for such magistrate or court to commit such person for safe custody to prison, and to direct the gaoler to detain such person in prison until the said gaoler shall receive some order or orders from the Governor of Hongkong, or transmission of such person to the nearest Chinese authorities, or to such other Chinese authorities as to the said Governor shall seem fit; and the  said magistrate or court shall, upon making such committal as aforesaid, transmit to the said Governor of Hongkong the minutes of such investigation, and all documents in his or its possession connected with the charge against such person, in order that such person may be dealt with according to the Treaties aforesaid.
    In the Treaty of Tientsin, made on the 29th of June, 1858, new provisions were made with regard to the extradition of criminals from the colony of Hongkong to the Chinese Government in substitution of that of the Treaty of the Bogue, which was abrogated. The depositions taken before the magistrates and the documents before him having reference to the committal of Kwok-A-Sing, were afterwards brought before the Supreme Court in obedience to a writ of certiorari. The depositions contained the evidence of Wong Akee and Chun Assun, two Chinese who had been passengers, and of Paul Verret and Joseph Simon, two Frenchmen, who had been seamen on board the French ship Nouvelle Penelope, which left Macao on the 1st of October, 1870, with 310 Chinese coolies on board, on a voyage to Peru. All the coolies were examined by the Portuguese authorities at Macao before they embarked, to ascertain that they went voluntarily; but nevertheless Wong Akee said that he was kidnapped, which he explained to mean that he had been persuaded by a friend to go to the barracoon, and that he told the authorities he was willing to go to Peru contrary to the truth, because, from the threats of the Chinese who brought him there, he was afraid that his head would be cut off if he did not.  It was also proved that about 100 of the other coolies said that they were kidnapped. There was no proof that Kwok-A-Sing had been kidnapped or that he was among those who said that they had been kidnapped. The master of the ship and his charterer selected eight of the coolies to be headmen over the others, and paid them three dollars a-piece a month for acting as headmen. Kwok-A-Sing was one of those selected.
  At half-past 4 on the afternoon of the 4th of October, when the ship was prosecuting her voyage on the high seas, about 20 of the coolies collected near a seaman who was keeping guard at a barrier that was placed across the deck, attacked the captain, who was walking unarmed on the deck, killed him, and threw him overboard. They also killed others of the crew and obtained complete command of the vessel, and changed her course to the coast of China. It was positively sworn by Chun Assun that Kwok-A-Sing was one of those who attacked the captain, and the other witnesses proved that he was one of the coolies who kept the command of the vessel until the vessel arrived back on the coast of China. There was also some evidence that Kwok-A-Sing and other coolies took possession of the captain's watch and a quantity of dollars on board. When the ship arrived at the coats of China, Kwok-A-Sing and other coolies left the vessel in a boat.  The ship itself was run aground, and was left to be plundered by the natives.
  Among the documents returned by the magistrate to the Supreme Court was the following letter from the Colonial Secretary to the magistrate:-
  Received 3d February.
  Hongkong, No. 53,
  Colonial Secretary's Office, 3d February, 1873.
  Sir, - I have the honour to acquaint you, by desire of His Excellency the Lieutenant-Governor, that an application has been received from Her Majesty's Consul in Canton, claiming on behalf of the Chinese authorities the rendition of the man, Aping, who is charged with participating in the murder of a portion of the crew of the French ship Nouvelle Penelope.
I have, &c.,
  J. Gardner Austin, Colonial Secretary.

C May, Esq., First Police Magistrate.

