CHINESE EXTRADITION ORDINANCE
Title
CHINESE EXTRADITION ORDINANCE
Description
LAWS OF HONG KONG
CHINESE EXTRADITION ORDINANCE
CHAPTER 235
CHAPTER 235.
CHINESE EXTRADITION ORDINANCE.
Section. ARRANGEMENT OF SECTIONS. Page.
1. Short title ......... ...................... ... ... ... ... ... ... 2
2. Interpretation .............................. ... ... ... ... ... ... 2
3......................Application of the Ordinance ... ... ... ... ... ... ... ... 3
4. Restrictions on surrender of fugitive criminal ... ... ... ... ... 3
5. Liability of fugitive criminal to be surrendered ... ... ... ... 3
6. Requisition to Governor and order to magistrate ... ... ... ... 4
7...........................Duty of magistrate on receipt of order ... ... ... ... ... ... 4
8...........................Power to issue warrant as in ordinary case ... ... ... ... ... 4
9......................................Procedure on fugitive criminal being brought before. magistrate ... 4
10......................Committal to prison or discharge ... ... ... ... ... ... ... ... 5
11.............................Notice to Attorney General before discharge ... ... ... ... ... 5
12....................Warrant for surrender, etc . ... ... ... ... ... ... ... ... ... 6
13...........................Power to Governor to order discharge ... ... ... ... ... ... 6
14. Discharge if not surrendered within two months ... ... ... ... 6
15...........................Aiders and abettors in extradition crime ... ... ... ... ... ... 6
16. Protection of magistrate and others acting under warrant or order 7
17. Forms ... ... ... ... ... ... ... ... ... .. 7
18. Fugitive criminal to be deemed to be a national of China ... ... 7
19. Evidence .................................. ... 1 ... ... ... ... 7
20. Liability to be surrendered not to be affected by change of Chinese
authority ................................ ... ... ... ... ... ... 7
First Schedule. List of Extradition Crimes .... ... ... ... ... ... ... 8
Second Schedule..Forms.......................... ... ... ... ... ... ... ... ... 9
CHAPTER 235.
CHINESE EXTRADITION.
To amend the law relating to the extradition of Chinese criminals.
[9th November, 1889.1
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
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.
(Amended, 5 of 1924, s. 6)
2. In this Ordinance, unless the context otherwise requires
'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; (Added, 17 of 1927, s. 2)
.'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; (Amended,
17 of 1927, s. 2)
'jurisdiction of China' includes the jurisdiction of any Chinese
authority as defined in this section; (Added, 17 of 1927, s. 2)
'national of China' means any person who, not being a national of any
other state. possesses Chinese nationality. (Added, 17 of 1927, s.
2)
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 Her
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.
(Amended, 51 of 1911, and 43 of 1912, Schedule)
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 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 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., (Amended, 50 of
1911, and 62 of 1911, Schedule)
(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 Her 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. (Amended, 51 of
1911, and 17 of 1927, s. 3)
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.
(Amended, 17 of 1927. s. 4)
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 magis. trate. 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 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; (Amended, 27 of 1937, Schedule)
(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, shaft 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 the Colony for more than six months, during the
period mentioned in paragraph (a) of this proviso, shall
lie on such fugitive criminal; and (Amended, 5 of 1924,
Schedule, and 27 of 1937, Schedule)
(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 com-
mitted 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. (Amended, 50 of 1911, s. 4, and 27 of 1937,
s. 6)
(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 forth-
with send to the Governor the depositions and other evidence in
the case, together with a report thereon and in particular in relation
to- (Amended, 50 of 1911, s. 4, and 27 of 1937, s. 6)
(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 Attorney General.
(Amended, 27 of 1937, Schedule)
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 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 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. (Amended,
37 of 1909, s. 2; 50 of 1911, s. 4; 51 of 1911; 63 of 1911, Schedule, 17
of 1927, s. 5, and 27 of 1937, s. 6)
(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 police officer and to
hold him at all times as upon the original warrant. (Amended, 51 of
1911, s. 4)
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 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 Attorney General. order
the fugitive criminal to be discharged out of custody, unless sufficient
cause is shown to the contrary.
(Amended, 50 of 1911, and 62 of 1911, Schedule)
15. Any person who is accused or convicted of having counselled,
procured, commanded aided, or abetted the commission 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 Ordinance, 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.
(Amended, 50 of 1911; 51 of 1911, and 5 of 1924, s. 12)
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 instruments in those forms shall (as
regards the form thereof) be valid and sufficient.
(Amended, 50 of 1911)
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
whatsoever.
