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HONGKONG TELEGRAPH.
MONDAY, SEPTEMBER 12, 1932.
MR. JUSTICE WOOD'S JUDGMENT IN CHENG CASE
(Continued from Page 1.) who was in the adjoining room, staring at her with arms folded.
MEETING WITH ZIMMERN.
STEPHEN'S DIGEST.
for
21
a
of
RADIO
BROADCAST
Broadcast by Z., W. on ■ wavelength of 56 metres, 1845 K.0.)."
6-8 p.m. European programme of records kindly loaned by a Listener,
7 p.m. Stock Quotations, etc. 6-7.10 p.m. Concert Items,
that on the 21st March in the early Lord Tomlin (in "Homes v. New- also a comment of Lord Finlay hours at the Nathan Hotel, Kow-man" 1931 2 Ch. at p. 120) who has (quoted from "Craig v Glasgow loon, after the failure of the remarked "What is meant by say- Corporation" 1919 8.C. (H.L.) 1: scheme to assault Fung in the ing that an......act is admissible "No inquiry is more idle than one hotel the accused offered $10,000 because it is part of the res gestac which is devoted to seeing how to Christie if he would kill Rung: has never, so far as I am aware, nearly the facts of cases come to-TO-DAY'S PROGRAMME OF
RECORDED MUSIC. that Christic, Zimmern, and
the been explained in a satisfactory gether. The use of cases is for On the 6th March (I now deal accused remained together during manner, I suspect It of being a the proposition of law they con- tain." The remark alrendy cited to provide with Zimmern's evidence), the ac-the day and discussed the pos-phrase adopted
from Stephen's Digest of the Law eused met Zimmern for the first sibility of killing Fung either by respectable legal cloak no of Evidence may be true, but it time. He engaged Zimmern at shooting or by the use of potas-variety of cases to which salary as his bodyguard. On the sium cyanide (the accused ex- formula of precision can be ap-casts no reflection on judges. Each
6th March the accused took pressing his preference for shoot-plied." Zimmern and a party of guests to ing); that Christie purchased a
affords The term nevertheless the Repulse Bay Hotel. Fung and hypodermie syringe and
some an efficient classification Lai Ming-fay were together at the potassium cyanide with money material. It is fundamental In the hotel. The accused gave Zimmern furnished by the accused and law of evidence. money and asked him to go to afhanded the same to the accused; separate table so that they might that the accused encouraged not be observed together by Fung Christie to carry out his proposal and the girl.
Thy the promise of his chauffeur's assistance, and also by alleging On or about the 12th March the that being under 21 years of age neeused narrated to Zimmern the Christie was not liable to capital story of his relations with Lai punishment; Christic, Zimmern Ming-fay and -expressed in and the necused consulted one firm noyance at her desertion. On
of solicitors, Messra Lo and L0, 10 about the 16 March ut '
mobtain, if they could, a confirma- the accused, shedding tears of dis-tion of this opinion of the law; tress, asked Zimmern to give him and that Zimmern and Christie in a knife so that he might go to the invitation of the accused andtually in an.. the Nathan Hotel and look for with noney provided by him Fung. On or about the 17th March abtained,
other
He adds:- sallcitors' in the afternoon the accused told Zimmern that he bad visited the Nathan Hotel and by use of a faked telephone call had brought Fung and the girl front their room and had said to them "I warn you, you beware."
:
"OTHER MEN."
Zimmern said "Why not leave it in my hands and the accused replied that he would "sou about
"
:
On 20th March the accused told Zimmern that the two men had failed to follow his instructions,
NIGHT
MURDER.
On 24th March from 450′ pm to 8.10 p.m. Zimmern and the ac cused were together at several places. At 8.30 p.m. or 8.49 pm the accused said he was going to the telephone, went away and came back after a few minutes. He then
two
The authoritative statement of the law is to be found in Stephen's Digeat of the Law of Evidence 7th Edition (1906) Article 3 which is as follows.-
case has its own features.
