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Colonial Cases

Newspaper commentary, Hong Kong

The York Herald, 27 July 1850
  A considerable portion of the time of the House of Commons, has this week been occupied in voting the supply, and in discussions thereon, but every attempt at reduction, has been successfully opposed by the Government.
  On Monday evening, the enormous sum of £20,000 was proposed, for defraying the expenses of the establishments at Hong Kong, when an amendment, was proposed by Mr. Scott, and others, that the estimate be reduced to £15,000.  On a division, however, the vote was carried by 53 against 41.
  The extravagance connected with the colony of Hong Kong, in order to carry out that which can only be considered in the light of an unsuccessful commercial experiment, is truly disgraceful.  It is well-known that all the hopes formed a few years ago, of extending our commerce with China, through the instrumentality of Hong Kong, have turned out to be a complete failure. And yet we are called upon to pay £6,000 a year to the £3,000 to the Chief Justice; £1,500 to the Attorney-General; and many other similar extravagant payments.  All this is required for a paltry colony which has no trade, and in which only ten British merchants, one Danish merchant, two or three agents for American houses, and one German agent reside.  The cost of collecting the revenue of the colony, which is diminishing, and which last year amounted to £23,000, is ten per cent. According to the statements of Mr. Scott, we pay £1,450 for the Surveyor-general's department at Hong Kong, or about 300 per cent., the whole of the money passing through that department last year being only £500. The harbour-master and his department cost £1,167, and his duties are discharged by a Lascar, who writes down the names of the few vessels that anchor at Hong Kong, and who received £300 a year for performing the duty. For laws and order in the colony, in which the European inhabitants number about six hundred, we pay £15,318 1s. 6d., or at the rate of twelve shillings per head on the entire population of 23,000. Then there has to be added, the cost of jails, and also that of police, who are so inefficient that all the merchants have to keep police of their own.   Anything more monstrous than this system was never known in the annals of justice, equity, or extravagance.
  In addition to Hong Kong, the ports of Ningpo and Foo Chow Foo are also comparatively valueless to us, as few or no British ships resort to them. Accordingly, when votes amounting to £4,322 for the consular establishments were proposed, Mr. Cobden moved, as an amendment, that the votes be struck out altogether. On a division, however, the amendment was rejected by a large majority, and the votes were sanctioned.
  Whilst our expenditure on the coast of China has been constantly increasing, our exports have been nearly stationary. This circumstance appears to be mainly attributable to the injudicious selection of the ports we now hold, some of which are burdened with commercial restrictions, in the form of transit duties in the interior, that altogether exclude trade. Unless, therefore, we succeed in the negotiations now going on for exchanging these ports, and also effect a great change in our present policy, we shall altogether fail in realising those great advantages from our intercourse with China, we once so sanguinely anticipated. But, under any circumstances, it is the duty of the Government to reduce the enormous expenditure of our establishments in China. To give the consuls of these petty ports from £1,200 to £1,800 a-year, when the consuls in the large cities of Europe and America are only receiving £500, and to pay all the other officials on an equally extravagant scale, is altogether so unreasonable, uncalled for, and unjust, that we are astonished a majority can be found in the House of Commons, to sanction so monstrous a waste of the public finances.


The North China Herald, 22 February 1877


(China Mail.)

   A question may probably be raised shortly in our Law Courts, to decide whether a Joss is moveable or immoveable property - in other words, whether it is or is not a fixture. 

   It may be remembered that among the tenements on Rangel's property, sold by public execution a short time ago, was the Sing Wong Temple, where the Joss of Sing Wong, with its satellites, had their domicile.  The whole ground was afterwards resumed by the Government, but sufficient time had elapsed between the purchase and the resumption to entitle the buyer to give notice to the Joss-house lessee of an increase of rent of nearly one hundred per cent, and while the question of rental was being discussed, notice was served on all parties concerned that the government intended to resume the whole ground, together with the buildings thereon.  In due time the lessee vacated the Joss-house and was about removing the Josses in the Temple, when the purchaser intervened and claimed them as his property, inasmuch as he having bought the place in the first instance, all the fixtures that were in it were his, presuming that the Josses were fixtures. At any rate, he claimed the Josses to be his, as they formed no part of the lessee's furniture. On the other hand, the lessee contended that, although they were not part of his furniture, the possession of them had been dedicated to him.  Moreover, they were part and parcel of the "tools" of his profession as the priest of the temple.

   Now, if ever this knotty question should be submitted to the decision of a Court of justice, we imagine it would severely test the wits of any lawyer, however well he might be versed in the law of rights of property, for there are no less than five individuals who could be made parties to the suit, and there is the question whether the Josses are moveable or immoveable property.  For the sake of argument, let us say they are moveable property.  This leaves the question as far from settlement as ever, for, presuming the purchaser to be the plaintiff and the lessee the defendant, there are the interests of the government to be considered.  It resumes the ground, and is practically the owner of everything immoveable.  Now the Government sells all the materials of the buildings on the ground to a contractor, and this individual has a claim to the Josses as forming part of the materials so purchased by him.

   Another body of claimants here step in, namely, the donors who dedicated the Josses to the temple.  They say they originally paid for the Josses, and so long as the gods remained in the temple, they continued to be the property of the public; but inasmuch as the temple is to be pulled down and removed elsewhere, the donors have a right to reclaim then, their use having been thus diverted from the object for which they were primarily presented.

