462
SUPREME COURT,
27th May.
CRIMINAL SESSIONS.
BEFORE HIS HONOUR DR. CARRINGTON (CHIEF JUSTICE.)
THE ARSON CASE.
The hearing was resumed of the charge of arson brought against Tsung Sai Chap and Lau Wai Chin, masters of 48, Praya West, on which premises a/fire broke out on the 22nd April last.
Hon. H. E. Pollock (Acting Attorney General) and Mr. J. J. Francis, Q.C. (instructed by Mr. A. B. Johnson, Crown Solicitor), appeared for the prosecution, and Mr. E. Robinson (instructed by Mr. Hastings, of Mr. V. H. Deacon's office) defended the prisoners.
Mr. R. K. Leigh, civil engineer and architect, said that he had had a practical experience of fires and he had made a careful examination of the premises at 48, Praya West. He found augur holes drilled in the first floor and from what he had seen of the charred portions of the rooms he was of opinion that the flames could not have stretched as they did by merely going through the holes; there must have been either inflammable material near the holes
fire. a separate
The only source of communication of the fire from the first to the second floor was through the holes. On the ground floor there were two sources of fire.
or
In closing the case for the prosecution Mr. Francis said three Chinese witnesses who were called at the Police Court were in attendance if the learned counsel for the defence wished to call them.
Mr. Robinson-Are they tendered for cross- examination ?
Mr. Francis-No. Mr. Robinson-Then-
Mr. J. Hastings, solicitor, spoke to visiting the premises on the 24th of last month. He then saw only two holes, and did not see the other two until a later vísit,
In answer to Mr. Francis witness said that the floor was covered with dirt on the 24th April. It was nearly six o'clock when the whole of the evidence was concluded and Mr. Robinson said he would rather not address the jury that evening if his Lordship did not intend to sit He was afraid his address would be rather a long one.
[June 4, 1896.
THE HONGKONG WEEKLY PRESS AND
dirt, dust, and paper and he did not have them Was there evidence to connect both or was swept away.
He did not think it likely that there something to connect only one? Ho the
presence of this dirt prevented him from freely admitted that if there had been argon- seeing the holes. He did not know that In-suspicion must attach to both partners; but spector Witchell and Sergeant Macaulay had the jury must not proceed upon suspicion, but given evidence at the Police Court, before the upon proof. Were the prisoners guilty of 26th inst., of the existence of the holes.
arson ? It was not a question whether the stuff was there, but when and how it was put there. The accounts showed a very moderate claim for loss by the fire and nothing to show there was any intention to defraud the insurance"-com- panies It might be said that the prisoners were afraid to make a big claim, because they were put under arrest, but they were entitled to fair and honest play and no such suspicion should rest upon them. Counsel granted that there had been foul play in the house, but were the prisoners connected with it? Who bored the new augur holes? It was not a European who had blundered in such a stupid fashion, and the man who bored the holes was also the man who placed the tub of kerosine in the little room. If, as was suggested by the prosecution, the premises had been saturated by kerosine they would certainly have been entirely de- stroyed. Mr. Leigh had said that he thought the reason why the place was not burnt down was that there was a plentiful supply of water poured upon the fire, but the jury had to con sider whether such could be the case if there was so much kerosine about on that night. Counsel, in concluding a long speech, asked the jury to acquit the prisoners.
Mr. Francis My Lord, it is in accordance with the practice of the Court. I have raised the point very frequently in defending prisoners and it has been decided that the Crown need not put witnesses into the box or tender them for cross-examination.
His Lordship (to Mr. Robinson)-If you want them they can be called and you can make them your witnesses.
The Acting Attorney-General-The wit- nesses are here, my Lord."
Mr. Robinson-They are not tendered. The Acting Attorney-General-My learned friend can have them if he wants them.
Mr. Robinson-I do not know what your Lordship may think about the practice in these cases, but under the circumstances I intend to call only one witness, Mr. Denison, to give technical evidence, and if there is ally-
thing the prisoners would like to say I think this would be the right time for them to make a statement if they wish. The practice in England has varied. In a recent number of the Nineteenth Century thero is an article by Sir Herbert Stephen in which he deals with, among other points, this point. He says that many eminent judges have adopted the course I have suggested as the best for prisoners; that if they wish they should make a statement at the opening of the defence and before the speech of the counsel. I concur in that opinion and submit it as the best practice for your Lordship's consideration.
His Lordship-I think it is the most con• venient course to have the statement before counsel addresses the jury.
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Each prisoner, when asked if he wished to say anything, replied "I did not set fire to the shop."
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Mr. Denison then gave evidence and spoke to the appearance of the premises on the 19th inst, when he first visited them. He did not see two certain holes spoken to by the prosecu- tion in the floor, but on the 26th inst. when he again went there, he saw the holes, which had been made with a & inch angur. He could not swear, but it was his opinion that the holes were bored through between the 19th and 26th inst. He found fresh sawdust on the floor and the top parts of the holes were clean.
