104
SUPREME COURT.
Monday, February 1st.
IN PROBATe JurisdictION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
AN AMBIGUOUS WILL.
THE HONGKONG WEEKLY PRESS AND
A friendly action was heard by His Lordship who was asked to place the true construction on the will of the late Joao ntonio da Silva. The plaintiff was J. M. P. da Silva, son of deceased and executor of the will, the defendant being M. A. P. da Silva, widow of the deceased, Sir Henry Berkeley, K C., instructed by Mr. H. K. Holmes represented the plaintiff, and the Hon. Mr. H. E. Pollock, K.C., who was in structed by Mr. Otto Kong Sing, appeared for
the defendant.
Sir Henry Berkeley informed the Court that the action was rendered necessary in order that the true construction might be placed on the
will of the late Mr. da Silva. The action was
practically in the nature of a friendly suit, and was brought about because of the inability of the widow and the executor and trustee to agree to the proper construction to be placed princip. ally on the fifth clause of the will. The other clauses would also be laid before the Court, and the construction to be placed upon them would. also be solicited. The contention, so far as Counsel could see, would be as to the true con- struction of clause five, but it was possible that the parties might not agree on the other clauses. Mr. Pollock-There is also a question about repairs and insurance.
Bir Henry Berkeley-The question will arise on the other clauses.
Counsel then read the originating summons, and the following questions which they asked his Lordship to determine:-
1. What estate or interest does the defendant take in the chattels and effects mentioned in the fifth paragraph of the will of the said Joao Maria Antonio da Silva, deceased?
2. If the defendant takes a life interest in the said chattels and effects (determinable on re- marriage) what, if any, inventory should be signed, or undertaking as to safe custody should be given by her in respect thereof?
3. What estate or interest does the defendant take in the testator's leasehold properties?
4. If the defendant takes a life interest in such leasehold properties (determinable on re- marriage) is she entitled to the enjoyment of the whole thereof in specie, or should the plain- tiff as executor take the rents and profits thereof (excepting such messuage as may for the time being be occupied by the defendant) and pay the same after deducting Crown rent, rates, ordinary repairs, insurance and other out goings to the defendant ?
5. What estate or interest does the defendant take in the shares of the testator in public companies, and what, if any, transfers of such shares should be made by the executor?
6. What person or persons should have the custody of the testator's collection of coins
referred to in the said will?
After hearing the numerous authorities quot- ed by Counsel for the plaintiff and defendant, his Lordship decided that the costs of the appli- cation should come out of the estate, and be taxed as between solicitor and 'client. The trustee could raise the money by the sale or mortgage of shares.
The case was adjourned sine die.
Wednesday, February 3rd.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
*
THE PEAK MURDER APPEAL.
Mr. Calthrop said the point was whether the jury were entitled to give their verdict on evidence which had been left to them, and which | had not been translated to the prisoners. Evidence was given by fourteen witnesses for the prosecution, four of whom gave their evidence in English and ten in Punti.
i
The Attorney-General-I desire at once to intervene and say I don't admit any of this. It should have been stated on affidavit.
#
The Chief Justice-I don't see the necessity for an affidavit.
Mr. Calthrop said the English evidence was not translated into Hoklo to the prisoners, neither was the evidence of the ten Punti witnesses. The Chinese detective who arrested the second prisoner admitted in his evidence that he did not tell the accused what he was charged with, remarking that he only spoke Punti, and the prisoner, being a Hoklo, would not under stand more than two words in ten. Counsel submitted that a prisoner could not be convicted on anything but legal evidence; that was the only evidence the law allowed to be left to a jury. In a civil action admissions could be made by counsel and by the parties so as to dispense with strictly legal evidence, but in a criminal case it was clearly laid down that no admissions could be made at all.
The Chief Justice-In felony?
[February 6, 1909.
The Chief Justice Is not this just the
same
as if the prisoners were absent ?- They must be present at the trial. Apart from the authorities, would you contend that this case could have been maintained if the prisoners! were not represented by counsel ?
The Attorney-General-That is extremely doubtful.
The Chief Justice-That is the only point we are doubtful of.
The Attorney-General-There is nothing in the law that I can discover which requires evidence to be interpreted.
The (hief Justice-It amounts to this:-if · the evidence is not interpreted, why should The law says the prisoners be present.
be present, and the reason they must of the law is that they should hear and under- stand what is going on. If they don't hear and understand, they might as well be absent.
The Attorney-General-Counsel was instruc- ted in this case through a solicitor and through which any hardship has been inflicted. It is an interpreter. I submit it is not a case in
and this provision in the law does not authorise, simply a case of irregularity in the procedure, 8.8 the Imperial Act does, a new trial. requires that the conviction should be either affirmed or set aside,
It
The Chief Justice-What is the law? If the conviction is quashed, could they be tried again? The Attorney-General-I should say not, but I am not prepared to say that I should not try them again.
