CHINESE EXTRADITION ORDINANCE, 1889

CHINESE EXTRADITION ORDINANCE, 1889

No. 7 of 1889.

An Ordinance to amend the law relating to the extradition
of Chinese criminals.
[9th November, 1889.]

WHEREAS by Article XXI of the Treaty between Her Majesty and
the Emperor of China done at Tientsin on the 26th day of June,
1858, it was agreed and concluded that 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 : AND WHEREAS it is expedient to amend the law for
the More effective carrying out of the said Treaty in relation to the
surrender of criminals, subjects of China, who take refuge in
Hongkong or on board the, British ships there:-

1. This Ordinance may be cited as the Chinese Extradition
Ordinance, 1889.

2. In this Ordinance,

(a) Chinese government includes the Viceroy or other
offficer administering a Provincial government.

(b) Extradition crime means a crime which, if com-
mitted in the Colony, would be one of the crimes mentioned
in the First Schedule.

* As amended by Law Rev. Ord., 1923.






(c) Fugitive criminal mean any subnject of China
accused of an extradition crime committed within the
jurisdiction of China or on board a Chinese ship on the high
seas, who is or is suspected of being in Hongkong or on
board a British ship there.

The crimes mentioned in the Schediue shall be
construed according to the law in force in the Colony at the
date of the alleged crime.

3. The provisions of this Ordinance shall apply to the
surrender of criminals under any futrue arrangement that
may be made by His Majesty with China with respect to the
surrender of fugitive criminals, as well as to their surrender
under any treaty in force at the commencement of this
Ordinance.

4. The following restrictions shall be observed with respect
to the surrende of fugitive criminabls:-

(1) a fugitive crimilial shall not be surrender if the
offence in respect of which his surrender is demanded is one
of a political character or if he proves, to the satisfaction of
the magistrate, or of a judge if brought before the court on a
writ of habeas corpus, or of the Governor, that the requistion
for his surrender has in fact been made with a view to try or
punish him for an offence of a political character or for an
offence which is not an extradition crime;

(2) a fugitive criminal who has been accused of an offence
within British jurisdiction, not being an ofence for which
his surrender is demanded, or who is undergoing sentence
under any conviction in the Colony, shall not be surrendered
until after he has been discharged, whether by acquittal or
on expiratiion of his sentence or otherwise; and

(3) a fugitive criminal shall not in any case be surrendered
unless an engagement is given by th Chinese government
that he shall not, until he has been restored or had an
opportunity or tried in China for any offence committed before
his surrender other than the extradition crime on which the
surrender is demanded.

5. Every fugitive criminal who is in the Colony shall be
liable to be apprehended and surrendered in manner provided
by this Ordinance, whether the crime in respect of which





































the surrender is demanded was committed before or after
the commencement of this Ordinance and whether there is
or is not any concurrent jurisdiction in any court in the
Colony over that crime.

6. Wheneve a requistion for the surrender of a fugitive
criminal who is in or suspected of being in the Colony is
made to the governor by some office of the Chinese Govern-
ment, the Governor may, by order under his habd and seal,
signify to a magistrate that such requistition has been made,
and require him to issue his warrant for the apprehension of
the fugitive criminal.

7. A magistrate, on receipt of the said order, shall issue
his warrant for the apprehension of the fugitive criminal, or,
if the fugitive criminal is already in custody, shall issue his
order to all necessary persons to bring the fugitive criminal
before him to be dealt with according to this Ordinance.

8.-(1) Amagistrate may also issue his warrant for the
apprehension of a fugitive criminal on such information or
complaint as would, in his opinion, justify the issue of a
warrant if the crime had been committed in the Colony.

(2) A fugitive criminal apprehended on a warrant so issued
shall be discharged by the magistrate, unless the magistrate,
within such time as, with reference to the cricumstances of
the case, he may think reasonable, receives from the Governor
an order signifying that a requistion has been made for the
surrende fof such fugitive criminal.