In cross-examination by Mr. Francis, witness said that on the 19th the floor was covered with
later.
His Lordship told the jury that his hopes of finishing that night could not be fulfilled, as the address of the counsel for the defence, the reply of the Crown counsel, and the summing up would take a considerable time, and it was therefore hardly fair to the learned connsel, or to himself, or to the prisoners, to unduly hasten the conclusion of the case.
29th May.
Mr. Robinson addressed the jury for the de fence and said he approached the case with the feeling that the circumstances were not ideal;
Mr. Francis summed up at some length the but those circumstances, in so far as they
case of the prosecution and referring to the were not ideal, were not due to the jury, but to the state of the law. It was laid defence that somebody, not the prisoners, had down in the Jury Consolidation Ordinance bored the holes and placed a kerosine tin in the of 1887, sections 12 and 27, that wherever small room, said that that person existed only it should be necessary to summon
in the imagination of the counsel for the a special
defence. The whole of the circumstances of the jury in civil or criminal cases, in civil cases the number of jurors drawn from the bal-
case were entirely inconsistent with the theory lot shall be twenty-four and in criminal cases
of the prisoners in respect to the fire and he only twelve. It was also provided, in section confidently left the case in the hands of the jury. His Lordship then summed up and said. 27, that no person who shall be put upon bis
that the case was most important one trial either for treason, felony, or misdemean- our, shall be allowed to challenge any of the both to the Crown and to the prisoners. It jurors except for cause. Counsel could not was important to the Crown because it was in help thinking that this was a most unfortunate the highest degree desirable that when the crime state of the law in a small colony like this, and of arson was committed in a large and thriving looking at the date of the Ordinance he saw it city like Victoria it should be brought home to The case was important was passed during the Attorney-Generalship of the guilty persons. Sir Edward O'Malley, and he thought that if from the point of view of the defence because the matter were gone into, it would be found thats was an offence for which, if the prisoners were found guilty, they would be liable to that eminent lawyer must have been having vacation at the time of the passing of the Or. imprisonment for life. He thought it right to dinance and that this measure was in the hands mention that the case had been conducted with of a locum tenens. If this had been a civil case much ability by both sides and the Crown had not pressed anything unduly against the prisoners. His Lordship then explained the law to the jury and said they would have to deal with the case on the basis of what is called circumstantial evidence, that is, evidence of circumstances from which the jury were asked to draw certain inferences. They had to decide whether the theory of the prisoners' guilt was a reasonable and probable one to the exclusion of all other reasonable and probable theories. His Lord- ship then carefully reviewed the evidence.
2.
twenty-four names would have been drawn from the box, and counsel on each side, without word or question, would have struck out six names. The remaining twelve would have been called and could have been challenged on cause shown. He could not believe that so constitu- tional a lawyer as Sir Edward O'Malley had, while leaving to the Crown its common law right to challenge, taken away from the subject a similar right that exists in England in the case of felony. It was a most unfortunate state of the law to limit the panel in criminal, cases and to take away the right of making a challenge, because it might happen that a jury might be called upon to try an unpopular man, say like the late Robert Fåser Smith, and it could be well understood how he would feel to see juror after juror coming up and knowing that, while he did not think they would be unfair towards Lim, he would rather have another set of
case. to try his
Counsel hoped the would be altered in this respect and put back to what it was before the Ordinance was passed. Such a procedure would be in the interests of the subject who might be falsely charged. It was only proper that fair justice should be administered. In England a jury was drawn froni towns of 20,000 to 1,000,000 inhabitants and the right of peremptory challenge was given to a prisoner, and there was no reason why that right should be withdrawn in the case of a small community like Hongkong. He appealed confidently to the jury to consider the case calmly and dis. passionately with a mind unswayed by any prepossessions against the prisoners and the class of offence charged against them. Turning to the case counsel said that assuming there had been arson he asked the jury to consider the case against each of the prisoners separately,
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The jury retired at 5.15 to consider their verdict and returned into Court in five minutes with a unanimous verdict of guilty against the prisoners on both counts.
His Lordship-Tsan Sai Chap and Lan Wai Chui, you have been found guilty unanimously on both counts of the information of this grave offence. You have had a very long and careful trial and I think everything has been done that could be done by your legal adviser. I think myself that the jury liave arrived at the right. conclusion and that you were guilty of these serious offences. A case of this kind is very.. hard to prove, and when it is proved the Court must deal with it, very severely. The sentence of the Court upon each count of the informa- tion is that you be imprisoned for twelve years with hard labour, the sentences to run concur. rently:
His Lordship thanked the jury for their patient hearing and excused them from further attendance until the end of the year. -
It is notified in Japan that the medical inspection of vessels proceeding to Moji, which in accordance with the notification of 6th- April last has bitherto taken place at Shimon- oseki, will in future take place at the "nearest medical inspection station.”