876
own name,'
THE HONGKONG WEEKLY PRESS AND ment made by the defendant or accused. The of clergy,” i.e. " that he could read or write his defendant or accused shall sign or attest by his
," and thus escaping the death mark such record, or if he refuse, the Magistrate penalty can scarcely be conceived. Yet, at one or Magistrates shall certify the fact of such time, it was quite common in England. Black- refusal in writing; and the record of such stone in 1748 lamented that no fewer than 160 examination shall be transmitted to the Re-crimes were subject to the penalty of death. gistrar together with the depositions in the case The logical course was, at length, followed of and any certificate in reference thereto.
reducing the penalties; but I fear there still lin- (3) Refusal to answer not punishable-The gers some of the old feeling, natural when defendant or accused shall not be liable to punishments were excessive, that the greater any punishment for refusing to answer or the impediments in the way of proving for answering falsely any questions asked the guilt of an accused person, the better it is under this section, but the Magistrate shall for the community. One naturally sympathizes fair play draw such inference as seems just from such with the good old English feeling of " refusal.
for an accused," but when punishments have ceased to be excessive it is difficult to see how the community are gainers by the acquittal of the guilty, and it is difficult to see why the accused, who knows more than anybody else about the matter, is to be the one person who must not be asked anything about it. In Hong- kong the law is in advance of that of England in this respect, and I should for my part be glad to see the statutory power of examining an accused person more frequently used than at present.
(4.)-Answers to be laid before the jury: The answer given by any defendant or accnsed as aforesaid may be laid before the jury on the trial of such defendant or accused
(5.)-No influence to be used.-No influence, by means of any promise or threat, or otherwise, shall be used to the defendant or accused to induce him to disclose or withhold any matter within his knowledge.
(6.)-No oath to be administered.-No oath shall be administered to the defendant or accused, This procedure seems to have been derived from the Indian Code. If the case is commit ted for trial all that is necessary is for the Magistrate carefully to comply with the re- quirements of the section and record in full the questions and answers, which can be used at the trial when transmitted by the Magistrate with the depositions, in the same way as the "statementTM" a prisoner makes after all the witnesses have been examined and the Magis- trate has given the statutory caution, in ac cordance with section 73 of the Magistrates Ordinance. It seems to me it would facilitate the ascertainment of the truth, whether of guilt or of innocence, if this power was more freely used.
Next, as regards the Supreme Court. In this case the Ordinance I have mentioned (18 of 1873) deals with the subject in the following sections, which are not repealed:-
No. 18 of 1873.
AN ORDINANCE TO PROVIDE FOR THE
ORAL EXAMINATION OF PRISONERS.
5.-The judge presiding at any Criminal Sessions may, if he shall think fit, from time to time at any stage of the trial, examine the accused person, and may in like manner ques- Hon him generally on the case after the wit- nesses for the prosecution have been ex- amined and before he enters upon his defence.
"6.-The accused person shall not be liable to any punishment for refusing to answer or for answering falsely any questions asked under section
5, but the
Court of Criminal Sessions shall draw such inference as seems just from such refusal.
+
"8.-No influence by means of any promise or threat or otherwise shall be used to the accused person to induce him to disclose or withhold any matter within his knowledge.
"9.-No oath or affirmation shall be adminis- tered to the accused person."
Now, where is any hardship on the prisoner in using this power? With Asiatic. witnesses, the difficulties in satisfactorily proving a case are often very great. A little point causing much of the doubt could, in many cases, be cleared up by asking the prisoner about it. This has been done by Judges here occasionally, but, accustomed to the English practice, they are apt to feel the prisoner might be in some way prejudiced, and thus are equally apt to forget the English law is modified in this respect in It seems to Hongkong, and very properly so. me the power might well be more freely used.
In England, the difficulties of obtaining trustworthy evidence in a prosecution are not nearly so great as in Hongkong. The fact is, the sturdy English love of liberty evolved many securities against the conviction of the innocent, and quite rightly, too. Unfortunately, however, a century or two ago, an enormous number of crimes were punishable capitally, and although executions were comparatively rare except for treason or homicide and other grave offences, the mere fact that the punish- ment of death was, in many cases, clearly. ex- cessive rendered people glad of an excuse to reduce it or get the accused person found "rot guilty." Anything more absurd, for instance, than the spectacle of a man pleading "benefit
I extract the following passage from a recent work on Legal History, as it sets out briefly the progress made in improving the law of evidence in England - Bentham, in his strictures on the laws of England, attacked some of the rules of evidence then prevailing. He urged that the discovery of truth was the end of the rules of evidence; and, therefore, the incompetency of witnesses ought, as far as possible, to be removed. At that time,
the Common Law Courts would not allow
ment.
evidence to be given by either party to the suit, nor by his or her wife or husband, nor yet by their privies in blood, estate, or interest, e. by those persons who might, directly or indirectly, be affected by the judg The consequence was the exclusion from the witness box of the people who were most likely to know anything about the matters in question. A further rule was that no person was competent to give evidence in an action if the judgment therein might subsequently be evidence for or against himself. The person accused of a crime was not allowed to give evidence at the trial, neither was his or her wife or husband. The reasons adduced in rules were that the support of the old
onght to be that of im- evidence
Our ancestors partial persons. have been haunted by a bogey of perjury, for they believed that a witness with interest in the suit would not hesitate to. perjure himself in order to further his own ends.
