March 1, 1909.]
imprisonment with hard labour, and the second to five years' while both were ordered a whipping of 24 lashes-
His Lordship further ordered the restitution of the stolen property.
Thursday, February 25th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
THE PEAK MURDER APPEAL
Judgment on the appeal against the finding of the jury in the Peak murder case on the ground that the evidence had not been translated| to the prisoners was delivered by the Full Court. Mr. H. G. Calthrop, instructed by Mr. R. D. Atkinson (of Messrs Deacon, Looker and Deacon) appeared for the prisoners, the Hon. Mr. W. Rees Davies, K.C., Attorney-General, instructed by Mr. F. B. L. Bowley, Crown Solicitor, appearing as respondent.
The Chief Justice said As the procedure under section 78 of No. 9 of 1899 which provided what is the Court of rown Cases Reserved for the Colony does not require a case to be stated, it is necessary for me to state the circumstances in which the question which has been reserved for the opinion of the Court arose. Three men, Kwok Leung, Li Shek Shun and Hung Loi were charged with the murder of Ku Tung. They were Hoklo men. Some of the evidence for the Crown was given in English, and some in Punti. The prisoners were defended by Mr. Calthrop, and at the conclusion of the case for the prosecution he called evidence, and he also put the three prisoners in the box. One of the English witnesses for the defence, Mr. Holworthy, had given evidence to the effect that the first prisoner, Kwok Leung, was his chair coolie. He said that when he arrived at the Peak on the day of the murder by the 12.15 or 12.3 tram, he found his chair waiting for him as he had ordered, and there were only three chair coolies, among them Kwok Leung. In cross-examination he said that he asked why the four were not there, and that No. 1 prisoner had said there had been a fight, and that that was why the fourth coolie, No. 2 prisoner, was absent. When Kwok Leung was in the box he gave evidence that there had been only three coolies at the tram station. In cross-examination
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could assign counsel to defend the prisoner. What the learned judge said was "I should be
counsel to appear without any communication very glad if I could do so, but by allowing
with the prisoner, and without his sanotion, I might be authorising a defence which the prisoner himself would never have made, and yet for which he might be responsible." I think, if I rightly understand his argument, the Attorney-General desired to draw the infer- ence that a prisoner is responsible for, and therefore bound by, what his counsel does, or leaves undone. So far as what he leaves undone is concerned, the authorities are dead against the contention. But the learned judge clearly used the word "responsible" as meaning ** take the. consequences," Of course the jury would be. influenced by what counsel might say, and the prisoner would suffer if the defence was an unsubstantial one. What the circumstances. alluded to do not apply, for counsel now assigned to defend prisoners for murder may and do communicate with them. But the case has an important bearing on the question of trials of foreigners, for Ysmade was a Spaniard, and the evidence Was translated and read over to him by the judge, and care was taken that he was made acquainted with all that trans- pired during the trial. I am therefore of opinion that the fact of counsel being retained by, or assigned to the prisoner, makes no difference to the application of the principle of the law as I have deduced it from the autho rities. And to the suggestion that the prisoners have suffered no hardship I answer they have suffered the greatest hardship of an irregular trial. Though, as was said in the judgment in R. v. Bertrand, this is irrelevant to the question which this Court has to decide. The quashing of this conviction is regrettable in itself: it is more any
so from the fact that this is not the first time the question has been raised. The Attorney-General referred to the custom of this Court, which has been, he said, invariably never to translate the evidence when prisoners are represented by counsel. That it was the custom seems to be a fact, for at the first murder case I tried in this Colony I drew attention to it, and directed the evidence to be translated, and I seem by referring to my notes to have done so a second time at the next Assize. I think
CHINA OVERLAND TRADE REPORT: “ several prisoners was quashed on the ground that the others were not allowed to cross- examine one of them who went into the box. Evidence given without cross-examination is strictly speaking, inadmissible evidence, and scientifically the term is rightly used. There are three at least a priori reasons in favour of Mr. Calthrop's contention. First, the prisoner is always entitled to make a statement, even when he is defended by Counsel, therefore he must know what the evidence against him is. econdly, now that the prisoner may give evidence, it is more than ever material that he should know the evidence against him in order that he may meet it, and, as we do not assume the prisoner guilty until he is so found, if he does not know it, the truth may be kept back. There may
be some part of the evidence for the Crown which he could easily rebut had he known it. If he does not know it he cannot do so. Thirdly, if he does not hear what the witnesses are saying, he cannot assist his counsel in cross-examining them. I confess, that without looking at the authorities, the question presents no difficulties, where the prisoner is not defended by counsel, and the real difficulty arises from the fact that in this case they were defended. But the a priori arguments seem to the very strong, and the first applies whether there is counsel or not. The third is specially concerned with the fact that there is à counsel. The second may in some measure be answered by the fact that the depositions taken before the magistrate have already been translated to the prisoner, and therefore he has notice of what is going to be said in the box at the trial. But this is not conclusive, because it does not apply to new statements which may be made in cross- examination. Moreover, the depositious are not evidence at the trial until part of them is specially made evidence, and therefore I think that tho a priori reasons in favour of quashing the conviction are very strong. His Lordship, after quoting numerous authorities, proceeded-None of the cases cited therefore support •he Attorney-General's contention that the translation of the evidence to a prisoner who does not understand it, is a mere irregularity in proceedlings. Ou the contrary, the authorities are all the other way, and looking at the reason of the thing, I have no hesitation in saying that it is not merely as he said No. 2 prisoner was the missing coolie. grave an irregularity as could well be imagined, He then said in answer to a question put but that it is contrary to those fundamental by the Attorney-General that he did not and elemen al principles of justice for which, tell his master, Mr. Holworthy, that there to 1150 a phrase of one of the old judges, had been a fight. Other questions on this rhetorical, yet pregnant with meaning.