9.-(1) When a fugitive criminal is brought before a
magistrate, the magistrate shall hear the case in the same
manner and have the same jurisdiction and powers, as nearly
as may be, as if the prisoner were brought before him charged
with an indictable offence committed in the Colony: Provided
always that-

(a) in any case where the extradition crime alleged is
murder, manslaughter, piracy, burglary, housebreaking, or
robbery with violence, and teh accused person has not
resided in the Colony more than six months during the
period of twwlve months immediately prior to the date of his
being so brougth before the magistrate, the magistrate may
receive in evidence copies of any such depositions relating to
the charge as purport to have ebeen taken in China in the

* As amended by Law Am. Ord., 1923.











































presence of a British consular officer, and are accompanied
by a certificate in English, purporting to be a certificate by
such officer, that such copies are true copies of the originals
and that the original depositions have been respectively read
over to the respective deponents, that they respectively
appeared to understand the same, and that, to the best of
such officer's belief, no compulsion had been used in obtaining
such depositions;

(b) translations in English of such depositions, if certified
by such British consular officer to be, correct translations,
may accompany the certified copy of the depositions, and in
such case such translations may be received in evidence in the
same manner as the originals;

(c) any copies of depositions received in evidence, or, if
necessary, a translation thereof, shall be read over to the
fugitive criminal, if he so desires, and he shall be asked if
he has any valid cause to show why he should not be com-
mitted to gaol to await the order of the Governor;

(d) the burden of proof that a fugitive criminal has resided
in this Colony more than six months, during the period
mentioned in paragraph (a) of this proviso, shall lie on such
fugitive criminal; all

(e) in every case proof of the identity of the fugitive
criminal must be given, to the satisfaction of the magistrate.

(2) The magistrate shall receive any evidence which may
be tendered to show that the crime of which the prisoner is
accused is an offence of a political character or is not an
extradition crime.

10.-(1) If, at the hearing before a magistrate, such
evidence is produced as as would, subject to the provisions of
this Ordinance, justify the committal of the fugitive criminal
for trial at the Supreme Court if the crime of which he is
accused had been committed in the Colony, the magistrate
shall, commit him to the Goal to await the further order
of the Governor, but otherwise shall order him to be
discharged.

(2) If the magistrate commits the fugitive criminal to the
Gaol, he shall thereupon inform the fugitive criminal that he
will not be surrendered until after the expiration of fifteen
days from the date of such committal and that he has a right.






















to apply to the Supreme Court for a writ of habeas corpus,
and the magistrate shall forthwith send to the Governor the
depositions and other evidence in the case, together with a
report thereon and in partictilar in relation to-

(a) the lapse of time since the commission of the extradition
crime;

(b) the length of residence in the Colony and the character
of the fugitive criminal; and

(c) any circumstances throwing suspicion on the origin or
nature of the charge made.

11. Before ordering a fugitive criminal to be discharged,
the magistrate shall cause notice of his intention to make
such order to be served on the Crown Solicitor.

12.-(1) On the expiration of fifteen days from the date
of the magistrate's order of committal, or, if a writ of habeas
corpus has heen issued and if, on the return to the writ, the
Supreme Court has not dischanged the fugitive criminal,
immediately after the decision of the court, or after such
further period in either case as the Governor may allow, the
Governor may, by warrant under his hand in seal, order the
fugitive criminal to be surrendered to such person as the
Governor considers to be authorised to receive, him on behalf
of the Chinese authorities, and the fugitive criminal shall be
surrendered accordingly: Provided alaways that whenever
the Governor, from the magistrate's report or otherwise, has
reason to suppose that any fugitive criminal who has been
committed to the gaol to await the further order of the
Governor has been resident in the Colony for one year or
upwards, the depositions and evidence taken before the
magistrate n the investigation of the case shall, together
withthe magistrate's report thereon, be considered by the
Governor in Council, who shall decide whether such fugitive
criminal shall be surrendered or not.

