500
The following jury was empanelled;-W. Domnich, H. Varrelmann, W. M. Deas, D. Currie, T. Galbraith. E. Gibson and G. W. Buider.
THE HONGKONG WEEKLY PRESS AND
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Mr. Slade said that he had mi sed that ose in looking very hur iedly through tho records.
His Lordship-It is very couclusive. Mr. Slade Yes, your Lord hip.
I do not propose to proceed with the obj clien.
Evidence was then taken.
The witnes es, who had all byu pravioudy examine l at the Coroner's enquiry, included Dr. Hunter. Acting Police Inspector Dymond, Messrs. H. P. Tooker, P. T. Crisp and fl, E. Y. Haggard of the Public Works Department, and Mr. F. T. B. Hewett,
Mr. Slad, in opsuing the e s- for the defenc›, that said the position of matters was that this house had collapsed, somebody had been kill d, and somebody had to be held responsible. If the jury should hold the contractors criminally lia' lo they must find them guilty of manslaughter. | If a man was culpably and grossly negligent in doing something or in omitting to do some. thing he should have done be was criminally liable but unless he personally was proved to be guilty of some gross negligence he would not be criminally liable.
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His Lordship, interposing, said there were some things for which, if a man undertook to do them and they we o badly done by soma underling, he could not escape responsibility. If a man undertook to build a house for another
ins
for human habitati n—and that other man paid him for doing so and trusted him to do it properly, then there was an im plied duty upon him to b ing reasonable skill and diligence and use seasonable u aterials for his | work, and if, by neglect of supervision or no- glect to put up a proper building-neglect of such a kind as to amount to cu'pable negligence
it would be manslaughter if a pe sou was kil led by that.
Mr. Slade asked if that would hold good whether or not he had deputed other people to do the work for him?
I am
His Lordship said a man might say incompetent to build a house and therefore I put it in the bands of an architect." If it tend the building it was his legal duty to super- was in the hands of an architect to superin
viso it and so that it was done properly. If a man had to go to a man like the prisoners who were supposed to be contractors, an! be under- took this work and did not think it necessary to employ an architect and did not do the work properly and killed a man thereby, his Lordship would hold that to be manslaughter and wou'd tell the jury so.
The Attorney-General, in opening the cave, stated that the prisoners ware charged with technical manslaughter—the mulawful taking of life or causing of death without malice prepense, They were charged with causing the death of a boy, one of four persons killed by the collapso of a house at 10, Second Street. The Crown held that they were liable ander. that charge because, being contracto.s for the purpo e of erecting a certain building, they so negligently performed the duty cast upon them under the contract of properly erecting the building that the building fell and by its fall killed the foar persons he had meu- tioned. He put it to the jury that if they should find that the defendants as en tractos so negligently performed the work of building the house and in consequence of that neglect the house fell and caused the death of another person then the contractors were ha- swerable in that Court and should be found guilty. Where the law cast a personal duty upon one-as in this case upon the contractor to superintend the work he undertook to perform and where that personal duty, as in this case, was not performed or was so negligently per formed that it resulted in the death of one of the King's subjects, that coustitnted mauslagh ter. The Crown would, he believed. be able to show to the satisfaction of the jury that the prisoners were contractors to build an additional storey on the house No. 10, Second Street, that they contented themselves simply with engag- ing an architect to draw a plau and that the architect was not engaged to and did not per form any supervision over the erection. The architect never went near the place, not being employed to do so. The contractors themselves did not do so either but left the building to be slapped up by the ordinary Chinese jerry bricklayers. He believed he would be able to satisfy the jury that this house fell through inherent bad work, and after it had stood for some 18 months, during what an expert who was called described as a fresh gal. If they were satisfied that there was carelessness from the first in not employing an architect to do all an architect should do, that that carelessness was accentuated by the omission of the con- tractors to give personal superintendence to the work as it was being performed, that the house itself was improperly constructed, sud should come to the conclusiou that the house fell in consequence of thes, they must find the His Lordship stated that by sub-contracting prisoners guilty of manslaughter. They were
to somebody more incompetent than themselves about to add a storey to an old blue-brick they would not esc pe responsibility. If two building, 30 years' old. That was sufficient to
men undertook to build a house and were in make a careful contractor still more careful. competent to do the job it was very wrong of In this case too the Public Works Department, them to charge money for doing what they which was generally used as the proverbial
could not do and if they undertook to do the red herring to draw across the trail could work not of making a pair of boots but not be used, happily, for this reason, that
of building a house in which people were this house that had to be erected did not come going to live they wore undertaking some. within the section which required a certificate thing that would in all p obability kill from the Public Works Department before people if they did do it properly. occupation. The responsibility rested entirely There was the case of a man lately who left upon the contractors and the archit: ot inļa more
open a gate leading on to a railway. A cart was or less degree; in this case, however, they had driven through this gate on the railway because nothing to do with the architect. He would the gats hap ened to be open and a train came show that the materials used were inferior and along and killed the carter. That was held to that the construction was faulty. The Attorney-be manslaughter on the part of the man who was General went on to say that he proposed to put ju, in evidence, the depositions of the prisoners made at the Coroner's enquiry. He understood that objection would be taken by the defence ou the ground that such depositions made on oath were not admissible; but that point was decisively settled in the affirmative in 1873 in a case on appeal to the Privy Council from the Supreme Court of Canada, Queen v. Edward Coote (4th vol, of Law Reports, Privy Council Cases, p. 599). In that case the respondent was indioted for arson: On his trial it was proposed to put iu evidence the deposi- tions sworn by him before the Fir› Commissioner. The Court held that they were not admissible, the chief ground being that the depositions were not voluntary inasmuch as he had been compelled to make them on onth. The Privy Council, on appeal, held that they were admis. sible. The application of that case to the pre- sent case, was, the Attorney-General submitted, exact.
