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Colonial Cases

R. v. Kwok Ashing, 1871

[criminal procedure - extradition - Amistad case]

R. v. Kwok Ashing

Kwok Ashing v. Pauncefote

Extradition Court
Supreme Court of Hong Kong
Source: The North-China Herald, 5 May 1871

 

EXTRADITION COURT.

Hongkong, April 26th.

Before H.E. MAJOR-GENERAL WHITFIELD, LIEUT-GOVERNOR.

(Under 33rd and 34th Vic., Cap. 25.)

Kwok Ashing was brought up on remand.

 

   The Attorney-General rose and explained that a letter had been received from the Acting French Consul, in which he withdrew from the present prosecution.  Although prepared with witnesses, he had looked into the Imperial act and observed that under section 11, it would be the duty of the Government to inform that prisoner that, before being surrendered he would be detained in gaol fifteen days, and that during that period he could apply for a writ of habeas corpus.  The Consul, therefore, considered that this being so, it would probably lead to a repetition of precisely the same proceedings that have occupied the Supreme Court for so long, and he had informed the Attorney General in the morning that he intended to address the Government, and withdrew his requisition, so that H.E. had no option but to discharge the prisoner. 

   It was of course very serious, whatever technicalities might exist to discharge the prisoner without his going before a Jury, and the Attorney-General, therefore, thought it his duty to invite the opinion of a Jury as to his guilt.  Although he was discharged, the Attorney-General gave him in charge of the Captain Superintendent of Police to answer a charge of piracy jure gentium.

   The Captain Superintendent then formally arrested the prisoner, and the proceedings terminated.

Source: The North-China Herald, 2 June 1871

SUPREME COURT            .

Hongkong, May.

Before CHIEF JUSTICE  SMALE.

The Hon. Chief Justice Smale gave judgment this morning on the second habeas corpus application in re Kwok Asing, the coolie formerly on board the Nouvelle Penelope.  Having narrated how prisoner was arrested immediately on his discharge by this Court, the Chief Justice remarked that it was open to the prisoner to contend that such arrest vitiated all subsequent proceedings. 

   His Lordship then set forth, clearly, the exact sameness of the charge upon which (1.) prisoner was first committed, (2) von which he was committed the second time, and (3.) on which the information against him was founded.  As he was deprived of assistance from any precedent, his Lordship had to give his own construction to Section 6; and from this construction, as given at length in the judgment, the prisoner is freed from the commitment and the information.  He was discharged, and effect was ordered to be given to the decision at the risk of a contempt of Court in the case of non-compliance.

   His Lordship remarked strongly on the case of the Dolores Ugarte, and said that the inquiry into its circumstances ought not to be left entirely to th4 conductors of newspapers.  Touching upon other points relating to th4 Ugrate case, his Lordship said -

It would be useful to know what ship, and flying what flag it was, that towed the Dolores Ugarte out of the Macao road, and whether any and what insurers, and of what nationality secured as a debt of honour to the slavers the value of the living cargo in the even that has happened.

His Lordship concluded by again laying down the general legal principle, that if a number of the men are not in lawful custody they are not guilty of the murder of those de facto in authority over then; being prisoners they have a right to regain their freedom by any means in their power.  The man was discharged. - China Mail. [See also North China Herald, 9 June 1871.]

Source: The North-China Herald, 28 December 1871

LAW REPORTS.

SUPREME COURT

Hongkong, Dec. 15.

Before CHIEF JUSTICE SMALE.

Kwok-Asing v. Pauncefote.

   His Lordship gave judgment in the plaintiff's rule for a new trial in this case.  Mr. Francis' first point, (that the defendant's evidence as to his actual non-knowledge of the identity of the offences for which the plaintiff was arrested, was erroneously admitted), was decided in favour of the defendant.  His Lordship thought it was his duty to admit the evidence. 

