July 10, 1909.]
Was
1
35
even
this Mr. Dixon has deliberately pledged himself. To this question, put by Mr. Potter, What motive he attributed to Mr. Hastings in making the statement relating to the con- fession, Mr. Dixon would have been entitled to say he spoke to facts alone and was not obliged to search for motive, but he deliberately answered the question and attributed the motives as I have above specified them. By this he must stand or fall. I disbelieve the existence of the motives which he has attributed to Mr. John Hastings, not because he is the senior partner of a leading firm of solicitors and Mr. Dixon only his manag- ing clerk, but because I would not believe this of any one in the absence of evidence leading most inevitably to this conclusion. The court does not assume motive, malevolent or other, merely because a witness chooses to allege it or pledge his allegation by an oath. If the court is to find motive it must be the necessary induction from evidence laid before it, and not from reckless unsubstantiated statements. The only trace of such evidence is what I think was the somewhat undue haste which Mr. Hastings displayed in his letter of the 30th of March suspending Mr. Dixon and attributing delay to Mr. Dixon and his legal advisers in regard to the deed of arbitration which had been submit- ted to them. I think in this he was in the wrong, but it c rtainly comes well within what I said at first with regard to Mr Hastings' conduct, namely, that it must be judged not by ordinary standards, but by honest endeavour to put oneself in the difficult position in which he stood. But of other evidence to support this allegation there is absolutely none. tings' views as to what has been called "Mr. Mr. Has-
Dixon's course of life were candidly stated by him in the box. It was a legitimate view and not affected in the least by what is euphe- mistically termed the "narrow mind," but every detail which has been specified of the relation. ship, offic al and social, between Mr. Hastings and Mr. Dixon from the beginning down to the early part of this year pointed to the opposite conclusion, and therefore looking at the question as one merely of evidence I find this malicious mctive on the part of Mr. Hastings not sub- stantiated in any way, and therefore unproved. In this judgment I have seemed perhaps to subject Mr. Hastings' action to criticism and to hare left untouched Mr. Dixon's. I have done this deliberately, because that seemed to be material to the great question whether these charges were proved and because I have been more than anxious that every point which could be argued in favour of Mr. Dixon should have all possible weight attached to it. But that must not be taken to imply that I approve of all Mr. Dixon's actions. Some of them which are referred to in the judgment of my learned brother seem to be very deserving of criticism. I have not forgotten the fact and have en- deavoured to give it its legitimate weight, but Mr. Dixon has shaped his public con. duct by that of an honest man-that
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CHINA OVERLAND TRADE REPORT. Farther statements on oath are public statements alone give the evidence which would bring and they must be available to both parties. The home the offence with which Mr. Dixon stands effect of these proceedings and the weight to be charged as a solicitor. It is said he will not attached to this man's evidence in this ques-come because he would incriminate himself. tion was whether he had paid the $20 alleged to That is irrelevant to this issue. He might be have been due from him under the agreement dead and yet the difficulty would be just the and said to have been made by him with Mr. same. I agree that possibly the facts connected Dixon to pay $50 for costs of which he had with the charges, if well founded, might have paid $30 on account. Now the moment this man come to Mr. Hastings' knowledge realises that his was the question involved, Hung. But Hang is, as the case stands, at the without when it was put to him with police accompani- bottom of the whole thing and I ask myself ment it would not be unnatural for him to say this question-Can this charge be proved with- that he had paid it. In due course a percep out him as the case stands? It will be said- tion might dawn on him that the real question Look at the difficulties! Is it fair to impose he was being asked about was whether he had this obligation on Messrs. Hastings? In this made such an agreement and that he was not case. "Yes." The question would raise entirely charged with not having paid money said to be different considerations if Messrs. Hastings had due by him. But even if he had not made such merely dismissed Mr. Dixon and he had brought an agreement he would almost inevitably stick an action for wrongful dismissal. We to his original statement, induced by facts cannot treat this application 8.9 if which had inevitably clouded his clear ap. were
it such an action, and, even if we preciation of the real question in issue. As were to act upon Mr. Tam's evidence, I the case stood after his examination am bound to say that the negotiations between concluded, I could not have found the Mr. Tam and Hung about getting Hang charge proved. I, however, put certain ques-back into the office, in which almost a promise tions to him in order to see whether he was made in Mr. Hastings name to take him did in fact appreciate the issue. His answers back, seem to throw a haze over it which I am were intelligent, appeared to be truthful and certainly not going to attempt to dispel except seemed to clear away that cloud; but putting to say this-it is really unnecessary to say-that the question to myself afterwards: Am I such inducements or half promises, or whatever quite confident that the cloud which must have they may be called, as were made by Tam to been in his mind at first was absolutely cleared Hung wero not made with Mr. John away? I cannot answer it affirmatively with Hastings authority, but were the direct op. such complete satisfaction to myself as to enable posite of his intentions expressed or implied. me to say "yes," and so hold that the charge I think in the circumstances that this is is proved- perhaps "not proven"; but we do not again a case in which I should have adopted the know that form of finding in England, and Scotch formula "not proven," but as I canot do I am therefore compelled to find that the sd; as in Wan Hi's case. I am bound to find the charge has not been fully and satisfac- case is not established, subject to what I have to torily established on the evidence stand-say on the subject