COUNSEL: The Attorney-General (Sir J. D. Coleridge), the Solicitor-General (Sir G. Jessel), and Mr. C. Bowen, for the Appellant.

Mr. Fitz-James Stephen, Q.C., and Mr. A. P. Stone, for the Respondent.

 

SOLICITORS: For the Appellant: The Queen’s Proctor.

For the Respondent: Shaen, Roscoe, & Massey.

 

JUDGES: Sir J. Colvile, Sir R. Phillimore, The Lord Justice Mellish, Sir Barnes Peacock, and Sir Montague E. Smith.

 

DATES: 1873 May 13, 14, 15; June 19.

 

 

ON APPEAL FROM THE SUPREME COURT OF HONG KONG(1).

 

Hong Kong Ordinance, No.2 of 1850 – Treaty of the Bogue – Treaty of Tientsin – Extradition of Criminals – Interpretation of the Words “Crimes and Offences against the Laws of China” – Definition of Piracy jure gentium – Habeas Corpus Act, s. 6.

 

It is a provision of the Hong Kong Ordinance, No. 2 of 1850, that, where it may appear to a magistrate or Court that there is probable cause for believing that a Chinese, who has taken refuge at Hong Kong, has committed “any crime or offence against the laws of China,” he may be imprisoned with a view to his being surrendered to the Government of China:–

 

Held, that the words “crime or offence” must be limited 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, such as murder, robbery, theft, or arson, committed by a Chinese within Chinese territory, or in Chinese ships on the high seas; piracy, moreover, in certain circumstances would

 

(1) The MS. notes of the late Mr. Moore, Q.C., have been used in the preparation of this report. [*180] come within the Ordinance, as for example if a Chinese went from the Chinese coast to plunder ships at sea, returning again to China with his plunder.

 

Where a Chinese, who had taken refuge in Hong Kong, was accused of having previously murdered a French captain of a French ship at sea, it was held that he could not be imprisoned and delivered up to the Chinese Government under the Ordinance; on two grounds – 1. That it could not be assumed without evidence, that there was any law in China to punish a Chinese subject for a murder committed upon a foreigner within foreign territory; and, 2. That, even if it could be so assumed, still the offence having been committed within French territory, ought to be treated as an offence against French and not as an offence against Chinese law.

 

Where some of a large number of Chinese coolies, who were being taken from China to Peru in a French ship, killed the captain and several of the French crew, and then took the ship back to China, they were held to have been guilty of piracy jure gentium. But the piracy was held not to be an offence against the law of China within the meaning of the Ordinance. If they committed an act against the municipal law of any nation, it was against that of France; and if they were punishable by the law of China, it was only because they had committed an act of piracy, which jure gentium is justiciable everywhere.

 

One of these coolies, who had taken refuge at Hong Kong, had been imprisoned with a view to being surrendered to the Chinese Government on the ground of his having feloniously seized the ship at sea and murdered some of the crew, and had been brought up on a writ of habeas corpus, and discharged by the Chief Justice of Hong Kong. Thereupon he was again arrested on a warrant for piracy jure gentium. On being brought up again on a writ of habeas corpus, he was again discharged by the Chief Justice, on the ground that he had been committed a second time for the same offence, contrary to the 6th section of the Habeas Corpus Act. On appeal it was

 

Held, by the Judicial Committee, that the first order of discharge should be upheld, but that the second order of discharge should be reversed.

 

The 6th section of the Habeas Corpus Act applies only where the second arrest is substantially for the same cause as the first, so that the return of the second writ of habeas corpus raises for the Court the same question with reference to the validity of the grounds of detention as the first.

 

The Chief Justice having been of opinion that the ship was a slave ship, and that the coolies were justified in killing the captain and crew for the purpose of obtaining their liberty; the Judicial Committee thought the evidence before him did not prove this.

 

Piracy defined as “robbery within the jurisdiction of the Admiralty.”

 

THIS was an appeal from two orders of the Supreme Court of Hong Kong, whereby Kwok-a-Sing, a Chinese coolie, was twice released from custody on writs of habeas corpus.

