Page
28
8353
went and trod on his foot at Jardine's Corner. Į They were absolutely absurd stories.
His Lordship-You don't deny, Mr. Calthrop, that if one of these people were killed in a fight it would be murder ?
Mr. Calthrop-If it was a sudden affray it would not.
His Lordship-What would it be? Mr. Calthrop-Manslaughter.
His Lordship-If the coolies were called down from Mr. Gresson's coolie quarters attack a man, and a fight ensues and death follows, that is murder.
to
THE HONGKONG WEEKLY PRESS. AND
submitted that this was a question of procedure, not a point of law, and it was opening up a tremendous precedent. It simply meant that if three men were in the dock speaking different languages, interpreters would have to interpret in each dialect.
His Lordship-That is one of the penalties of empire. (To Mr. Calthrop) You can move to quash the verdict.
Mr. Calthrop-I don't think I can. The only thing is to state a case. This is a question of the admissibility of evidence.
His Lordship-I think the point is one that Mr. Calthrop-It depends how it is done and should be taken. I will reserve it for considera- what it is done with. They were not at that†tion and postpone sentence. time using weapons of a very serious nature, but the affair turned out to be serious.
Concluding his address, Mr. Calthrop told the jurors that if they found any of the prisoners had taken part in the fight, he would suggest that their action did not amount to the very serious crime of murder, but was simply an offence which amounted to manslaughter.
The Attorney-General told the jurors that whether there was, or was not a motive, if they were satisfied that any of these men committed the act alleged, in law assuming there was malice, it would be murder. Regarding the first prisoner, he did not regard the evidence against him as of the same strength as that against the other two. The evidence against the other two, however, was sufficient to bring them within the category of the crime. He submitted it had been substantiated, and it was for the jury to say whether they thought the evidence against the first accused was sub- stantiated'
His Lordship, in summing up, told the jury that they must consider the guilt of the first, second and third prisoners each as an indepen- dent case. This was a case which, in spite of com- plicated evidence, was bound to be put before a jury to say whether the three men were guilty of a crime. With regard to the law, he would direct them as follows: If there was a clan fight between Hoklos and Puntis without any clear evidence as to how the fight began, then the jury might find participants guilty of man- slaughter. But if they believed that there was such a deliberate act as one of the prisoners calling down Mr. Gresson's coolies, and that' those men thereupon attacked the deceased, and if the fight was followed up by a deliberate chase, then the jury must find those who participated guilty of that crime.
At 4.19 p.m. the jury retired to consider their verdict, returning into Court fourteen minutes later. They found the first prisoner not guilty, and the second and third guilty of manslaughter Mr. Calthrop here remarked that his Lordship had noticed that he evidence had not been trans- lated to the prisoners, and pointed out that it should have been. Counsel therefore asked his Lordship to state a case for the Full Court on this point as to whether the evidence could go to & jury.
His Lordship-Is there any authority? Mr. Calthrop That I cannot say, but the rule is that no person can be committted for any crime unless the evidence has been heard by hím. His Lordship-You will have to give me an authority for that. It is an elementary pro- position.
Mr. Calthrop That is the worst of it. Elementary propositions have no authority at all. His Lordship-You move to quash the con- viction ?
Mr. Calthrop-I think that would be the proper course,
His Lordship-In the case of an accused person being convicted I may postpone judg- ment until such a question has been considered and decided, but before I do that I must be satisfied that there is some point to reserve.
Mr. Calthrop referred his Lordship to the case where three Indians were tried for murder at the Supreme Court in the December Sessions of 1905, and stated that it had never been heard of a man being convicted on evidence he had not heard.
His Lordship-The practice, varies when a prisoner is represented by Counsel.
The Attorney-General said he had just come from a Colony where the ourt proceedings were conducted in the Greek and Turkish languages. There many convictions were re- corded without a prisoner hearing the evidence, Counsel waiving the double interpretation. He
The Attorney-General-Reserve the point and pass sentence.
His Lordship-I cannot under this section. The Attorney-General-I would ask your Lordship to record my objection that this is not a point of law within the meaning of the section.
His Lordship-The second and third prisoner will go back to prison, and will come up when directed to receive judgment. I reserve the point. The first prisoner is discharged.
The Attorney-General--The point is not necessarily for the Full Court?
His Lordship-Yes.
IN SUMMARY JURISDICTION
BEFORE MR. H. H. J GOMPERTZ (ACTING PUISNE JUDGE).
CLAIM ON A PROMISSORY NOTE.
J. H. Pidgeon and A. Abraham were sued by Fung Chun for the recovery of $271.13, balance due from the first defendant as the maker and from the second defendant as the guarantor of a promissory note for $300 dated June 27th. 1906. The payment of this sum was expressed to be made in instalments of $50 per month on July 1st, 1906.
Mr. D. V. Steavenson (of Messrs. Deacon, Looker and Deacon) appeared for the plaintiff, P. W. Goldring (of Messrs. Goldring, Barlow and Morrell) represented the first defendant, and the second defendant appeared in person and admitted his liability.
