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THE HONGKONG WEEKLY PRESS AND
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(May 19, 1906.
Mr. Sharp-These men are out on ball until the 14th instant. I would apply to your Lord- ships for an extension of the time.
The Chief Justice-You have had a full month. Mr. Sharp-But your Lordship cannot say we knew you were going to decide against us. We have instructions to proceed, but cannot get the papers through under a week. We are assuming at present that we shall have to get your Lordships leave to appeal, and would mak that the date be extended and we will apply within that time,
The Chief Justice—I have discussed the
was denying a principle which I certainly and the new inquiry held finds its justification. and it was said that it cannot “appear. do not deny, but on the contrary admit to be The judgment" of Lord Brougham in Long Court" until the facts had been establi fundamental to the administration of justice, Wellesley's case (2 R. and M. at p. 664) son- and this they cannot be until the party oha even by its most summary methods. I think, tains an interesting passage which had some has been heard. There is no analogy between therefore, it may be added to with advantage bearing on this question. The Lord Chancellor | the use of these words in this section and their in one particular. No one would of course was discussing the, I believe, disused practice of use in the statute discussed in Capal v. imagine that if a solitary witness in a case the Court in connection with the offende known Child, unless the point be raised the t the words had committed perjury, the presiding judge as prevarication. He said: "If the prevarica- held to be perjarý have not been spoken ; that would b› right in summoning him before him. tion amounts to all that moral perjury can is, that the judge's notes are wrong. If this telling him simply that he had committed reach-unless it be upon a point material to the were so there would be another remedy altoge- perjury, and without more ado committing him issue to be tried-it is not perjury in law. What ther. All this is quite different from the to prison. Obviously he should be told what do the Courts when that foul crime is com- suggestion that the witness should be allowed to statement it was that the judge considered to mitted in their face? They do not order the prove that the facts are true. With regard to be false In my former jugment I had in party to be indicted for perjury-because they the question of habeas corpus, I have only this special view the statements of these eight know that he must then escape upon a trial, but to add to what I have already said :—It was witnesses, and it was with regard to those they order him to stand committed for his pre-admitted that on the retura to the writ the statements that I expressed the opinion, variostion. In what form, and under what name? | Court will inquire not into the form of the war- together with reasons for that opinion, that For a contempt of Court by prevaricating upon rant, but also into the legality of the commitment, what I said to them at the trial was sufficient. his oath." It is clear that the Court judged of a principle which shows of itself the reason why 1 believed the whole story of the alleged part the prevarication then and there, and sentenced ■ habeas corpus will not issue to a superior nership of Wong Ka-cheang in the Lai Hing the prevaricator summarily. If Pollard's case Court. The question of the signature to the Bank to have been concocted, and that these had introduced a new principle or upset a pre- warrant was again argued. I have only this to eight men contributed to the concoction vious practice, then this old procedure would add : that the form adopted by the Court in in their several ways, speaking to certain have no bearing upon the present question. these cases is identical with the form given in facts which were, 8.8 I thought, and But the almost that can be said in this connec- the schedule to the Bankruptey Ordinance for still think, false, and denying others which tion is that it may have settled what was unset- a warrant of committal of the debtor: and that were as I thought and still think true. The tled before. But putting on one side the the warrants issued under the Code of Civil Pro- evidence of these men was in my opinion analogy of this old procedure with the procedure for the arrest of absconding debtors are tissue of falsehood from beginning to eud; and cedure specially created in this Colony, the also signed or witnessed by the Registrar. I I think that what would obviously be the proper expression for a contempt of the Court by believe this to be the right and convenient course in the case of an isolated though material prevaricating on his oath "' bears a curious practice, the diotum of Hawkins to the contrary fact was notually adopted in this case, though resemblance to the words now under discussion notwithstanding. it had necessarily to be adapted to the circum- I think the reference to contempt of Court is stances of this case. For the reasons already used dramatically by way of analogy, and not given I think that the only and the proper way of strict reference; and after giving the mat- 'of sentencing these men was to say what I did ter renewed consideration I think that it is say, which was interpreted to them, and that the also used in that way in the section of Ordia- only meaning which could be given to those ance 3 of 1873. For otherwise we get to this words was this: "I disbelieve every material result-Summary jurisdiction is conferred on fact bearing on the existence of the partnership the Court but its exercise is fettered by con- which you have come here to establish and to ditions which make it cease to be summary. which you have sworn ; and I have very little As to the intention of the legislature that the doubt that that meaning_conveyed itself quite jurisdiction ia to be summary, I clearly to their minds. If this involves (which have Do doubt whatever.