(20 of 1915, s. 2, incorporated by 5 of 1924, s. 22. Amended,
5 of 1924, s. 22, and 17 of 1927, s. 6)
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 discretion, which the Governor is
authorized by this Ordinance to make, form, or exercise, respectively.
(A dded, 17 of 1927, s. 7)
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.
(Added, 17 of 1927, s. 7).
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
counterfeited, forged, or falsified papers.
6. Theft.
7. Handling stolen goods.
8. Obtaining property by deception.
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 aggravated burglary
17. Arson.
18. Robbery with violence
19. Blackmail
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
(Cap, 200)
(b) The False Personation Ordinance
(c)The Falsifcation of Documents
(d) Part IX -(Forgery) of the Crimes Or inance
(e) the Theft 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. (Replaced, 27 of 1937, Schedule)
SECOND SCHEDULE. [s. 17.]
FORM 1. [s. 6.]
Order by the Governor to a magistrate to issue his warrant.
By His Excellency Governor and Commanderin-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 ofwithin 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 Ordinance (Chapter 235).
Given under my hand and seal at Victoria, Hong Kong,. this day of 19
[L.S.] (Signed) Governor.
(Amended, 50 of 1911; 62 of 1911, Schedule, 21 of 1912, and 17
of 1927, s. 8)
FORM 2. [s. 7.1
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 surrender of 1
late of accused of the commission of the crime
ofwithin the jurisdiction of China: This is,
therefore, to command you, in Her 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) for which this shall be your
warrant.
Dated the day of 19
[L.S.] (Signed) Magistrate.
(Amended, 51 of 1911)
FORM 3. [s. 7.1
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
of within the jurisdiction of China: This is,
therefore, to command you, in Her Majesty's name, forthwith to bring the
said before me or some other magistrate sitting in this
court, to be dealt with according to the provisions of the Chinese Extradi-
tion Ordinance, (Chapter 235) for which this shall be your warrant.
Dated the day of 19
[L.S.] (Signed) Magistrate.
(Amended, 50 of 1911; 51 of 1911, and 5 of 1924)
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 1 is
accused of the commission of the crime of within
the jurisdiction of China:This is, therefore, to command you, in Her
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.
(Amended, 51 of 1911)
FORM 5. [8.
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 1 1
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) 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 Her 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.
(Amended, 50 of 1911, 51 of 1911.. 5 of 1924, and 27 of 1937)
FORM 6. [s. 12.]
Warrant of the Governor for the surrender of a fugitive criminal.
By His Excellency Governor and Commanderin-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 ofwithin 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): Now 1 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
1 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.
(Amended, 50 of 1911, 62 of 1911; 5 of 1924, and 27 of 1937)
FORM 7. [s. 13.]
Order of discharge by the Governor.
By His Excellency Governor and Commanderin-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) and whereas it has been determined that no warrant shall
be granted for the surrender of the said Now 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
[L.S.] (Signed) Governor.
(Amended, 50 of 1911, 62 of 1911; 5 of 1924, and 27 of 1937)
Originally 26 of 1889. (Cap. 235, 1950.) 5 of 1908. 37 of 1909. 50 of 1911. 51 of 1911. 62 of 1911. 63 of 1911. 21 of 1912. 43 of 1912. 20 of 1915. 5 of 1924. 17 of 1927. 27 of 1937. Preamble. 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 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 on fugitive criminal being brought before magistrate. Committal to prison or discharge. Second Schedule, Form 5. Notice to Attorney General before discharge. Warrant for surrender, etc. Second Schedule, Form 6. 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 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. (Cap. 204.) (Cap. 207.) (Cap. 208.) (Cap. 209.) (Cap. 210.) (Cap. 212.)
Abstract
Originally 26 of 1889. (Cap. 235, 1950.) 5 of 1908. 37 of 1909. 50 of 1911. 51 of 1911. 62 of 1911. 63 of 1911. 21 of 1912. 43 of 1912. 20 of 1915. 5 of 1924. 17 of 1927. 27 of 1937. Preamble. 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 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 on fugitive criminal being brought before magistrate. Committal to prison or discharge. Second Schedule, Form 5. Notice to Attorney General before discharge. Warrant for surrender, etc. Second Schedule, Form 6. 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 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. (Cap. 204.) (Cap. 207.) (Cap. 208.) (Cap. 209.) (Cap. 210.) (Cap. 212.)
Identifier
https://oelawhk.lib.hku.hk/items/show/2937
Edition
1964
Volume
v16
Subsequent Cap No.
235
Number of Pages
13
Files
Collection
Historical Laws of Hong Kong Online
Citation
“CHINESE EXTRADITION ORDINANCE,” Historical Laws of Hong Kong Online, accessed November 8, 2024, https://oelawhk.lib.hku.hk/items/show/2937.