Mr. Goldring applied for a stay of pro- ceedings, as the first defendant had filed a petition in bankruptcy.
His Lordship-You have no defence ? Mr. Goldring No.
Mr. Steavenson objected to any stay of pro- ceedings. This case was first brought into Court on December 22nd, and the first defendant had seen him and told him that arrangements were already being made with the creditors about a composition, and stated that he wanted the plaintiff to join in with the other creditors. It would have been better for him if he or his solicitor had approached the plaintiff and told him of the composition offered. Instead of doing that, he ignored the plaintiff entirely.
Mr. Goldring The bankruptcy petition was only presented because of my friend's hostile attitude.
Mr. Steavenson-We were quite passive at
the time.
His Lordship-If the petition is filed you cannot get execution.
Mr. Steavenson-I think I could, as it may be objected to.
His Lordship-Supposing you could? It would only increase the costs, and you could not get any money.
Mr. Steavenson-I submit I could. Mr. Goldring I may mention that several executions have been issued against Mr. Pidgeon. In one case he was actually arrested by one of his creditors, an Indian of a most voracious kind, but this man gave in as he saw it was no use.
His Lordship (to Mr. Steavenson)-You want execution against Mr. Pidgeon?
Mr. Steavenson I want jugdment against I may issue execution against one or both defendents.
both.
Mr. Goldring-I a-k for a stay of execution. Mr. Steavenson-This is a case in which my friend asks for a stay which the Court ought to grant. It is in the power of the ourt to give judgment for the plaintiff, and arrange ments regarding a stay can be made with the plaintiff. We have never been approached, and we do not know what composition is offered: I
[January 9, 1909. feel certain that, if it was a proper scheme, we should have joined with the other creditors. Instead of that we have been put off and off, and now the defendant has filed his petition.
Mr. Goldring The reason why the defendant went into bankruptcy was because this writ was issued against him.
His Lordship-The plaintiff was bound to issue a writ if the defendant did not approach him, but I feel disposed to grant the stay. What about the other debtor P
Mr. Goldring-I am not acting for him, His Lordship-Will he be prejudiced in any way by your stay?
Mr. Goldring-I don't think so. Mr. Steavenson-I think it would be putting the second defendant in a false position.
Mr. Goldring-What does the creditor think he is going to get? He cannot get anything. It is simply a question of personal spite. It is almost always the practice to grant a stay of
execution.
Mr. Steavenson-As I explained to your Lordship when the week's adjournment was applied for, my client is being sued by his creditors, and it is necessary for him to get his money in.
Mr. Goldring-All they want is to put my client in jail; simply out of spite.
Mr. Steavenson-It does not pay to put a man in jail, if we have to pay for his maintenance.
His Lordship-I think I must grant a stay until Tuesday morning.
Mr. Steavenson-Why ?
His Lordship-I don't see that it hurts you in any way unless you want to put this man in jail.
Mr. Steavenson-The Court does not, as a rule, protect, the defendant.
His Lordship-I don't see why it should not. Mr. Steavenson-If I am entitled to judg- ment I am entitled to the benefit of my judg ment.
1
His Lordship-You are entitled to judgment, certainly.
Mr. Steavenson-We are pressed by our own creditors for payment. Had we been in affluent circumstances I don't suppose we should have called upon Mr. Pidgoon to pay up.
His Lordship-Personally I do not like, to send a man to jail for debt unless there is some good reason.
Mr. Steavenson-I do not say, we are going to send him.
His Lordship-It is strongly suggestive. I will grant a stay of execution until Tuesday morning.
AN UNWRITTEN CONTRACT.
The case concluded in which Mesars. Wilks and Jack, Ld sued the Yee Fat, of Wing Lok Street, to recover the sum of $300 payable by the defendants for consultations with the plain- tiffs as consulting engineers. Also for journeys to, and attendance at, Lantau Island, near Capsuimoon Pass, and for advice with reference to lightering and raising the wreck of the 8.8. Eolus.
Mr. M. J. D. Stephens represented the plaintiffs, and Mr. P. W. Goldring appeared for the defendants.
Mr. Goldring, in opening the defence, said the case practically turned on the question of the circumstances under which the services were said to have been rendered. The whole of the conversations took place through the medium of an interpreter, an engineer who was an old employee of Mr. Wilks, and who was at present in the employ of the defendants. The version of the defendants was that the whole of the work done was not to have been charged for. That to 8 certain extent was borne out by the plaintiffs themselves, and the go-between was possibly absolutely mis- understood. The point really on which the parties came to issue was as to whether or not any definite orders were given to engage the David Gillies and to repair the pump. All the conversation took place in pidgin English, and probably there was a misunderstanding. The defendants say they never gave any authority.
His Lordship-Is the man who acted as inter- preter one of your people ?
Mr. Goldring-Yes.
Mr. Stephens-On a visit to the wreck the defendants said it was necessary to have the tug, and Messrs. Wilks and Jack went to the Docks and ordered it. As we know Chinamen will talk any amount, but it amounts to nothing.