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THIRD DAY.
Friday, May 28,
agreed that the Counsel for the defence should prepare his pleas and furnish them to the Counsel for the prosecution, who would then be prepared to say, when the case came before the Court again, whether they had any replication to make; that in the meantime Mr Pitman should not be arraigned, but that the bail ($500) be extended.
In Regina v. Pitman to-day, Mr J. J. Francis, who, instructed by Messrs Brereton & Wotton, appears for the defendant, by special permission of the Court granted at the last sitting, moved ex parte on behalf of the defendant for a rule addressed to "the Honourable Edward Loughlin O'Malley, Attorney General of Hongkong, and Alfred Bulmer Johnson, Esquire, the Acting Crown Solicitor of Hongkong, to shew cause why they should not inform this Honourable Court and the defendant whether this case is or is not a private prosecution, and whether Mr Hayllar, Q.C., is conducting this case on behalf of the Crown or on behalf of Mr Horace Harrington Nelson, a private prosecutor; and why in default this cause should not be struck out of the list and the defendant be discharged from his recognizance."
Mr Francis said these proceedings were entirely ex parte, and it was quite within his Lordship's power to grant this. There were so few precedents it was difficult to say what form the proceedings should take in default, whether the Attorney General should be ordered to enter a nolle prosequi.
His Lordship referred the learned counsel to the case of the King v. Hodeon, for embezzlement. Order was made for certain information to be made and the trial to be put off.
In the same way in the King v. Harwood, and another case mentioned. That seemed to be the rule, but objection might be taken to that. He supposed they would come to a trial in this matter at last, but really he did not know.
We understand that yesterday a letter was written by Mr Nelson's solicitors to the solicitors for the defendant, giving them the information required, which letter and information were accepted by them as satisfactory.
This letter, which was not read out in Court, and the purport of which we are not therefore privileged to indicate, was handed this morning by the Chief Justice to Mr Francis, his Lordship desiring to know whether it was satisfactory.
Mr Francis: Your Lordship has seen this letter,
The Chief Justice: I know nothing about it. I know nothing about any letter. It was addressed to my clerk, which it ought not to have been; but now I know nothing about it whatever. If you had been satisfied with it, it would, of course, have been all well and good.
Mr Francis said it was not satisfactory. Mr Johnson: It was accepted as satisfactory by the solicitors for the defendant.
Mr Francis: It is not satisfactory to me. The Chief Justice: Then any further action you may desire to take in this matter, Mr Francis, must be by motion in open Court.
His Lordship afterwards intimated that the Court would sit on Friday to hear any such motion, ex parte. He thought of this case that the sooner they were rid of it the better.
The Court was then adjourned till Friday.
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"Dear Sirs,
Regina v. Pitman.
"Having regard to this morning's proceedings in Judge's Chambers, it is conceded that in this case, without reference to any general question as to private prosecutions in this Colony, Mr. Nelson is a "private prosecutor" within the meaning of Section 8, of 6 and 7 Vic., c. 96, which has been extended to this Colony by Ordinance No. 3 of 1854.
"We forward a copy of this letter to the Judge's Clerk.
We are, dear Sirs,
Yours faithfully,
SHARP, TOLLER AND JOHNSON.
Messrs Brereton and Wotton."
Messrs Brereton and Wotton replied,
"Notwithstanding our letter of yesterday we are advised by our Counsel that the admission in your letter to me of yesterday that Mr Nelson is a private prosecutor within the meaning of Section 8, of Statute 6 and 7 Vic., Cap. 96, which has been extended to this Colony by Ordinance No. 3 of 1854, is not sufficiently definite for the purposes of the defence, and we must ask you to say categorically whether this case is or is not a private prosecution and whether Mr Hayllar, Q.C., is conducting this prosecution on behalf of Mr Horace Harrington Nelson a private prosecutor, and that your firm as ordinary Solicitors of the Supreme Court of this Colony are prosecuting at the instance and on the instructions of the last named gentleman, and that the prosecution is not being conducted by your Mr A. B. Johnson alone in his capacity of Acting Crown Solicitor.
"We understand this to be a private prosecution in the strict sense of the term, that is to say, one not initiated, conducted, or paid for by the Crown, but by a private prosecutor acting on an information whose sole imprimatur is the finding of a true bill by a Grand Jury. It is plain that in this case the Attorney General is not acting as the public prosecutor, and that he simply signed the information as representing the functions of a Grand Jury. The fact that he declined to direct the Registrar to summon a Special Jury shews this clearly.
"Until you can point out the particular purpose of the defence to be served by any information beyond this, we cannot see any reason for replying further to your letter.
"We shall be glad to receive the defendant's plea and have a day fixed for the trial."
Mr Francis submitted that the information given in that letter, very cleverly, very subtly worded, was no explanation. The information was not given to which the defendant was entitled.
The Chief Justice said that if Mr Francis was not satisfied he was entitled to a rule, but he thought both parties were fighting straws. He quite saw the position of the defendant. He desired that, in the event of the case going in his favour, he should be entitled to his costs from the plaintiff. He did not say so in so many words. He submitted to pay costs, but the other side did not.
Mr Francis submitted that there were other reasons that rendered it indispensable that the defendant should know with whom he was dealing, whether this was a private or a public prosecution. There was the question of reply, also the question of pleading justification. If by pleading justification his client would expose himself to pay costs, that might just so turn the scale and lead him in his defence not to advise the defendant to do so.
The Chief Justice did not want any explanation. The defendant at this point had a right to have, and the Court had a right to have a knowledge, now while the result was in nubibus, as to whether this was a prosecution on the result of which costs were to be paid or not. The Court ought not to be driven to discuss that question after the thing had been decided.
The defendant would get his rule. Mr Francis could draw it up at his own risk. It would be returnable on Monday. He saw no reason why he should hasten this matter. It seemed to be a case in which the parties seemed to wish to protract the amusement as long as they could, but that did not concern him. The rule would be returnable on Monday at 10 o'clock; he presumed there would be a long argument, as they were in regions very little known.
Mr Brereton mentioning to his Lordship that had this been an application for a
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