May 19, 1906.]
matter, but he had received no authority to rescind those instructions, and so the practice was continued.
Mr. BRRWIN-Why not? Mr. HOOPER-Because I think. Mr. Registrar General, as an officer of the Govern- ment you can find words to characterise it better than I can.
Dr. PEARSE-Mr. Hooper mistaken in one remark. The instructions to the Inspector were given before the Board meeting at which the subject was discushed. I was ready to accept any instructions from the Board at that seting when I reported what I had done. Mr. Hoper is undoubtedly mistaken if he thinks the instructions to discontinue signing the list were given after the Board had considered the question.
The PRESIDENT-If Mr. Hooper is coutent we may leave the whole question with the committee.
Mr. HOOPER-Under the circumstances I ask you to withdraw my name from the com. mittee, as I am not prepared to give the time to sit on such a question which has already been acted on before 1 sat on the committee. 1 therefore hand you back the papers, sir, in connection therewith.
Mr. Hooper rose from his seat and walked to where the Presideut sat and handed him the papers. This closed the incident,
The other business was unimportant.
SUPREME COURT.
Wednesday, May 16th
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CHINA OVERLAND TRADE REPORŤ.
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360
shall refer next, is correct, I osnnot see the object of the second course provided by Ordi. nance, as it would certainly not be summary. The Counsel for the appellants of course contend that Sunder Singh's case was wrongly decided. The contention of the Counsel for the appeliants on this point is bised to a large extent on the words “as for a contempt of the Court" in th• Ordinance, and they contend that the Conrt may either direct a prosecution or may deal with the case as a contempt, that is, that the witness may have a right to call fresh. evidence to prove his trathfulness, which would. in my opinion mesa a rehearing, and which might mean a conflict with the decision already given whether by a judge or jury. One argu. mont which was put forward in support of this contention was that in probably nine cases ont of ten the witness would not avail himself of this alleged right, but that in the tenth (that is this case) he might. I think it nawell to disenss such an argument, as if it is right for one it is right for another, and it seems to infer that some witnesses might not be able to get justice in consequence of poverty. In support of their contention a number of cases were cited, but I may mention that the power conferred by the Ordinance is an exceptional one and one which does not exist in England (if I read the Ordin- ance rightly), and therefore the cases relied on are in my opinion based on a different state of the law. Here the juge makes up his mind on evidence already given that the witness is guilty of perjury, and nots accordingly, and it seems to me to be a curious thing if having made up. his mind on evidence already before him he is then to proceed to take fresh evidence for the purpose of reversing his own decision. An appeal might lie on the ground that there was no evidence to justify a committal, or that eri dence had been improperly excluded, but that appeal would be heard before the Full Court. In the cases under the Ordinance the witnesses have had their way and have therefore been heard. To refer very shor ly to the cases quoted on behalf of the appellants, the following cases appear to have been decided on the grounds that there had been no evidence before the julge or other authority on which a conclusion could be come to: see Capil v. Child, 2 Grom and Jervis, 573; Bean's case, 6 Term Rep. 198; Gaskins' case, 8 Term Rep. 209; Smith v. Reg. 3 App. C. 624, ex parte Kinuing, 16 L.J., Q.B., 257, sud the case of Capel Child referred to above. Pollard's onsa, 2 P. C., 106, owing to the circumstances in connection with it is not an authority in this case, except on the general principle, Bonaker v Evans, 18 Add. E I, N. S., 171, was also referred to, but if I am right in my view of the Ordinauce it is an authority against the appellants, as the local legislature bas e pressly given authority to dispense with the preliminary formalities required in an ordinary case of contempt in England. A point was taken in connection with the abs'nt witness that in his absenc› this jurisdiction, if it existed, could not be exercised. It seems to me that under this Ordinance if a man who has given his evidence disapp-are and does not return, he has very gool reasons for doing so, and that he can be dealt with in his absence. Again it was argued that the warrant of committal must be under the hand of the committing judge, and as this ons was only signed by the Registrar it is bad. As to this argument I can only say that I do not
propose to upset the nuiversal practice of this Court until I have to. The only question left to consiler is that part of the m tin which asks that part of the judg. ment appealed from, which quashed the writ of habeas corpus, should be rescinded. The learned Chief Justice dealt with this point, and as I think it is purely a question of procedure, and considering that there is an appeal on other grounds, I do not consider it necessary to deal with that part of the case, or even if it were decided that the judgment was wrong on that point. Yet it would practically have little' effect on the result of appe 1 so far as the appellants are concerned. I ther fore will simply content myself by saying that í ngroo with the decision appealed from. The appeal should be dismissed with costs.
rescinded. and that the appellants may be released on the grounds that they were | not informed by the Chief Justice what state- Mr. HOOPER said he regretted to hear the ments made by them respectively constituted the remarks of the Medical Officer of Health. I can alleged perjury; (2) that before sentence was only leave it to yon,sir, or the Board, he continued paved upon them an opportunity was not given to place what construction you like on these to them of being heard in their own behalf or of words, in view of the direct resolution of the showing cause why they should not be so com- Board appointing a select committee. What mitted. I thin‹ it most convenient now lo is the use of taking up the time of the select | dispose of the first point, namely, that the committee to report on the advisability or appe lauts had not been informed as to which of otherwise of the existing custom being con. their statements constituted the alleged perjury. tinued, if an officer of the Board can, in the I think it clear that they hal been and were meantime, takes it upon himself to give orders perfectly aware of them. The sole issue before to discontinue the practice? I will not charac- the jury was as to whether Wong Ka-cheung terise such a proceeding.