of the alleged confession. To ing by itself and apart from the alleged this alleged confession I now turn. Now here confession, to which I shall come presently. I again we are confronted with a difficulty. A pass to the Wong case and here I find very confessiou if proved cannot be pressed further considerable difficulty in coming to a con than it actually went. The confession was that clusion. The question that troubles me is this: only small sums had been taken-and in Is the case more substantial then one man's word police court cases. This would cover Wau - against another? And there are two subordinate Hi's case, but not Wong's case, But there is a matters also that trouble me. I am far from far more serious matter to which I called the wishing to attribute to Wong Hui Tong any attention of the learned counsel engaged. At intention of wilfully deceiving the Court, but the opening of the case Mr. Calthrop very this point I cannot pretend to appreciate how wisely asked for the charges against his client an action of the most important character to be formulated, and they were formulated. affecting the very existence of a firm of high But this was for the sake of giving precision standing in Canton, involving enormous casts to the case. It could not possibly he said to should have been financed entirely by one bo, as is the object of charges formulated partner, as he himself says, out of his personal against a civil servant, in order to inform resources. He produced a private book which Mr. Dixon of what he was charged with; we could not admit as evidence, but upon which that was contained in the affidavits filed on he was cross-examined, and he said this book, the application for the rule, and the question showed all these payments to Messrs Hastings on is whether we can ignore the fact that account of costs. But some of these payments were there is an allegation made in these affida- apparently made by an
age t in Hong-rits that Mr Dixon had confessed to having kong, though in many cases they were brought appropriated small sums belonging to the firm. by Mr. Wong himself. Was this agent Wong's I do not think we can look at it as merely a private agent or the agent of the firm? He piece of corroborative evidence but as itself himself said that there were no entries in the embodying a charge which is brought to the books of the firm. Putting the sleeping knowledge of the court. I think, therefore, partners out of the question, there were other that we are bound to inquire whether the con- active partners-on Wong's evidence the firm fession was made as alleged. Now, in considering in conjunction with my learned brother given does not appear to have been charged with anying this I am moved by uo consideration other of the costs of this heary action. I find the than that of ascertaining which of two whole thing exceedingly difficult-not to believe, persons, both solicitors of this court, is speak but to understand. But there is this furthering the truth. Mr. Hastings asserts that Mr. difficulty: Everything that took place in Dixon made a definite confession. Mr. Dixon Messrs. Hastings office between Mr. Wong Hui absolutely denies it. Nothing is more difficult Tong and Mr. Dixon was through the medium in such circumstances to decide such a question. of an interpreter. Everything that Mr. Wong Human memory is so fallible that it is quite a says took place might be perfectly true and yet common occurrence for an honourable man never have reached or been understood by in reporting a conversation to Mr. Dixon,
put into There is only one piece of the month of the person be has been his evidence so far as I can see which talking with words which he himself used. directly associates Mr. ixon with the payment If Mr. Dixon had alleged that there was of the moneys whether for loans or the 500 a mistake in Mr. Hastings version of what he for costs which it is alleged was embezzled. suid; that there was a misunderstanding; we Mr. Wong says he paid the money into Mr. should perhaps have found more difficulty in Dixon's hands. But it is with regard to this arriving at the truth. But he has taken up the case that what I said at the beginning of this position that Mr. astings has deliberately per. judgment is so important. The question is not jured himself before the Court, has wilfully whether if the case had been between Messrs. | perverted what he said, has put into his mouth Hastings and Mr. ixon which would be entitled things that he never said, that he has done this to a verdict, but whether the case against 1. out of sheer malevolence, and with the ulterior Dixon, if it had been presented dispassionately design conceived some time since of gettin by a public official, has been proved. It is not rid of him. that it is all part of a case as to who ought to have produced Hung. deeply-laid scheme devised in order to rid the dismissed interpreter, as a witness, but himself of a managing clerk to whom many whether this case can be proved without him. material benefits were in process of time soon to whether We сац exercise our disciplinary become due, in order to economise the money powers in the absence of the person who can that these benefits would cost the firm. To
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is
to say. he offered to stand a public trial at the assizes. But on the whole case and hav-
it the most anxious consideration, I can come to no other conclusion but this: that the confession was made by Mr. D xon as Mr Hastings alleges, and that this corroborates the evidence given by Wan Hi, the facts of that case being covered by the terms of the confession, but that it does not corroborate the Wong Hui Tung charge. Mr. Dixon is therefore suspended from practis- ing in this Court for a space of three years. Mr. Justice Gompertz said :-This is a motion for an order that the name of Clive Fletcher Dixon, a solicitor of this court, be removed from the roll of the court. for gross mis- conduct in his capacity as solicitor. The facts are briefly as follows:-Mr. Dixon, who was admitted a solicitor in England in 1899, joined the firm of Hastings and Hastings then John Hastings in Hongkong, in 1904, on en
years' service salary of £325 a year. He received various increments in salary and commission not stipulated for
his agreement during the of his service. On the 15th April, 1907, before the expiry of his first agreement, a further agreement was entered into for five years under which Mr. Dizon was to receive a higher rate in dollars with increments in commission and salary and also to receive at the expiration of
agreement for four
19 an assistant on
in
course