(2) If the fugitive criminal while iin the Colony escapes out
of any custody into which he has been delivered in pursuance
of a magistrate's warrant as aforesaid, it shall be lawful for
any police constable to take him without warrant and to
restore him to the custody from which he has escapted, and
for the person from whose custody the fugitive criminal has
escapted to retake him or receive him from such constable
and to hold him at all times as upon the original warrant.








































13. Except where any proceedings are actually pending
upon a writ of habeas corpus before the Supreme Court, and
in such case with the concurrence inn writing of the judge
having cognizance thereof, the Governor may at any time,
by order under his hand and seal, discharge a fugitive
criminal from custody.

14. If a fugitive criminal who has been committed to
prison under this Ordinance to await the order of the
Governor is not surrendered and conveyed out of the Colony
within two months after such committal, a judge may, on
application made to him by or on behalf of the fugitive
criminal and on proof that reasonable notice of the intention
to make such application has been given to the Crown
Solicitor, order the fugitive criminal to be discharged out of
custody, u less sufficient cause is shown to the contrary.

15. Evey person who is accused or convicted of having
counselled, procured, commanded, aided, or abetted the
commission of any extradition crime or of ebing accessory
before the fact to any extradition crime shall be deemed, for
the purpose of this Ordinance, to tbe accused or convicted of
having committed such crime, and shall be liable to be
apprehended and surrendered accordingly.

16. If any action or suit is brought against a magistrate,
the Superintendent of Prisons, a goaler, police officer, or any
other person for anything done under or in obedience to any
warrant or order issued under the provisions of this Ordinance,
the proof of such warrant or order shalll be a sufficient answer
to such action or suit, and the defendant, on such proo as
aforesaid, shall be entitled to a verdict or judgment accordingly
and shall also be entitled to all costs of suit.

17. The forms in the Second Schedule or forms to the like
effect, with such variations and additions as circumstances
may require, amy be used for the purposes therein indicated
and according to the directions therein contained, and instru-
ments in those forms shall (as regards the form thereof) be
valid and sufficient.

* As amended by law Rev. Ord., 1923.






























As amended by Law Rev. Ord., 192





18. In all proceediligs contemplated by this Oridnance
every fugitive criminal for whose surrender a requistion is
made shall be deemed to be a subject of China unless he shall
prove the contrary affirmatively: Provided that this section
shall not be construed as imposing any obligaton on the
Govenor or as binding the Crown in any matter whatsoever.

FIRST SCHEDULE.
LIST OF EXTRADITION CRIMES.

1. Murder and attempt to murder.
2. Manslaughter.
3. Malicious wounding.
4. Counterfeiting or altering money, or uttering or bringing into
circulation, counterfeit or altered money.

5. Forgery, or counterfeiting, or altering, or uttering what is forged,
or counterfeited, or altered, comprehending, the crimes desimated in
the laws of the Colony, as counterfeiting or falsification of paper money,
bank notes, or other securities, forgery or other falsification of other
public or private documents likewise the uttering, or bringing into
circulation, or wilfull using such counterfeited, falsified
papers.

6. Embezzlement or larceny.
7. Receiving stolen goods.
8. Obtaining money or goods by false pretences.
9. Crimes against bankruptcy law.
10. Fraud committed by a bailee, banker, agent, factor, trustee, or
director, or member or public officer of any company, made criminal
by any law for the time being in force.
11. Rape.
12. Abduction.
13. child-steaing.
14. Kidnapping.
15. Fase imprisonment.
16. Burglary or house breaking.
17. Arson.
18. Robbery with violence.
19. Threats by letter or otherwise with intent to extort.
20. Piracy, whether by the law of nations or by municiapl law.

* As amended by No. 20 of 1915 and Law Rev. Ord., 1923.





















21. Sinking or destroying a vessel at sea, or attempting to do so.

22. Assault on board a ship on the high seas, with intent to destroy
life or to do grievous bodily harm.

23. Revolt, or conspiracy to revolt, by two or more persons on board
a Ship on the high seas, against tile authority of the master.