  Several objections were made to the validity of the return, and were argued before the Chief Justice. He delivered judgment on the 29th of March, 1871, and held several of the objections to be valid, and afterwards on the 17th of April, ordered Kwok-A-Sing to be discharged. On the 26th of April, 1871, the Attorney-General caused Kwok-A-Sing to be again arrested on a charge of piracy jure gentium, with a view to his trial on that charge before the Supreme Court of Hongkong. The evidence of witnesses was again taken, and Kwok-A-Sing was committed for trial. Another writ of habeas corpus was issued, and return made setting out the magistrate's warrant by which he was committed to take his trial. On the 22d of May, 1871, he was again ordered to be discharged on the ground that his arrest was a violation of the 6th section of the Habeas Corpus Act.  The first question which their Lordships will consider is whether, assuming that there was sufficient prima facie evidence against Kwok-A-Sing to prove that he was guilty of the murder of the French captain, and that he was guilty of piracy jure gentium in running away with the French vessel, these acts constitute crimes and offences against the law of China within the meaning of the 1st section of Ordinance No. 2, of 1850, or crimes and offences against the Government of China within the preamble of the same Ordinance.   There is, no doubt, that the extreme generality of the words "crimes and offences against the law of China" makes their construction very difficult. They cannot be intended to mean that every Chinese subject who is proved to have done something which the law of China makes a crime or offence is to be given up to the Chinese Government. If this were the meaning of the words, every Chinese who had done anything which the law of China treats as criminal, though the law of all European countries treats it as innocent, might be given up. Some limitation, therefore, must be put upon the meaning of the words, and their Lordships think that, in determining what this limitation is to be they ought to bear in mind the position of the colony of Hongkong with reference to China. There was, when the Treaty was made, a manifest risk that the colony of Hongkong might become the refuge of the criminal classes of the city of Canton and other Chinese towns, and it was impossible that the Colonial Government could punish Chinese subjects for acts committed within the territory of China. Having regard to this object, their Lordships think that the words "crimes and offences" ought to be confined to those ordinary crimes and offences which are punishable by the laws of all nations, and which are not peculiar to the laws of China. In the Treaty of Tientsin the persons to be delivered up are described generally as criminals. All ordinary crimes - such as murder, robbery, theft, arson - committed by a Chinese within Chinese territory or n Chinese ships on the high seas would be within the meaning of the ordinance. Their Lordships are of the opinion that piracy, at least in certain circumstances, would be within the ordinance. They think it may be properly assumed, without proof, that China has laws to punish piracy on her own coast, and it if was proved that a subject of China who had taken refuge in Hongkong was a pirate in that sense - that he was a person who went from the Chinese coast to plunder ships at sea, returning with his plunder again to China - they are of opinion that such a person might be given up under the ordinance. On a claim for the rendition of such criminals as these, it would not, in their Lordships' opinion, be necessary to produce the evidence of experts to prove what is the law of China.
  Their Lordships now have to consider whether there was evidence that Kwok-A-Sing had been guilty of crimes against the laws of China. He is accused of two crimes, murder and piracy. The alleged murder was the murder of a Frenchman on board a French ship in which Kwok-A-Sing was a passenger on the high seas. They have, therefore, to consider whether murder by a subject of China committed outside the Chinese territory, is a crime against the laws of China within the meaning of the ordinance; and they are of opinion that it is not.  Their Lordships cannot assume, without evidence, that China has laws by which a Chinese subject can be punished for murdering beyond the boundary of the territory, a person not a subject of China. Up to a comparatively late period England had no such laws. Moreover, although any nation may make laws to punish its own subjects for offences committed outside its own territory, still, in their Lordships' opinion, the general principle of criminal jurisprudence is that the quality of the act done depends on the law of the place where it is done. Now, the law as to what constitutes murder differs in different places.  Suppose that a subject of China kills an Englishman within English territory, or on board an English ship, under circumstances which, according to English law, might amount to manslaughter only, could it possibly be right for the English Government to surrender such a person to the Chinese Government to be tried according to Chinese law, to which the distinctions between murder and manslaughter may be wholly unknown?
  On the whole, therefore, on these two grounds - first, that it cannot be assumed without evidence that there is any law in China to punish a Chinese subject for a murder committed upon a foreigner within foreign territory; and, secondly, because even if it could be assumed there was such a law, still, this offence having been committed within French territory ought to be treated as an offence against French law, and not as an offence against Chinese law. Their Lordships were of opinion that there was no evidence before the magistrate that Kwok-A-Sing, in murdering the French captain, committed an offence against the law of China according to the true construction of the ordinance.  
