JURY'S VERDICT CONFIRMED BY
JUDGES.
DEFENCE'S LEGAL ARGUMENT NOT SUSTAINED BY FULL COURT: CHENG TO BE SENTENCED.
APPEAL TO PRIVY COUNCIL INDICATED.
Yesterday the Full Court gave their decision on the legal is. sues raised by the defence in the Fung Murder Trial.
Probably anticipating the appearance of Cheng Kwok Yau, --- the accusext, a crowd of several hundred again thronged the Court. Cheng Kwok Yau, however, was not present while judg- ment on the legal argument was delivered. The Chief Justice in- dicated that he would be called before the Court at 10 am, on Wednesday for sentence to be passed on him.
The judgment of the learned judges must have created unprece dented interest in legal circles, for there were a large number of barristers and solicitors in Court, Among those present, including counsel engaged in the ease were the Hon. the Attorney General, Mr. C. G. Alabaster, Sir Henry Pollock, Mr. H. G. Sheldon, Mr. R. E. Lindsell, Mr. R. C. H. Lim, Mr. C. Bulmer Johnson, the Hon. Mr. W. E. L. Shenton, Mr. M. K. Lo, Mr. M. W. Lo, Mr. Horace Lo, Mr. Edgar Davidson Mr. T. W. Hazelrigg, Mr. T. S. Whyte Smith, Mr. F. H. Loseby, Mr. Hin Shing Lo, Mr. M. A. da Silva, and. Mr, D, J. Lewis.
HONG KONG DAILY PRESS, TUESDAY, SEPTEMBER 13, 1932.
I always want to say but, you're cheating. You've got to tell us what happened."
¡
Previous Acts.
the
but
In support of this contention re- ference was made to a dictum (re. The demarcation of any transace corded there in the argument) in R. + Ball" 1911 tion by the judge is perhaps the report of point on which little help may be A.C. at p. 68 by Lord Atkinson derived from precodent. To quote which is as follows: "Surely in an a dictum of Earl Lareburn, the ordinary prosecution for murder: learned judge there remarked "Nor you can prove previous acts or am I impressed by arguments pro-words of the accused to show he en cooding upon a comparison betweentertained feelings of enmity to the facts of one case and the facts wards the deceased, and tha:
evidence not of another. Precedents are valu-
merely of able and authoritative when they the malicious mind with which
deceased, killed law down a principle, They are he otherwise merely illustrations of the of the fact that ho killed trim. You way in which judges look at facts can give in ovidence the enmity of
Different judges look at facts the accused towards the deceased' differently."
life. Evidence of motive necessarily The transaction under inquiry is goes to prove the fact of homicide the murder of George Fung. The by the accused. stery of the transaction commenced This dictum was, niso repeated by from the desertion of the accused Lord Atkinson (in "Thompson v by Lai Ming Fay and culminated in the death of George Fung. The conduct of the accused during this interval of time is an incident of this event.
MISSING MAILS.
NO DEFINITE NEWS OF 2,000 BAGS.
NEW ROUTE IN OPERATION.
No definito news is yet known re- garding the fate of the missing 2- 000 bags of European mail, which have been delayed in. the region.of Manchuli.
.
Prior to yesterday, when 120 bags of mail arrived by the Heian Maru from Kobe, the last mail received here was that dispatched from Lon- don on August 10, This consiga- ment included the postings of the two preceding days (8th and 9th). Yesterday's mail was that posted in London from the 11th-17th Au The King" 1918 A.C. at p. gust inclusive, and, travelling in where he said in his judgment: the new route to Vladivostock and "In a case of homicide...ovid-Japan, took 20 days in transit, This mail was the second instal ence is admissible to prove that the accused entertained feelings of hatment to arrive via the now route, red towards, or a desire to be re- "What Was Accused Doing?'
venged upon the deceased, in order Any person listening to the nar to prove that he killed the deceased, rative told by the witnesses so far not merely quo animo he did so."
This dictum, as it seems to me, as the evidence has been received without question, would naturally can only be interpreted to mean inquire Between the abortive at that when a homicide has been The Puispe Judge, who was first charged as to form one transaction tempt by his chauffeur's agents on proved, enmity against the deceas- to read bis decision, after review-proof may be given of such other March 19 to murder Fung and their od may be used to connect an so ing the evidence at some length, facts. ... All the details of the successful attempt with his chauf;cused person with it. (See also 13
aid that in his opinion the evidener alleged criminal transaction are re-fear's support upon March 24, Halsbury "Laws of England" Pmissing mails have been received. was rightly received.
PUISNE JUDGE'S VIEW OF THE CASE,
He went on to say -
I have reached the conclusion that
the contention by the defence that
levant to the case for the prosecu- what was the accused himself doing 447 par. 621.) tions as being part of the res gestae in the moantime and should be proved."
The learned author in 13 Hals-
Without this evidence, the story, to use the word, I have suggested,
Further Authority,
Local postal authorities now state that since the inauguration of the new route a reasonably regular service, arriving once a week, can now be expected:
It is also hoped that instalments of the
missing mails will arrive in- termittently, along with the weakly
arrival of the newly arranged ser- více.