Orchestral-Roses of the Bouth (3) Strauma)
Bruno Walter conducting the Dertin SOME EXAMPLES,
Philharmonie Grchestra. Bolo-Liebesfreed (Love's. Joy). Certain cases stand out as clear violin,
(Krolaler) examples. In "Reg. v. Rhodes" Violin | Bold-Licženială (Love's Barrow) (1899) 1 Q.B. 77 the prisoner was Song-Dream Lover (drer-Schertainger)
Krelater)
********...Fritz Kreller. indicted for obtaining eggs by song--March of the Grenskra
(Grey- false pretence. The false pre-
Scbertsinger)
Jeanetto MacDonald (Soprado). tenco was contained in a news-Plane Solo-1 Campanella (Last) paper advertisement from which
"Mischa Lovitzki, other frauds followed. Evidence Chorus-John Fow) (art. Andrews) of those other frauds was admit-
Chorus The Belle of St. Mary' (Farber
Adams) ted not as relevant to any partl-violin Belo-Rumoresque (Dvorak Kroller)
Áuoclated Glen Clube of America,
218 Viotin - Bolo-Caprice Viennois (Kreisler) *Relevancy of Jacie forming part of the cular issue in the case but
Frita Kroller. Rama crabétion n the fact in insue). A forming part of one fraudulent sonk-When I'm Looking at You (Grey- transaction la a emup of facia ao counted transaction, namely a bogus busi-
Stalhart) together to be referred to by a insch
Bong-The While Dove (Grey-Lahat Blothart) ..Lawrence Tibbe‡k' (Baritone).
Organ Solo-Serenade (Schubert-Crawford) Urgan Solo Somewhere a Voice is Calilay
Jean Crawford. Churus-A Farmer's Ben (arr. Willar) ChortNowN ja the Month of Maying
(Morley).....
...English Singers. 10-7.5 p.m.
which is part of the same tronation * legal name, na crime,. .. Every fuctness.
the lane although I may
the
the facts in insun is deemed to be movin Ellis 1910 K.B. 746 the charge was On the other hand, in "R. v
for defrauding "A" by false pre- fences in connexion with a sale of porcelain. Reference was made in "Whether
in or parestar Imet
the cross-examination of the accused Bot part of the xam transaction fete la mustion of law upon which no to other and different false pre-Symphony in U Minor (Unfinished) (Rchubert) writele br been stated by authority Further that on the 22nd. Marcitors which single junges have xivin diferentences by which it was alleged the
dericus."
opinions.
DEATH OF CHICKEN.
accused
any
enant
.
Sir Henry J. Wood conducting the New Queen's Hall Orchestra, 7.35-8 p.m.
Instrumental Music, Violin Bolo-En Dateau (Voating) (Débunny)
Violin Solo-La Fille aux Cheroux de Lin
accused had (raudulently obtained the aceused told Zimmern and Christie that he had experimented
money an other occasions but also (See also 13 Halsbury's "Laws from "A" and also on a snie of (The Kaiden will Flaxen Hair) Debussy- upon a chicken with the hypoder-of England" p. 420 par, 585). In porcelain,
Harimann), ................................... Frita Kreisler. was held that the Piano Solo Chorala (Bach) It mie syringe and poison and that it less technical language a similar question was asked in breach of rinne Salo-Impromptu in A Flat (Chople) had died but that he had damaged statement of the law is to be the Criminal Evidence Act 1898 S. Viola Sol-Tambourins Chinola eller)
Harold Bauer. the springe; also that at the re-found in 9 Halsbury "Laws of ] S.S. (1).
Violin Solo Thai-Meditation (Massenet) quests of the
Fritz Krebsler. purchased a second syringe on his
Christic England" p. 380 par 740:-. '
In other words, it was held that
6 p.m. Local Time and Weather Was the this
a series of must be combined to
separate Report. evidence ¡ behalf which he delivered to the fat which constitate or are camreted with fraudulent transactions and not 8.3-10.30 p.m.. Chinese Studio Con-
llence eburged and proof the the pecused. Further that on
one fraudulent business. There cert. kenmily be given of other facts, 5th. March, before & a...
the
have no conexion with this offence 15. was no systematic course of 10.30 p.m. Rugby Mid-day Press acrused, who had given Zimmern however, there are other facts which swindling by the same method" | News
facts nextricably mixed up with the
10.35 p.m. (854 at the same time gave Zim- į which constitute the afferrce chargril, në ta| (Bray J. at p. 761) (see also “R. v.