 

On the 30th of September, 1870, a French vessel, called La Nouvelle Pénélope, sailed from Macao, in China, with 310 coolie emigrants, including Kwok-a-Sing, bound for Peru in South America. [*181]

 

These emigrants were shipped in conformity with certain regulations in force at Macao in relation to Chinese emigration, and had before embarkation complied with the formalities prescribed by the law of Macao, and declared their willingness to emigrate on the conditions contained in certain contracts signed by them. From the “barracoon,” where they were kept for a time, they were taken on board the ship in boats guarded by Portuguese soldiers. On board, they were kept below at night, but by day they were allowed to be on deck in the fore part of the ship. Separating them from the crew were strong barriers across the deck, with a cannon at each door of the barrier. From the evidence it appeared that about 100 of the coolies complained of being kidnapped, but Kwok-a-Sing was not one of those who so complained. Kwok-a-Singand seven other emigrants were selected by the captain at the commencement of the voyage to act as head men or corporals for the purpose of keeping order among the coolies; and for this they each received a salary in addition to the advance money.

 

On the 4th of October, 1870, when the vessel was at sea, Kwok-a-Singand several of the other coolies made a sudden attack on the captain and others of the crew, killed them, and threw their bodies overboard; they then took possession of the ship, and compelled the remaining seamen to conduct it back to China.They then landed and abandoned the ship. Some of the coolies were arrested in China and tried there. But Kwok-a-Sing, for whose apprehension a reward was offered, went to Hong Kong.There he was arrested and charged before a magistrate as a suspicious character and a person dangerous to the peace and good order of the colony. Whilst he was so under arrest, on the 3rd of February, 1871, a letter was addressed by the Colonial Secretary to the magistrate, stating that an application had been received from Her Majesty’s Consul at Canton, claiming on behalf of the Chinese authorities the rendition of Kwok-a-Sing. Accordingly, at the close of the investigation, he was committed to prison under the following warrant:–

 

“Charles May, Esquire, one of Her Majesty’s Justices of the Peace for the said colony, to H. Manskey, Constable of Police in the said colony, and to the Superintendent or Keeper of the Gaol of Victoriain the said colony. [*182]

 

“Whereas the above-mentioned Defendant was on this date duly convicted before Charles May, Esquire, one of Her Majesty’s Justices of 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 Chinaby participating in the murder of a portion of the crew of the French ship Nouvelle Pénélope, 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 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 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, 1871.

 

“C. May, Police Magistrate.”

 

This warrant was issued under the Hong Kong Ordinance, No. 2 of 1850, which enacts as follows(1):–

 

“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 or offences against their own Government, and afterwards taken refuge in Hong Kong:

 

“I. Be it therefore enacted and ordained by his Excellency the

 

(1) Hertslet’s Treaties, vol. x. p. 50. [*183]

 

Governor of Hong Kong, 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 Hong Kong, 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 a 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.

 

“III. And be it further enacted and ordained, That if at the close of the said investigation it shall appear to the said magistrate or Court that such 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 Hong Kong relative to the further detention, discharge, 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 Hong Kong 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.”

 

Previously to the passing of this ordinance, a treaty, called the Treaty of the Bogue, had been entered into with China, whereby it was agreed that if law less natives of China, having committed crimes or offences against their own Government, shall flee to [*184] Hong Kong, a communication shall be made to the proper English officer, that these criminals and offenders may be seized, and on proof or admission of their guilt be delivered up(1).

 

Treaty of the Bogue, Art. IX.:– “If lawless natives of China,having committed crimes or offences against their own Government, shall flee to Hong Kong, or to the English ships of war, or English merchant ships, for refuge, they shall, if discovered by the English officers, be handed over at once to the Chinese officers for trial and punishment; or if, before such discovery be made by the English officers, it should be ascertained or suspected by the officers of the Government of China, whither such criminals and offenders have fled, a communication shall be made to the proper English officer, in order that the said criminals and offenders may be rigidly searched for, seized, and, on proof or admission of their guilt, delivered up. In like manner, if any soldier or sailor, or any other person, whatever his caste or country, who is a subject of the Crown of England, shall, from any cause or on any pretence, desert, fly, or escape into the Chinese territory, such soldier or sailor, or other person, shall be apprehended and confined by the Chinese authorities, and sent to the nearest British Consul or other Government officer. In neither case shall concealment or refuge be afforded.”