Mr. Slalo asked how that would hold in th« case of a sub-contract?
not
engaged to keep the gate shut and to allend to the gate; his hours were from 12 to 15 hours a day, but that did not matter. The point was raised whether that ought to be left to the ju y in that way and they said certainly the m'n was engaged to do something which would b dangerous if he did not do it, and although there were no daties between the car er and himself for the use of the gate it was held animously by the Coast that that man rightly convicted of manslaughter, yet all he did was to leave the gate open.
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[December 29, 1902.
The Attorney-General commented that wher the Statute cist a direct duty upon contracto.s they had to do it themselves.
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Mr. Slade asked if he was than to auder- stand that, no in tter how much th✈ Crown proved that he left the work to ine mpetent people or how much the defence provel that he contrasted this work out to compe out people, he did not escape liability.
His Lordship stated that he could not escapa the liability. What he would te'l the jury, and us would lay it dowu as the law in Hongkong, was that if contracto s undertook to build a house and took the responsibility of building a house for humaa habitation without t king the responsibility off their shoulders by employing a proper architect to sup rinlend the work but chose to do the architect's work themselves, they could not escape respon ibility,
Mr. Slade asked if then the contractor was to
be held liable for the fault of every bricklayer or of anybody on the work?
His Lordship replied that he leferrell to the work for which an architect was usually employed. If that turned out to be done in a grossly negligent way—that they did not even go noir the place while it was being carried out
and if it was held that the house fell because of that bad work, the contractors must be held liable. If that was not the law in Hongkong he did not know what would happen; half of us might be killed.
Mr. Slate asked his Lord-bip to suppose that he employed a sub-contractor who employed
1 durers to do the work.
His Lordship said it wou'd be the same whet- her he did it himself or got some incompetent person to do it. If the jury came to the conclusion that the honse fell down because it was not proprly built and that it was culp |able uegligence on their part in not building it properly, the jury would be quite justified in finding these men guilty of manslaughter.
He
Mr. Slade, addressing the jury, said the rul ing had been given that these men could not escapo their criminal liability by giving the work over to anybody else He would argue that that ruling was not a commonsense ruling. afterwards went on to put forward the con- tention that the death of these people who were killed by the collapse was not caused by the fall of No. 10 but by the fall of No. 12, which came down en No. 1 and carried it away too. The. e co tractors had vothing whatever to do with No. 12. He would pore too that the prisoners. ntrusted their work to a man whom they had every reason to believe as a competent man. It was for the Crown to prove the guilt of thes two men, and if the Crown failed to prove that the man to w.om they entrusted the work was an incompetent man then be submit. ted, with al deferance to his Lordship, that the proper ruling ought to be that these men were not responsible.
One witness, Tsung Tsau, head bricklayer, was afterwards examined for the defence.
The Court adjourned at 6 o'clock
Saturday, 20th December.
IN ORIGINAL JURISDICTION,
BEFOE HIS HONOUR SIR WILLIAM M. GOODMAN (Chief Justice).
CHARGE OF MANSLAUGHTER AGAINST
BUILDING C1N ́RA TOBS.
The hear ng was resumed of this case. Mr. Elade, barrister-at-law, in making his concluding address, said that in order to find a man guilty of manslaughter by negligence or marslinghter of any kind the:e must be proved un-against him by the Crown some personal act amounting to gross negligence, not merely ordinary 18g igence or orelessness such as would expose him to a civil action, but very gross neglg nce.
was
inan was
Mr. Slade said in that cass the present. Suppose that he had left somebody else.
His Lordship quoted from memory a case of the kind referred to by Mir. Slade. It was that of a man who went away from his work of attending to winding-up machiney at a mine and left a boy in charge of the work and did not not doit himself. That man was held responsible.
Mr. Slade contended that in the case which his Lordship had quoted the man knew the boy he left in charge was grossly incompetent.
Hi Lordship said he would leave the point of gross negligence to the jury.
Mr. Slade, continuing, said the act itsolf must be malum in se, uot merely malum prohi-
bitum.
His Lordship pointed out that in the case which he had referred to on the previous day, that of a man who left a gate open leading on to a railway (Times Law Reports for the week ending 12th Novembзr, 1902, Vol XIX, No. 2,