Angust 12, 1897.]
CHINA OVERLAND TRADE REPORT.
His Lordship--It Mr. Francis had tendered these books as evidence against the defendant I should have have refused to receive them and I should have directed the jury, in my summing up, to dismiss from their minds all they had heard or read of any entries.
Mr. Robinson-Conventionally, my Lord, that would have been perfectly satisfactory, but practically-
His Lordship-Then you do not give the jury any sense for getting rid of a thing they have heard.
Mr. Robinson-I cau only speak that from my own experience it is very hard to get rid of what one has heard.
Continuing his speech, counsel said the fokis had to say, We must corrupt the police," in order to get the hush-money from their em- ployers. The employers were. helpless and they said, "All right, we will pay the polics." The story was merely a stalking horse behind which the fokis, the servants, under the pre- tence of bribing the police, put most of the money into their own pockets. In regard to Cheng On's story of his interview with defen- dant the jury had heard the statement of Mrs. Burnett. The jury had seen Cheng On and had noticed his demeanour; they know that Inspector Witchell had faithfully and zealously served in the Police Force for fifteen years, and they had the statement of Mrs. Burnett, who was an honest English woman, that she knew Cheng On, that she saw him on the 11th March, that he did not see the defendant. The jury had to judge between that man, Cheng On, and that woman.
man like Cheng On could touch the gentle-been like shirking, bilking, and being afraid of men of the jury in civil life, but in them if an attempt had been made to keep official life every policeman in Hongkong them out. I was not afraid of them. could not help feeling that his character was in the hands of the Chinese; that is, if evi- dence of Chinese was to be believed. And such Chinese, too! One was a convicted gambler and the others associates of professional gam- blers. In regard to Cheng On, he was in custody under a banishment warrant. His only escape from that banishment was by telling this story. He had been the chief excise officer and he knew that the officers of the Imperial Maritime Customs of China were all round the Chinese frontier to stop the smuggling of opium. By whom? Cheng On would not like to go over the Chinese border; he had every inducement not to go and he resolved to save himself at the expense of another. Ho had arranged this matter. Cheng On's only chance of escape was by accusing Witchell for his own protection. He was told to tell the truth. When that was said by a high executive officer to a man under banishment, and who knew the consequences of being banished, it amounted to telling him to give incriminating evidence. He could hardly help himself because he had given himself away to Sam Yeen in saying that he came on behalf of the defendant. If Cheng On had told the truth would his case have been consid- ered by the Government? Who was to be the judge of the truth? Counsel then said that supposing by chance Mr. Francis, who had a great reputation amongst the Chinese, had a client who kept a gambling house and he wanted to get something good out of Mr. Francis. If that man went to the gambling house keeper and said, "If you do not pay me something I will tell Mr. Francis and he will tell the Chief of Police and make it pretty hot for you." In that case the jury would have found in the book the entry-** Francis, $1.” doubtful case, no matter how good his character Mrs. Burnett was then called. She said she might be or how long continued he may have went to the defendant's house on the 11th borne that character, if the witnesses satisfied March, when Cheng On took some samples of the jury beyond reasonable doubt that he was silk there. Mrs. Witchell saw him, but defend-guilty of the offence with which he stood ant did not. Cheng On remained in the house charged, that good character could not be taken about ten minutes. Defendant was upstairs into consideration. If there was a doubt in any during all that time.
case a defendant was entitled doubly to the benefit of the doubt if he was a man of good character. The jury would weigh the evidence very carefully and say whether the defendant had accepted hush-money not. to report the existence of the gambling house. It was clear that there were three or four gambling houses carrying on an extensive business in the colony quite unchecked by what was considered one of the best police forces in the East, and there
Cross-examined by Mr. Francis-The samples of silk were left in the house by Cheng On."
Acting Chief Inspector Mackie was the next witness. He said P. S. McIver and his wife went home on the 25th March last in the P. and O. steamer Kaisar-i-Hind. I know Wat- son, the clerk at the Goal.
His Lordship thought that this was going rather outside the case and Mr. Robinson asked no further questions.
This concluded the evidence for the defence.
The Attorney-General then asked permission to call the silk mercer.
His Lordship thought it was not admissible to call that man as the silk might have been bought from somebody else in March.
Mr. Robinson finally addressed the jury and said that a few words would be sufficient to put the defendant's view of the case before the jury. He had already addressed them on the main points and there were only a few incidental points that he need refer to. "Counsel referred to what he called the growth of the case since the hearing at the Magistracy and commented upon the discrepancies in the evidence of Sam Yeen and Cheng On and also upon the fact that the list, which was said to be three years old, was not in the least dirty or frayed, while the ink was in parts bright. The books of account were put in for the purpose-
Mr. Francis said that the defence called for the books; the prosecution did not put them in. Mr. Robinson submitted that as the counsel for the Crown in his opening statement re- ferred to a complete set of books being found in the gambling house giving the ac- counts of the business it followed that they became evidence.
