CHINESE EXTRADITION ORDINANCE

CHINESE EXTRADITION ORDINANCE

CHAPTER 235.

CHINESE EXTRADITION.

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 con-
cluded 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 carrying out of the said
Treaty 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 Ordinance.

2. In this Ordinance-
'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 the opinion of the Governor, forms
or at any time has formed part of the Republic of
China;
'extradition crime' means a crime which, if committed
in the Colony, would be one of the crimes mentioned
in the First Schedule;
'fugitive criminal' means any national 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 Hong Kong or on
board a British ship there;
'jurisdiction of China' includes the jurisdiction of any
Chinese authority as defined in this section ;
'national of China' means any 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 tile
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 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 surrender of fugitive criminals-
(a)a fugitive criminal shall not be surrendered if the
offence in respect of which his surrender is demand-
ed 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 Governoe, 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 ;
(b)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 under any conviction
in the Colony, shall not be surrendered until after
he has been discharged, whether by acquittal or on
expiration of his sentence or otherwise; and
(c)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 His Majesty's
dominions, be detained or tried in China for any
offence committed before his surrender other than
the extradition crime on which the surrender is
demanded.

5. Any 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 require him to issue his
warrant for the apprehension of the fugitive criminal, or
otherwise 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
iSSLied shall be discharged by the magistrate, unless the
magistrate, within such time as, with reference to the cir-
cumstances 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 indictable offence committed in the Colony Pro-
vided always that-
(a)in any case where the extradition crime alleged is
murder, manslaughter, piracy, burglary, house-
breaking, 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 im-
mediately 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 certi-
fied 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 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.

10. (1) If, at the hearing before a magistrate, such
evidence is produced 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 prison 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
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 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 particular in relation to-
(a)the lapse of time since the commission of the extradi-
tion 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 Attorney General.

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 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 when-
ever 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 resident in the Colony for one year or
upwards, 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 fugitive criminal while in 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 officer to take him 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 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 in 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 Gover-
nor is not surrendered and conveyed out of the Colon),
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 Attornev
General, order the fugitive criminal to be discharged out of
custody, unless sufficient cause is shown to the contrary.

15. Any 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 crime, and shall be liable to be
apprehended and surrendered accordingly.

16. If any action or suit is brought against a magistrate,
the Commissioner 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 Ordin-
arice, the proof of such warrant or order shall be 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 or forms 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 instru-
ments 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 Crown in any manner what-
soever.

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 relating to any declaration, opinion, or dis-
cretion, 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 authority other
than the Chinese authority by whom the requisition was
made, or other than the Chinese authority to whom he is to
be surrendered, and although the Chinese authority to whom
he is to be surrendered is not the Chinese authority by whom
the requisition was made.

FIRST SCHEDULE. [s. 2.]

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
designated 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 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-stealing.
14. Kidnapping.
15. False imprisonment.
16. Burglary or housebreaking.
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 municipal
law.
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 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 Coinage Offences Ordinance;
(b) the False Personation Ordinance;
(c) the Falsification of Documents Ordinance;
(d) the Forgery Ordinance;
(e) the Larceny Ordinance;
(f) the Offences against the Person Ordinance,
or any Ordinance amending or substituted for the same, which is
not included in the foregoing list.

SECOND SCHEDULE. [s. 17.]

FORM 1. [ s. 6.]
Order by the Governor to a magistrate 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, late of accused
of the commission of the crime of within the juris





diction of China namely the province (or, territory) of Now
I 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 (Chapter 235 of the Revised Edition of Ordinances).
Given under my hand and seal at Victoria, Hong Kong, this
day of 19
[L.S.] (Signed) Governor.

FORM 2. [s. 7.]
Warrant of apprehension by order of the Governor.
HONG KONG.
IN THE MAGISTRATE'S COURT AT
To each and all of the police officers of the Colony.
Whereas His Excellency the Governor, by
order under his hand and seal, has signified to me that requisition
has been duly made to him for the surrendpr 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
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 be surrendered in
pursuance of the Chinese Extradition Ordinance, (Chapter 235 of the
Revised Edition of Ordinances) for which this shall be your warrant.

Dated the day of 19

[L.S.] (Signed) Magistrate.