16
no
seem
to
an
In 1833, Bentham's views so far prevailed that by 3 and 4 Will. IV., c. 42, it was enacted that no person should be incompetent to testify in any civil proceeding because the judgment, therein might be given subsequently as evi- But the old dence for or against himself. notion was not dead; because the act went on to provide that in case should a be admitted 38 evidence for judgment or against any man who had given his testimony in the action. The bill, as it was in- troduced by Lord Chancellor Brougham, was much more sweeping; but, as yet, parliamentary opinion was not ripe. In 1843, by Lord Den- man's Act, the Benthamite theory was carried out still further. No witness.was to be excluded from giving evidence by reason of incapacity, from crime or interest, except the parties or their husbands or wives.
"By a further evidence Act, introduced by Lord Brougham in. 1851, one of the in Lord Denman's Act was exceptions
civil suits taken away, and parties to were allowable and compellable witnesses. Two years later Lord Brougham carried another Act, removing the disability of husbands and wives of parties, This statute left the law practically as it stands in England at the pre sent day; that is, only making incompetent persons accused of crime and their husbands or wives. A great number of the statutes passed in the last twenty-three years have allowed the defendants in criminal proceedings, or their hus- bands or wives, to give evidence; but in no case have they rendered those persons compulsory wit- nesses. The Licensing Act, 1872, was the first of these enabling statutes, which now number about
[May 12, 1897.
twenty, including the Criminal Law Amend- ment Act, 1885, the Corrupt Practices at Elections Act, 1883, the Libel Act. 1888, and the Prevention of Cruelty to Children Aot, 1894. In 1878 a bill was introduced in the House of Commons to remove the disability entirely, and such bills have been proposed in one or other House of Parliament almost every year since then."
It remains to be seen whether public opinion has so far ripened as to enable the bill now in the House of Commons to become law.
W. MEIGH GOODMAN. Hongkong, 6th May, 1897.
_{
REST HOUSES WANTED.
TO THE EDITOR OF THE "DAILY PRESS." SIR,-Now that the question of roads is to the fore I beg leave to call attention to a want in connection with their use in this Island which can be easily supplied by an enterprising Ce- lestial. Outside the city of Victoria there is no place in the Island where suitable refresh- ment can be obtained by a European. Not long ago a very popular dweller in a city pot far dis. tant visited Hongkong and one day went out to inspect our great reservoir at Tytam. Either the sight of the water or the passing of his usual tiffin time made him thirsty and hungry, and he asked an intellegent native the direc tion of the nearest town. rected to Aberdeen and trudging thither, was somewhat disappointed at not being able to slice of cold beef and pickles get and a cool tankard. Would you believe it, Sir," he said, "I could not even get a crust of breed and cheese and a glass of beer."
He
was
di-
With humbler expectations one might at least look for, say at Aberdeen, Stanley, Ty- tamtuk, or Shaukiwan, some modest shelfer pro- rided with clean mats and a raised floor where the rider or pedestrian might get a bottle of beer, soda water, tea, a biscuit, &c.; in fact, some such rest house as one meets on every road in Japan.
There is no pleasanter way of passing a holi- day in the cool season than by breasting the hill in pleasant company and with judiciously stored tiffin baskets bound for one of the many beautiful picpnic sites on our south-eastern bays, but such concerted expeditions can only be occasional, and the rambler looks for modest refreshment at call and an object, however trivial, for his walk.
If you are kind enough to find a place for this suggestion perhaps it may lead some retired "boy to relieve his otium by a touch of his old trade. I am, yours &c.,
A VAGROM. Hongkong, 7th May, 1897.
HONGKONG VOLUNTEER CARBINE COMPETITION.
FULL RESULTS.
The annual carbine competition in connection with the Hongkong Volunteer Corps was con- The weather cluded on Saturday afternoon. was wretched in the extreme, rain falling in torrents during most of the afternoon and drenching all the competitors to the skin. One ubiquitous sergeant tried to disguise himself as the Duke of Cambridge by carrying an um- brella, but the attempt utterly failed and the only reward he had for his pains was a thorough soaking, as the umbrella was much too small to cover so much glory! It was indeed a pity that the weather was so bad, because otherwise there would doubtless have been a large attendance of ladies to witness the shooting for the Ladies' Purse and the Ladies' Nomination prizes; as it was half a dozen ladies braved the pitiless storm and lent a pleasant aspect to the sombre Miss Carrington gracefully surroundings. presented the Ladies' Parse, which was very prettily made in the Corps colours with the initial letters "H.K.V.C." and the year "1897" worked on the side. Sergeant Smyth, who, by the way, received his promotion only on Saturday, was the lucky recipient and after mak- ing an appropriate little speech presented Miss Carrington with a handsome bouquet. Cheers were then raised for Miss Carrington, for the ladies of Hongkong, and for Major Sir John Carrington. The Commandant thanked the Corps on behalf of his daughter and expressed
Į