- point were about to be put by the Attorney- English administration of justice is so justly General when it occurred to me that Mr. famous," and which has made it respected and Holworthy's evidence had not been translated trusted by the people. The only question which to the prisoners. and I intimated that in the remains, is whether the fact that the prisoners circumstances I did not think that the point were represented by Counsel makes any differ- ought to be pressed, to which the Attorney. ence, for I am clear that in a case where the General assented. The jury acquitted No. 1, prisoner was not represented by counsel the but found the second and third prisoners guilty conviction in such circumstances must be of manslaughter. Before sentence Mr. Calthrop quashed. But this point is fully covered by intimated that some of the evidence, either the authorities cited by Mr. Calthrop. In R. v. English or Punti, had not been translated to the Bertrand, the irregularity of reading the depo- prisoners, and moved that the question besitions taken at the first trial, was acquivsced reserved for the Full Court as a question of law, in by the prisoner's counsel and not passively whether the conviction ought not to be quashed but actively, for he cross-examined the on the ground that the evidence ought witnesses on these depositions. The question to have been translated, and this is the resolved itself into whether any injustice to point on which we are now called upon to the prisoner resulted from it, and this is give our decisions. It is advisable to deal how this question was treated: It is a mistake, at once with the question of materiality of moreover, to consider the question only with the evidence actually admitted but untranslated reference to the prisoner. The object of a If No. 1 prisoner had been found guilty, un- trial is the administration of justice in a course doubtedly the fact that he had told this untruth as free from doubt or chance of miscarriage as with regard to No. 2 prisoner would have merely human administration of it can be-not influenced the jury, and I should have found it the interests of either party. This remark very extremely difficult not to quash the conviction. much lessens the importance of a prisoner's We have not, however, to consider whether any consent. even when he is advised by counsel, and part of the evidence which was untranslated substantially, not of course literally, affirms the was material, and so contributed to the convie- wisdom of the common understanding in the tion of the other prisoners. Mr. Calthrop had profession that a prisoner can consent to taken the broad ground that none of the nothing " In R. r. Mdore the prisoners evidence of the Crown was translated, and as were represented by counsel, and in the they were convicted some of it must have been course of the argument Hawkins J. said, material. He raises therefore the abstract ques- **The fact that the prisoner's counsel tion whether a conviction can stand when has taken no objection dess not make the the prisoners have no knowledge of the evidence admissible." The only case on which evidence given against them. He called the Attorney-General could rely on this point it "inadmissible evidence," and strictly, this was a remark in R. v. Ysmade by Erle J. which is the right term to use, though it is not has some bearing on the relations between its ordinary use. There is a recent case, counsel and prisoner. The question was whether R. v. Hadwin, where a conviction against in a murder case in the year 1854 the Court
the statement made by the late interpreter of the Court is defective in this respect, but it has been somewhat amended and explained. It is most regrettable that no note was taken by the Registrar of what I then said for the guidance of the interpreter in the future. It was undoubtedly the duty of the Registrar to have it recorded, or else what falls from the bench becomes mere idle talk instead of what it is intended to be, guidance for the future. But the position taken up by the Crown, though, I am glad to say, the Attorney-General did not defend it, is that in murder cases, when it is essential that every-- thing should be done to insure the fairest trial possible, the slacker custom of not interpreting is sufficient. This consideration by itself is to my mind enough to show how bad the procedure is
One word more, which is necessary.in con- sequence of what the learned Attorney-General said with regard to his experience in other Colonies. He referred to cases in (yprus where prisoners are of many nationalities Turks, Greeks, English and I know not what others,
The Attorney-General-Turks and Greeks only, my Lord.
His Lordship-I was only using a quotation. The Attorney-General-There are English of course, my Lord, but I thought you were going to add infidels and beretics.
His Lordship, proceeding, said the Attorney- General stated that it was not the practice to interpret the evidence in the Courts in Cyprus, and that if it were, great expenditure of time and money would be the result. I can only say that in the trial of human beings for crimes, the law of England requires the utmost considera- tion for the accused, and the most scrupulons exactness in the conduct of the proceedings, and that time and money are nothing compared with liberty and life. I have little doubt that the law, as we have laid it down, unless a higher tribunal says it is wrong, will be acted upon throughout the King's Dominions. 旗
The Puisne Judge said-I do not propose to review the facts at any length, nor to deal