 

Subsequently to the treaty and the ordinance, there was a war between England and China. And in 1858 the Treaty of Tientsinwas concluded between England and China. By this treaty the Treaty of the Bogue was abrogated, and new provisions were made for the extradition of criminals from Hong Kong to China(2).

 

Treaty of Tientsin, Art. XXI.:– “If criminals, subjects of China, shall take refuge in Hong Kong, 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.”

 

Immediately after the commitment of Kwok-a-Sing, a writ of habeas corpus to discharge him was granted by Sir John Smale,Chief Justice of the Supreme Court of Hong Kong. The return to the writ set out the above-mentioned warrant of the magistrate. Objections were raised as to the validity of this return, and were

 

(1) Hertslet’s Treaties, vol. vi. p. 265.

 

(2) Ibid. vol. xi. p. 90. [*185]

 

argued before the Chief Justice. Judgment was delivered by him on the 29th of March, 1871, and Kwok-a-Sing was ordered to be released. The Chief Justice’s decision was based on several grounds; inter alia, he said:–

 

“It is clearly now intended that on a treaty ceasing to be in force the provisions for rendition under it are to cease. It seems to me that there must always have been the like intendment in English law, and that this construction must be adopted as to the Ordinance No. 2 of 1850, and that its operation ceased when the Treaty of the Bogue was first suspended and then absolutely abrogated, and that it required a new ordinance to carry the entirely new arrangement of 1858 (which differed very much in detail from the Bogue Treaty) into effect. I think I must here assume that the maxim, cessante ratione cessat ipsa lex, Broom’s L. M. 160, applies to this ordinance, this law. ….

 

“I must follow the decision in Re Ternan (1), especially as the principle appears to have been approved in America (see Re J. C. Bennett (2)), and say in this case, as was said in that, the crime, if anything, is piracy, and being justiciable here, if there be any crime, there is no ground for giving up the man. It is beyond doubt that political criminals are not to be given up, though within the letter of the treaty, neither is a Chinese subject to be given up, if justiciable here, e.g., for piracy. ….

 

“Right to rendition is confined to crimes committed within the country demanding it. Involved, however, in this point is the fact proved beyond question that the crime ‘charged’ was an act committed on the high seas, and also on board what is said to be a French ship. This opens another objection to this demand of rendition by China. I readily follow the very high English, the highest individual authority in England, which lays down broadly that the country demanding the criminal must be the country in which the crime is committed (1 Phil. Inter. Law, p. 413). If this be good law, as I must hold it to be, and if the opinion given in Allsop’s Case (3), and if the opinion of Cushing, Attorney-General, was properly adopted and acted on in the United States, in David’s

 

(1) 9 Cox C. C. 522; 33 L. J. (M.C.) 201.

 

(2) 11 L. T. (N.S.) 488.

 

(3) Forsyth, C. & O. 368. [*186]

 

Case (1), then China cannot have in this case the right to demand rendition, because the crime, murder, for which rendition is said to be claimed, was committed at sea, and not in China. Assume what is not (but which ought to be proved: R. v. Björnsen (2)), that this was a French ship, should a claim for the rendition of this man by France be acceded to? The same very high authority would say, ‘No; the usual course is to refuse the request of both the applicants’ (1 Phil. I. L., p. 414). ….

 

“I hold that the prisoner was beyond question under unlawful coercion, assuming, as I must and do assume, that the law on board the Nouvelle Pénélope to be the same as the English here is; and on the authority of The Felicidade (3), referred to and commented on in 1 Phil. Int. Law, 333, 334, it is to me clear that, according to English law, a man under unlawful restraint of his personal liberty at sea, as well as on shore, has a right to take life to free himself from such constraint on his personal liberty; and, further, on the authority before cited, to use his master’s or captor’s property necessary to effect his object, that object being in itself not only a lawful, but a laudable object: this would seem to be the first law of nature, the right of self-preservation, of liberty equally with life, which is fully sustained by text-books and cases. ….

