212
The city is now increasing, and will continue to do so; its present boundaries are very circum scribed, and sooner or later would have had to be extended. No better or more convenient mode of doing this than the one now being carried out along the foreshore of the city could have been proposed, and we feel sure that in course of time, when the whole of the project is completed, and handsome new buildings are erected on it from east to west, we shall have a city worthy of the growing importance of the colony.
ASSAULT ON FOREIGNERS AT
KOWLOON CITY.
A cowardly assault was committed on Sunday afternoon upon a party of English visitors at Kowloon City. The party, which consisted of three ladies and four gentlemen, had made an inspection of the city, and on returning to the qusy were surprised to find their launch in the possession of a gang of Chinese gamblers, who, after some persuasion, were gently but firmly removed from the vessel. The manner of ex- pulsion not being agreeable to the gamblers, recourse was had to a pile of stoues lying by and these were hurled with marvellons rapidity but fortunately without accuracy of aim, at the occupants of the launch, with the result that one of the ladies received a severe blow over the left eye and several gentlemen were the recipients of body blows. On the exhaustion of the pile of stones, the cowardly ruffians took to their heels. Remonstrance will be made to the proper quarter and it is to be hoped the perpetrators of this outrage, most of whom can be recognized, will be speedily punished.
It is satisfactory to know that the ringleader in the disgraceful attack on English visitors at Kowloon City on Sunday afternoon has been arrested. On Monday he was taken before the head mandarin at Kowloon City, and after he had been identified as a prominent participator in the affray he was lodged in prison pending
further examination.
SUPREME COURT.,
17th September.
IN APPELLATE JURISDICTION. BEFORE THE FULL COURT.-SIR FIELDING CLARKE (CHIEF JUSTICE) AND MR. A. G. WISE (ACTING PUISNE JUDGE).
LEUNG YAU AND ANOTHER, APPELLANTS, V. POLICE CONSTABLE LEONARD, RESPONDENT.-JUDGMENT. The appellants sought to have set aside the decision of the Magistrate, whereby they were convicted of removing opium during illegal hours.
Mr. J. J. Francis, Q.C., and Mr. H. E. Pol- lock (instructed by Mr. Dennys) appeared for the appellants, and the respondent was repre- sented by Hon. W. M. Goodman, Attorney- General, who was instructed by Mr. Master (Acting Crown Solicitor).
Before delivering judgment the Chief Justice said-This judgment is drawn in the first per- son singular, but it is our joint judgment in every respect.
His Lordship then read the following judgment These are two appeals heard toge ther from conviction for illegally moving opium. One appeal is for a rehearing of the facts and the other raises legal objections to the conviction on a stated case. I am satisfied from the evidence that the opium in question was being moved after prohibited hours and, so far as that might be material, that the appellants were intending to evade the law. There is in my opinion no case made out for a rehearing. The other appeal raises two points of law, both of which have been previously de- cided by this Court, though there is no recorded judgment in writing upon them. In the first place it is contended for the appellants that the packages of opium seized are not "chests" or chests of opium" within the meaning of Or- dinance XXII. of 1887 (principal Ordinance)
+
66
*
""
means
+9
[September 18, 1895.
45
or
THE HONGKONG WEEKLY PRESS AND
and Ordinance XXII. of 1891 (amending Or-moval or movement of opium whatever under dinance) and that therefore the penal conse- sections 10 and 11 of the principal Ordinance quences provided for moving a chest or chests shall be allowed between the hours, &c., unless of opium without having applied for and ob the requisition mentioned in the said sections tained the proper permit have no application. shall so state and unless the Superintendent. In the two Ordinances" opium
raw, shall in his discretion in and by the permits in crude, or unprepared opium; chest" means the said sections mentioned direct and any offence the package with the opium therein such as is against this section shall be subject to the pro- usually imported by merchants in the colony;
vision of section 13 of the principal Ordinance.” and "loose opium" means "all raw opium Sections 11 and 13 of the principal Ordinance found or discovered otherwise than in a chest are as follows:-Section 11:
Every person full of one quality of raw opium." The moving a chest or chests of opium from one Magistrate's finding as affecting the point under place to another within the colony or tranship- discussion is as follows:-Externally each of ping such chests or chests within the waters the four chests seized was such as is usually thereof shall before doing so furnish to the imported by merchants in this colony. They Superintendent a requisition properly filled up not packed in the way in which it is usually Superintendent shall furnish a permit in the were full of Malwa opium. The opium was in the form of Schedule E, whereupon the
being to import the balls whole, each ball har- ment or removal of the said opium, which permit packed as imported from India, the usual way
form of Schedule F authorizing the tranship- ing a separate compartment in the chest, whereas shall be exhibited to the opium farmer or in the chests seized there were no compartments his agent, and shall be signed by him and all the balls were not whole. Each chest his agent, and shall nót be used or question is whether the difference in the in- contained the same kind of opium in it. The acted upon until it has been so signed." Section 13: "Any person offending against or ternal arrangement of the packages precludes not complying with any of the provisions of that they are not packages their being regarded as chests" on the ground sections 9, 10, 11, and 12 shall be liable on con- therein, such as
