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these questions are doubtless due to the fact that the Council believes Kelly to be the person referred to under
Anxious, like all Asiatics, to oblige the Mandarins, he replies "Probably that is Kelly". Previously Ko San did not know who Kai Ki was: now that he sees what the Court is driving at, his memory is stimulated. Then they try "Kai Ki" again. "I have heard that it is Kelly". Then we go back again to "A. Kai". "That is Kelly". Previously it was "probably" Kelly: now it is Kelly without a doubt.
"Who is A.Kai?
"It is also Kelly". A little later "Kai Ke" appears. Ko San now knows what they want and is quite ready to identify Kelly with any collocation of Chinese symbols that may be set before him. Even a man who does not hold the usual opinion as to the value of Chinese evidence cannot attach any importance to Ko San's statement that he has actually paid money to Kelly.
Ko San refers to Kelly as "overseer".
The meaning of this phrase is left obscure.
Ko Ee denies that he has made any payments to Kelly.
The money referred to in the entries was paid to Leung In or some other of the firm's members or employés.
No attempt is made to establish any connection between these payments and the hypothetical payments to Kelly. Why was not the "overseer" called to show that he had taken the money for Kelly and handed it over to him?
So far as Cheng Kwang's evidence goes (I don't think it goes far because he is obviously lying when he says that he only saw Kelly once in the street, whereas Kelly says that he knew him fairly well) it is in Kelly's favour; and so far as Charge (a) is concerned we have only Ko San's evidence to deal with. For the reasons given above I would not dismiss a dog on this evidence. I note that Dr. Atkinson agrees that the charge is not proved.
I submit that the manner in which this examination was conducted is such as to vitiate the whole of the evidence and to make it impossible to give any further consideration to Charge (a) unless evidence can be called in support of the charge which is absolutely independent of that given by Ko San.
Further evidence is supplied by Cheng Kwong, one of the firm's accountants who has not been present during the examination of Ko San. He is the man who has made certain entries in the books, which are assumed to relate to payments made to Kelly. His evidence is to the effect that he has made certain payments to the "overseer".
Charge (b) is that on June 10th, 1905, he received from the Fuk On firm a sum of $10.
Leung In is called to prove payment. His evidence is on pages 12 to 15. It cannot be properly appreciated unless the whole of it is read. Leung In is of opinion that he paid somebody something at some time. His reason for holding this opinion is that his "foki" told him that he paid it.
"I can say certainly that it was probably I that paid it". He remembers practically nothing