 

“I must say that, however horrible was the scene of contest, and the carnage on board the Nouvelle Pénélope, the depositions disclose such acts of enslavement, and of illegal coercion on the part of the captain and his agents, all the testimony being ex parteout of the mouths of the coerced or hostile witnesses for the prosecution, as shew that there was no violence or robbery beyond what was absolutely necessary to regain liberty, and that this prisoner, Kwok-a-Sing, was guilty of no offence whatever cognizable by English law. If I had to charge a grand jury as judge, I should so lay down the law; and if I were a grand juror myself, I should, upon such an indictment, for either murder, manslaughter, or robbery, find ‘no bill’ against this man.”

 

The rendition of Kwok-a-Sing had been claimed on behalf of the French Government by the French Consul on a charge of

 

(1) Forsyth, C. & O. 364.

 

(2) 10 Cox C. C. 74.

 

(3) Den. C. C. R. vol. i. pp. 104-154. [*187]

 

murdering M. Le Vigoureux, the captain of the ship; but after the delivery of this judgment, the French Consul abandoned his claim, protesting against the decision.

 

The Chief Justice having stated that the crime, if anything, was piracy jure gentium, and therefore justiciable at Hong Kong,the Attorney-General of Hong Kong caused Kwok-a-Sing to be arrested on the 26th of April, 1871, on the charge of piracy jure gentium. He was thereupon committed to prison under the following warrant:–

 

“At the Police Court, Victoria, in the colony of Hong Kong.In the cause in which the Queen, at the complaint of W. M. Deane, Captain Superintendent of Police, is Complainant, and Kwok-a-Sing, of Ponyii, stevedore, Defendant.

 

“Charles May, Esquire, one of Her Majesty’s Justices of the Peace for the said colony, to Charles Bond, Constable of Police, in the said colony, and to the Governor or Keeper of the gaol at Victoria, in the said colony.

 

“Whereas the above-named Defendant was charged before me, on the testimony of credible witnesses, for that the said Defendant on 4th October last past, with a number of other evil-disposed persons unknown, with arms, upon the high seas, within the jurisdiction of the Admiralty of England, in and on board a certain ship or vessel called the Nouvelle Pénélope, upon the high sea, then being in and upon one Vigoureux, the master of the said ship, the officers and seamen of the said ship, in the peace of God and our Lady the Queen, then and there being, piratically and feloniously did make an assault, and the said ship, and the apparel and tackle of the said ship, feloniously and violently did steal, take, and carry away, and immediately before the commission of the said felony the said Defendant and the evil-disposed persons aforesaid did feloniously and wilfully, and of their malice aforethought, kill and murder the said Vigoureux, the muster, Manfillut, the chief officer of the said ship, and Le Jusant, Paul Gigot, Franois Labert, Edmund Mongaret, and Ishmael Alphonse, seamen, and a certain Manilla seaman, whose name is not known, of the crew of the said ship; and it was thereupon ordered that the said Defendant should be committed to prison, to take his trial for the said offence at the [*188] next Criminal Sessions of the Supreme Court to be holden at Victoria, in the said colony. These are therefore to command you, the said constable, to take the said Defendant, and him safely to convey to the said gaol, and there to deliver him to the said keeper, together with this precept. And I do hereby command you, the said keeper, to receive the said Defendant into your custody in the said gaol, and him there safely to keep until he shall be thence delivered by due course of law.

 

“Given under my hand and seal this 10th day of May, 1871.

 

“C. May, 1st Police Magistrate.”

 

A second writ of habeas corpus was issued, and a return made, setting forth this warrant.