   In view of all these difficulties, the Registrar General, has, we believe, taken possession of the Josses and lodged them temporarily in the Government Store.  But we fancy an action in trover by any of the claimants referred to might be sustainable against this official; but what will the lawyers say to this?  Will the Habeas Corpus Act be applicable in such a case or not?


North China Herald, 25 April 1884
  A Correspondent signing himself "Fiat Justitia" has drawn our attention to an extradition case now pending in Hongkong, the importance of which from an international point of view cannot well be over-estimated.  It concerns a party of eleven Chinese Catholic converts, who, to escape from the well-known tortures inflicted upon persons suspected of murder, have fled from their native province of Kuangtung to the neighbouring British colony.  It has not, we believe, been proved that the persons in question are guilty.  They had been staying with some friends in a certain village, and during their sojourn a murder was committed in their immediate neighbourhood.  The fact of their being Roman Catholics was sufficient in itself to excite a suspicion against them, and a persecution was thereupon set on foot by one of the local clans, in deference to whom, apparently, the authorities of the district attempted to imprison the accused.  These, however, escaped, and are now under arrest in Hongkong; the Chinese mandarins insist upon their being given up, and in this they are supported by Earl Granville.  It must be confessed that here we have the painful and puzzling pat of the affair.  It is apparently on the representations of the Marquis T'eng that the Secretary of State for Foreign Affairs has so far influenced the Colonial Office as to cause instructions to be sent out to that effect.
  We can scarcely believe that in acting thus Lord Granville had no more evidence before him than that adduced by our Correspondent in his letter.  At the same time, it is equally difficult to divine what the nature of such evidence can be; and it is a noteworthy fact that hitherto, at any rate, Sir George Bowen has not acted upon his instructions.  Now our Correspondent has enlarged upon this subject at considerable length, and quoted Suarez, Dr. Holland, and other well-known authorities on International Law in support of his contentions.  This is doubtless relevant enough, and his remarks on this head lend much cogency to the general scope of his argument; but while satisfactory to English readers and English  diplomatists, it is  scarcely to be expected that reasoning based upon the assumption that China is in many respects a barbarous country will commend itself very strongly to the Chinese themselves.  Happily it is not necessary that it should.  It is quite sufficient for us that the Treaty of Tientsin is explicit and unmistakeable in its utterances upon this very point, and in the 21st Article we find all we require for our guidance.  This is to the following effect:-
  If criminals, subjects of China, shall take refuge in Hongkong, or on board the British ships there, they shall, upon due requisition by the Chinese authorities, be searched for, and, on proof of their guilt, be delivered up.
  The only ambiguity in the wording of this Article is the use of the word 'criminals' as applied to persons whose guilt has not yet been proved.  By English law, every man is held innocent until he is proved to be guilty; and the more accurate expression, therefore, would be 'persons accused of any crime.'  However, let that pass.  The main point is that, whatever they may be they are only to be given up on proof of their guilt; and in the present instance that proof has not yet been forthcoming. It seems obvious, therefore, that the proper course would be for the prisoners to be placed upon their trial in Hongkong.  True, there might be a technical difficulty in trying persons in one country for an offence alleged to have been committed in another; yet how, otherwise, is their guilt to be proved? Here is a nice dilemma; but though the law may be indirect, the practice is plan enough.  Under the Treaty of Tientsin, the Chinese have no right whatever to demand the rendition of these men until their guilt is proved; and unless a proper examination is held before a properly constituted tribunal, in which he evidence of witnesses is taken down and sifted by experienced lawyers, we do not quite see how any proof is to be forthcoming.  Certainly it would be entirely opposed to both the spirit and the wording of the Article we have quoted for the men to be given up on the bare assertion of the provincial mandarins.  Unless the prisoners have been already tried and convicted, there is no legal proof in existence that they are guilty of the charge brought against them; and we know that is not the case.  They are simply suspects; and putting aside the theory - true enough, perhaps, but not relevant to our purpose - that they are the victims of a religious persecution, there is no provision in any of our treaties that suspects should be given up.  Sir George Bowen probably knows this as well as we do, and we have every confidence that he will maintain the integrity of British rights in this most important matter.
  One word, in conclusion, to e Chinese.  For a long time it has been their loudly-uttered complaint that French missionaries stand between converts and their rulers, and protect criminals from the law.  We do not intend to go into this question now.  We only wish to point out to the Chinese authorities that the present case, at any rate, does not come under that head.  It lies solely and entirely between certain Chinese refugees and the British authorities in Hongkong.  That Bishop Raimondi should exert himself on behalf of the former is only natural and right; though we fail to see that he can do very much.  France has nothing to do with the matter, not, indeed, have any French missionaries.  The bearings of the case would be precisely the same if the refugees were Buddhists or Confucianists; the fact of their being Catholics is nothing whatever to the point.  We only know that these eleven persons are Chinese subjects who have fled for protection to Hongkong under an accusation which has hitherto been unsupported by evidence. If their guilt be proved to the satisfaction of the judicial authorities in Hongkong, then they must be given up; but until it is so proved, any such concession to Chinese demands would be contrary to the British Constitution, and at variance with the express stipulations of the Treaty of Tientsin.

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