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May 6, 1897.]
SUPREME COURT.
27th April.
IN APPELLATE JURISDICTION.
BEFORE THE FULL Court.-Sir John CABBINGTON (CHIEF JUSTICE) · AND HON. T. SERCOMBE SMITH (ACTING PUISNE JUDGE.)'
SUNDER SINGH, APPELLANT, V. CHUK SAI
HOP AND ANOTHER, RESPONDENTS. This was a motion for leave to appeal. Mr. J. J. Francis, Q.C. (instructed by Messrs. Deacon and Hastings) appeared for the appel- lant and Mr. M. W. Slade (instructed by Messrs. Johnson, Stokes and Master) represented the respondents.
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CHINA OVERLAND TRADE REPORT. frequently see something of one another and we see something of one another's work, and without wishing to say too much in his favour I must express my admiration for his high judicial qualities and my regret that he is leaving the legal service.
Mr. Francis-Your Lordship has expressed our sentiments much better than I could have done.
The Aoting Paisne Judge-As you may imagine, the few words you have spoken have taken me completely by surprise this afternoon, and I am very much indebted to you for the opinion you have expressed. I must say I value it very much indeed and it will encourage me, if I am placed in such an important posi- tion again, to deserve your further approbation. As I say, I have been very much taken by surprise and I hope you will be content with this very brief acknowledgement which I make from the bottom of my heart.
The Acting Puisne Judge concurred. Mr. Slade asked for costs and the application was granted.
28th April.
RE SUNDER SINGH AND MANA SINGH. This was an appeal, which was heard on Tuesday, against an order made by the Acting Puisne Judge on the 12th April committing the appellants to prison with hard labour for three months for contempt of Court, the con- tempt consisting of committing wilful and corrupt perjury when under examination in a case in which they were plaintiffs.
Mr. J. J. Francis, Q.C. (instructed by Messrs. Johnson, Stokes and Master), represented the appellants.
Mr. Francis said this was an application for
His Lordship, in giving judgment, first of leave to appeal and it was made under the provisions of Ordinance 14 of 1873, sections all said it might be thought that he would not 41 and 43. The action on which the reverse his learned brother's decision because appeal was based Was brought by the this was the last time they would sit together, appellant, Sunder Singh, against the respon- but his Lordship was quite sure that the gentle dents. The subject matter of the suit was a men who appeared for the litigants would a0-. promissory note for $700, dated 12th August, quit him of any weakness on that point and 1895, signed by the defendant, Chuk San Hop, would believe that the judgment was formed and drawn in favour of Sunder Singh.: On entirely independent of any personal considera- the issue of the writ an application was made tions. His Lordship then went into the facts of the case and came to the conclusion that if by the plaintiff for an interim judgment on the ground that the defendant, a cattle dealer, the Court granted a rehearing now there was no reasonable ground for believing that the had moved a considerable number of cattle which were in his possession out of the juris-decision would be otherwise than that given by diction of the Court and that he only brought the Puisne Judge. The motion would therefore back into Hongkong a very much smaller num- he dismissed. ber. A warrant was issued on the application of the plaintiff. When the action came on t evidence was heard, there being three witnesses for the plaintiff-Sunder Singh himself, Mana The only Singh, and Leung Wing Kwai. evidence for the defence was that of the defend- ant and a Chinese witness named Lam Yee. A written judgment. against the plantiff was delivered by the Acting. Puisne Judge and Counsel read this in full and criticised it. He submitted that the Puisne Judge had drawn too strong an inference in finding that the defendant intended to sign a promissory note for $100 and not for $700. There was no justification for saying that the defend- ant's evidence was absolutely certain and con- vincing. The burden of proof in the Court below was on the defendant, especially as the case involved a charge of deliberate fraud. Frand had to be clearly and certainly proved; there must be no doubt. There was a certain amount of doubt admittedly thrown upon the plaintiff's case by the evidence connected with the blue paper on which the promissory note was made, but that doubt did not amount to a certainty and the appellant was therefore entitled to have a re-hearing in justice to him and because the Judge unwittingly fell into a mistake by drawing too strong an inference.
Mr. Slade asked for the motion to be dismissed on the ground that if there were a rehearing there could not possibly be any other decision than a verdict for the respondents. It was a very ordinary case of one side swearing one thing and the other side swearing another. The Judge had had an opportunity of seeing the attitude and demeanour of the witnesses and it was very unlikely that the Court of Appeal would not support the decision of the Court below. Mr. Francis replied and concluded as follows -I would now like, my Lord, as this will pro- bably be the last occasion on which there will be an opportunity, to express, on behalf of my- self and the members of the Bar and of the members of the other branch of the profession, our very highest respect and appreciation for the learned Judge who will soon be leaving the Bench, our admiration for the manner in which he has performed his duties, and our sincere regret that he is leaving the active practice of the legal profession and going into another branch of the Civil Service.
