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and Mr. Rodger, which he characterised as utterly disinterested and unimpeachable, and which had been borne out by his personal review from the steamer on Thursday morning.
Judgment, with costs. was entered for the defendant, the owner of the Kwong Wo.
Tuesday, 6th August.
SPECIAL SESSIONS,
BEFORE HIS HONOUR A. G. WISE (ACTING CHIEF JUSTICE) AND A JURY.
A MULTI FARIOUS INDICTMENT.
Li Yung was charged on an indictment of fourteen counts with (1) obtaining money by false pretences, and (2) uttering and publishing a forged and counterfeited writing with intent to defraud. Mr. J. J. Francis, K.C. (instructed by Mr. J. F. Reece, solicitor), defended.
When the prisoner had been charged, counsel for the defence asked His Lordship to quash the indictment on the ground that there were com- bined in the indictment several entirely separate charges of different dates, in connection with different persons, and involving different pro- perties and amounts-totally separate and in. dependent transactions having no connection one with another. Although by law the Attorney- General was undoubtedly at liberty to combine in one indictment charges with reference to a number of separate offences or misdemeanours, it was not the practice of the Court to allow such an indictment. The same rule) prevailed, and had prevailed for many years, in England. Mr. Francis then went over the counts of the indictment, classifying them in their relation- ship or otherwise to each other, and contended that the obvious course was for the prosecution to quash the proceedings or to elect a charge upon which to try the prisoner.
THE HONGKONG WEEKLY PRESS AND by baving all the counts included in one indictment, and, that being so, it was obviously convenient to have the matter dealt with at once and to proceed on the different charges. The other course would involve four separate trials, and no sufficient reason had been shown by the other side why the counts should be separated.
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Mr. Francis disputed Mr. Pollock's conten tion that the power to determine the nature of the charge to be based on the depositions from the Police Court was vested solely in the Attorney-General, If that were so, a cadet with no experience of the law might be the one to decide what was a legal and proper course to pursue. The Attorney-General's arguments were utterly irrelevant to the point at issue, and he was endeavouring to secure a verdict on one charge by bringing four or five into the indictment. There would be a little bit of evidence in support of one and a little bit of evidence in support of another, and the jury would be asked to piece these_fragments together and decide that the prisoner was guilty. Mr. Francis submitted that the case was one in which His Lordship should exercise his undoubted discretion and direct separate trials on each of the separate transactions alleged in the indictment.
His Lordship decided not to quash the indict- mout, but was of opinion that the charges should be taken separately, as it would probably cause great embarrassment to take them in one trial. It would be left to the Attorney-General to decide what charges would be gone on
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[August 10, 1901; -
Wednesday, 7th August,
IN SUMMARy JurisdicTION.
BEFORE HIS HONOUR T. SERCOMBE-SMITH (Acting Puisne Judge).
CAPTAIN TREFUBIS CLAIMS DAMAGES FOR A DEAD PONT.
Captain the Hon. H. W. F. Trefusis, aide-de- camp to the General Officer Commanding in China, sued Kwok Kong, master of the second- class licensed junk No. 532, for $325 damages on the ground of the negligence of the defen- dant in carrying a pony by junk from the transport Nurani to the Commissariat Pier, whereby the said pony was so much damaged that it died.
Mr. J. Hastings (of Messrs. Deacon and Hastings) represented the plaintiff, and Mr. Pontifex (of Messrs. Johnson, Stokes and Master) the defendant.
Mr. Hastings said he had just learned that a very important witness had gone tó Canton, and although he (Mr. Hastings) was prepared to go on with his other witnesses, ho should like to be afforded an apportunity of examining the one who had gone to Canton. The case might be held over till his return.
Mr. Pontifex-I object to the delay, my Lord. Mr. Hastings-Oh, you would object to anything.
His Lordship agreed to Mr. Hastings request. Opening the case for the plaintiff," Mr. Hastings said the pony in question was con- signed by Commander Erskine, of the Alacrity, to the care of the plaintiff, Captain Trefusis, in Hongkong, with instructions to land it here but I do not abandon the other counts in any and to keep it for him until his arrival in Hong-
with.
Mr. Pollock I shall take the first five counts,
sense at all.
His Lordship-Oh no, not at all. The prisoner pleaded not guilty, and the following jurymen were empanelled-Messrs. R. G. Smithers, A. N. Huke, J. Gait, C. D. Hoppenberg, H. Burton, N. G. Meyer, and R. A.
Dusta.
His Lordship-What counts do you object to?