was a pirtner in the Lai Hing Bank or not. Their | sole evidenca was to the effect that he was, and the jury found that he was not. The Chief | Justice found that in supporting the contention that he was a partner they had perigred them selves, which was the material point at issue. It may be that some of them did not go as far as others, but the material fact is that they gave evidence in support of some material fact composed of several minor instances, and as their evidence on that fact was found to be false, they were committed (be the decision right or wrong). I therefore think that the appellants fail on this point. The next point that the appolisuts before sentence had not na opportunity of being heard in their own behalf aud of showing cans why they should not be committed, is, in my opiniou, of mora import- RUCO, In considering this point it is necessary to look at the section of the Ordinxuce itself, section 31. The section reads: If in any cause, action or suit, civil or criminal, or in any proceeding connected therewith, it appears to tha Court that any person examined as a witness upon oath or declaration, or if a Quskor apon affirmation, has commited wilful and corrupt perjury, etc., then in each and every such case it shalt and may be lawful for the Court to direct a prosecution for perjury to be forthwith insti uted against such person 80 falsely sweating, declaring, etc., in order that he may be punished according to law, or whers such perju y is committ d by any person examined as a witness in open Court as was the case here it shall be lawful for the Court instead of directing such prosecution to be instituted as aforesaid, either to commit such witness as for a contempt of the Court to prison for any term not exceeding three months with or without hard labour, etc." Now the Court has two methods of proceeding, but in this particular case we have to deal with the a coud, and the question is whether the appellants have been legally dealt with under it. I think had better state how this section has been always construed and acted 00 by the Courts in this Colony (though of course such construction may be wrong). They have considered that there bare been two courses before them, firs", the ordinary one of ordinary prosecution, which involves to a certain extent a new trial on the point of perjury, secondly, the Court has looked upon the alter- native course as a more summary one, and one in which the judge if he has come to the conclusion that the witness has prjured himself on a point material to the issue, has power to deal with it at once in a summary way without all the formalities required in a prosecution. So far as my experience goes, the course has usually been that when a witness in the opinion of the judge is perjuring himself, is to make him repeat his stat-men ́s so as to make sure he understands what he is sying, and at the con. clasion of the case call him up and through the interpreters ask him if he has anything to sy why he should not be sent to prison or fined It has never, however, been understood that it was meant that he was to be allowed to re-open the case and call fresh witnesses, and in fact have a rehearing which might (as in the case under appeal) amount to a contradiction of the verdict of the jury. I may here mention that this point was dealt with by the Fall Court of this Colony in April, 1897 (Sunder Singh's case). The judge there bad committed for perjury without formally calling upon the men to make any statement. On the appeal the Fall Court held that they were not entitled to what I have described as "practically a new trial, and the appeal was dismissed; and that is the view taken by the learned Chief Justice in the present case. If the contention of the appellants," to which I
IN APPELLATE JURISDICTION
BEFORE THE FULL COURT.
THE ALLEGED CONSPIRACY CASE.
The appeal from the decision of the Chief Justice (Bir Francis Piggott) in the case of the seven witnesses who were sentenced to three months' imprisonment by his Lordship for perjury in the hearing of the trial of an issas to determine whether Wong Ka-cheung was a partner of the Lai Hing Bank at the time of its bankruptcy was concluded, and their Lordships delivered judgment.
Mr. E. K. Sharp. K. C.. and Mr. H. E. Pollock, K. C., instructed by Mr. G. K. Hall Brutton (of Messrs. Brutton and Hett) ap. peared for the appellants.
His Honour the Puisne Judge said: At the trial of an issue before the Chief Justice and a jury as to whether one Wong Ka-cheung was a partner or not in the Lai Hing Bank, the Chief Justice came to the opinion that the seven appellants and one other, Wong Tsz. deliberately perjured themselves, and acting as he conceived he was entitled to act under the
provision of Ordinance 3 of 1873, section 31. be summarily sentenced them to three mouths' imprisonment without hard labour. Wong Taz has disappeared and evaded the execution of such order, and I imagine his reappearance will depend on the' result of these proce-diugs whether here or elsewhere. That committal took place on April 10th, 1906. On April 20th a motion was made for's habeas corpus, aud I believe the motion was heard on April 24th and refused. And it is this refusal that is al present being appealed against. The learned Chief Justice delivered his decision at some
length, as a number of points were raised. The notice of appeal asked for an order that the judgment, whereby it was adjudged that the writ of habeas corpus 'should be quashed. and whereby it was adjudged in review that the order dated April 10th whereby the appellants were summarily committed to prison for perjury be confirmed, may
be
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His Honour the Chief Justics-From the arguments addressed to the Full Court It appears to me that one part of my juigment in the Court below is open to misconstruction, 'as it seems to have led to the impremiơn this