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Their Lordships dismissed the appeal.
with the fact that there were more wit- nesses for the plaintiff than for the defen- dant. The second point put forward on behalf of the appellants was that no charge made for them to answer and no opportunity. was given to them of rebutting the charge. Where perjury was committed in open court the Judge had power by law to commit the offender to prison for a term not exceeding three months or to fine him a sum not exceed- ing $100. Under what circumstances could It would seem alear that order be made? that the power applied only after the con- elusion of the case and then the power be- came absolute. The Court had the materials before it to form an opinion and he felt clear that in point of law nothing further was re- quired. It was clear that this power was given for the summary punishment of perjury-for the sharp and swift dealing with a person who was guilty of perjury in open Court 88 to amount to con. in such a way
tempt of Court. How could that power- be satisfied if it was necessary to for 魏 charge against the
person mulate
to be dealt with and to allow him to give formal evidence and have the case heard de novo ? His Lordship was of opinion that the power would he absolutely futile in such circumstances, but he felt that he concurred with the learned counsel for the appellants to this extent, that as a matter of discretion it would be desir- able in cases of this kind. for the Court to have the person brought forward and to state to him that the Court had come to the conclusion that he had committed wilful and corrupt perjury and to ask him if he desired to say anything in arrest of sentence, so to speak, by way of showing that he should not be committed. His Lordship suggested that in future this procedure should be followed, but he did not think the discretion the Court had should be carried so far as to allow the person to call evidence, because the presumption of the enactment was that the Court had arrived at a clear view. He was of opinion that the learned Judge was right in committing the appellants and the appeal would therefore be dismissed.
The Acting Puisne Judge said that in cases of this kind if the person who had committed perjury were asked to give evidence or if the case were re-tried it would make a farce of the whole proceedings. He would state his reasons for acting as he had acted. He felt that as he was dealing with Asiatics it was more within the policy of this enactment that he should at The Chief Justice, in giving judgment, said once commit Asiatics to prison. He believed that two points had been taken by the appel- strongly in inflicting summary punishment on Asiatics, and he believed that form of : more lants as showing that the order was bad and should be reversed. The first point was that punishment affected them and was there was not sufficient evidence to justify the valuable than other forms of punishment. The reason why he imposed the heaviest punish- order that had been made; in other words that the quantum of proof requisite to support a casement he could was that he was of opinion that of perjury had not been satisfied. On this point His Lordship quoted various rulings and said it was clear that the order was founded upon such evidence as would justify a conviction for perjury and that it complied with the require- ments of the law. The first point therefore failed,
Mr. Francis asked to be allowed to interpose to call attention to the fact that with reference to the alleged perjury there were three oaths at the most against three others, and he submitted there was no superiority of evidence on one side or the other as required by the rule of law; there was no preponderance of evidence in support of the charge of perjury.
The Chief Justice said he had not lost sight of the number of witnesses on each side; he was merely dealing with the technical rule of evidence relating to the amount of proof which was required on a prosecution for perjury, that was to say, that the proof of a single witness was not, in most cases, sufficient, but there must be either the evidence of two witnesses or the evidence of one witness corroborated by some material fact. The number of witnesses was not to the point. Suppose perjury was clearly The Chief Justice—Mr. Francis, I am glad proved by two witnesses, it did not matter you have taken an opportunity to express the whether a dozen witnesses were called by the sense of the Bar of the merits as a Judge of defendant to contradict the evidence, as the jury would be justified in rejecting the evidence of learned friend, and I take leave to concur entirely with you and to express my personal the dozen witnesses and accepting the evidence regret he is leaving the Bench. I have known of the two. The rule of law was testimonia him now for nearly twelve months and although ponderanda sunt, non numeranda, and there- we do not often sit in Court together, still we | fore in this case they were not concerned
my
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the whole of the case was got up for the purpose of extorting money from the defendant, and holding that opinion he had on the evidence before him deemed it his duty at the time to inflict the heaviest punishment. he could. With regard to the Chief Justice's remarks about calling upon the contemner to make any remarks that he might wish to make, the Acting Puisne Judge said he thoroughly agreed with them and if he regretted any thing in this case it was that he did not pursue that course; but notwithstanding that he thought he was perfectly within his rights, and a Judge in the future would be perfectly within his rights, in summarily committing man to prison without calling upon him to show cause. He concurred in the decision of the Chief Justice that the appeal should be dismissed.
Mr. Francis said he was instructed to ask accused for a stay of execution so that the might consider their position and consider whether they should or should not appeal to Her Majesty in Council against the decision of the Court. He asked for stay of execution for a month.
The Chief Justice said that was rather long time.
Mr. Francis said it was, but he was going away from the colony for a few days.
Their Lordships granted stay of execution for a month and ordered the defendants to find
surety of $750 each.