Provision of the Order in Council. In this Act the Supreme Court (i.e. the Supreme Court created by the Order) is substituted for a Superior Court in a Colony. Operation of the Act as applied. condition pre A convention with a foreign State is a condition precedent to Convention a an application under the Act. At present no such conventions cedent to applicahave been entered into. On the basis, however, of the conclusion tion of Act. of any such convention, the substitution in s. 4 warrants an application being made by a Consular Supreme Court to a foreign Court. When, if ever, the essential conventions are concluded, it would be of manifest advantage to the administration of justice by the different Consular Courts in an oriental country, if the agreements were made so as to include these Courts, for questions of foreign law must often arise in actions on contracts tried before them. Consular Courts. The substitution effected by s. 5 (2) of the Principal Act Applications to warrants the inclusion of the Consular Courts, inferior as well as superior, in s. 3. Applications by foreign Courts will, therefore, be property made to the British Consular Courts when conventions are concluded. The remarks made under the British Law Ascertainment Act, 1859, as to the nature of the law administered g. p. 94. by the Consular Courts, apply also to this Act. Conveyancing (Scotland) Act, 1874, s. 51.-37 & 38 Vict. c. 94. Provision of the Order in Council. [applied by art. 105, China Order.] The Supreme Consular Court is substituted for a Court of Probate in a colony. Operation of Act as applied. [Imp. Stats., Vol. I, p. 592.1 title. The production to a notary public in Scotland of the probate Production of of the will, or other testamentary settlement, of a deceased person equivalent to will consular probate issued by a Supreme Consular Court, or of an exemplification of for completing such probate, is for the purpose of expeding a notarial instrument, or otherwise completing a title to any estate in land or to any hereditable security, as effectual as the production to the notary of the will or settlement itself. [Imp. Stats., Vol. I, p. 200.] Apprehension of fugitive offender in or from China. [s. 2] Fugitive Offenders Act, 1881.-44 & 45 Vict. c. 69. To amend the law with respect to fugitive offenders in Her Majesty's dominions, and for other purposes connected with the trial of offenders. [applied by art. 88, China Order.] [This Act, in addition to being included in the 1st schedule of the This Act applies to foreigners accused of having committed offences in one part of the dominions and escaping to another part. In the extension of the Act, however, the fundamental principle of consular jurisdiction requires it to be limited to British subjects. Provision of the Order in Council. The Act is to apply as if China were a British possession and part of the dominions, with the following substitutions The British Minister for the Governor or Government of a British possession: The Supreme Court for a Superior Court of a British possession. The Supreme Court and each Provincial Court for a Magistrate of any part of the dominions. Operation of the Act as applied. Only so much of the Act as relates to procedure in the foreign country, China being taken as the illustration, is given. The procedure in the colonies in the case of fugitives from China is of course that prescribed in the Act. PART I.-Return of Fugitives. Where a person accused of having committed an offence in one part of the dominions or in China, is found in China, or in another part of the dominions, he may be apprehended under a warrant and returned to the country from which he is a fugitive. The warrant, where the offender has escaped to China, may for apprehension be endorsed by the Judge of the Supreme Court, or the British of fugitive. [s 3] Minister, if he is satisfied that the warrant was issued by a lawful authority and such power of apprehending offenders as the Court Endorsing of warrant in China : has been invested with may be put in force on this endorsed warrant, and the fugitives brought before the Supreme or a Provincial Court. warrant for appre The Supreme or a Provincial Court may also issue a provi- Provisional sional warrant "for the apprehension of a fugitive who is or is suspected of being in or on his way to" China, if the information fugitive. [s. 4] is such that the Court would be justified in issuing a warrant if the offence had been committed within that country. The issue of the warrant is to be reported to the Minister, who may, if he think fit, discharge the person apprehended. When the fugitive is apprehended he is to be tried as if he Dealing with fugitive when were charged with an offence committed in China. The en- apprenhended. dorsed warrant being duly authenticated, if the evidence raises “a [5.5] strong or probable presumption that the fugitive committed the offence mentioned in the warrant," and that the offence comes within s. 12, the Judge is to commit him to prison to await his return, and to send a certificate of committal, together with a report on the case, to the Minister. The fugitive is to be informed that he will not be surrendered until after the expiration of 15 days, and that he has a right to apply for a writ of habeas corpus or other like process. A fugitive apprehended on a provisional warrant may be remanded from time to time, for not longer than 7 days at one time, "as under the circumstances seems requisite for the production of an endorsed warrant." On the expiration of 15 days after the fugitive has been com- Return of fugitive by warrant. [s.6] mitted to prison to await his return (or, if a writ of habeas corpus has been issued, after the decision thereon), the Minister may, if he thinks just, by warrant under his hand, order the fugitive to be held in custody by the person to whom the warrant is addressed, and to be conveyed by sea or otherwise, to that part of the