24. Perjury or subornation of perjury.

25. Malicious injury to proptery, if the offence is indictable.

26. Any indictable offence under-

(a) the Offence against the Person Ordinance, 1865.
(b) the Corrupt Practices (Documentary) Ordinance, 1865,
(c) the Larceny Ordinances, 1865.
(d) the Coinage Offences Ordinance, 1865,
(e) the Forgery Ordinance, 1922,

or any Ordinance amending or substituted for the same, which is not
included in the foregoing list.


SECOND SCHEDULE.

FORM No. 1. [s. 6.]

Order by the Governor to a magistrate to issue his warrant.

By His Excellency , Governor and Command-
er-in-Cheif of the Colony of Hongkong and its dependencies.

To

Magistrate.

Whereas requistition has been made to me by for the
surrender of late of accused of the
commission of the crime of within the jurisdiction
of China: Now I hereby, by this order under my hand and seal,
signify to you that such requistition has been made, and require you
to issue your warrant for the apprehension of such fugitive.

Given under my hand and seal at Victoria, Hongkong, this day
of , 19 .

[L.S.] (Signed.) Governor.



















FORM No. 2. [s. 7.]

Warrant of apprehension by order of the Governor.

HONGKONG.

IN THE POIACE COURT AT

To each and all of the constables of the Colony.

Whereas His Excellency the Governor, , by
order under his hand and seal, has signified to me that requistition has
been duly made to him for the surrender of , late
of , accused of the commission of the crime of
withing the jurisdiction of China; this is, there-
fore, to command you, in His Majesty's name, forthwith to apprehend
the said wherever he may be found in the Colony,
and bring him before me or some other magistrate sitting in this court,
to show cause why he should not be surrendered in pursuance of the
Chinese Extradition Ordinance, 1889; for which this shall be your
warrant.

Dated the day of , 19 .

[L.S.] (Signed.) Magistrate.


FORM No. 3. [s.7.]

Order to bring before a magistrate a fugitive criminal
already in custody.

HONGKONG.

IN THE POLICE COURT AT
To the Superintendent of Prisons and to each and all of the constables
of the Colony.

Whereas His Excellency the Governor, , by
order under his hand and seal, has signified to me that requistiton has
been duly made to him for the surrender of , late
of , accused of the commission of the crime of
within the jurisdiction of China: this is, therefore,
to command you, in His Majesty's anme, forthwith to bring the said
before, me or some other magistrate sitting in this
court, to be dealt with accordint to the provisions of the Chinese
Extradition Ordinance, 1889; for which this shall be your warrant.

Dated the day of , 19 .

* As amended by Law Rev. Ord., 1923.































FROM No. 4. [s. 8.]

Warrant of apprehension without order of the Governor.
HONGKONG.

IN THE POLICE COURT AT

To each and all of the constables of the Colony.

Whereas it shall been shown to me, undesigned, magistrate of the
said Colony, that , late of , is
accused of the commisison of the crime of within the
jurisdiction of China: This is, therefore, to command you, in His
Majesty' name, forthwith to apprehend the said and
to bring himbefore me or some other magistrate sitting in this court,
to be further delat with according to law; for which this shall be your
warrant.

Dated the day of , 19 .
[L.S.] (Signed.) Magestrate.


FORM No. 5 [s. 20.]

Warrant of commital.
HONGKONG.
IN THE POLICE COURT AT
To one of the constables of the Colony, and to the
Superintendent of Prisons.

One this day of , 19 , , late
of , is brought before me, a magistrate of the said Colony, to
show cause why he should not be surrendered in pursuance of the
Chinese Extradition Ordinance, 1889, on the ground of his being
accused of the commission of the crime of
within the jurisdiction of China; a forasmuch as no sufficient cause
has been shown to me why he should not be surrendered in pursuance
of this said Ordinance: this is, therefore, to command you, the said
constable , in His Majesty's name, forthwith to convey and deliver the
body of the said into the cuctody of the
Superintendent of Prisons, and you, the said Superintendent, to receive
the said into your custody in the gaol, and him
there safely to keep until he is thence deliveredpursuant ot the provi-
sions of the said Ordinance; for which this shall be your warrant.

Dated the day of , 19 .

