"In connection on his behalf but under this Ordinance he will have a right to have his counsel's carefully prepared statements put forward for him by the judge (though subject to comment but only as evidence is treated) as evidence.
A Judge without the guidance of counsel on one side and the other, and without the aid of the action of counsel, will, in Hong Kong, have to act on the facts, "not" by the flexible rules of law governed by him, and the comparatively easy common law numerous decisions of English judges guided him. Under the Ordinance he is deprived of these aids and there will be as various kinds and degrees of the "interrogation" of prisoners in Hong Kong as there are degrees of disposition to condemn prisoners in the minds of Judges.
I fear that I may have been too long in obeying Lord Kimberley's request. I could offer other arguments, but I feel already too lengthy. I am alarmed at the duty which Ordinance No 3 of 1872 will impose on me - a duty which will embarrass me.
If it be thought that Ordinance No 3 is moving in the right direction, I think that the provisions proposed by Mr Ball should be added as a protection to the accused. I see most reasonable other suggested alterations.
It is a small matter, but I note that the word "prisoner" is used throughout. The question arises: is the Ordinance intended to apply to prisoners only, and not to be extended to all accused persons on their trials, such as persons on bail usually designated Defendants, or to Defendants under Summonses?
I return Ordinance No 3, 1872, as requested. I also enclose Rules of Courts in China & Japan, Code of Criminal Procedures (India), and Two MS Books (Calendars of Trials in the Superior Court of Hong Kong).
The four last enclosures - being frequently referred to - their return when done with would oblige.
I very much regret that my answer has been very long delayed. This is owing partly to absence from London, but mainly to my not having been able to find the documents I enclose until within this last week.
I have the honor to be,
Sir,
Your very obedient Servant,
John Smale,
Chief Justice of Hong Kong.