FORM 3. Order to bring before a magistrate a fugitive criminal
already in custody.
HONG KONG.
IN THE MAGISTRATE'S COURT AT

To the Commissioner of Prisons, and to each and all of the
police officers of the Colony.
Whereas His 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 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, (Chapter 235 of the Revised
Edition of Ordinances) for which this shall be your warrant.
Dated the day of 19 .
[L.S.] (Signed) Magistrate.












FORM 4. [s. 8.]
Warrant of apprehension without order of the Governor.
HONG KONG.
IN THE MAGISTRATE'S COURT AT
To each and all of the police officers of the Colony.
Whereas it has been shown to me, the undersigned, a magistrate
of the said Colony, that , late of 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 before me or some other magistrate sitting in this
court, to be further dealt with according to law, for which this shall
be your warrant.
Dated the day of 19

[L.S.] (Signed) Magistrate.

FORM 5. [s. 10.]
Warrant of committal.
HONG KONG.
IN THE MAGISTRATE'S COURT AT
To one of the police officers of the Colony,
and to the Commissioner of Prisons.
On 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, (Chapter 235 of the Revised
Edition of Ordinances) on the ground of his being accused of the
commission of the crime of
within the jurisdictiDn 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's name, forthwith to convey and
deliver the body of the said into the custody of
the Commissioner of Prisons, and you, the said Commissioner, to
receive the said into your custody in a prison,
and him there safely to keep until he is thence delivered pursuant
to the provisions of the said Ordinance, for which this shall be your
warrant.
Dated the day of 19

[L.S.] (Signed) Magistrate.

FORM 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 Hong Kong and its dependencies.
To the Commissioner of Prisons, and
to
Whereas late of accused of
the commission of the crime of within the jurisdiction
of China, was delivered into the custody of you 1





the Commissioner of Prisons, by warrant dated the day of
, 19, pursuant to the Chinese Extradition
Ordinance, (Chapter 235 of the Revised Edition of Ordinances):
Now I do hereby, in pursuance of the said Ordinance, order you,
the said Commissioner, 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 of who is
authorized by the Chinese authorities to receive him, for which this
shall be your warrant.
Given under my hand and seal at Victoria, Hong Kong, this
day of 19

(Signed) Governor.

FORM 7. [s. 13.]
Order of discharge by the Governor.
By His Excellency , Governor and Commander-
in-Chief of the Colony of Hong Kong and its dependencies.
To the Commissioner of Prisons.
Whereas one is now in your custody as a fugitive
criminal under the provisions of the Chinese Extradition Ordinance,
(Chapter 235 of the Revised Edition of Ordinances) 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 seal at Victoria, Hong Kong, this
day of 19

[L.S.] (Signed) Governor.
Originally 26 of 1889. Fraser 7 of 1889. Short title. Interpretation. First Schedule. [s. 2 cont.] 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 1. Duty of magistrate on receipt of order. Second Schedule. Forms 2 and 3. Power to issue warrant as in ordinary case. Second Schedule. Form 4. Procedure o fugitive criminal being brought before magistrate. [s. 9 cont.] Committal to prison or discharge. Second Schedule. Form 5. Notice to Attorney General before discharge. Warrant for surrender, etc. Second Schedule. Form 6. [s. 12 cont.] Power to Governor to order discharge. Second Schedule. Form 7. Discharge if not surrendered within two months. Aiders and abettors in extradition crime. Protection of magistrate and other 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. [First Sch. Cont.] (Cap. 204). (Cap 207). (Cap 208). (Cap 209). (Cap 210). (Cap 212)_.

Originally 26 of 1889. Fraser 7 of 1889. Short title. Interpretation. First Schedule. [s. 2 cont.] 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 1. Duty of magistrate on receipt of order. Second Schedule. Forms 2 and 3. Power to issue warrant as in ordinary case. Second Schedule. Form 4. Procedure o fugitive criminal being brought before magistrate. [s. 9 cont.] Committal to prison or discharge. Second Schedule. Form 5. Notice to Attorney General before discharge. Warrant for surrender, etc. Second Schedule. Form 6. [s. 12 cont.] Power to Governor to order discharge. Second Schedule. Form 7. Discharge if not surrendered within two months. Aiders and abettors in extradition crime. Protection of magistrate and other 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. [First Sch. Cont.] (Cap. 204). (Cap 207). (Cap 208). (Cap 209). (Cap 210). (Cap 212)_.

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