cannot I do not think in any way) a modification of my accept the argument that the power of com- former judgment, let it be so. But while I mittal being alternative to the power to direct admit that a man has a clear right to be told in a prosecution for perjury, therefore it is to be what his offence consists, I cannot admit for a exercised in accordance with the ordinary moment that the reason for telling the witness principles of a trial for perjury: for then it in what his perjury consists is the one for would cease to be alternative, but mean to all which the learned counsel has argued, and that intents and purposes the same thing. This the necessary consequence is that he may call does not in the least interfere with the facts, witnesses, and that there should be a regular but the summary is only to be exercised in cases hearing and inquiry into the question whether where an indictment for perjury would lie, and he had committed perjury. If such a hearing that the conviction amounts to a conviction for and inquiry is in the opinion of the judge rerjury: for it is the manifest daty of the necessary, he can proceed under the alternative judge before committing to be satisfied that course indicated under the section and direct a all the ingredients of the crime of perjury are prosecution for perjury to be instituted. As to present. One new case was cited, Bonaker v. this, I have nothing to add to what I have Evans (16 A and E, at page 171), and much already said. With regard to the question stress was laid upon one sentence in the judg. which the Full Court suggested in Sunderment. The case must be added to the series of Singh's case should be put to the prisoner, whether he has anything to say why he should not be sentenced, it is obvious that the Court did not mean that it should be put as it is put in capital cases in order that the prisoner may move in arrest of judgment. It seems to have been a suggestion that in these cases the judge should adopt what is, I believe, the practice of some judges in all cases, to put to the prisoner what is not much more that a conventio al formula which when put is practically wituout meaning and often induces the prisoner to re-state what has already been said in his defence. The Court certainly never intended to suggest that the consequence of putting the question would be the admission further evidence, and the further inquiry such as has been argued to be necessary in this case. There is another question as to which I am glad to have heard further argument, for it is andoubtedly important, and is not free from difficulty. What is the meaning of the expression to commit the witness "as for a contempt of Court"? The argument is that these words mean that the witness is to be committed with the same forms and procedure as if the offence were contempt of Court and farther, that as the Judicial Committee reported in Pollard's case that in the case of contempt "the specific offence charged is to be distinctly stated and an opportunity of answering given" so here the perjury is to be specifically stated, and an opportunity of answering the charge is to be given. If, therefore, the words do mean what it is alleged they mean, the argument as to the necessity of further evidence being taken
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cases dealt with in my former judgment in which punishments have been meted ont, and afterwards quashed because a proper opportunity had not been given to the alleged delinquent of refuting a charge. The case obviously refers to a refutation of the facts on which the charge is based. It is, I think, curious that no case seems to have cccurred, or at least was referred to, in which a refutation of the interpretation of the law was contemplated. But it in obvious that the principle of these cases must be extended to answering the charge point of law as that the alleged offence does not fall within the statute under which the jurisdiction has been exercised. Baron Parke stated the law thus, No proposition can be more clearly established than that a man cannot incar loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless indeed the legislature has expressly or impliedly given an authority to act without that necessary preliminary". I have already intimated my opinion that the legislature in this case, by investing the Court with summary powers of punishment, has impliedly given an authority to act without the necessary pre- liminary of giving the witness an opportunity of answering the charge against him by calling witnesse5. Both the determination of the question of law and the question of fact are included in the discretion given to the judge: for the law is patent; it is on the judge's notes, and the interpretation of the law rests also with the judge. Stress was laid on the use of the words "if it appears to the Court"
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matter with my learned friend, and want to say this. I should like it to be clearly understood for future cases that I see very little connection between the necessity for the stay of axecution and consideration of the question whether an appeal is to be made to the Privy Council. In this case, as counsel stated that they were going to appeal, we act on that statement and extend the time for a fortnight.
FOUNDERING OF THE 8.8.
'CHUKONG."
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A Marine Court was held at the Harbour
Office on May 14 to inquire into the circumstances connected with the toundering of the s.s. Chu- kong (Captain Bright) at Breaker Point on April 28th. The Court was composed of Hon. Captain L. A. W. Barnes Lawrence, R.N. (pre- sident), Lieut. C. K. McCallum, R.N., H. M. 6. Tamar, Captain_W. Dawson, master of the British steamer Tartar. Captain P. M. Brooke Lake, master of the British steamer Laisang, and Captain W. F. Farmer, master of the British steamer Powhatan.
The Governor's warrant constituting the Court was read by the President, also a letter from the Wing On 8.8. Co., owners of the 8.5. Chukong, with regard to the wreck.
P. Rodrigues was the first witness. He said he was fourth clerk in Harbour Office, and signed the last clearance of the se. Chukong, of which he produced the counterfoil.
Bertram Rutter, chief engineer of the s.a. Chukong, said that vessel left Hongkong on April 26th about 6.30 p.m. They had fine weather and a smooth gen until 5.30 p.m. the next evening, when they experienced a strong north-east wind off Swatow, which brought up a fairly heavy sea. At 8.30 p.m. the engines were slowed down; about that time the Captain went to witness' room and told him thất he intended to go slow till the morning. The ship was pitching and rolling a great deal, but it did not strike him as being out of the way. He could not say whether it was unusual for the vessel, as it was his first trip in her. He went to bed about 8 pm, and was called about 5 a.m. on the following morning by the Chief Officer, who said they were in danger. When witness got up he noticed the vessel had rather a honvý list to port. · He ran down to
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