The Daily Press.
HONGKONG, NOVEMBER 4TH, 1878.
SUPREME COURT.
November 2nd.
CROWN CASES RESERVED. BEFORE THE FULL COURT,
REGINA V. HUFFAN,
The prisoner, who had been the Official Assignee in certain estates in Bankruptcy, was convicted at the Criminal Sessions on five counts of em bezzlement and larceny, the following points of law being reserved in his favour :----
As to the first count. (a)--That the only monies prisoner is proved to have received and is charged with having stolen are monies received by him as Official Assignee and as part of the property in the bankrupt estates; (b)-that að Official Assignee prisoner was not in the public service of Her Majesty in this Colony, and (c) that the monies are not and never were in any sense public monies.
With reference to the second count, that the only monies prisoner is proved to have received and is charged with having appropriated to his own use are monies received by him as Official Assignee in certain bankruptcies and as part of the property in the bankrupt estates, and that such monies were not received or held by him for any "public purpose" but were held by him for "other persons."
With reference to the third, fourth, and fifth counts, that it has not been shown that the pri- soner has converted or appropriated the whole or any portion of the monies in these counts men- tioned "to and for his own uso and boneft” that this must be shown affirmatively, and that it is notsufficient to show merely that prisoner received the money in question and did not or has not paid it over.
That as to the 2nd, 3rd, 4th, and 5th counts, the proceedings should have been commenced by the aggrieved parties with the sanction of the Attorney-General, which has not been shown.
It was also objected by Mr. Francis during the progress of the case that the prisoner's ap- pointment as offcial Assignee and in Lyall, Still's and the other bankruptcies was invalid, -the ordinance 15 of 1867 not empowering such appointments to be mado except in bankruptcy proceedings initiated after its coming into force. The appointment, was admitted in evidence subject to the objection and the point reserved.
Mr. Francis, instructed by Mr. Dennys, ap- peared for the prisoner; and the Attorney-General (Hon. G. Phillippo), instructed by the Crown Solicitor (Mr. Sharp), appeared in support of the conviction.
Mr. Francis said he would not trouble their lordships at any length with reference to the first two points as it seemed to him that merely to refer to the sections of the Ordinance and recall the facts of the case was sufficient to show they could hardly be sustained. The onus of supporting them was on the Attorney-General, and it would be for him (Mr. Francis) to refer to them in reply. He called attention to section 57 of the Larceny Ordinance, on which the first count was based, and said it was evident from the way in which the section was framed that not every person whom in ordinary conversation would be spoken of as being in the public service was intended to be brought in under those ! words. It had been thought necessary in the section to specially mention constables and people i in the police force, showing they were not cou-: sidered to be in the public service in the sense in which the words were here used. He con- tended that the phrase meant only persons directly in the service of the Crown and perform- ing services in connection with the great publie departments of the State. In connection with that he might also call attention to the Post Office Ordinance, which specially provided for the punishment of larcenies and ombezzlements by servants in the post office; such a specific Ordinance with reference to them would hardly be necessary if every person in public employ. ment could be held to bo in the public service of Her Majesty in the sense in which the words were used here. Then he would call their lordships' attention to the words "entrusted by virtue of such employment with the receipt, custody,
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management, on control of any chattel, money, or valuable security, which shall be entrusted to, or received, or taken into possession by him by virtue of his employment." Every one of the words used in that part of the section,- he submitted, had reference to cases in which
the property in the chattel, money, or valuable 3 security was in some other person than the person receiving and having control over it. A man who was himself the actual owner of the property would never he described as being in receipt of it or as taking it into possession. Then the words "for any purpose whatscover except the public service" showed clearly that the money to be received by a person convicted under the Ordinance must be money which must altimately come into the Treasury or be applied to the public service, and if otherwise applied an offence was committed; but be submitted that section could not be held to apply to a person who had the receipt and custody of moneys which were not in any way to be applied to the public service. Here the money which Mr. Huffam had charge of would go to private persons and be used for purely private purposes. He submitted it would be to distort the words if the section could be held to apply to a person who by virtue of his office was the legal owner of money which was not to be used for any public purpose what- soever but was to be paid out to private persons. Then he would call attention to section 1 of the Ordinance, in which the torm "trustee " was defined as meaning, amongst other things, an executor and administrator aud an official manager, assignse, liquidator, or other like officer acting under any present or future act relating to joint stock companios, bankruptcy, or insolvency.' It would have been unnecessary to include the assignee in bankruptcy if he came under section 57, in which the punishment was so much greater. There was a subsequent section which provided for the misappropriation of moneys by trustees. It would have been quite unneces sary to have stated in the interpretation section' that a trustee should he considered to include the assignee in bankruptcy if he already, being an official, came under the lash of the 57th section; the interpretation section showed conclusively that it was never intended he should come undor that section. He referred to the oase of the Queen against Glover, 9, Cox's Criminal Cases, page 500, in which, neither in the arguments nor judgment did it seem to have been considered that the bailiff was a public servant. He also referred the court to the cases of the Queen against Tyree, the Queen against Negas, and the Queen against Bowers, and argued that mere ap- pointment by some person was not evidence of em. ployment by that person. In this case the prisoner was appointed by the Governor, bat that did not constitute him a servant in the employ- wout of Her Majesty, because he could take no orders whatever with reference to the perform-: ance of his duties from the executive Goverument ;- if any question or doubt arose be had to refer to the court and judge and take their ordors, and he would have been guilty of a dereliction of duty if he had disposed of any moneys in his possession as Official Assiguee in obedience to any orders from the Government. He was sccountable, not to the Government, but to the court and to the creditors as private in- dividuals. He (the loamed counsel) knew, of course, that the words made use of in this section with regard to public servants were wider than the words used in the section which referred to the relation between master and servant, which simply described certain classes of servants. There must, however, be some definite and clear tost to show that one person was in the employ- ment of another, and the only test which seemed to ran through the whole of the cases, and they were very numerous, was the power of control, the necessity under which the per son employed lay of obeying to a greater or less entent the orders of the person employ. ing; more appointment was no proof of am ployment. In this case the only connectior between the Queen's Government and the pr souer was the fact that the Governor under an Ordinance appointed him to the post once ap- pointed he was responsible only to the Court for the performance of his duties. In support of this contaution the learned counsel referred to sections 7, 65, 66, 71, 82, 83, 88, 96, and 97 of the Bankruptcy Ordinance as defining the position and duties of the (!fficial Assignee. With reference to the second point arising on the first count and the point reserved on the second count, he would call their Lordships' attention to the Queen against Fletcher, 9, Cox's Cases, page 189. In that onse