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FULL COURT OF APPEAL.
POSTMAN'S SENTENCE
CONFIRMED.
Mr. Jenkin am assuming, my Mr. Justice Gomperts said that there suficient to support the conviction, tha Lord, that, everything happens as it ought was of course, the pawibility that the Court was against him. The Court was tan the Post Office."
Magistrate might not have amended it. prepared to hear Me Jenkin on the qu Contioning, Mr. Jenkin said that the Me. Jenkin said that if the Court tion of evidence, subject to anything which main drợp box in the Post Office was thought it was improjer to press "the the Attorney-General ‘taŝght have to say. INTERESTING ARGUMENT,
apened once every half an hour. At 3 poins, he would disregard the, newspaper Mr. Kemp said he had intopel to ~~A-sensioer-of-the-Full-Court of Appent, when the box-was-opened, the report
address the Court on four points, busi comprising Mr. H. H. J. Gompertz, letter was found; therefore it was conMr. Justice Gompertz said that the the Cours thought, on the facts, that there Acting Chief Justice, and Mr. J. B. elusive, if the box was properly cleared Court upheld Mr. Kemp's argument, and was sufficiently grave done of the Magis, Wood. Acting Pulsne Justice, was held at 2.30 p.m., that someone must have held that the newspaper report was in-trate's conviction, ha bad nothing more to yesterday, when Mr. F. U. Jenkin (in posted the letter between 2.30p, and admissible..
suy on that matter. He proposed to structed by Mr. A. E. Hall of Hours,
Mr. Lo and Lo) argued the appeal of Tse Tak, a postman who was recently con- victed by Mr. N. Smith, Magistente, and sentenced to hard labour for three months, on a charge of baving felonious
p.m. The appellant had all this time Mr. Jenkin then proceeded to deal with address the Court on the facts. been detained, therefore he could not have the meaning of the word crew, Kemp then dealt with the general' prin- posted it. The difference was that at a as to show that the appellant had not ciples laid down in granting a re-bearing, im. the letter was found open. He been feloniously guilty of the offence with and mentioned several appeal cases, in After quoting which various principles, had been laid would invite inspection of the letter, which he was charged. which would show that it had either been several cases, Mr. Jenkin said that, down, which had come up in the Appeal- ly Stolen, embezzled, secreted or destroyed
Mr. Kemp, anid, on the question of a beatur bonging to the Postmastery carefully opened with a sharp in according to the Magistrate's view of the Court of Hongkong in past years
strument, or that in had been very care lawas expressed in the following sen lessly closed in the first instance. On tence in his case:-" Ever had the letter admitting fresh evidence, it was open to the Court to. consider the case on the The Hon. Mr. J. H. Hemp, R.C., these facts the Magistrate had convicted not been subsequently discovered in an Magistrate's depositions. In this case, Mr. Attorney-General, "argued the cass on the appellant of a felony...
open condition, the offence of secreting Jenkin asked for permission to bring in behalf of the Crown,
bad beug proved "if the letter turned fresh evidence to prove several things.
General.
In accordance with Section 05 of the
Magistrate's Ordinance, 1800, Mr. N. L Smith set forth the facts and the grounds of his conviction of the appellant in the
following statement :—
Dealing with the Magistrate's statement
of the case, Mr. Jenkin aid that, in upin its original condition, that, per afr. Jenkin wanted to pus in evidence to effect, Mr. Smith said that even if the constituted the felony of secreting. The show that the handwriting of Mr. Watt letter had been found in its original Magistrate held that he must convict be was well known to the appellant. That state, the postman would be guilty of acouse Section 36A of the Post Office evidence might have been prodused at the.