Close Down. mern a farther $10 to give to form se nunction proof may he risen Fisher 1910 1 K.B. 149). ̃
nuch other fact that Christie. Firstly, evening
The of the alleged crimind transection of the 20th March, relevant to the rare for the promettings i Zimmern produced to the accusant being part of the res pestate and should the receipt given by Measra lo
proved" and T. solicitors, for their pro-,
The learned author in fessional fee and that the ageusen Halsbury "as
at England". destroyed this paper.
437, par. 609 also states:--
CH
Zimmern and Christie have dis- claimed any intention of killing
All the det$246
Are
of
To apply the doctrine to the pre- sent case, the transaction under inquiry is the murder of George 131 Fung. The story of the transac- tin commenced from the deser tion of the accused by Lai Ming- fay and culminated in the death of wat winte
"to testifying me the matters in lene •*. - George Fung. The conduct of the
them Fat in Bir
time is an incident of this event.
NATURAL QUERY. A judicial statement of
Any person listening to the doctrine is contained in the judg-narrative told by the witnesses so ment of Kennedy J. delivered in far as the evidence has been re the report of R. v. Bond (C.C.R.)ceived without question, would 1906 2 K.B. at page 400:----
said that he would go back to his abode, 50 Village Road, Happy, Fung and have said their object areal selble form, dat with accused during this interval
money.
was to obtain by trand, the money of the acensed
Valley, in arder to ket The accused drove Zimmern and another person in his cur to Happy
The evidence was not in faet Valley. On passing the hospital to which the deceased had been taken analysed by Counsel before us in and outside which a crowd (the above detail, but I am satisfied gathered he remarked to Zimmern that I have set it out with sufficient that there must have been a motor-aventacy for the present purpose. car accident. On arrival the new. eused went into his
hard
house and
VENGEANCE THREAT.
Zimmern "George Fang in
Lai Ming-fay his rang up
NOT A LINK..
Fuline
of detail and circumstances.”
HISTORY OF CRIME.
the
which are a closely and mixed
being thereby
NARROW FIELD.
in related.
exact issue to which this evidence been suggested that the evidence of hostility is available to prove the fact that Lau, who is named in the indictment, was in fact incited by some one.
Fer the Crown it has
PREVIOUS ACTS.
In support of this contention reference was made to a dictum - (recorded there in the argument) in the report of "R. v Ball" 1911 A. C. at p. 68 by Lord Atkinson which is as follows: "Surely in naturally inquire "Between thean ordinary prosecution for mur- Che general rule" Che, the rale excluding bortive attempt by his chauffeur's der you can prove previous acts perlar eriinital eunduct of the accust from agents on the 19th March to mur-
or words of the accused to show Zimmern and his friend remained! It is to be observed that the the evidence and be applied where the der Fung and their successful he entertained feelings of enmity
ім furt which constate distinct offences, kraj outside in his car. The accused, evidence to which objection is the same time ani of the transaction attempt with his chauffeur's sup towards the deceased, and that is on his return, seemed afraid for, Inken primarily discloses # eri- which be the muddeck, of the Italienett.net upon the 24th March, what evidence not merely of the his own safety. He drove them minal incitement by the accused riders is nearly it insitrilety rule was the accused himself doing in malicious mind with which he back to the town and the friet, which forms no part of the parti- bus with the history of the guilty net ber; the meantime 7"*
killed the deceased, but of the got out en route and left them.
culars given in the indictment we to form part of new chain of relevant
piretinetatives, non sa cauté not be escluster | Without this evidence, the fuct that he killed him. You can itself. The evidence related to in the presentment of the case before the story, to use the word. I have sug- give in evidence the enmity of the an incitement of different persons Jury with the evidente
gested, would be, "incomplete." accused towards the deceased's. The evidence contes under Steph life. Evidence of motive neces- The accused afterwards said to from these named in the indict-rendere intellixible.