 

The case was argued before the Chief Justice, and Kwok-a-Singwas discharged, on the ground that the second arrest was a violation of sect. 6 of the Habeas Corpus Act. In his judgment, the Chief Justice said:–

 

“Mr. Francis, Kwok-a-Sing’s attorney, deposes that the piratical and felonious acts deposed to against Kwok-a-Sing on this second occasion are the same felonious acts and no other as those in respect of which he was on the 7th of February committed. He also deposed that Kwok-a-Sing was on the 10th of May committed by Mr. May, and the offence charged in that warrant is the same and no other as that for which he was committed on the 7th of February last. No affidavit in contradiction or explanation having been filed, I must take these statements, so far as they are statements of facts and not conclusions of law, as established for the purposes of the present decision. …. Now, considering that the Habeas Corpus Act was passed, inter alia, to prevent oppression by repeated arrests for the same offence, I read the operative words of sect. 6 as applicable to this prisoner, thus: that no person set at large upon any habeas corpus shall be again imprisoned or committed ‘for the same offence,’ by any person other than by the legal process of the ‘Court having jurisdiction of the cause.’ I am of opinion that the subsequent part of this section which gives a right of action need not be referred to for the purpose now before me. Now, as I have said, I am bound to believe the uncontradicted affidavit, that [*189] the offence mentioned in each of Mr. May’s commitments is one and the same, and no other; moreover, the bad act which is the meaning of ‘offence,’ as set out in each column, appears to me to be the same in substance. Now, who or what has authority given to him or it to again imprison or arrest the man set at large? The ‘Court having jurisdiction of the cause,’ and no other. Can Mr. May, or can his Court, be so designated? Cox v. Coleridge, 1 B. & C. 37, but which I always read in 3 Burns’ Jur., by Chetwyn, 1825, a most instructive case, with which I was more familiar some thirty or forty years ago than now, shews that although when sitting to punish under a statute, Mr. May sits as a Court; yet that when he sits as a magistrate with a view to committal for trial before this Court, his magistracy is not a Court; his is a ‘preliminary inquiry’ and not a ‘trial.’ But concede it to be a ‘Court,’ has it or can it have ‘jurisdiction of the cause’? Now jurisdiction is an authority jus dicere, which has been well translated ‘to pronounce judgment,’ to give a judicial decision, that is, to end and determine the cause; which Mr. May certainly has no authority to do. This simple etymological analysis conclusively, to my mind, excludes Mr. May’s power to commit, as an exception to the general prohibition of a second commitment in the 6th section. ….”

 

Subsequently to this Judgment a declaratory Ordinance was passed by the Legislature of Hong Kong to remove doubts as to the application of Ordinance No. 2 of 1850 to the Treaty of Tientsin; and it was thereby declared that Ordinance No. 2 of 1850 shall be deemed to apply to that treaty.

 

On the 5th of February, 1873, leave was granted by Her Majesty in Council to bring the present appeal to reverse the two orders of discharge.

 

The Attorney-General (Sir J. D. Coleridge), the Solicitor-General(Sir G. Jessel), and Mr. C. Bowen, for the Appellant:–

 

The Ordinance of 1850 is still in force, and is applicable to the Treaty of Tientsin.

 

[LORD JUSTICE MELLISH:– There is no doubt that in Englandno treaty unconfirmed by Act of Parliament would be sufficient to [*190] enable a person to be given up. How far that may be so in a Crown colony, I do not know.]

 

The Treaty of the Bogue was not wholly put an end to by the war; for it was revived on the declaration of peace. After a war the general treaties are usually revived, sometimes in express terms, sometimes by some act of recognition. On the revival of the treaty, it was not necessary to re-enact the Ordinance that was applicable to the treaty. On the making of the Treaty of Tientsin,although the Treaty of the Bogue was abrogated, it was in reality included in the new treaty together with some improvements. Moreover, the Legislature of the colony has now passed a declaratory enactment declaring that the Ordinance of 1850 refers to the Treaty of Tientsin.

 

[LORD JUSTICE MELLISH:– There is no case, that I know of – and it appears to me to involve an important principle – where, even if a declaratory statute is passed after a formal decision of a Court, it has altered that decision. The Court of Appeal has to decide whether the Judge did right at the time he decided the case. The new Ordinance no doubt applies to litigation, which is going on at the time; but the question is, does it apply so as to make erroneous a judgment which has already been given?]

 

The new Ordinance declares what the law is now, and what it always was; the Chief Justice, therefore, took an erroneous view of the law, and his decision ought to be reversed by the Court of Appeal.