To date, six of the eighteen days'
The Chief Justice.
The Chief Justice, concurring, said:
The matter has been stated also allowed to stand, in 9 Halsbury "Laws of England" p. 378 par. 740 in the following must terms: "The prosecution first give a satisfactory proof of the
I agree generally with the judg corpue delicti Le.. that the offencement which has just been delivered charged has been committed by by my learned brathor. I should The prosecution must like to add another reason why, in fit into the whole to the best of someone.
prove that the defendant is the per- my opinion, the evidence objected their ability,
the evidence to which objection is buryLaws of England" p. 437, would be "incomplete." The evi
par. 609 also states:-
dence comes under Stephen's classi- "In teatifying to the matters in
fication"Evidence deemed to be witnesses must state relevant to the issue." issue them not in their barest possible It is one piece of the puzzle which form, but with a reasonable full-the jury are entitled to handle and ness of detail and circumstances,"
taken forms a different transaction than that under consideracion cannot be sustained. Evidence has to be received not merely in accor- dance with the standard of its ap- propriateness to prove a conclusion for which the prosecution contends': but also because whatever ita ap- propriateness in the adjudication, A judicial statement of the dec- it in fact belongs to the story to trine is contained in the judgment which the attention of the Court of Kennedy J. delivered in the re-
History of Crime,
is only re-state-
It is not necessary to emphasize son who committed the offence to is admissable. Perhaps this ad- the fact that the prosecution is not charged. Any facts which arma-ditional reason debarred from telling the whole lively prove either of these pro-mant, from a different point of
the prosecution."
is drawn. Such evidence is admit port of R. v. Bood (C.C.R.) 180g story of the prisoner's doings mere.Positions are relevant evidence for view, of the reasons already given.
ted, in the language of legal text 2 K.B. at page 400:- books, as part of the res peatae.
ly because it excludes other of his criminal acts not specially charged
Whether oue Iact tends to prove In neither of the two cases report another is, speaking broadly, a
The general rulo" (i.c., the in the indictment. (Russell "Criod, from which the dictum of Lord matter of common mental proces- Almont contemptuous reference rule excluding prior criminal con-mes 7th Edition p. 2011 cited Atkinson has been quoted, was theses. As it is put in Halsbury's evidence then under discussion ad-Laws of England. vol. 13, at pags has been made to this term by Lord duct of the accused from the evi- above). The same remark applesmitted to prove the cornua delicti.
439, in paragraph 613,"in the vast
Tomlin (in "Homes v. Newman"dence) "cannot be applied where to all evidence adduced
whether
The proper use of the evidence majority of cases the law will ac
1931 2 Ch. at p. 120) who has re- the facts which constitute distinct strictly relevant or merely deemed of hostility in the present case is to cept as evidence those
T
to be so.
܆
However, the argument for the
marked "What is meant by saying offences are at the same time part that ár......not is admissible of the transaction which is the sub- because it is part of the res gestus ject of the indictment. Evidence is Crown before us has becie directed has never, so far as I am aware, necessarily admissible as to acts to showing the strict relevancy of been explained in a satisfactory which are so closely and inextrie- this evidence to the main issue, whe manner. I suspect it of being a ably mixed up with the history of ther the facts are to be included phrase adopted to provide a respect the guilty act itself as to form part in one transaction with the charge able legal cloak for a variety of of one chain of relevant circum-laid in the indictment, or not, and cases to which no formals of pro- stances, and so could not be exclud-in my view, this contention will cision can be applied."
ed in the presentment of the case also prevail before the jury without the evidence being thereby rendered' unintelli- Bible.
The term nevertheless affords an efficient classification of material, It is fundamental in the law of evidence.
Relevancy.
Fagts in Issue.
matters
establish the identity of the accus-which are indicated as such by the with the offender sought to be ordinary course of human experi- identified, and the evidence is held enco." admissible for this purpose.
The Summing Up.
In his summing-up, the learned Chief Justice distinguished to the jury at the outset the two issues, the fact of the incitment of Lou and the identity of the inciter.
That the case was properly left to the jury on sufficient evidence is to my mind phundantly clear. A Lord Buckmaster has remarked.(I quote again from Craig v Glas
This is a case of criminal homi "Such prior acts form-cide. The Crown alleges that the ed in point of-history and circum- gerused through Lau murdered stantial. connexión, inseparable Fung. The facts in issue which the The authoritative statement of parts of the transaction which the Crown must prove are four in num-gow Corporation cited supra) "I the law is to be found in Stephen's jury had to investigate... The ber Digest of the Law of Evidence Tih relations of the murdered man to his assailant, so far as Edition (1600) Article 3 which is as
they may reasonably be treated as follows.
(Relevancy of facts forming explanatory of the conduct of the part of the same transaction as the accused as charged in the indict faote in issue). A transaction is a ment, are properly admitted to group of facts so connected together proof as integral parts of the his
which
#
fasue.