dendment and also an incitement Lo
en's classification "Evidence deem-sarily goes to prove the fact of "Such prior acts formed in jed to be relevant to the issue.'
homicide by the accused....' house and swears vengeance against
From
point of history and cireum-
It is one piece of the puzzle Farther the accused told those in fact used by the personsstantial connexion, inseparable which the jury are entitled
indictment. It Zimmern to keep quiet otherwise amet in the he might be killed in the
describes also an incitement which parts of the transaction which the handle and it into the whole to same i
jury had to investigate....... The the best of their ability. way. Zimmern and the accused re- was never effectual as mamed together until 5 a.m. the messes
themselves at no time in-relations of the murdered man
It is not necessary to emphasize following morning. The aerused tended to kill Fang. Moreover, it to his assailant, so far as
link in the chain of they may reasonably be treated the fact that the prosecution is then gave Zimmern $50 and told is not
debarred from telling the him to go to Canton which he did, evidence alleged to have led from explanatory of the conduct of not
as eburged in the whole story of the prisoner's do Lau, the chauffeur of the nerus-the criminal intent of the accused the accused ed, cannot be found in the Colony, through the channel of his chaur indictment, are properly admittedings merely because It excludes It was stated in vidence by feur Lau's activities to the murder to proof as integral parts of the other, of his criminal acts not he killed the deceased, not merely Christie and Zimmern that the of Fung.
The story fold in this history of the alleged crime for specially charged in the indict quo animo he did so."
ment. (Russell "Crimes" 7th This dictum, as it seems to me, accused on the morning of 21st evidence discloses crimes ather which the accused is on his trin.Edition p. 2011 cited above). The can only be interpreted to mean March in Kowloon on the way to than the crime charged, which may the ferry said to Christie: " have be separately designated,
me.'
my
use an alternative to the use of firearms.
different Mwana
it
the
to
by Lord Atkinson (in "Thompson This dictum was also repeated The King" 1918 A. C. at p. 227). where he said in his judgment:-- "# દ cuse of homicide evidence is admissible to prove that the accused entertained feci ings of hatred towards, or a desire to be revenged upon the decensed, in order to prove that
1 should like to have suggested same remark applies to all vid that when a homicide has been
FURTHER AUTHORITY.
to the learned judge in this con-ence adduced whether strictly reproved, enmity against the de- nexion that the use of the wardlevant or merely deemed to be 69. a trusted chauffeur who is ander au STANDARD OF ADMISSIBILITY, "unintelligible" here narrows the
censed may be used to connect an obligation to me." This remark!
However, the argument for the accused person with it. field too rigidly and that the word Crown before us has been directed 13 Hulsbury "Laws of England" (See also formed part of a conversation to The relevance of this evidence to "incomplete" might take its place, to showing the strict relevancy of which I must refer later.
Lai this prosecution has been questions The prosecution has a right to tell this evidence to the main issue,
p. 447 par. 621). fured before us for these reasons and the whole story of the prisoner's whether the facts are to be includ. Ming-fay has stated that so as she knew Fung had no enemies the admissibility has been chal doings" (Russell "Crimes" 7th other than, the accused.
lenged on the plea that it has been-
in one transaction with the charge Edition p. 2101) or "everything aid in the indictment, or not, and No suggestion has been made alleged offence showing complicity incident of the event" (Taylor also prevail.
used to prove complicity in the that may be fairly considered an in my view, this contention will that the evidence which has been in a distinct but similar offence. Evidence" set out so far, is not both relevant it is salutary here to recall the 583).
11th Edition par, and admissable.
advice of Viscount Birkenhead EVIDENCE CHALLENGED. |(which is to be found in "Ruther-
ford v Richardson", 1923, A.C. 5)
RIGHTLY RECEIVED.
"SOMEBODY KNOWS."
FOUR POINTS.