His Lordship said the prosecution could not have put in the books.
Mr. Robinson-Then how very reprehensible to refer to them.
His Lordship said Mr. Francis had merely given a description of the books.
Mr. Robinson-Having made that statement and it having been published in the Press from the Magistracy downwards, it would have
Mr. Francis then addressed the jury and said that while a good character was valuable to a man and he was entitled to the benefit in a
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was that Cheong On did not pay bribes to Inspector Witchell, but pocketed them himself, There was not a tittle of evidence to support that suggestion, and it was a pure effect of imagination, and a very poor one, too. Did the jury think that the men keeping the gambling houses did not ascertain whether they were being swindled? The fact that daily balances
were struck showed that they looked after their own interests and ascertained where all the
money went to. Counsel also referred to the letter which the Captain Superintendent of Police received from some one stating that gambling existed in Kwai Wa Lane and which, he mentioned only to Inspector Witchell and Mrs. May, and to the evident given by Cheng On that the defendant asked
who was the who wrote the letter to the Captain Superintendent. Cheng On could not possibly have given that evidence unless the defendant had asked the question. There was absolutely no reason why Cheng On's evidence should he disbelieved. As regards Mrs. Burnett, it was quite possible that her story was true with the exception of the date. Did they think that she could recognize Cheng On after having seen him only once? It was highly im probable. Cheng On had said he had never seen her, but it was possible that Cheng On had seen her but had forgotten her. No evid ence had been given that any silk had been forwarded to any friend of the defendant.
Defendant-My Lord, here is a letter show- ing the receipt of it in South Wales.
His Lordship asked the defendant not to interrupt.
had no reasonable doubt of Cheng On's evid
Mr. Francis, continuing, said that if the jury
ence he asked them in the interests of justice to: find the defendant guilty.
Mr. Robinson said that from the point of view so becomingly and properly attered by his learned friend, "in the interests of justice," he asked whether there would be any objection to the letter mentioned by defendant being produced.
His Lordship thought that such a course would not be regular.
•
Mr. Robinson said of course he could not
prove the letter else he would have done so, but he could produce the letter and the envelope, with the post mark.
His Lordship said the letter could not be admitted at that stage.
His Lordship commenced summing up at 5.20 and said that as a late hour had been reached and the jury had followed the evidence so care. fully he would be less particular in going into all the evidence that had been given. After must have been a considerable amount of cor-
explaining the law on the question and detail- ruption in the Police Force before that state of ing various points in the information bis Lord- things could have existed. Counsel submitted ship said the contest took place with reference that whether the books were ill-kept or not
to the receipt of money by the defendant. If there was no doubt they were perfectly bona fide. they thought that the money was received under. After their seizure by the Captain Superin- the circumstances referred to there could be tendent of Police what was his duty Heno doubt that the defendant was guilty. His suspended officers, banished Chinese detec- Lordship could not help thinking that the tives, and instituted a general inquiry into length of the case had been greatly extended by the fact that the defence had taken upon the state of the Police Force. There was no special inquiry against Inspector Witchell. The three men were arrested and they were detained to give evidence, but there was abso- lutely no malice shown against the defendant. Counsel again referred to the fact that the Police Force must have been corrupted or these gambling houses could not have kept open from dawn till midnight.
His Lordship asked Mr. Francis to confine himself to the case of the defendant and to argue that he must have known of the existence the horses.
Mr. Francis, continuing, said that if a single charge had been brought against a member of the Police Force the jury would have required the strongest and most unmistakeable proof as the thing would have been improbable. Here the jury had had it brought home to them that as regards any member of tle Police Force it was not, to put it mildly, impossible that he may have been cognizant of the existence of the houses, and it might be capable of proof that the defendent was one of the persons who received bribes to shut his eyes to the existence of the houses. Beyond that, counsel did not ask the jury to attach any importance whatever to the facts which had been proved. The defence set up'
themselves the burden of the police case gen- erally, having an eye, so to speak, to the posi- tion of the members of the Police Force. He founded those observations on two reasons. In the first place, Mr. May underwent a very long and severe cross-examination he was ander The other reason was the introduction of the cross-examination for practically a whole day.
books and papers. Both those points and the way with which the points were dealt made him think that the defendant had committed an error in judgment as they very much pro- longed the case and made it more embar- rassing to arrive at a right conclusion. His Lordship's own view in regard to the books was that if the books were ruled not to be cor- roborative evidence in any way against the defendant, then the result was that the defen- dant had set up a bogey in order to knock it down, and he had taken a great deal of time to do it; whereas if the jury arrived at the clusion that the books did corroborate the story the defence had undoubtedly admitted an enemy in the camp by asking for the books. If the books had not been produced his Lordship would have asked the jury to dismiss from their minds anything they might have heard or read in the newspapers regarding the entries in t
the books, and he was quite certain the jury would
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