 

[LORD JUSTICE MELLISH:– I have an impression that a Crown colony has not jurisdiction to make such a law. It was held in Phillips v. Eyre (1) that it can pass acts for indemnifying people; but I think everybody was of opinion on that occasion that they clearly could not have passed an Act of Attainder; and this is substantially an Act of Attainder on your hypothesis.]

 

This is a Crown colony, and the Queen can give any powers.

 

[LORD JUSTICE MELLISH:– She cannot give a power which deprives English subjects of their rights. She cannot give a power, for instance, to make torture lawful in Hong Kong. ]

 

We are not prepared to say she cannot, unless you find an Act of the Imperial Legislature cutting short the power.

 

(1) Law Rep. 4 Q. B. 225; Law Rep. 6 Q. B. 1. [*191]

 

With regard to the charge against Kwok-a-Sing, murder committed by a Chinese is an offence against the laws of China,wheresoever it is committed, and consequently comes within the Ordinance. Here a Frenchman was murdered by a Chinese on board a French ship at sea; nevertheless it is an offence against the Chinese law. It is not necessary for us to prove this; for the Court will assume that murder is an offence against the laws of all civilized nations, and is therefore an offence against the laws of China. All that was required before the magistrate was a primä facie case. If the crimes that come within the Ordinance of 1850 are to be limited at all, they should be limited to all such crimes as would, if committed by a British subject, be justiciable by the Courts of Hong Kong.

 

With regard to the crime being piracy jure gentium, that is a crime against the laws of every country; and is, ö fortiori, a crime against the laws of China. Thus, although the charge of piracy might be justiciable at Hong Kong, nevertheless he ought to be given up to China under the Ordinance and the Treaty. For he clearly was guilty of piracy.

 

As to the second order of discharge, it was based on Kwok-a-Sing’s having been arrested for the “same offence.” But the offence was in reality wholly different. The facts leading to the arrest were the same; but the same facts may give rise to several different offences.

 

Mr. Fitz-James Stephen, Q.C., and Mr. A. P. Stone, for the Respondent:–

 

It would seem to be a reasonable interpretation of the Habeas Corpus Act that when a man has been committed on one set of facts, and the Court has allowed a discharge under the Act, then he should not be imprisoned again on the same set of facts. However, it does not make much difference whether the second order is right or not, for it did not act as an acquittal; Kwok-a-Sing is still liable to be tried on the charge.

 

With regard to the first order, the Chief Justice of Hong Kongwas of opinion that the Ordinance No. 2 of 1850 was no longer of any effect. It is clear that the Treaty of the Bogue was put an end to by the war, and afterwards was expressly abrogated by the [*192] Treaty of Tientsin. Thereupon the Ordinance, which was passed for the purpose of carrying the treaty into effect, also came to an end. It cannot be contended that the Ordinance would stand independently of the treaty, for when the treaty no longer existed, there was no machinery for the execution of the Ordinance. If it was intended that the Ordinance should refer to the Treaty of Tientsin, the Legislature ought to have passed some enactment expressly to that effect.

 

[LORD JUSTICE MELLISH:– Supposing we had the misfortune to have a war with France, and at the end of the war it was said all the treaties, including the Extradition Treaty, should come into force again, I should doubt whether it would require a fresh Act of Parliament.]

 

It is said that the new Ordinance is declaratory – that it declares that the Ordinance of 1850 always did refer to the Treaty of Tientsin. This new Ordinance was passed after the delivery of the Chief Justice’s judgment. If the Privy Council are to consider this new Ordinance in their consideration of the appeal, there would be in effect an appeal from the Chief Justice to the Legislature of Hong Kong. The new Ordinance is intended to be merely a declaration of the way in which the law shall be read for the future.