Mr. Calthrop-Iwill go as far as misdemeanour. Proceeding, Counsel said the reason for this was that before 1836 counsel were not allowed to appear on behalf of prisoners in felony cases, therefore all the evidence had to be given strictly,
The Chief Justice-It seems to me that quash- He submitted that the alteration in the lawing a conviction means there is no conviction.
The Attorney-General-The traditional which allowed Counsel to appear for prisoners in felony cases had not made any alteration in practice of the Court has been followed in this matter-the practice which the late Court inter- preter, Mr. Li Hong Mi, stated in his affidavit, has prevailed since he has been here.
the law of evidence.
The Chief Justice-Do you mean to say prisoners were not allowed to retain counsel?
Mr. althrop-They were allowed to retain them, but counsel could not examine or address the Court. Continuing, counsel submitted that all the evidence left to a jury must be evidence which the prisoner had heard or, if deaf and dumb, which had been communicated to him by signs. Whether a prisoner was defended by counsel or not it was just as necessary that the evidence should be translated to him.
reason was
Was
The Chief Justice-Not since I have been here. In the first murder trial I conducted, I ordered the procedure to be altered.
The Court reserved its decision.
A QUESTION OF JURISDICTON. Re Chan Yuen Shan ex parte Chan King Po. In this appeal Sir Henry Berkeley, K. C., who was instructed by Mr. Otto Kong Sing Aappeared for the judgment creditor, and the Hon. Mr. H. E. Pollock, K., instructed by Mr. Crowther Smith (of Messrs. Almada and Smith) for the petitioning creditor.
prisoner had always been entitled to make a statement, and it was impossible for a pri- soner to make an adequate statement unless he heard what the evidence
against him. Another
that he could not assist his counsel in the cross-examination unless the evidence was translated at the time. The ordinances out here, when a case came before the magistrate, decided that evidence must be, when necessary, translated to a prisoner. Mr. Calthrop submitted that neither counsel for a prisoner or a prisoner could waive any irregularity as to the admission of evidence. If any evidence was left to the jury which ought not to have been left to them, the verdict must be quashed.
The Attorney-General submitted that this was not a question of law within the meaning of the section. Section 78 of the Criminal Procedure Ordinance of 1899 said a judge might, in his discretion, reserve for the consideration of the ¡Full Court any question of law which might
arise on the trial of any indictment.
The Chief Justice-What is this, if it is not a question of law?
The Attorney-General-A question of proce- dure or practice. The Attorney-General then proceeded to point out to their Lordships what had been held not to be questions of law. The prisoners in the case, he said, were not in any respect demnified or prejudiced. In the Colony where he last served there were four languages used in the Courts, and it was not the practice to interpret the evidence.
The Chief Justice-If we decide against you in this case I may say that the Courts in the other Colony will follow our practice.
The Attorney-General-I doubt it.
The Chief Justice-If we have an empire of races of many nationalities we must have a procedure - if we are going to hang anyone- that is just.
Mr. H. G.althrop, instructed by Mr. R. D. Atkinson (of Messrs. Deacon, Looker and Deacon) appeared to appeal against the finding of the jury in the Peak Murder case on the
1 The Attorney-General-My learned friend has ground that the evidence had not been translated to the prisoners. The Hon. Mr. W. Bee. not cited to your Lordships any real authority Davies, K.C., Attorney-General, instructed by to show that the fact of counsel representing Mr. F. B. L. Bowley, Crown Solicitor, appeared the prisoners does not avail in favour of the
prosecution. as respondent.
Sir Henry Berkeley told the Court this was an appeal from a decision of the Chief Justice on a question of jurisdiction afising on a bankruptcy petition. The matter was argued before the Chief Justice in the Court below, and he had some hesitation in bringing the matter again by was one of considerable difficulty and because way of appeal, but did so because the matter the Chief Justice had mentioned “ that it was
y
по means clear", although he arrived ultimately at a decision. The question here was whether by certain acts or certain condust, in certain premises, with regard to certain property which was being sold, the debtor had made that He thought the deter- place a place of business. mination of this Court would depend entirely upon the view the Court was inclined to take of the evidence as to the acts of the debtor and the place where those acts were performed. He submitted that the premises of the Kwong Mau firm could not be found to be a place of business by implication, but by direct evidence only.
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Mr. Pollock contended that the premises of the Kwong Mau here were a place of business.
After argument their Lordships reserved their decision.
Thursday, February 4th.
IN BANKRUPTCY.
BEFORE HIS HONOUR SIE FRANCIS PIGGOTT (CHIEF JUSTICE).
THE ALLANA ESTATE, The Chief Justice delivered his decision on a point raised by Mr. Hastings with regard to the jurisdiction of the Court over strangers to bankruptcy proceedings. The point was raised on a motion brought by the Official Receiver to set aside the sale of the bankrupt's property to
S. A. Marican.