[L.S.] (Signed.) Magistrate.

* As amended by Law Rev. Ord., 1923.






































FORM No.6. [s. 12.]

Warrant of the Governor for the surrender of a fugitive criminal.

By His Excellency , Governor and Commander-
in-Chief of the Colony of Hongkong and its dependencies.

To the Superintendent of Prisons and to
Hongkong to wit.

Whereas , late of accused of
the commission of the crime of within the jurisdic-
tion of China, was delivered into the custody of you
the Superintendent of Prisons, by warrant dated the day of
, 19 , pursuant to the Chinese Extra-
dition Ordinance, 1889 : Now I do hereby, in pursuance of the said
Ordinance, order you, the said Superintendent, to deliver the body of the
said into the custody of the said , and
I command you, the said , to receive the said
and there place hirn into the custody of , who is
authorised by the Chinese authorities to receive him ; for which this
shall be your warrant.

Given under my hand and seal at Victoria, Hongkong, this
day of , 19

(Signed,) Governor.

FORM No. 7. [s. 13.]

Order of discharge by the Governor.

By His Excellency , Governor and Commander-
in-Chief of the Colony of Hongkong and its dependencies.

To the Superintepdent of Prisons.

Whereas one is now in your custody as a fugitive
criminal under the provision of the Chinese Extradition Ordinance,
1889; and whereas, it has been determined that no warrant shall be
granted for the surrender of the said : Now I do hereby
order and require you to discharge the said from
custody under the said Ordinance.

Given under my hand and and seal at Victoria, Hongkong, this
day of , 19 .

[L.S.] (Signed.) Governor.

* As amended by Law Rev. Ord., 1923.














[Originally No. 26 of 1889. No. 20 of 1915. Law Rev. Ord., 1924.] Short title. Interpretation. First Schedule. Application of the Ordinance. Restriction on surrender of fugitive criminal. Liability of fugitive criminal to be surrendered. Requisition to Governor and order to magistrate for warrant of apprehension. Second Schedule. Form No. 1. Duty of magistrate on receipt of order. Second Schedule. Forms Nos. 2 and 3. Power to issue warrant as in ordinary case. Second Schedule. Form No. 4. Procedure on fugitive criminal being brought before magistrate. Committal to prison or discharge. Second Schedule. Form No. 5. Notice to Crown Solicitor before discharge. Warrant for surrender, etc. Second Schedule. Form No. 6. Power to Governor to order discharge. Second Schedule Form No. 7. Discharge if not surrendered within two months. Aiders and abettors in extradition crime. Protection of magistrate and others acting under warrant or order. Forms. Second Schedule. Fugitive criminal of be deemed to be a subject of China. No. 2 of 1865. No. 4 of 1865. No. 5 of 1865. No. 7 of 1865. No. 11 of 1922.

[Originally No. 26 of 1889. No. 20 of 1915. Law Rev. Ord., 1924.] Short title. Interpretation. First Schedule. Application of the Ordinance. Restriction on surrender of fugitive criminal. Liability of fugitive criminal to be surrendered. Requisition to Governor and order to magistrate for warrant of apprehension. Second Schedule. Form No. 1. Duty of magistrate on receipt of order. Second Schedule. Forms Nos. 2 and 3. Power to issue warrant as in ordinary case. Second Schedule. Form No. 4. Procedure on fugitive criminal being brought before magistrate. Committal to prison or discharge. Second Schedule. Form No. 5. Notice to Crown Solicitor before discharge. Warrant for surrender, etc. Second Schedule. Form No. 6. Power to Governor to order discharge. Second Schedule Form No. 7. Discharge if not surrendered within two months. Aiders and abettors in extradition crime. Protection of magistrate and others acting under warrant or order. Forms. Second Schedule. Fugitive criminal of be deemed to be a subject of China. No. 2 of 1865. No. 4 of 1865. No. 5 of 1865. No. 7 of 1865. No. 11 of 1922.

https://oelawhk.lib.hku.hk/items/show/1136

1923

v1

235

No. 7 of 1889

11