   Mr. Francis had then taken the point of misdirection in leaving the question of actual knowledge to the jury.  His Lordship had directed the jury that if they found actual non-knowledge they must find the knowledge imputed by the law.  Therefore, whatever ground of complaint the defendant might have, the plaintiff had none on this point. The most important argument of Mr. Francis was that the verdict was contrary to the evidence and perverse.  Though his Lordship was still of opinion that the direction to find the knowledge imputed by law was right, was he so satisfied of this as to grant a new trial upon that ground.  He decided to discharge the rule on the grounds that the question of a new trial was a very nice and difficult one,  in  England; that no rule for a new trial had been made absolute in the Colony within the memory of the Officers of the Court extending back 26 years, a proactive which he thought very reasonable in a small Colony; that the plaintiff was a pauper, and could not give security for costs, for which reason he ought not after losing his verdict to be granted a new trial; that the action was a penal one, in which case the Court would not grant a new trial after a verdict for the defendant; and, finally, that the statute was framed to protect the people against the King, hjis Officers, and his Judges, and therefore one of the latter would not grant a new trial after a verdict of a jury either way.

   His Lordship having discharged the rule, proceeded to make the following observation:-

   Although the decision of the Court on the hearing of the first writ of habeas corpus of Kwok Asing does not at all belong to this case, I think it due to myself to take this, my only means of publicly stating, that in the conclusion to which I then came, I, without knowing it, followed the principles enunciated in the United States. In the Armistead case, which is, as I am informed, a leading American decision, the Supreme Court of the United States (of authority there as great as the House of Lords with us) said, in 15 Peter's R. p. 595, "We may lament the dreadful acts by which they asserted their liberty and took possession of the Armistead, and endeavoured to regain their native country; but they cannot be deemed pirates or robbers in trhe sense of the Law of Nations."

   If I had known of this decision I might have adopted the words as my decision on the hearing of Kwok Asing's case.

   The Foreign Office at Washington (called there the State department), Mr. Seward being the Secretary of State, adopted this decision in the case of the Cayalti - that ship, the particulars of which on her first reaching Japan from Peru, were well known at the time here.  The case was similar, in the alleged crimes of the coolies on board, with that of those on board the Nouvelle Penelope, and the charge against them was similar to the charge against Kwok Asing.  In the absence of any other direct authority, if I had known of those decisions at the time, I should have been bound, in so international a question as arose in the case of Kwok Asing, to have followed them.  On legal reasoning, I came to a conclusion similar to that in those cases.  I think it right to append copies of the official  documents which have been procured from the Archives of the United States Embassy in Japan, and which have been forwarded to me from Japan. [Documents follow.]

Source: The North-China Herald, 4 January 1872

HONGKONG.

The judgment which we published last week, by the Supreme Court of Hongkong in the famous Kwok-a-sing case deserves record.  Kwok-a-sing, it will be remembered, escaped to Hongkong from the coolie ship Nouvelle Penelope, - the coolies on board which had risen, killed the captain and several of the crew, and turned the ship back to China.  Several of the coolies who escaped to the mainland were caught and beheaded; and a demand was made for the extradition of Kwok-a-sing.  The man found friends to contest this demand, and elaborate proceedings arose in the Court, resulting eventually in the trial of Kwok-a-sing for piracy and murder, and his acquittal by Judge Smale on the ground that the coolies were detained against their will, and had a right to regain their freedom by any means in their power.

   This decision, which struck a severe blow at the iniquities of the coolie trade, was questioned in some quarters, although generally approved.  Subsequently Kwok-a-sing was advised to being an action against the Attorney-general, for false imprisonment.  The present judgment arises out of that suit, and is interesting from the reference made by Mr. Smale to a judgment similar to his own that has been lately given by a Court in the United States, under precisely similar circumstances. 

   The latter decision applied to the case of a mutiny on board the Armistead, and has been held good also in the case of certain coolies who mutinied on board the Cayalti, two years ago, off the coast of Peru, and who eventually brought the ship to Hakodadi, under circumstances which were fully described at the time in our columns.  The United States Authorities held them justified, for the same reason that the Hongkong Court had justified Kwok-a-sing.

Note

For analysis of this most important case, see Jennifer Wells, "Clashing Kingdoms, Hidden Agendas: The Battle to Extradite Kwok-A-Sing and British
Legal Imperialism in Nineteenth-Century China" (2011) 7 University of Pennsylvania East Asian Law Review 161. Wells cites the formal report of the decision of the Judicial Committee of the Privy Council, Attorney-General of Hong Kong v. Kwok-A-Sing, (1873-74) 5 L.R.P.C. 181. The Judicial Committee decided against extradition, but held that he should stand trial in Hong Kong. Wells does not know whether the final trial was held.

 

Note

For the appeal from this case, see Attorney General of Hong Kong v Kwok A Sing, 1872.

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