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THE CHINA MAIL, THURSDAY, NOVEMBER -10, -1949.......
REMARKS BY CHIEF JUSTICE IN JUDGMENT
Correspondence
Kibility#York "views" expressed" in. lesters by correspondents, and by. no means necessarily agrees with them
R
Radio Hong Kong.
Having "pertised, with a slight repling af muse, your at some further comment. is letter from "Eclectic Fan", I feel mates. Of course, it is Eusta
When witnesses virtually have to admit that they have told an untrue story on oath, andƐonly then do they come forward with an entirely different story, it is almost unthinkable that the magistrate should regard the secondly nowadays, to criticise any
thing which does not quite fit story as sufficient to convince him beyond into one's personal toniz, but reasonable doubt."
This custom does not inte" a fight To do so unless one can put for
So said Sir Leslie Gibson, Chief Justice, at the Ap-ward a solution acceptable, not
peal Court yesterday in the course of a verbal judgment quashing a conviction for alleged public service assault and possession of a revolver involving a New Territories farmer.
The Latter, Lau Chi-ping, alias with an entirely different story, it Lau Shek-kau, aged 22-of Sha Fe is almost unthinkable that the Kong Village, had been sentenced | magistrate should regard the to three years' hard labour on į second story, aš sufficient to cón- able the Taipo District Court for the doubt. alleged offences.
"When it comes, therefore, to Mr. A. Hooton was for the the weight to be attached to the Crown, Mr. A.J. Clifford, instruct- | second story, I am with Mr.
on behalf of the appellant.
August 5 by Mr. EB, Teesdale at vinice him beyond reasonable
ed by Mr. J.C. Stewart, appeared Clifford in saying that it would be
evidence.
extremely rash, though not img The ground of the appeal was possible, for any real weight to be that the verdict of the Magistrate attached to the second story in was against the weight of such circumstances. If real weight was to be so attached, one would Mr. Clifford in the course of his expect the Court to test the address to the Court referred to second story by very close ques what he termed certain inconsistioning indeed before accepting tencies in evidence given by pro-it. secution witnesses. This was a "I turn next to the question of most unsatisfactory state of aft-whether there was any evidence airs, he said.
admissable outside the evidence Submitting that the appellant,, of those two witnesses. Evidence who was then not defended legal was wrongly given that the ac- ly, did not get a fair trial, counsel cused-had been arrested for some contended that the duty of a other offence. Had he been tried judge is to see that a prisoner is before a jury, the fact that that convicted only on the proper evidence was given might have evidence before him, and not on created grave prejudice which evidence by, witnesses giving con- would have been very hard for
tradictory statemeals which, ne vertheless, tended to incriminate him.
Convictions Cannot
Stand
After Mr. Hooton had replied to Mr. Clifford's submissions, Sir Leslie in giving his decision decl- sion declared in part:
"In this case, the appellant was convicted by a magistrate on two charges. The Sr charge was a charge of assault occasioning ac- tual bodily harm and the second charge was a charge of possession of a revolver without a licence.
sault
the judge to remove.
But the mere fact of the giv- ing of that evidence, in a case where the accused was not tried by a jury but by a stipendary magistrate, does not necessarily invalidate a conviction. I think the position is different, and I should be prepared to accept statement of the magistrate that he did not allow himself to be prejudiced by that evidence.
Appeal Allowed
anly to oneself; but to the ma jority for after all the radio
"Eclectic FIN", who 'brands? himself by his diatribe as the very opposite of eclectic, which Loyhmited education tells me means catholic tastes, has apparently never heard of the Sunday symphony concert, the weekly concert, the weekly opera on Thursday Sermade, all admir the weekly chamber music recital
able programmes in excellent taste.
Cr does his electic fanaticism rectiy) stretch baly oper the (to expand the abbreviation cor-
realm ranging from the lower Thaikovsky to the upper Wald tendel? Ready Mr. EF (or 15 it "Miss), what is your taste? It evidently doesn't include the Twelve Note School or ever the pa transepdental chamber music of
Beethoven, for they rarely appear on Yvonne Char- ter's list of
Yet from your letter one would imagine that nothing could be too far upstage for your delicate tastes.
I must confess, Sir, that I am in agreement with a few of your correspondent's remarks, such as that concerning the lack of organ music (by the way is there no to mention alongside Bach than more important organ compose Rheinberger and his uninspired virtuoso sonatas) -I agree about the football results, but only because I am not very interested in football His insult t
(to the Ob- servatory is best left to the Ob- servatory to answer.
little in Hong Kong It may be Mandarin is Lingunge heard the language of statesmen and of classical Chinese literature, but "Apart from that, there was how many years will it take for certain evidence of an enquiryus poor ignoramuses to learn the before the elders of the village written and spoken language and think that the evidence sufficiently to understand diplo was rightly admitted, although matic speeches and classical "The evidence in the case call- the magistrate did not give the
Bferature at the rate of one ed for the prosecution is that of correct 'grounds for its admis-
half-hour lesson per week? Fur- "complainant himself who, "in the
sibility.