"with the opium viction to a penalty not exceeding five hundred are usually imported" &c., dollars, and any opium imported or exported or the Ordinances, as shown in the preamble to the exported or stored or moved contrary to the I agree with the argument that as the object of stored or moved or attempted to be imported or pro- principal Ordinance, was to control the move- visions of the foregoing sections shall be seized ment of all raw opium within the colony "loose and may be forfeited." The 6th section of the opium was intended to describe all raw opium amending Ordinance is clearly meant to be com- not included in the definition of a "chest." As, plemental to the 11th section of the principal however, the word "chest occurs in the defini- Ordinance. It imposes further conditions in tion of "loose opium" this does not carry the connection with the requisition and permit when question further, except that as opium which is the movement takes place between certain hours found otherwise than in a chest full of one and in my opinion, though the language is not quality of raw opium is loose opium," it as clear as it might be, it has the effect of ex- seems to follow that a package to be a "chest tending the penal consequence of a breach of must be full of one quality of raw opium. This section 11 to the non-observance of these fur- sent case and there remains therefore only the condition if necessary was satisfied in the pre-
ther conditions. It was intended to create a question whether the packages seized with the
new offence, but not a new class of offender. It is necessary therefore in a charge under the 6th opium therein were such as are usually imported section to consider section 11 as amended there- by merchants in the colony... The very terms, of by rather than section 6 by itself. The provi- this latter condition exclude an exact resem- sion is section 11, for non-compliance with which blance to a given standard, because one imported the penalties are to be imposed, is that every package will always differ from another in some person moving a chest "shall before doing so respects. I think it is to be inferred from the apply for and obtain a permit in a certain form. definition that the package to be a "chest " The obligation under the amending section 6 must either be the package actually imported as applied to this case might therefore be shortly or bear such a general resemblance to the pack. stated thus: Every person moving a chest age usually imported that it would be taken for after 7 p.m. in the month of June shall before one by those familiar with the general appear-doing so apply for and obtain a special permit ance, but I do not think that this imports that in the prescribed way." It is clear to me that there must be no difference in the external or the person aimed at in both the sections is the internal appearance of the package from that person whose business it is to apply for the which an imported chest usually presents. permit; in other words, the person having the I do not base my conclusion on an estoppel special or general ownership of the opium arising from the description of the opium as and at whose instigation the movement is chests of opium in the requisition for a permit. made. The offence is moving the opium In proceedings of a penal nature involving fine without first applying for and obtaining and forfeiture I know of no estoppel by admis- the appropriate permit. If this applied to sion except a plea of guilty. My conclusion is the coolies and boatmen who are the instru- based upon the consideration that the provisions ments of removal it would be necessary in all by the Ordinance are not reasonably consistent cases for every coolie or boatman who assists in with the narrow construction contended for by the removal at any stage to personally apply the appellants. Under sections 10 and 11 of the for and obtain a permit. I think that the word principal Ordinance it is made imperative on the superintendent to grant the removal per- mit on presentation of the requisition, and the offence under these sections consists in moving chests before the permit is obtained. In the absence of express language it cannot be supposed that the Legislature intended that a permit should not be necessary in the case of a package having all the external appearances of a chest as usually imported and containing all the opium usual in an imported chest. It is in my opinion no violation of language to hold that the word "package" in the definition refers only to the box or external package and that the "opinm therein "is the same opium as is usual. ly imported, though some of the balls have been cut in two. I therefore agree with the Magistrate that these packages were within the definition. The other question is whether, assuming that the chests seized were being illegally removed, the appellants, who are described respectively as a coolie and a boatman, are the proper persons to be prosented. Section 6 of the amending Or- dinance, for a breach of which the appellants were fined and the opium condemned, is, so far as material, as follows:" Except as provided in section 12 of the principal Ordinance no re-
moving" in the expression "every person moving a chest" is obviously used in a con- structive sense. In the form of permit "A B is authorized to move. &c.;" the meaning is that A B is authorized to procure the removal of, &c. In the same way a man is said to move his furniture when he has it moved from one house to another. The word “transhipping" is used in the section in the same way. Nobody would contend that if chests are being moved from one ship to another all the coolies engaged on the two ships and on the lighters are tran- shipping the chests and that before doing so each of them is obliged to apply for a permit. The person who procures the removal or tran- shipment of a chest or chests of opium is in my opinion the person "moving" or "transhipping the chest or chests and it is upon such person only that the statutory obligation is imposed of obtaining the proper permit
"before doing so." The coolies and boatmen cannot be dealt with as accomplices, because if it is not their duty to apply for and obtain the permit they cannot be parties to the offence of moving the opium with- out having first applied for and obtained it. On this point therefore I think that the appeal must be allowed. As to the forfeiture it is not shown