In stating the case for the prosecution, Mr. Mr. Francis-1 object to count 2 in the first Pollock said the first, second, fourth and fifth instance, and to counts 5, 7, 10, 11, and 13.
counts of the indictment related to obtaining Counsel quoted extensively from various money by false pretences, and the third count to uttering and publishing a certain writing as authorities, and, concluding, said that no charge true, with intent to defraud. It would be should be brought before the Criminal Sessions proved that the defendant, in February, 1900, by indictment unless there had been a full and
sold a piece of land in the New Territory to proper investigation at the Police Court of the
two persons for the sum of $5,000, one of the subject matter of that indictment. There had
two taking two-thirds and the other tho remain- been no such investigation before the Magising one-third. The allocation of the land was trate, and, further, the charges at the Police close to the Channel Rocks, and, as could be Court were made under a different Ordinance seou from the map exhibited, represented
and under a different Section from the charges now before His Lordship.
kong. In pursuance of that request, Captain Trefusis, through the contractor of the Commis- sariat Department, engaged a junk for the pur- pose of landing tho pony at the Commissariat Pier, and the owner of the junk, the defendant, either by himself or by his servants, agreed for a certain sum-$120—to take delivery of the pony from the steamer, to land it at the Commissariat wharf, and to provide the neces sary tackle and machinery for hoisting it from the junk to the wharf.. In pursuance of that agreement, the defendant took delivery of the pony from the steamer and brought it to the Commissariat Pier. He then proceeded, by means of a derriok and windlass, to hoist the pony, which was in a box, on to the wharf, but when the pony was up to the height of the wharf the rope broke, and pony and box fell back into the cargo-boat. The pony received very severe injuries and died shortly afterwards. The junk people then ran away, all except one old woman, and the defendant had never been seen since. Thus deserted, the cargo-boat grounded, and coolies had to be obtained to
haul her off. A steam launch was then hired to tow the cargo-bost, with the corpso of the pony on board, down to Causeway Bay, where the animal was buried by Mr. Kennedy, of the Horse Repository. In view of these facts the defendant was charged with negligence in performing his agreement to carry the pony safely from the steamer to the Commissariat Pier. That agreement, of course, implied the providing of the necessary tackle for the hoisting of the pony, and the exercise of due care in the process. The present action was commenced in the name of Captain Trefusis, and was so commenced on the authority of several cases doubtless within his Lordship's knowledge. Captain Trefusis was the bailes of the pony, and the authorities in question showed that a bailee had power to sue for damages done to his bail, and to recover. Captain Trefusis, as bailos of the pony, had suffered some damages which he' was entitled to recover from the defendant.
a considerable strip. It would be proved by the buyers of the property that the Mr. Pollock replied at equal length. He defendant represented himself being argued that the Attorney-General had power its sole owner, and that he produced a deed in to institute such proceedings as to him might proof. A certain Chinese official-the Chief seem legal and proper, and to determine the Clerk at the Namtau District Magistracy—— precise nature of the charge to be based on the
would be called to prove that that was forged. evidence taken at the Police Court. It had The date on the deed was some time in Decem. very frequently happened that the Attorney. ber. 1864, but if a man were trying to obtain General brought charges into that Court which property by forgery he would not be so foolish did not correspond with the charges laid in
as to make a deed of recent date, as some the Police Court. The matter, in short, was suspicion might thereby attach to himself. simply one for the discretion of the Attorney There was therefore nothing very extraordinary General. With regard to the joinder of the in the deed being dated a good many years back. different counts in the indictment. counsel Bargain money for the properly, to the amount referred His Lordship to Sub-Section 3, 2ection of $1,000, was paid to the defendant in 19, of the Criminal Procedure Ordinance, which February, 1900, and on 16th May, 1900, was provides that any number of counts may be joined handed over the balance of $4,000. The de in the same indictment when these counts have fendant signed an assignment transferring reference to the same charge. That Section
the property to the two buyers; the assignment clearly showed that the quashing of the indict- was prepared by Messrs. Johnson, Stokes and ment would not be the correct course to pursue. Master, solicitors. With regard to the pro- The proper course, assuming that His Lordship perty, evidence would be produced to show came to the conclusion that all of those counts that since its sale the defendant himself ought not to be brought together under one had made a statement in the Land Court indictment, would be to separate some counts
as to tenants paying rent to the Li clan or from the others and proceed thereon. Mr. family, and not to him, thus showing that he The evidence of Captain Trefusis, which had Pollock submitted, however, that the different
was not the owner of the land at all. As for been previously heard in chambers, was read by counts ought to be tried together, BS the deed of assignment by which the defendant Mr.. D'Almada e Castro, Clerk of the Court. the matters forming the subject of the obtained the $5,000, that, as had been said. It was to the effect that Commander Erskine, fourteen counts in the indictment showed would be shown to be a forgery, and it would of the acrity, whilst at Weihaiwel, wrote what might be called a course of dishonest also be submitted by the prosecution that the to the plaintiff and asked him to take charge of conduct on the part of the prisoner. It defendant had guilty knowledge in the matter, the pony until Commander Erskine's arrival would not be proper to compartment off four as he must have known that the document was in Hongkong. The Nurani arrived in the separate transactions, and, taking one, says forgery and that the property be purported afternoss of 4th July, but the pony was injured
"Well, this transaction is going to be con- to sell was not his own sole property.
whilst being hoisted from the junk to the wharf, sidered alone, and as regards other similar Evidence was heard throughout Wednesday | and died. "Plaintif did not see the pony tilf transactions we won't enquire into them at and Thursday, and the case was still unfinished | after its denik. It was an Arab, and was valued all". No harm could be done to the prisoner yesterday.
at thirty guineas.
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