Ordinance-made- no-allowande-for-accid-bearing. If that evidence was called, he
Upon the hearing of the complaint it felony in having secreted the letter. Ha was provid on the part of the Respond had with him a newspaper account of the ent or neglect, that if the appellant had (Mr. Kemp) would ask for permission to ent, and found a fact that the caso, which he proposed to refer to...
accidentally dropped the letter and some call evidence to show that the bandwriting Appelant was at 12.30 p.in, on 14th
one else had found it, the appellant would on the envelope was disguised. As regards April 1920 given the key of a certain Mr. Kemp objected to any statement still be guilty of a felony, although the the evidence which Mr. Jenkin wanted to pillar-box together with a tablet mark based on a newspaper account.
d3 p. for insertion on that!
dropping was accidental, or oven through call that the handwriting was recognised pillar-box after clearing; that, a cer Mr. Jenkin said he was only referring neglect. The Magistrate drew his conclu at the Post Office, he wished to point out tain letter was posted in the said to it because it was substantially corrections of guilt from facts which would be the extreme danger of admitting such a pillar-box by the Respondent at 12.30 and contained certain statements which -p-m-the-tablet marked 1 pm boing.
present-in-a-case of were negligence by statement at the prevent tine, alw
In an offence of this description, it was try that there should be proof of intention to do something wrong.
Mr. JEtice Gompertz intimated that the
at that time on the pillar-box; that do not appear in the "Magistrate's notes the Post Office in the collection ofaletters, the Appellant was watched immediate Ho read copies of correspondence which Jy on his return to the General Post Office from clearing pillar-boxes and had passed between Mr. Hall, the Solici. tant she letter in question was not found tor, and Major Willson, First Clerk to among those which he had brought back, to the G.P.O..; that the said pillar-box pe Magistracy. In the latter's communi- was then visited by the Respondent and eation, he said that Mr. Smith admitted found by him to be locked and to bear that the newspaper report forwarded was the 3 p.m." tablet, but not to contain substantially correct. "The missing letter; and that the letter" was subsequently discovered in the main drop box of the G.P.O. in an open..condition.
Ir
Mr. Kemp said that did not make it) admisible
■ .:
Court was with hit on that point that there must be proof of intention and not of mere accident."
Mr. Jenkin submitted that in this case there was not more than the mere suspicion that the appellant opened the letter, that he found it worthiess, and that he threw it away or put it into another pillar_box. There was no evidence of this. It was far more likely that the letter went to the
Mr. Justice Gompertz reminded It was admitted by the appellant Kemp that the Magistrate had accepted that the said proceedings had before me were legal and regular and that the the newspaper report as correct. said conviction was properly made.
Mr. Kepp replied that the facts stated It was contended on the part of the by the newspaper were not sworn to es appellant that the time allowed for hit tour of the pillar-boxes was not suffici- correct. There was no evidence on oath pillar box through a member of the general
ent to allow him to do more than clear them, that the respondent's handwrit ing on the letter in question was well known to him, and that the offence had not been proved.
even had the letter not been subsequent-
It was no
might well be manufactured Mr. Jenkin had stated that the appellant's tour was
ships would know the district, or a portion through a populous district. Their Lord- of it-Peak Road and Garden Rond. They would realise how easy it word be
public, who had picked it up very soon after it had been dropped by the appellant He quoted other Post Office cases to show that there was distinct evidence of criminal intent before a conviction was registered, He said that on the facts there might be
cam of feloniously secreting the letterther, and say 3 There was nothing to show that the letter came to the Post Office by reason of any thing done by the appellant.
for the appellant to slip behind a tree Mr. Jenkin wished to call was not of such and open the letter. This evidence which
--Dature a Tould justify-a-departure from the usual ruis and admitting evidence which could well have been called earlier. He submitted that the story about the appellant finding a parcel carer in the day and restoring it to the Post Office was irrelevant. The fact that the appellant had resisted temptation on one occasion did not prove that he had resisted it an, was not as valuable to the finder as a $10 the second occasion. Besides, the paroc note would have been to bin. On the at all. It was obviously incorrect in one
point of fresh evidence, he submitted that none of the evidence it was proposed to point, when it stated that the postronn
call was decisive evidence; some of it handed the letter to Mr. Watt He object.
might be dangerous because it may have ed on principle. The newspaper contain
been invented afterwards. No good reason 1 however, being of opinion that, a report of the solicitor's speech. How
had been given why this evidence, should On the facts of the case, Mr. Kemp sub- mitted that there was enough evidence ly discovered in an open condition the could that be admissable!
to dffences of secreting had been proved more evidence than any statement made a gravely suspicious, but not a proven,
support the conviction. He would
go fur- that the evidence led to no and that therefore the evidence given Magistrate in a francar to a friend.
other conclusion: The appellant had the before me, brought the case within the operation of Section 38 (a) of the Post The other reason for his objection was
hox, and he must have taken it out. He only key of the box, the letter was in the Ofice Ordinages (No. 8 of 1000) gave that a record of the procedings as taken
did not deliver, it at the Post Office with my determination in the manner aforeby the "Magistrate was the only conclu said.
