The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-04-29

. himself, and he was then arrested
under the law above set forth. Tho
trial Court heard considerable evil
denee ON the question whether the
permit he held had been issued to
him personally or had been Issued
70 another and transferred To him.
! From this evidence the Justice has
cited the testimony of Young Nap,
! who interpreted for the customs
officers at the quarantine station,
that the defendant stated, during
the inspection of his permit by the
/ port surveyor, that he procured the
/ permit in China and that it was
/ given to him by some person. This
evidence not being met nor denied
on the part of the defendant was
deemed conclusive against him by
| the trial Justice,
| 1t is objected by defendants
counsel that this might be a permit
| personal to defendant emitting him
to enter this kingdom although pro-
cured in China, We understand
that no permits to enter the king
dom are granted by the Foreign
| Office except upon the personal
application here by the Chinese
who desires to return to this king
dom after an absence in China.
His name, age occupation and
| place of previous residence on these
islands are all inserted in the permit,
and a guaranty of Identification and
as to the habits of the applicant is
filed by guarantor known to the
Foreign Office. These particulars
are required by the regulations
authorized by the statute to be
made by the Minister with the con-
sent of the Cabinet. This class of
permits is entirely distinct from
those authorized by the Act of 1890
Chapter 67) which are called "spe-
eial residence permits" to Chinese
agricultural laborers.
We therefore find that the fact
that the defendant procured this
permit in China and not from the
Foreign Office here is evidence that
it is not one personal to himself and
does not authorize his admission
into this kingdom. The result
must follow, which the statute en-
| joins, that the tender or presenta-
ton of such permit by the Chi
nese is to be deemed conclusive
evidence of an attempt on his part
to land in this kingdom without
permit" This attempt is punish
able by the fine which was i'm
posed.
We consider it unnecessary to
ascertain exactly when the de-
PENDANT began to form the intent in
his mind of entering this kingdom
without valid permit personal to
himself-whether in China or on
the high seas or at the moment
when the steamship which car
ried him was crossing the
line which boards our jurisdiction.
He might enter our waters with
false permit in his pocket and not
present it, but proceed on with the
steamer to California, and thus not
commit any offense against this
statute. The mere preparation of
| the means of committing any
offense, nothing being done IN the
execution of the intent to commit
the same, is not an attempt to COM
NIT the same. But in our case the
attempt to land without the proper
permit was made when defendant
presented the permit to the officer
of customs OF the Hawaiian Govern
ment. He had not then entered the
kingdom and become part of the
| body polite, so that the constitu
tionaI provision against Gloss legis-
lation (Article 49, could be invoked
| in his favor. Having presented
! false permit, which was proved TO
have been obtained i'm China, the
offense thus consummated colors all
his acts, and we may presume that
he formed the intention in China of
entering this kingdom by means of
| this permit. However this may be,
the 0ffense was completed when he
offered the permit in order to obtain
landing i'm this kingdom.
w = tEtItIbIt bNtIIule tHt tAttD-
lions.
The case of Rex VS.. Leong Tiam,
7 Haw., 338, decided by this Court,
when 1t consisted of five Justices,
has such n close similarity to the
one ut bar, that we may not, except
on very substantial grounds, depart
from 1T.
| G. Creighton, Deputy Attorney
General for the Crown; A. s. Hart
we'll and W.R. Castle for defendant
Honolulu, April goth, 1862.
PARTIAL CONCuRRINg OPINION OF
DOLE, J.
While the opinion of the Court
supports the Judgment appealed
from, am unable to adopt its
reasoning The case Of Rex vs..
Leong Tiam, therein cited, would
be satisfactory precedent for the
present ease except for the constitu-
tional point now raised. The
constitutional question not being in
issue IN that ease, Is throws no light
upon TINT question In this case. Not
! having been led by the able atgu-
! ments Uf defendants counsel before