dominions from which he is a fugitive, "to be dealt with there in due course of law as if he had been there apprehended." "The governor or other chief officer of any prison" shall, on payment of expenses, receive and detain the fugitive for a reasonable time at the request of the person to whom the warrant is addressed, for the purpose of the proper execution of it. If a fugitive has been committed to prison by a Consular Court Discharge of fugitive if not in pursuance of this Act, and is not conveyed out of China within returned within one month after his committal, the Supreme Court may on the one month. [s. 7] Returned fugitive from China to be sent back if not prosecuted in 6 months. [s. 8] Offences to which this Part of Act applies. [s. 9] Fugitive to be discharged case frivolous or re turn unjust. [S. 10] fugitive's application order him to be discharged, unless sufficient cause is shewn to the contrary. Notice of the intention to apply for the discharge is to be given to the Minister. Where the person accused of an offence and returned to China [i.e. in the custody of the person to whom the warrant of the Consular Court was addressed], is not prosecuted there within 6 months after his arrival, or is acquitted, the Minister may cause him to be sent back free of cost, and with as little delay as possible, to that part of the dominions in, or on his way to which, he was apprehended. The offences to which the Act applies are treason, piracy, and every offence which is punishable in that part of the dominions in which it was committed, or according to the law administered by the Consular Court in China, if it was there committed, by imprisonment with hard labour for a term of 12 months or more, or by any greater punishment (which includes rigorous imprisonment, or confinement in a prison combined with labour, by whatever name it is called). The question whether the act is an offence or not is to be judged solely by the law of the place where it was committed, or if committed in China, by the law administered by the Consular Court, and not in any way by the law of the country where the fugitive is apprehended. Where it appears to the Supreme Consular Court that the case is trivial, or that the application for the return of the fugitive is not made in good faith in the interests of justice or otherwise, and that it would, having regard to the distance, to the facilities for communication, and to all the circumstances of the case, be unjust or oppressive, or too severe a punishment to return the fugitive either at all, or until the expiration of a certain period, the Court may discharge him either absolutely or on bail, or may order that he shall not be returned until after the expiration of a certain period, or may make any other order that may seem to it just. PART II.—Inter-Colonial Backing of Warrants. Application of The second part of the Act provides a simpler procedure for Part II to colonies the rendition of criminals by means of backing warrants, among and foreign jurisdiction countries. groups of colonies; and by the adaptation of this Part, the groups [S. 12] may be composed of colonies and countries in which Consular Courts have been established. The groups are to be composed of colonies and countries "to which by reason of their contiguity or otherwise, it may seem expedient" to apply the Part. The Order by which the adaptation is made may except certain offences, or it may be otherwise limited, as may be deemed expedient. By the China Order; China, Corea, Wei-hai-Wei and Hong- The Eastern group. [art. kong are to be deemed one group for the purposes of this Part of 88 /a/ China the Act. A point of some interest arises in consequence of the Order.] inclusion of two foreign jurisdiction countries in the group, thereby making this Part of the Act applicable to fugitives escaping from China to Corea, and vice versa. This will be referred to again in connexion with s. 20 of the Act. warrants issued in In the case of a fugitive in or on his way to China, the Backing of Supreme or a Provincial Court may back a warrant, or a pro- a colony or counvisional warrant [s. 16], issued for the apprehension of a fugitive try in the group. [ss. 13, 14] offender by the proper authority in any other country or colony in the group, and may order his return in custody. monses to witnesses in group. In the same way, witnesses who are required to give evidence Endorsing sumon a trial for any offence in one of the countries or colonies in the group, and who are or are suspected of being in, or on their [s. 15] way to, China, may be summoned as if they were within the jurisdiction of the Court before which the trial is taking place, and the summons may be endorsed by a Consular Judge in China. The witness on service of the endorsed summons, and payment or tender of a reasonable sum for expenses, must obey the summons and in default he is liable to be tried and punished either in China or in the place in which the summons was issued, according to the law enforced by the Court before which he is tried. The subsequent procedure is dealt with by s. 27. within one month. The Supreme or a Provincial Court may order the fugitive to Discharge of pribe discharged out of custody if he is not conveyed out of China soner not returned within one month after the date of the warrant ordering his [s. 17] return. Notice of the application for discharge is to be given to the person holding the warrant, and to the chief officer of the police where the fugitive is in custody. A refusal to grant the order is subject to appeal to the Supreme Court. to be sent back if In the case of a prisoner returned to China who is not pro- Returned fugitive secuted within 6 months, or who is acquitted, the Minister may not prosecuted in on his requisition cause him to be sent back free of cost, and 6 months. [s.18] with as little delay as possible to the country or colony in or on his way to which he was apprehended. |