thermore, how many people listen story he ultimately put forward,
even to Cantonese by Radio? alleged that he was assaulted by
Certainly I agree that far too "The last piece of evidence many the appellant and that the appel- which supports the charge of as-
programmes coasist of lant used a revolver in that assault to some extent, though not from every combination from the musical hotch” potities drawn necessarily the charge of posses-Boston Pops Orchestra to Fred -Some
direct confirmation of sion of a revolver, is that the die Mirfield and his Garbage that story was contained in the complainant- evidence of one Lau Kam-lai, a bruises.
did have some Men, and I would add a plea for beller informed scripts to these shop-keeper, who gave certain
"Tam of the opinion that this programmes (the work of Bon eyewitness evidence as regards confirmatory evidence could not Gibbons is excellent, and Bir these events.
reasonably be regarded by the Drown's notes for the learned magistrate, taken with the Symphony Concert are a worthy Sunday evidence of the witnesses to example of what can be dese which I have referred, to be suff but in between is a ghastly cient to convince him beyond za hiatus) and the keeping of each "In both cases, the witnesses in accused on either of the charges Straussian, a la Albert Sandler
sonable doubt of the guilt of the type of music, eg classical", the first place gave evidence which did not allege the use of 2
jazz into programmes of their dance music, swing, "bebop and revolver in the assault After they
own, so that no one needs to lis- had given that evidence, the pro- secution obtained permission from
ten 20 minutes of what is to him the magistrate to treat them as
excruciating aggy before he hostile. Mr. Clifford, for the ap
his beloved Basumoysky pellant, has conceded that the
Quartet, his Fledermans, his Oo magistrate
had that discretion
Bop Stie Fam or bis Panama and that he does not how challen-
Incidentally, Mr. F., are you
a musi
"I am of the opinion the two convictions cannot stand on the evidence of those two witnesses alone for reasons which will
give now.
and set aside the conviction and I accordingly allow the appeal sentences and discharge the ap- pellant**
COOLIE GETS FOUR WEEKS
Brought before
30.
P. aware that
The
Widow Figures In Supreme Court Action
Chinese widow who was alleged by a friend to have signed a Chinese borrowing note with her son for the loan of $77,650, but who denies this in her defence, figured in an ac tion at the Supreme Court yesterday.ện The action is for recovery of $70,000, in addition
to $7,650 as 18 months interest due under the borrowing note in question. Plaintiff also claims further interest at the rate of $6-for each thousand, per month, until judgmenta Tsang Fook-lam, merchant needed the signature of the des first fendant as well, he explained? of 29 Yuk Sau. Street,
oor, who is the plaintiff, is plaintif denied he had met de represented by Mr. Leo fendant only in July, 1948, Mand d'Almada, KC.
that he was introduced to her instructed by
by_her_daughter, and not before. Wilkinson and Grist.
Hearing will continue at 10 Defendant Wong Chang-shin, today. Rood, second floor, is represented widow, of. 798 Wohmelchon's
by Mr. H. G. Sheldon, KC, and Mr. John McNeill both on the instructions of Deacons.
Fuise Judge, is trying the case
Mr. Justice Williams, “senior
The statement of claim states that the borrowing took place an June 26, 1947.
Committal Proceedings Started
Committal proceedings
In her statement of defenen, the defendant denies she is in- debted to plaintiff in the sum against six men charged with concerned.
possession of arms and PE- On March 9. this year, she inspected the Chinese initting armed robberies on borrowing note at the office of July 23 and August 3 and with Wilkinson and "Grist and dis- receiving stolen property start- covered that the signature Wanged before Mr. A. D. Scholes, at Chang-shi in Chinese on the note Central yesterday was not in her handwriting. She claims she never put such signa- fare to the note, nor did she au- thorise any one to do so. She had never borrowed any money from plaintiff at any time. been named as a defendant, did aged 18, Au Yeung chik, aged 22, not enter an appearance. It was Au Yeung-cheung, 20, Au Yeung therefore adjudged that plaintif hei, aged 16, Au Yeung-san, aged recover against second defendant the sum of $77,650 together with 28 and Leung Tsin, aged 22. | $420 being interest from Decem- ber-27, 1943, to January 28, 1949, and costs to be taxed.
•
Defendant's son, who had also
Exchange Member
Originally eight men and one Chinese woman were charged with the alleged offences but two men and the woman were discharged on November 5 as there were no evidence ofered against them.
The six men are Au Yeung-hon,
All the defendants are charged arms without a licence. Addition- with the alleged possession of
ally, second, fourth and fifth de- fendants are charged with al- legedly shooting with intent to
Mr. d'Almada told the Court harm; first, third, fourth and sixth that plaintiff was the sole, pro-defendants are charged with al- prietse of a Hong Kong firm, leged robbery with an offensive as well as member of the weapon on July 23: Art, second, Chinese Gold and Silver Ex-fourth and sixth defendants i change. He had known the charged with alleged armed rob- defendant and her son for many bery on August 5. yeiri Fiom time to time, `plaintiff. lent, small, suIDS. of money to them, which were duly repaid.^.