 

The charge against Kwok-a-Sing is the murder of a Frenchman by a Chinese on board a French ship at sea. It has not been shewn that this is an offence against Chinese law. A corresponding act by an Englishman would not be an offence against the Common Law; it could only be tried in England under a recent statute. But even if the murder be an offence against Chinese law, it does not come within the Ordinance of 1850. There must be some limitation on the words of that Ordinance. Persons charged with political crimes, for instance, could not be given up, although what they had done might be an offence against the law of China; nor could persons charged with transgressing the Chinese ceremonial law. The words of the Ordinance must be subject to all reasonable exceptions, such as where the more humane laws of more civilized nations differ from those of China. It would be an extraordinary arrangement, if we gave up persons not guilty of offences under the [*193] English Law: Anderson’s Case (1); Re Ternan, or Re Tivnan (2); Re Windsor (3).

 

The crime that was committed, if any, was piracy jure gentium,and is therefore justiciable at Hong Kong. That being so, he ought not to be given up to the Chinese to be tried by them, but he ought to be tried at Hong Kong. But the crime was not piracy jure gentium; because, to constitute that, there must have been violence ab extra, or the ship must have been run away with for the purpose of depredation.

 

However, we contend that no crime was committed. The coolies had reasonable ground for supposing that they were deprived of their liberty by the captain and crew of the ship; they took possession of the ship, and used a certain amount of violence with a view to recovering their liberty; and in estimating the amount of violence that would be reasonably necessary under those circumstances, we must apply a different standard in the case of ignorant Chinese coolies from that which would be applied in the case of Europeans.

 

An appeal ought not to be heard on a case of habeas corpus,inasmuch as there is no final conclusion arrived at by the decision of the Judge: Queen v. Bertrand (4); Re Nahon and Pariente (5).

 

The Solicitor General replied.

 

In the course of the arguments the following were referred to:– Legislative Assembly of Victoria v. Glass (6); United States v. Smith (7); United States v. Palmer (8); Bennet v. Burley (9).

 

June 19. Judgment having been reserved by their Lordships was now delivered by

 

THE LORD JUSTICE MELLISH:–

 

This is an appeal by the Attorney-General of the Colony of Hong Kong from a judgment of the Supreme Court of that colony,

 

(1) 20 Upper Canada Q. B. Rep. 124.

 

(2) 33 L. J. (M.C.) 201; 9 Cox C. C. 522.

 

(3) 34 L. J. (M.C.) 163.

 

(4) Law Rep. 1 P. C. 530.

 

(5) 2 Knapp, 66.

 

(6) 7 Moore, P. C. (N.S.) 449.

 

(7) 5 Wheaton, U.S. 153.

 

(8) 3 Wheaton, U. S. 610.

 

(9) 1 Upper Canada Law J. 46. [*194]

 

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 a judgment and order of the same Court, dated the 22nd 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,Hong Kong. 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 above-mentioned 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 Pénélope; 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 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 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 seventh [*195] 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 IXth 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, having committed crimes or offences against their own Government, shall flee to Hong Kong, a communication shall be made to the proper English officer, that the said criminals and offenders may be seized, and on proof or admission of their guilt be delivered up.

 

Ordinance No. 2, of 1850, was passed by the Legislative Council of the colony, and the material parts of it were as follows [see ante, p. 182.]

 

By the Treaty of Tientsin, made the 26th of June, 1858, new provisions were made with regard to the extradition of criminals from the colony of Hong Kong to the Chinese Government, in substitution of those of the Treaty of the Bogue, which was abrogated.

 

The depositions taken before the magistrate, 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 Assan, 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 Pénélope, 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 Akeesaid that he was kidnapped, which he explained to mean that he had been persuaded by a fraud 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 [*196] they were kidnapped. There was no proof that Kwok-a-Sing had been kidnapped, or that he was among those who said they had been kidnapped. The master of the ship and the 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-Singwas one of those selected. At half-past four on the afternoon of the 4th of October, 1870, when the ship was prosecuting her voyage on the high seas, about twenty of the coolies collected near a seaman, who was keeping guard at a barrier that was placed across the deck, attacked him, and threw him overboard. They afterwards attacked the captain, who was walking unarmed on the deck, killed him, and threw him overboard. They also killed several 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 on the coast of China, Kwok-a-Sing and other coolies left the vessel in a boat. The vessel 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:–

 

“Hong Kong.

