521
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exporting prepared Opium, to California, Tonquin, and elsewhere, and not being able to prepare it himself he had made arrangements with the Opium Farmer to do it for him, paying him a fixed rate per chest. Now, the Opium Farmer prepared it over at his place at Mongkok, where, as he had explained in his evidence, rent was cheaper and there was a good supply of water, not like that we get from Pokfulam, and it was a very convenient place for his business. If the Opium was to be prepared there it must of course be sent across. Under Ordinance 22 of 1887 he submitted there were only two persons who could properly or reasonably apply to the Imports and Exports Office for a permit to remove opium, either the person in whose godown it was at the moment and who might want to remove it to some other godown or the person into whose godown it was to go, because the entire object of the Ordinance was that a correct account might be kept showing in whose custody every chest of opium was. If a third person applied the Imports and Exports Office would naturally ask if the removal was being made with the knowledge of the owner and of the person into whose godown the opium was going. Therefore, although in the witness box the owner of the opium was not able to explain very clearly why it was done in this way it seemed not unreasonable that as the Opium Farm was to be charged with this quantity of opium in the books of the Imports and Exports Office this course should be followed.
Then came the question of the transfer. He thought it was fairly clear that it was not easy to land chests of opium at Mongkok owing to the shallowness of the water, and the Opium Farmer said they had been in the habit of putting the chests in a big junk on this side and on the way over opening the chests and packing the contents in bags to land them through the shallow water and mud. He had shown that on this occasion the opium had been properly purchased by Lam Tak, that his servants went and got the chests from the several godowns, that they were carried down and put in the cargo boat, and the head coolie went on board with two of his coolies. It was not a usual thing for the stuff to be transferred to sampans, but on this particular occasion, with the strong tide running, it was found that it would take much too long four hours to get over, and the man in charge thought it would be more quick in sampans. The opium was therefore put in two sampans and was on its way over to Mongkok. He did not wish to throw doubt on Mr. Bremner's evidence, but it seemed to him that sampans starting from the Pasig wharf on a moonlight night might appear to him to be, and for a moment might have been, on the line between the P. & O. wharf and Stone Cutters. But the suggestion was that they were making for Chinese territory and were not going to Mongkok. Now put it to his Worship that that was absolutely improbable.
In the first place nothing of that sort could be done without the knowledge of the Opium Farmer, because the twelve chests were put down as going to Mongkok and he was responsible to account for them at any time he might be called upon. If he were intending to smuggle into Chinese territory it was about the last night and the last he would dream of doing it. It was a light night on which a boat could be readily seen and in the direction in which it was alleged the sampans were pulling the boats of the Chinese preventive service literally swarmed. If they were thinking of smuggling they were doing it in the silliest possible way; the simplest way would have been to take the opium direct to Mongkok and by the pass over the hills there, where they would have had no trouble, certainly not with the Imperial Maritime Customs. He submitted also that the quantity was considerably over one chest, and that the Ordinance did not mean that the opium should be in the chest but that the quantity should be equivalent to one chest. It had been abundantly explained why the chests had been broken up. He therefore asked his Worship to declare that this opium was properly in the possession of the master of the Yuen Tak Hong and was being lawfully removed from the godowns of the importers to the Opium Farmer's place at Mongkok and to discharge the defendants.
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His Worship—I am not surprised that the Inspector of Police in coming across these boats in the harbour at the west end of Stone Cutters' Island should have imagined that they were engaged in a smuggling expedition on to the mainland; and it is satisfactory to know that all these people really were doing was taking the opium over to Mongkok to boil. And considering the expense involved in breaking open the chests and carefully packing up each separate ball, engaging two sampans, and taking the boats three or four miles out of the proper course, it speaks remarkably well for the sweetness of the waters of Mongkok that all that expense and trouble should be taken to have the opium boiled at that place. The thing to consider is whether in transferring it in this convenient manner they were acting in accordance with the law. If they were acting in accordance with the law, then to my mind the whole of the Raw Opium Ordinance is a complete failure and fiasco.
The object of that Ordinance, the main principle of it, was that nobody except the Opium Farmer should be found in possession of any opium in quantities less than one chest, the chest being defined as the package with the opium therein such as is usually imported by merchants in the colony. The object is two-fold, partly to protect the Opium Farmer in his revenue, or rather to protect the revenue of the colony by making it worth while for any one to pay a large sum for the Opium Farm, and indirectly, as a friendly act towards China, to put a stop to smuggling from here to that country. Perfectly worked there can be no doubt that the system of not allowing anybody to have quantities of less than one chest would be a death blow to all attempts at smuggling from this island. Unfortunately there had to be arranged with that provision some protection for the Opium Farmer, who necessarily must have opium in his possession in quantities of less than one chest, that is to say, that after he has removed the opium from where he has purchased it it is necessary for him to break open the chests in order to prepare it. He therefore is protected by section 6, which says that no person except the Opium Farmer and others mentioned shall have in his possession or under his custody or control opium in quantities of less than one chest. That is the protection that is granted to the Opium Farmer. Does that protection also allow the Opium Farmer to remove opium in quantities of less than one chest? Reading the Ordinance as I do all it means is a protection to the Opium Farmer to have opium in quantities of less than one chest when he is about to prepare it, and that he is no more authorised to have it in broken lots than any one else. All he can do is in the usual way to get his removal permits and take it to the place where he is going to prepare it and then he can break open the chests.
I am extremely doubtful whether even the Opium Farmer has power to break the chests one moment before they are to be prepared for boiling. The main part of the defence in this case has been that Mongkok is inaccessible, that it is much more convenient to break up the chests before they arrive there, and therefore, whatever the law says, it is right to do that, and in fact, from the way in which the defence is put, it might be supposed the existence of the establishment at Mongkok was an essential condition of the existence of the Farm, that without it it would not be possible for the Farm to exist, and that therefore it is not for the Farm to give way to the law but for the law to give way to the Farm. The purchaser of the opium in this case has evidently had some doubts as to his powers in the matter and has thought that by getting his removal permit made out in the name of the Opium Farmer he thereby constituted the Opium Farmer in a manner the custodian of the opium within the meaning of section 6 of the Opium Ordinance. There is no other reason why he should apply to the Opium Farmer for a permit. All these permits must necessarily go to the Opium Farmer after they have been issued from the Office of the Superintendent of Imports and Exports. The removal permit is in compliance with section 11. The removal of the whole chest is there contemplated and I can see no way in which it can be made out that any one, even the Opium Farmer, can move opium otherwise than in a chest or chests.