CHINESE EXTRADITION ORDINANCE, 1889

CHINESE EXTRADITION ORDINANCE, 1889

No. 7 of 1889.

AnOrdinance 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 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: AND WHEREAS it is expedient to amend the law for
the more effective carry,ing out of the said Treat * v in
relation to the surrender of criminals, subjects of China,
who take refuge in Hong Kong or on board the British
ships there:-

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

2. In this Ordinance,

(a) ' Chinese authority ' means any person declared by
the Governor to be or to represent the person or persons actually
exercising authority in any province or other territory which,
in t.he opinion of the Governor, forms or at any tinle has formed
part of the Republic of China.

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

(c) ' Fugitive criminal ' means any national of China ac.
cused 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 Hong Kong or on board a British
ship there.

As amended by No. 17 of 1927 [28.10.27].





(d) ' jurisdiction of China ' includes the jurisdiction of
any Chinese authority as defined in paragraph (a).

(e) ' National of China ' means every person who, not
being a national of any other state, possesses Chinese
nationality.

The crimes mentioned in the said Schedule 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 future arrangement that may
be made by His Majesty with China with respect to the surrender
of fugitive criminals, as well as ta their surrender tinder any
treaty in force at the commencement of this Ordinance.

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

(i) a fugitive criminal shall not be surrender ' ed 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 rnagristrate, or of a judge if brought before the court on a
writ of habeas corpus, or of the Governor, that the requisition
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 offence for which his
surrender is demanded, or who is undergoing sentence tinder any
conviction in the Colony, shall not he surrendered until after
lie h-as been discharged, whether by acquittal or on expiration
of his sentence or otherwise; and

(3) a fugitive criminal shall not in any case be surrendered
unless an engagement is given by the Chinese authority to
whom he is to be surrendered that he shall not, until he has been
restored or had an opportunity of returning to Flis Majesty's
dominions, be detained or tried in China for any offence
committed before his surrender other thhn the extradition crime
on which the surrender is demanded.

As amended by No- 17 of 1927 [2810.271.





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. Whenever a requisition for the surrender of a fugitive
criminal who is in or suspected of being in the Colony is made
to the Governor by a Chinese authority, the Governor may,
by order under his hand and seal, signify to a magistrate that
such requisition has been made, and requ ire him to issue his
warrant for the apprehension of the fugitive criminal, or other-
wise to proceed in conformity with the provisions of this
Ordinance.

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) A magistrate 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 circumstances of the
case, he may think reasonable, receives from the Governor an
order signifying that a requisition has been made for the
surrender of 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 ind - ictable offence committed in the Colony: Provided
always that-

As amended by No. 17 of 19-97 [28.10.27].
As amended 1jy Law Rev. Ord., 1937.





(a) in any case where the extradition crime alleged is
murder, manslaughter, piracy, burglary, housebreaking, or
robbery with violence, and the accused person has not resided
in the Colony for more than six months during the period of
twelve months immediately prior to the date of his being so
brought before the magistrate, the magistrate may receive in
evidence copies of any such depositions relating to the charge
as purport to have been taken in China in the 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
geconipany the certified copy of the depositions, and in.such
case such translations may be received in evidence in the same
manner as the originals.
7

(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 committed
to prison to await the order of the Governor;

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

(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.

11.-(i) If, at the hearing before a magistrate, such evi-
dence is produced as would, subject to the provisions of this

t As amended by Law Rev. Ord., 1937.





Ordinance, jttstify the committal of the fugitive criminal for
trial at the Supreme Court if the crime of whichhe is accused
.had been committed in the Colony, the magistrate shall commit
him to prison to awa it the further order of the Governor, but
otherwise shall, order him to be discharged.

(2) If the magistrate commits the fugitive crim inal to
prison, 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 torpus, and the
magistrate shall forthwith send to the Governor the depositions
and other evidence in the case, together with a report thereon
and in particular 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 given to 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
co.rpus has been issued and if, on the return to the writ, the
Supreme Court. has not discharged 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 and seal, order the fugitive
criminal to be surrendered to such person as the Governor
considers to be authorized to receive him on behalf of the
Chinese authority to whom the Governor considers that he
should be surrendered, and the fugitive criminal shall be
surrendered accordingly: Provided always that whenever the
Governor, from the magistrate's report or otherwise, has reason
to suppose that any fugitive criminal who has been committed
to prison to await the further order of the Governor has been

t As aniended by Law Rev. Ord., 1937.
* As arpended by No. 17 of 1927 [28.10.27] and Law Rev, Ord., 1937.