 

Colonial Secretary’s Office,

 

“Sir,

 

3rd February, 1871.

 

“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 at Canton, claiming on behalf of the Chinese authorities the rendition of the man Aping, who is charged with participation in the murder of a portion of the crew of the French ship Nouvelle Pénélope.

 

“I have, &c.,

 

“J. Gardiner Austin,

 

“C. May, Esq.,

 

“Colonial Secretary.

 

“First Police Magistrate.” [*197]

 

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 18th of April, 1871, ordered Kwok-a-Singto be discharged.

 

On the 26th of April, 1871, the Attorney-General caused Kwok-a-Singto be again arrested on a charge of piracy jure gentium,with a view to his trial on that charge before the Supreme Court of Hong Kong. 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 22nd of May, 1871, he was again ordered to be discharged, upon the ground that his second 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 primä 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 first 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 an offence is to be given up to the Chinese Government. If this were the meaning of the words, every Chinese who had done something which the law of Chinatreats as a political offence, or 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 that limitation is to be, they ought to bear in mind the position of the colony of Hong Kong with reference to China. There was, when the treaty was made, a manifest risk that the colony of Hong Kong might [*198] become the refuge of the criminal classes of the city of Cantonand 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 in Chinese ships on the high seas would be within the meaning of the Ordinance. Their Lordships are also of opinion that piracy, at least in certain circumstances, would be within the meaning of the Ordinance. They think it may properly be assumed, without proof, that China has laws to punish piracy on her own coast, and if it was proved that a subject of China who had taken refuge in Hong Kong was a pirate in this 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 have now to consider whether there was evidence that Kwok-a-Sing had been guilty of crimes against the laws of China within the meaning of the Ordinance. 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-Singwas a passenger, on the high seas. They have, therefore, to consider whether murder by a subject of China of a person who was not 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 Chinese 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 [*199] 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 that 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 are of opinion that there was no evidence before the magistrate that Kwok-a-Sing, in murdering the French captain, committed an offence against the laws 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 that there was before the magistrate sufficient primä facie evidence that Kwok-a-Sing had committed an act of piracy jure gentium to justify his committal for trial for that offence at Hong Kong. They see no reason to doubt that the charge of Sir Charles Hedges, Judge of the High Court of Admiralty, to the Grand Jury, as reported in the case of Rex v. Dawson (1), and which was made in the presence 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

 

(1) 13 State Trials, 454. [*200]

 

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 a felonious intention in any place where the Lord Admiral hath 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 dispossessing 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-Singfit to be left to a jury, though they wish to be understood as giving no opinion which way a jury ought to find on this question.

 

Next, it must be considered what was 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 Hong Kong? In their opinion he ought to have committed him to be tried for the piracy at Hong Kong. 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 operations, 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 gentiumor not; but if Kwok-a-Sing committed an offence against the municipal law of any nation, he 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 justiciable 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 [*201] 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 Lord Chief Justice for the release of Kwok-a-Sing was right and ought to be affirmed.

 

Having come to this conclusion, their Lordships need not give any opinion upon the validity of the other grounds on 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 Pénélope 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 come of the coolies had, by fraud or by threats on the part of other Chinese, been induced to go to the barracoon, and embark on board 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 22nd of May, 1871, whereby Kwok-a-Sing was, for the second time, discharged from custody, was valid. He was discharged solely upon the ground that he had been committed a second time for the same offence, contrary to the 6th section of 31 Car. 2, c. 2. They cannot agree with the construction which the Chief Justice has put upon this section of the statute. The principal object of the 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 recognisance, 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 may be again arrested by the [*202] order of the Court, wherein he shall be bound by recognisance 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, shews no valid cause for his detention. They think, however, it can only apply when the second arrest is substantially for the same cause as the first, so that the return to the second writ of habeas corpus raises for the opinion of the Court the same question with reference to the validity of the grounds 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 Hong Kong 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 judgments and orders of the Supreme Court of Hong Kong of the 29th of March, 1871, and the 18th of April, 1871, should be affirmed, and that the judgment and order of the 22nd of May, 1871, should be reversed, and that there should be no costs of the appeal.