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Colonial Cases

In re an Application for Habeas Corpus 1939

[habeas corpus]

In re an Application for Habeas Corpus 1939 

Selected, edited and transcribed by Douglas Clark, barrister, Hong Kong



In re an Application for Habeas Corpus

Before, Sir Penrhyn Grant Jones, Assistant Judge (In Chambers)

Date of Judgment:  17 August 1939

Original Report:  North China Herald, 23 August 1939, 321


This is an ex parte application chambers during vacation by counsel for Margery Fry and Norman Bentwich for a rule nisi to show cause why a writ of habeas corpus ad subjudicendum should not issue directed to certain police officers and others in charge of the gaol of the Municipal Council of the British Concession at Tientsin to have the bodies of "certain four Chinese subjects to are now in their custody at Tientsin and alleged to have been concerned in the murder of Cheng Shi-kang at Tientsin on April 9, 1939" before a Judge of this Court immediately after receipt of such writ.  Counsel have apparently been advised that the names of the prisoners are immaterial, but no authority has been given for that advice and I question its correctness; in my opinion the names should be ascertained and inserted in the writ, and I doubt whether it can issue in so incomplete a form as is here contemplated.  

The writ of habeas corpus, as it is commonly called, is primarily a process for securing liberty of the subject by affording an effective means of immediate release from unlawful release from unlawful or unjustifiable detention, whether in prison or private custody, but the remedy is not confined to British subjects.  "The judges" - I quote from the Hailsham edition of Halsbury's Laws of England, Volume 9 passim - "owe a duty to safeguard the liberty of the subject not only to the subjects of the Crown but also to all persons within the realm who are under the protection of the Crown are entitled to resort to the Court to secure any rights which they may have, and this whether they are alien friends or alien enemies."   It is clear, however, that at common law the writ, though of right, is not a writ of course and issues only on cause shown, and many causes shown in the past are rather of historical interest than of present importance.

Denial of Access

The person illegal imprisoned or detained in confinement without legal justification is, of course, entitled to apply for a writ, but it is not essential that the application should proceed directly from him.  "Any person is entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment, and any person who is legally entitled to the custody of another may sue out the writ in order to regain such custody."  The first of these propositions is supported by cases which are all instances of family applications such as husband on behalf of wife, wife on behalf of husband, and father on behalf of son; the second speaks for itself.  There follows a passage which counsel appeared to attach some importance:  "In any case where access is denied to a person alleged to be unjustifiably detained so that there are no instructions from the prisoner, the application may be made by any relation or friend on the affidavit setting forth the reasons for it being made."  From this passage, however, it would appear that denial of access to the prisoner, with the consequent absence of instructions from him, constitutes a condition precedent to an application on his behalf even by a relation or friend.

Negro Slave Case

The association of relation and friend indicates, I think that "friend" is to be understood in its ordinary and familiar meaning, and I am also of opinion that it must be so understood in Sommersetts Case, (1772), to which counsel for the applicants referred me. The negro slave who escaped from the forcible detention of his master, was seized by persons in his master`s employ and carried on board a ship bound for Jamaica, had found such friends in England who assisted him to regain his freedom by means of the Writ of habeas corpus for which they applied.

The case of Re Gooloo and Invokwana (Infant), 1891, is distinguished from the  present by the circumstances that the rule for a writ was obtained at the instance of the secretary of the British and Foreign Anti Slavery Society which existed for just such a purpose.  The Hottentot Venus Case, (1810), the rule was also obtained by a secretary of a Society, in that case the African Institution, on behalf of a helpless female native of South Africa.  The rule here is sought on behalf of four Chinese who are in custody under suspicion of being implicated in a murder by persons who, in my opinion, are mere strangers or volunteers.  

No Authority

"A mere stranger or volunteer, however, who has no authority to appear on behalf of a prisoner or right to represent him will not be allowed to apply for a habeas corpus"  (R v Carter, (1763), 3 Burr (1383) and this later passage seems to indicate that even denial of access to a prisoner does not entitle persons of this description to apply.  The present applicants have not been shown to have any authority to appear on behalf of these prisoners or right to represent them.  It has, moreover, been said (Ex parte Child (1834) (H C B per Jervis CJ at p239) that a mere stranger has no right to recourse to the Court and that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas corpus to be discharged from restraint.  Counsel for the applicants did indeed suggest at the hearing of the application that that the prisoners in Tientsin were so coerced, but there is no allegation to that effect in their joint affidavit by which the application is supported.  It is to be observed in Ex parte Child the secretary of the Lunatic Friend Society, who was a mere stranger and acting without authority, was held not to be entitled to make an application on behalf of a person who was alleged to be wrongfully detained as a person of unsound mind, and that this case is cited in support of the above passage which concerns "a prisoner."


Every application for a writ, moreover, "must be supported by an affidavit upon which the Court is able to exercise its discretion as to whether the writ shall be issued or not. It should be made by the prisoner or party who claims the writ or by some other person on his behalf and with his authority, or by some person who can satisfy the Court that the person on whose behalf the application is made is so coerced as to be unable to make an affidavit." This passage is based on the Re Parker, Canadian Prisoners' Case, (1839), where a motion for a writ was made on an affidavit of a solicitor on behalf of the prisoners themselves, counsel referred to Hottentot Venus's Case (1810) but the court pointed out that in that case a reason assigned for not producing an affidavit from the party, herself, and stated that before granting a habeas corpus to remove a person in custody the Court must ascertain that an affidavit is absolutely necessary either from the party who claims the writ or from some other person so as to satisfy the Court that he is coerced as to be unable to make it.  There is before me no such affidavit by the prisoners or by some other person on their behalf and with their authority, or by some persons who can satisfy me that that the prisoners are so coerced as to be unable to make affidavits, but merely an affidavit by counsel for the applicants, made of their own information, knowledge and belief as to the facts on which the application is founded, and on the authorities which I have referred the application must be dismissed.

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