resident in-the Colony for,one year.or upwardst the'depositions
and evidence taken before the magistrate on the investigation
of the case shall, together* with the 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 fug ' itive criminal while,.in the Colony escapes out
qf any custody. into. which lie has been-delivered in pursuance
of a magistrate's warrant as aforesaid, it shall be lawful for any
police constable to. take hirn without warrant and to restore him
,to the custody from which he has escaped, and, for the person
from whose custody. the fugitive criminal has escaped to retake
hini. or receive h.im 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 in writing of the judge having cogni-
zance thereof,. the Governor may at any tiffle, 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 1ntention to make such applicatiobn' has
been given to the Crown Solicitor, order the fugitive criminal
to.be discharged out of custody, unless sufficient cause is shown
to the contrary,

15. Every person, who. is accused or convicted of having
counselled, procured, commanded', aided, or abetted the corn-
mission of any extradition crime, or of being accessory before
the fact to any extradition crime shall be deemed, for the
purposes of this Ordinance,_to be accused or convicted of having
committed such crirne,.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 gaoler, 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 pr oof of. such warrant or -order shall. be a sufficient answer
to such action or suit, and the defendant, on such proof 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 orjorms to the like
effect, with such variations and additions as circumstances may
require, may be used for the purposes therein indicated and
according to the directions therein contained, and instruments
in those forms shall (as regards the form thereof) be valid and
sufficient.

18. In all proceedings contemplated by this Ordinance every
fugitive criminal for whose surrender a requisition is made shall
be deemed to be a national of China, unless he shall prove the
contrary affirmatively: Provided that this section shall not be
construed as imposing any obligation on the Governor or as
binding the Grown in any manner whatsoever.

19. A certificate under the hand of the Colonial Secretary
shall ' upon production and without proof of the signature or
any other proof, be conclusive evidence in any proceedings on
any question relatin g to any declaratio n, opinion, or discretion,
which the Governor is authorized by this Ordinance to make,
form, or exercise, respectively.

20. A fugitive criminal shall be liable to be surrendered
under and in accordance with, the provisions of section 12
although the crime of which he is accused may have been
committed within the jurisdiction of a Chinese a uthority other
than the Chinese authority by whom the requisitionwas made,
or other than the Chinese authority to whom he. is to be
surren . dered, and although the Chinese authority to whom he
is to. be surrendered is not the Chinese authority by whom the
requisition was made.

As amended by No. 17 of 1927 [28.10.27].





FIRST SCHEDULE.

LiST oF.EXTRADrriog CiaimEs. 2.]
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
desianated 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 wilfully, using such counter-
feited, forged, or f alsified papers.
6. Embezzlement or larceny.
7 Receiving stolen goods.
8. Obtaining Money or goods by false pretences.
9. Crimes against . bankruptcy law.
10. Fraud committea 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 foree.
11. Rape.
12. Abduction.
13. Child-ste,aling.
14. Kidnapping.
15. False imprisonment.
16. Burglary or housebreaking.
17. Arson.
18. Robbery with violence.
19. Threatt by letter or otherwise with intent to extort.
20. Piracy, whether by the law of nations or by municipal law.
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 c.onspiraey' to revolt, by two or more persons
on board a ship on the high seas, against the authority of the
master.
24. Perjury or subornation of perjury.
25. Malicious injury to property, if the offence is indictable.





26. Any indictable offence under-

(a) the Offences against the Person Ordinance, 1865, No. 2
0 of
(b) the Coinage Offences Ordinance, 1865, No. 7
of 1865.
(c) the Forgery Ordinance, 1922, No. 11
of 19M.
(d) -the Larceny Ordjnance, 1935, No. 32
of 1935.
(c) the Falsification of Documents Ordinance, 1035, No. 33
of 1935.
the False Personation Ordinance, 1935,No. 34
of 1935.
,or any Ordinance amending or substituted for the same, which is not
included in the foregoing list..

SECOND SCHEDULE. Is. 17.1

Foiam No. 1. 6.1

Order^by the Governor to a magi3tra te to issue his warrant.

By His Excellency Governor and Commander-
in-Chief of the Colony of Hong Kong and its dependencies.

To
Magistrate.

Whereas requisition has been made to me by for
the surrender of 1 late of accused
of the commission of the crime of within the juris-
diction of China namely the province (or, territory) of . : Now
1 hereby, by this order under my hand and seal, signify to you that.
such requisition has been made, and require you to issue Your warrant
for the apprehension of such fugitive, or otherwise to proceed in
conformity with the provisions of the Chinese Extradition Ordin-
ance, 1889.

Given under my- hand and seal at Victoria, Hong Kong, this
day of 19

(Signed) Governor.

fAs aniended by No. 32 of 19M [6.9.35] and Law Rev. Ord., 1937.
As ameoded by No. 17 of 1927 [213.10.27].





FoRm. No. 2. [g. 7.1
Warrant of apprehension by arder of the Governor.
HONG KmXG.

IN THE POLICE COURT AT

To each and all of the constables of the Colony.

Whereas Elis Excellency the Governor, by
order under his hand and seal, has signified to me that requisition
has been duly made to,him for the surrender of
late of1 ' accused of the commission of the crime
ofwithin the jurisdiction of China: This is,
therefore, to command - you, in His Maje - sty's name. forthwith to
apprehend the saidwherever 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 he surrendered in
pursuance of the Chinese Extradition Ordinance, 1889, for which'this
shall be your warrant.
Dated the day of 19

(Signed) Magistrate.