As regards his application for a rs-hear other-letters-which he had taken out-at sive evidence, and no other evidence coulding and for the admission of further evi- the same time. The seals on the letter and The question of law arising on the
its bulk would suggest that it contained above statement for the opinion of this
The Ordinance laid down dence, Mr. Jenkin said he desired to bring paper mones. The letter clearly had been Court therofors is whether the alleged that the Magistrate should take full evidence to prove that the handwriting fastened down with gue and sealed, and offenco has been sufficiently proved cir- note, and no other evidence was admis on the envelope was well known to that did not require great care or a long e cumstantially by the negative evidence
time to open it. It was possible the- of the absence from the lettere duly sible. He quoted cases in support of his appellant and to all the other postmen, appeliant had handed it to an accomplice brought by the appellant to the Post submission.
because Mr. Watt conducted a school for to open it.. There was no money inside,
and the accomplice had re-posted it. Office of one particular letter posted in Mr. Justice Gomperts observed that if postmen in one of the basements of the thought there were three theories possible apillar-box to which he alone had the newspaper report had been sent to Post Office and he had to copy out notice any one of which would make the facta con- the Crown Solicitor, and the latter had and regulations for the guidance of the The first theory was that someone uncon- sistent with the prisoner's ignoernee.. Laid it was substantially correct, it would postmen. both on the question of law and by way have been an admission. If sent to the evidence that as soon as the letter was keys of the letter box, and made it his He wanted, further, to bring nected with the prisoner had duplicate of an application for a re-hearing or the
particular form of crime to open the box admission of certain further evidence Magistrate, it would not be an admission found it was recognised as being in the and steal the letters. This was, however, After having dealt with Section 364 of j
in lay?.
handwriting of Mr. Wait. He wanted to impossible, else there would have been the Post Office Ordinance, under which Mr. Kemp said it would not be an adduce evidence to show the nature of the wholesale reports. As it was seldom that
valuables were posted at a latter box, ther the appellant had been convicted, he said admission.
appellant's tour, for the purpose of game would not be worth the candle. For that the offence with which the appellant
showing that it was through a populous ther, if an outside thier had taken the had been charged was a felony, and there
district, and the appellant would have letter, there would have been no motive fore to justify a conviction it must be
neither the time nor the opportunity of found that whatever was done was done
opening the latter in the careful manner in which it had been opened. He wanted feloniously.
to bring evidence that, on the very morn ing of the happening, the appellant, when on another tour, found in a letter box a
access.
Mr. Jonkin said that his appeal, wast
weeks old and therefore the Court would
be wimitted.
Mr. Jenkin said if it affected the question at all, he might say that he only wanted to refer to the statement made by the Magistrate as reported in the newspaper."
The letter was stuck down and sealed can supporting his submission that a with three pibobs. "of - wax.