·
1. That Fung wae murdered. 2. That ho WAS murdered through Lau,
5. That Lou himself had a prin- sipal.
4. That this principal was the accused.
The first and second of these facts as to be referred to by a single legal tory of the alleged orime for are not hero in doubt. That Lau namns, aaa erimo..... Every the accused is on his trial." fact which is part of the same I should like to have suggested himself is the agent of someone transaction as the facts in issue is to the learned judge in this con- else has been shown by the absence deemed to be relevant to the issue,nexion that the use of the word of any motive of his own and by although it may not be actually in unintelligible here narrows the his control of large sums of money field too rigidly and that the word for the purpose of his crime. The He adds:-
"incomplete" might take its place question arising here is upon the Whether any particular fact is The prosecution has a right to tell fourth issue. The problem has bo- or is not part of the same transac "the whole story of the prisoner's come one of identity of the ident tion as the facts is a question of doings" (Russell Crimes 7th ity of the accused with a criminal lay upon which no principle has Edition p. 2101) or everything known aliunde to exist. been stated by authority and on that may be fairly considered ait To prove the identity with the which single judges have given difinoident of the event (Taylor actual perpetrator of a ferent decisions."
"Evidence" 11th Edition para,
(See also 13 Halsbury's "Lowa 693).
"Somebody Knows,"
person
sought to be implicated in criminal homicide, proof of his hostility to ward the deceased is relevant evi dence. The evidence berein of I have found a striking illustre Zimmern and Christie to which ob in Halsbury Laws of England"tion in the prologue of a moderujection has been taken is such mat
play-John van Druten's "Bometer and is admissible. 11. 330 par 740:-
of England. p. 420 par. 585). In less technical language a similar statement of the law is to be found
Some matters which ordinary reasoning would admit are definito- ly excluded by the rules of legal evidence for various sound reasons
to:
involuntary confessions be cause of the great risk that they may not be true, bad character be cause of its dangerously prejudi cial nature and mall value towards proving the single acts alleged, and hearasy because it is not on oath, cannot be tested by cross-examina tion, opens a door to fraud, is less reliable by reason of its being a set of circumstances are actually second-hand and would toud consistent with a number of vary protract legal inquiries and to on- ing hypotheses no one can be select courage the substitution of weaker ed as the one that is true."
for stronger evidence. The mandard of propf which a karat
criminal trial must re-
Intelligant Reasoning." jury in a quite is described in 8 Halsbury I think however, that if ordin- "Law of England " p. 685, par. ary intelligent reasoning would ac 1190 "A jury must be satisfied... copt a fact as probative of the that the facts were such us to be minis fact, alloged, as it undoubted- inconsistent with any other ration-ly would accept the evidence object- al conclusion than that he tie. the ed to in the present case, some such definite ruis of légal exclusión accused) was the guilty person." see to it fast the verdict of the can be shut out.
The duty of the trial judge is to must be found applicable before it jury is given after proper in-I think that no such rule is structions in their functions, not applicable here. The mere fact in the Beld of supposition and con- that evidence discloses another of jecture, but of facts and inference, feste does not alone exclude it. He may recognite that the jury Here the evidence was not offered have before them a choice of alto show that the accused was of a disposition generally ternativa inferences, all of which marderous may hh reasonable and he must ex- and likely to commit another mur- plain to them the principles of der, and it did not in any
Way selection which should guide them tend to suggest that he was." but he must not constitute himself
judge of facts in their placo
Cogent Evidence,
It was offered simply in order to prove that he was the person who employed Lau to procure the mur der and in my opinion it was clear ly admissible for that purpose.
I think that the conviction should be affirmed.
Leave to Appeal;:
The indictment submitted to this jury was in fact supported by cogent I would even say by con- vincing evidence. The jury in this case saw the witnesses and I have not seen them. But in these pro- Mr Lim: In view of the fact "The evidence must be confined body Knows" where a character in Some argument has been advane coodings I have not been invaded that we shall be applying for spe to the facts which constitute or arp discussion with a novelist is madeed on the definition of the exact le by any doubt that the verdict of cial loave to appeal to the Privy the jury may not have been both Council, it would help us greatly connected with the offence charged to any It's like one of these sus to which this evidence is relat rationally, and to their mind, no if your Lordships would note this CASO na one of general and publie and proof cannot generally, be given novels. I don't mean the kind you eu. For the Crown it has been sug- cessarily given,
In my opinion, the evidence of importance. W of other facts which have na con, write, but the sort where the augested that the evidence of hostility Zimmern and Christie which we Mr. Lim elted one authority to noxion with this offence. If, how-thor says "He came in, closed the is available to prove the fact that are Baked to reject, was rightly ad- support his request
who is named in the indictmitted and the case for the Crown The Chief Justice refused the ap- pyer, there are other facts which door and fared her and that's fall,
was properly left to the jury. plication, adding: The prisoner are eo inoxtricably mixed up with the end of the chapter and the next ment, was in fact incited by some
Tho verdict must in my vlew be will be brought up for sentence on
(Continued on next Colanin.) Wednesday, the 14th at 10 a.m." the facts which constitute the offence one begins Ten days later.'
obe.
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