This is a ense of criminal homi- elde. The Crows alleges that the
the
The matter has been stated also in 9 Halsbury "Laws of England" . 378 par. 740 in the following terms:The prosecution must first give a satisfactory proof of the corpus delicti i. c., that the offence charged has been committ- ed by someone. The prosecution must prove that the defendant is the person who committed the offence charged. Any facts which affirmatively prove either of these propositions are relevant evidence for the prosecution."
In neither of the two cases re- ported, from which the dictum of Lord Atkinson has been quoted, was the evidence then under dia- cussion admitted to corpus delicti,
prove the
The Crown haa tendered also who there said "The issues pro- I have found a striking illus-accused through Lau murdered other evidence to which objection nouneed upon by Courts in tration in the prologue of a Fung. The facts in lesne which fs here taken the same objection criminal......matters are attend-modern play-Joha van Druten's the Crown must prove are four in having been taken already at the ed with such decisive consequences "Somebody Knows" whore number: tribl. This evidence was received that the adoption in matters of character in discussion with a 1. That Fung was murdered. and submitted to the jury in sup-evidence of a standard of admis-novelist is made made to say "It's 2. That be Was murdered port of the indictment. It was de-sibility which is so cautious as to like one of these novels. I don't through Lau. rived from the witnesses Zimmern be meticulous may not be defended mean the kind you write, but the 3. That Lau himself had a prin- and Christio and falls into
two but is in fact essential".
sort where the nathor says "He cipal. sqctions. In the first section It
feame in, closed the door and faced 4. That this principal was was stated that on the 20th March
her" and that's the end of the accused. the accused Invited Zimmern 10
chapter and the next one begins The first and second of these bring his friends to dinner. The rightly received,
In my opinion the evidence was Ten days later....". I always facts are not here in doubt. That accused mot Zimmern, Christie
want to say "but you're cheating. Lau himself is the agent of I have reached the conclusion You've got to tell us what happen- someone else has been shown and two other men that evening at that the contention by the defence ed."
The proper use of the evidence the Yee Fong Chann restaurant. that the evidence to which objec-
by the absence of any motive of of hostility In the presont case At this restaurant the accused in-tion is taken forms a different tran- tion by the judge is perhaps
The demarcation of any transac-his own and by his control of is to establish the identity of the. vited Zimmern and his party to saction than that under considera-point on which little help may be purpose of his crime. The ques- to be identified, and the evidence a large sums of mondy for the accused with the offender sought with him to the Nathan Hotel and tion cannot be sustained. Evi- derived from precedent. To quote tlion arising here is upon the in there and then lo Fung. They went to the Nathan merely in accordance with the "Kerr or Lendrum v. Ayr Stenm become one of identity of the
dictum of Earl Lareburn in fourth issue. The problem has purpose. Hotel arriving or the 21st March between 1 am and 2 a.m. prove a conclusion for which the A.C. at p. 223, tho learned judge criminal known aliunde to exist. atandard of its appropriateness to Shipping Company Limited" 1015 identity of the accused with a The avowed object of the accused at this time was to "save his own prosecution contends: but also there remarked "Nor am I impros- Mace by smacking Fung's face."
appro-sed by arguments proceeding upon To prove the identity with the priatencas in tho adjudication, a comparison between the facts of actual perpetrator of a 'person Fung did not lonve his room and
It in fact belongs to the assault did not take place atory to which the attention of the Precedents are valuable and au-criminal homicide, proof of his the one case and the facts of another, sought to be Implicated In Conversation then ensued between Court is drawn.. Such evidence is thoritative when they lay down a hostility toward the deceased is Fabe accused, Zimmern and Christio admitted, in the language of legal principle. They are. otherwise relevant evidence. The evidence,
the Nathan Hotel,
textbooks, as part of the res pestac. merely illustrations of the way in herein of Zimmern and Christie to ALLEGED PLOT.;
which judgoa look at facts which objection has been taken is LORD TOMLIN'S VIEW;
Different Judges look at facts such matter endlared miskiblaž
nasault
dence his to be received not
because whatever
held admissible
for this
CHIEF JUSTICE RIGHT. In his summing-up, the learned Chief Justico distinguished to the (Continued on Pago 5).
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