guce
He
în re-posting it. The letter did not con- tain waste paper, as Mr. Tenkin had said, but contained &G.P.O. form asking addressee to return the farm to the Fost Office method adopted by the Post Office The facts of the case, as detailed by Mr. Kemp said on that point he strcnu-
to check irregularities Being a postman, Mr. Jenkin, were as follows:-A 12.30 ously, objected. It was quite inadmissible
the defendant knew that if the form wan not reposted and later returned to the p.m. on April 16th a certain letter was to refer to this. There was no evidence unaddressed and unstamped parcel. This be made. The second theory, another im- G.P.O. by the addreslee, enquirice would posted in the pillar box at the junction on oath that the Magistrate had said what parcel the appellant took to the Post Office or mislaid at the G.P.O. Mr. Watt was possible one, was that the letter was stolen of Feal Road and Garden Road by Mr. was put down to him in the newspaper and gave to Hr. Bynes. This incident waiting at the Post Off specially for the Watt, Inspector of Post Offices. The If Mr. Jenkin was going to draw minute letter now produced in Court was six points of what the Magistrate is supposed was not altogether valueless, because it appellant, to see if he would produce the letter in question from among those he had would tend to show that on the same day collected, and there was no to have said, he must-objeef. What the
lity of the appellant did not
not altogether ignore its having been stolen or mislaid out the appreciate that it was now in a rather Magistrate had to as he said in the case the duties which his position had imposed appoilast had reached the Post Office
third mora dilapidated condition than it was he had stated. Mr. Kemp quoted, several on him. Also, and he did not wish to box and ry was that, in-opening the it, he dropped the letter It contained Magistrate's depositions are the value. Press this point, he had to point out that on the road. This was most
not imposible If he bad
the the defendant in answer to his solicitor, letter, it must have been picked up by merely waste paper. It was addressed missible record of any proceedings. He replying doubtless to questions which bad either botest
Aa
person or a dishones to Mrs. Lander, Bishop's House, Hong submitted that the case stated was the been put to him, did not deny the charge person at honest person hail found it, kong." Perhaps it was so address to only thing which the Court could look in any shape or form. The appellant, dishonest person had found it, he would he would have it unopened. If a make the appellant believe Mrs Lander at for the purpose-of-finding-out-what
said Mr. Jenkin, is little more thana-have-throw it away. He certainly would boing of a charitable turn of mind that the Magistrate had said,"
not have walked to the Past Vice and schoolboy: he is 18 years of age, no, posted it. Tho evidence, M. Kemp the box was cleared by the appellant and cish that the Magistrate's statement in he was taken on at the Post Office about the letter contained money. A 1. p.m. Mr. Jenkin pointed out that the criti- according to the Chinese, rockoping, and thought, pointed clearly and decisively to Mr. Jenkin said he had nothing further. the 3 p.m. tablet, indicating when the regard to the proceedings. being subatan 13 months ago. He asked leave to develop to submit. The Attorney-Generat bad box would next bo cleared, was inserted, tially correct was not on oath would not the evidence on the points he had stated. introduced a possible theory that another At 1.50 p.rp., having completed his tour, hold good because the case stated by the On the law, the conviction was bad; there person might have handled the letter. If that was a possibility, it must weigh an which he should mention was an exten- Mgistrate was also not on cath. He was no evidence to show that the appellant much in favour of the appeliant as against pive tour, the appellant arrived at the desired to ingethostesspaper statement had done anything in connection with the him There must be grave double that the
Post Office He was then immediately because it was to be found howhero che lotter
appellant bad done it all, and, if these doubla existed, it would not be in accord ance with the strictest canons of justice if The fact that no instrument was found on the appellant was not given the benefit..
arrested by Mr. Watt, who conducted and because the statement showed the Mr. Justice Gompertz said that in the rigorous search of his person. The letter road by which the Magistrate had even opinion of the Court, paragraphs 7 and 8 in question was not found on his person tually found the appellant quilty.
of the Magistrate's statement at the the appellant when he was rearched at the or among the letters which ho had Mr. Justico Gomperts said that it can amounted to this that it was Post Office, via surely some evidence that
letters which
he did not open the letter for it un- the
doubtedly needed a sharp knife to oper
THE HING WAH PASTE MFG. CO., LTD brought to the Post Office. At 230 p.m. might have been possible to ak the Magis the postman's duty to bring
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him arrival without the letter
the main drop box of the Post Office was trate to amend his case stated by putting letter to the Post Office and that the letter. clearest, in the ordinary course,
in the newspaper report. Mr.Justice Wood-" You mean that it shoula have been cleared!"
Mr. Jenkin repkod that that might have been done. He had not thought of it.
The Court, having considered their sufficient to convict him. So far as Mr. verdict, refused the application for a re-
bearing and confirmed tha Jenkin contended that these facia were not. No order was made as to pORKS.