  Their Lordships have next to consider whether there was sufficient evidence before the magistrate that Kwok-A-Sing had committed an act of piracy jure gentium, and, if there was such evidence, whether that would make his imprisonment, for the purpose of being delivered to the Chinese authorities, lawful. Now, their Lordships are of opinion there was before the magistrate sufficient prima facie evidence that Kwok-A-Sing had committed an act of piracy jure gentium to justify his committal for trial for that offence at Hongkong. They see no reason to doubt that the charge of Sir Charles Hedges, Judge of the Admiralty, to the Grand Jury, as reported in the case of "Nix v. Dawson," 13 State Trials, 654, and which was made in the presence of and with the approval of Chief Justice Holt and several other Common Law Judges, contains a correct exposition of the law as to what constitutes piracy jure gentium.  He there says, "Piracy is only a sea term for robbery, piracy being a robbery within the jurisdiction of the Admiralty. If the mariners of any ship shall violently dispossess the master, and afterwards carry away the ship itself or any of the goods with felonious intention in any place where the Lord Admiral has jurisdiction, this is robbery and piracy." Of course there can be no difference between mariners and passengers, and there was unquestionably evidence that Kwok-A-Sing was a party to violently dispossess the master and carrying away the ship itself and the goods therein; and the only question can be whether there was sufficient evidence that the act was done with a felonious - that is, a piratical intention. In their Lordships' opinion, there was evidence of such an intention on the part of Kwok-A-Sing fit to be left to a jury, though we wish to be understood as giving no opinion which way a jury ought to find on this question.
  Next we must consider the legal duty of the magistrate when he had received the evidence; ought he to have signed a warrant enabling the Governor to deliver Kwok-A-Sing to the Chinese authorities to be tried for both murder and piracy, or ought he to have committed him to be tried for the piracy at Hongkong? In their opinion, he ought to have committed him to be tried for the piracy at Hongkong.  They think that the acts of piracy jure gentium with which Kwok-A-Sing was charged may be plainly distinguished from those acts of piracy which they have before stated to be, in their opinion, within the ordinance and the treaties. If Chinese subjects starting from and returning to Chinese territory attack a ship of some other nation, whether in harbour or at sea, they, making that territory  as it were the base of their operation, must be held to commit an offence against the municipal law of China and against the Chinese Government, whether they commit an act of piracy jure gentium or not; but if Kwok-A-Sing committed an offence against the municipal law of France, to which he was subject at the time, and not against the municipal law of China; and if he is punishable by the law of China, he is only so punishable because he has committed an act of piracy which, jure gentium, is punishable everywhere. They are of opinion that such an offence is not an offence against the law of China within the meaning of the ordinance. On the whole, therefore, they are of opinion that the warrant by which the magistrate authorized the Governor, if he thought fit, to deliver Kwok-A-Sing to the Chinese authorities to be tried by them for murder and piracy was an illegal warrant and one beyond his jurisdiction, and that, therefore, the first order of the Chief Justice for the release of Kwok-A-Sing was right, and ought to be affirmed.
  Having come to the conclusion, their Lordships need not give any opinion upon the validity of the other grounds upon which the Chief Justice thought that Kwok-A-Sing ought, on the first occasion, to be discharged. They think, however, it is right to state that they  do not agree with the Chief Justice that the evidence before him, proved that La Nouvelle Penelope was a slave ship, and that Kwok-A-Sing and the other Coolies who acted with him were justified in killing the captain and the French sailors for the purpose of obtaining their liberty. There was evidence from which it might be inferred that some of the Coolies had, by fraud or by threat on the part of the other Chinese, been induced to go to the barracoon, and embark on the ship against their will.  They appear, however, all to have professed to the Portuguese authorities at Macao that they were willing emigrants; and there was, in their Lordships' opinion, no sufficient evidence upon the depositions that either the Portuguese authorities at Macao, or the French captain and crew, were any parties to compelling any of the Coolies to leave China against their will.
  Their Lordships have next to consider whether the judgment and order of the 2d of May, 1871 , whereby Kwok-A-Sing was, for the second time, discharged from custody, contrary to the 10th section of the 31st Charles II, cap. 2. They cannot agree with the construction which the Chief Justice put upon this section of the Statute. The principal object of this section seems to have been to prevent persons who had been brought up on a writ of habeas corpus, and discharged on giving bail and entering into their own recognizances, from being again arrested for the same offence, and obliged to sue out a second writ of habeas corpus.  This appears from the provision by which the person discharged can be again arrested by the order of the Court wherein he shall be brought to recognizance to appear, or other Court having jurisdiction of the cause.  The words, "other Court having jurisdiction of the cause," were probably added to meet the case of an indictment having been moved by certiorari from one Court to another. They do not say, however, that the section may not also apply to cases where a prisoner is discharged unconditionally upon the ground that the warrant on which he is detained shows no valid cause for his detention. They think, however, it can only apply when the second arrest is substantially for the same as the first, so that the return to the second writ of habeas corpus raises for the opinion of the Court the same ground of detention as the first.
  In the present case the second warrant is a warrant by which Kwok-A-Sing was committed to take his trial at Hongkong for piracy jure gentium, and was, in their opinion, a valid warrant. They think he ought not to have been discharged from his custody under that valid warrant, because he had been previously discharged from an unlawful imprisonment.
  Their Lordships will accordingly humbly recommend to Her Majesty that the judgment and order of the 24th of March, 1871, and the 11th of April, 1871, should be affirmed, and that the judgment and order of the 22d of May, 1871, should be reversed, and that there should be no costs of appeal.

Note

 

See also R. v. Kwok Ashing, 1871.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School