FoRm No. 3. [s. 7.1Order to bring before a magistrate. a. ftigiti.ve.crimittal
aiready in c'ij.4tody.
HONG HONG.

IN THE POLICE COURT AT
To the Superintendent of Prisons, and to each and all of the
con8tables of the Colony.

ord 'Whereas His Excellency the Crovernor.by
er under his hand and seal, has signified to ine that requisition
has been duly rnade to him for the surrender of
late of, accused of the commission of the crime
ofwithin the jurisdiction of China: This is,
therefore, to command you, in His Majesty ' 's name, forthwith to
bring the saidbefore me or some other magistrate
sitting in this court, to be dealt with according to the provisions of
the Chinese Extradition Ordinance, 1889, for ivhich this shall be
your warrant.

Dated the day of 19

.(Signed) Magistrate.'





'FoRm No. 4. 8.]

Warrant of apprehension with-out order of the Governor.

HONG KONG.

IN THE POLICE COURT AT

To each and all of the conslables of the Colony.

Whereas it has been shown to me, the undersigned, a magistrate
of the said Colony, that 1, late of 1 is
accused.. of the commission of the crime of within
.the jurisdiction of China: This is, therefore, to command you, in
His Majesty's name, forthwith to apprehend the. said
and to bring him beforeme or some other magistrate sitting in this
court, to be further dealt with accoiding to law,.for which this shall
be your warrant.

Dated the day of 19

(Signed) Magistrate.-,

FORM No. 5. Is. 10.1

Warrant of Committal.

HONG KONG.

IN THE POLICE COURT AT

To one of the constables of the Colony, and to the
Superintendent of Prisons.

On this day of

late ofis 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,.,and 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'~ name, forthwith to convey and
deliver the body of the saidinto the custody of
the Superintendent of Prisons, and you, the said Superintendent, to
receive the saidinto your custody in a prison,
and him there safely to keep until ~e is thence delivered pursuant
to the provisions of the said Ordinance, for which this shall be your
warrant.

Dated the day of '1.19

(Signed) Magistrate.

As antended by Law Rev. Ord., 1937.





Fom No. 6. Is. 12.]

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

BY His Excellency Governor and Commander-
in-Chief of the Colony of Hong Kong and its dependencies.

To the Superintendent of Prisons, and
to
Whereas late of accused of.
the commission of the crime ofwithin the jurisdiction
of China, was delivered into the custody of you I
the Superintendent of Prisons, by warrant dated the day of
1 19 , pursuant to the Chinese Extradition
Ordinance, 1889:Now 1 do hereby, in pursuance of the said Ordin
ance, order you, the said Superintende-ut, to deliver the body of
the said* into the custody of the said and
I command you, the said, to receive the said
into your custody, and to convey him to
and there Place him into the custody ofwho is
authorized by the Chinese authorities to receive him, for which this
shall be your warrant.

Given under my hand an.d seal at Victoria, Hong Kong, this
day of 19

(Signed) Governor.

FoRm No. 7.

Order of discharge by the Governor..

By His Excelle ' ney Governor and Commander-
in-Chief of the Colony qf Hon. Kong and its dependencies.

To the Superintendent of Prisons.

Whereas one. is now in your custody as a fugitive
criminal under the provisions of the Chinese Extradition Ordinance,
1889; and whereas it has been determined that no wariant shall be
granted for the surrender of the saidNow 1 do hereby
order and require you to discharge the said from
custody under the said ~ Ordinance.

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

(Signed) Governor

As amended by Law Rev. Ord., 1937.
[Originally No. 26 of 1889. No 17 of 1927. No 32 of 1935. Law Rev. Ord., 1937.] Short title. Interpretation. First Schedule. Application of the Ordinance. Restrictions on surrender of fugitive criminal. Liability of fugitive criminal to be surrendered. Requisition to Governor and order to magistrate. 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 to be deemed to be a national of China. Evidence. Liability to be surrendered not to be affected by change of Chinese authority. No. 2 of 1865. No. 7 of 1865. No. 11 of 1922. No. 32 of 1935. No. 33 of 1935. No. 34 of 1935.

[Originally No. 26 of 1889. No 17 of 1927. No 32 of 1935. Law Rev. Ord., 1937.] Short title. Interpretation. First Schedule. Application of the Ordinance. Restrictions on surrender of fugitive criminal. Liability of fugitive criminal to be surrendered. Requisition to Governor and order to magistrate. 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 to be deemed to be a national of China. Evidence. Liability to be surrendered not to be affected by change of Chinese authority. No. 2 of 1865. No. 7 of 1865. No. 11 of 1922. No. 32 of 1935. No. 33 of 1935. No. 34 of 1935.

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