In addition first and third de fendants are charged with alleged ly receiving of stolen property od July 23 and first and sixth de-
Personalia
On June 26, 1947, counsel confendants are charged with al- dant's son met at the Paramount Party on August 5. timed, plaintiff and the defen-legedly receiving of stolen pro Ballroom. There the latter ap- reached him with the idea of entering into some business with himself, which required $100,000. Plaintiff did not agree with this, cut offered to lend the son $70,- Among the new arrivals at the 000 instead, with some require- Peninsula Hotel on Tuesday were ments of security.
Mr. and Mrs. WJ. Watts Miss The next day, plaintiff called M. Harrington, Miss C. Brooks, upon defendant's son at the late MESS P. Meek, Messrs. Saastad,
being that the house at which Ler's office, where the transaction RB. Watson, and WR. Halmew- was finalised, one of the terms sky,
would be put up as security. An yesterday by CPA from Bang- defendant and her son lived Passengers who arrived here arrangement was also arrived at kok, Singapore and Rangoon whereby the $70,000 would be were Messrs. C.O. Chambers handed over at the defendant's RE Kessinger, W.D. Barker,
house where the Forrowing note. Tiang Chi Cheng Pak-hei would be executed by both the Phua Hwee-ann, CK Vaswani, mother and son --
#
3r. d'Almada went on to say Mrs. Charito Esmail, who left
ge the magistrate's exercise. 01 Almada on a charge of larceny Edward Waller po tehomas that the plaintiff accordingly went Hong Kong in June this year.on
that discretion. #
After the two witnesses were allowed to be treated as hostile, they were confronted by the pro- secution with statements they had apparently made to the police in which they did allege that are volver was used, and they thea said that the story told in those
statements was true.
by finding, Man Kwing, coolie, was sentenced to four weeks of hard labor at-Kowloon yesterday,
Prosecution said that on Monday a woman senger, Li Ho, had her inside jacket pocket cat and $600 in notes were stolen from faunal ferry to Kowloon. Delen
·ber while crussing on board-a
dant was arrested and two 3100 notes were found on him.
cal degree and was one of the finest organists in his State, besides being one of the few organists who have been ask ed to play in Notre Dame in Paris? Just because, after a classical education, he still chose of which you obviously know to express hiraself in an art fgan
nothing is no reason for insult Extremely Rash
WAS!
mean to
to the house the same afternoon a world tour, is due to disez- The $70,000 was given by him to bark from a pan-American Clip- the defendant. Her son signed the per at 1.45 pm, at Kai note first. The defendant, who morrow from the United States. said she could not write with a Mrs Esmail, wife of Mr. ARE. fountain pen but with a Chinese Esmail, director of ARK, Email brush then took the note to 20-" and "Company and Esman and other room. She returned pre- Son, visited America, the United note, it is alleged. sently with her signature on the Kingdom and Europe.
Mrs. Esmail is the Honourary Eventually defendant's son left Secretary of the Indian Educa- ing his memory by placing him for the United States. On a few tion Welfare Association, which "I am of the opinion that the
in the.
after the same category as Sendy cecasions second story put forward by: Both:|
tais, a plaintiff | takes care of needy Indian child, Departures from the Peninsula Macpherson who, by the way, phoned her asking for the pay ren in the Colony. witnesses was admissible in Hotel on Tuesday included Dr. T. also, does a good job for a large mout of interest on the note. evidence but, quite manifestly, C. Gentry, Messrs. JR. Flank, Apiblic. Please allo allow me to Defendant replied that her I when witnesses virtually have to Jensen, R.V. Winquist, R. Come correct you on your idea of what tour from her property admit that they have told an union, R. Aellery, FW. O'Brien, comprises. Tin Pan Alley The suficient only for her living ex true story on path and only then JFS, Huntington, SS. Marr, A.G. term refers to the publishers of peases, and that she could not
when confronted with different Ross, HS. Walker, CE Foss, dance music and to nothing and pay. She also mentioned that her! statements do they come forward IPE. Derby, and R. Donoyan no one else.
son would look after this" "wisen It means nothing to do with he returned from the stades. swing, bebop or Jazz If you do About a year later, counsel
between continued, plaintiff met between Wong Man-keung, who, informed the end dance music, ask any him that two rears previously helia teen ager. After all, they do form had also lent defendant's son the greater part the listening $80,000 and $150,000-at different public: med listening, not times. The second loán vás elkand recured by the same house in which plaintiff's security was placed 798. Wonguelchong Road, Finally, Sir, could I ask your learning this, Woog Kad compondent to pick a thore keng subsequently rang up the suitable padonya he must defendant and inquired about use one? My own suggestion is the $150,000 Defendant-replied that, with so much wind to get that the money was still in the off his chest, he should have bouse. Wong and the plaintiff called himself #Electric Fany later vent to the defendant's
GRAHAM BAXBY place personally, and were
by ber that her son had abscond ed with all the money. Plaintiff, It is alleged, without any hint of denial of liability on her part advised the twould wait until her són returned
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20 Evidence on his own behalf was then given by plaintiff) after what he was cross examined by Me Sheldon S Plaintif denied a suggestar tailitary stores and equipment for ftrum counsel that his story of the
the local garrison.
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manded by Mr
left the Straits on "with 300 tons of
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