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(E HONGKONG DAILY PRESS, FRIDAY, FEBRUARY 26TH, 1909.
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10043
WAR OC
SUPREME COURT,
Thursday, February 25th,
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
THE PEAK MURDER APPEAL.
Judgment on the appeal against the finding of the jury in the Peak murder case on the ground that the evidence had not been translated to the prisoners was delivered by the Full Court. Mr. R. G. Calthrop, instructed by Mr. R. D. Atkinson (of Messrs Deacon. Looker and Deacon) appeared for the prisoners, the Hon. Mr. W. Rees Davies, K.C., Attorney-General, instructed by Mr. F. B. L. Bowley, Crown Solicitor, appearing as respondent.
The Chief Justice said-As the procedure under section 78 of No. 9 of 1899 which provided what is the Court of t rown Cases Reserved for the Colony does not require a case to be stated, it is necessary for me to state the circumstances in which the question which has been reserved for the opinion of the Court arose. Three men, Kwok Leung, Li Shek Shun and Hung Loi were charged with the murder of Ku Tang. They were Hoklo men. Some of the eridence for the Crown was given in English, and some in Puati. The prisoners were defended by Mr. Calthrop, and at the conclusion of the case for the prosecution he called evidence, and he also put the three prisoners in the box. One of the English witnesses for the defence, Mr. Holworthy, had given evidence to the effect that the first prisoner, Kwok Leung, was his chair coolie. He said that when he arrived at the Peak on the day of the murder by the 12.15 or 12.3 tram, he found his chair waiting for him as he had ordered, and there were only three chair coolies, among them Kwok Leung. In cross-examination he said that he asked why the four were not there, sad that No. 1 prisoner had said there had been a fight, and that that was why the fourth coolie, No. 2 prisoner, was absent. When Kwok Leung was in the box he gave evidence that there had been only three coolies at the tram station. In cross-examination he said No. 2 prisoner was the missing coolie. He then said in answer to a question put by the Attorney-General that he did not tell his master, Mr. Holworthy, that there had been a fight. Other questions on this point were about to be put by the Attorney- General when it occurred to me that Mr. Holworthy's evidence had not been translated to the prisoners, and I intimated that in the circumstances I did not think that the point ought to be pressed, to which the Attorney- General assented. The jury secquitted No. 1, but found the second and third prisoners guilty of manslaughter. Before sentence Mr. Calthrop intimated that some of the evidence, either! English or Punti, had not been translated to the prisoners, and mored that the question be reserved for the Full Court as a question of law, whether the conviction ought not to be quashed On the ground that the evidence onght to have been translated, and this is the point on which we are now called upon to give our decisions. It is advisable to deal at once with the question of materiality of the evidence actually admitted but untranslated. If No. 1 prisoner had been found guilty, un. doubtedly the fact that he had told this untrath with regard to No. 2 prisoner would havE influenced the jury, aud I should have found it extremely difficult not to quash the conviction. We have not, however, to consider whether any part of the evidence which was untranslated was material, and so contributed to the convic. tion of the other prisoners. Mr. Calthrop had taken the broad ground that none of the evidence of the Crown was translated, and as they were convicted some of it must have been material. He raises therefore the abstract ques- tion whether a conviction can stand when the prisoners have no knowledge of the evidence given against them. He called it "inadmissible evidence," and strictly, this is the right term to use, though it is not its ordinary use. There is a recent case, B. v. Hadwin, where a conviction against several prisoners was quashed on the ground that the others were not allowed to cross- examine one of them who went into the box.
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Evidence given without cross-examination is strictly speaking, inadmissible evidence, and scientifically the term is rightly used. There are three at least a priori reasous in favour of Mr. Calthrop's contention. First, the prisoner is always entitled to make a statement, evon when he is defended by Counsel, therefore he must know what the evidence against him is. Secondly, now that the prisoner may give evidence, it is more than ever material that he should know the evidence against him in order that he may meet it, and, as ye do not assume the prisoner guilty until he is so found, if he does not know it, the truth may be kept back. There may be some part of the evidence for the Crown which he could easily rebut had he kaown it. If he does not know it he cannot do so. Thirdly, if he does not hear what the witnesses are saying, he cannot assist his counsel in cross-examining them. I confess, that without looking at the authorities, the question presents no difficulties, where the prisoner is not defended by counsel, aud tho real difficulty arises from the fact that in this case they were defended. But the a priori arguments seem to me very strong, and the first applies whether there is counsel or not. The third is specially concerned with the fact that there is a counsel. The second may in some measure be answered by the fact that the depositions taken before the magistrate have already been translated to the prisoner, and therefore he has notice of what is going to be said in the box at the trial. But this is not conclusive, because it does not apply to new statements which may be made in cross- examination. Moreover, the depositions are not evidence at the trial until
any part of them is specially made evidence, and therefore I think that the & a priori reasons in favour of quashing the conviction are very strong. His Lordship, after quoting numerous authorities, proceeded-None of the cases cited therefore support he Attorney-General's contention that the translation of the evidence to a prisoner who does not understand it, is a mere irregularity in proceedings. On the contrary, the authorities are all the other way, and looking at the reason of the thing, I have no hesitation in saying that it is not merely as grave an irregularity as could well be imagined, but that it is contrary to those faudamental and elemen al principles of justice for which, to uso a phrase of one of the old judges, rhetorical, yet pregnant with meaning, "English administration of justice is so justly famous," and which has made it respected and trusted by the people. The only question which remains, is whether the fact that the prisonerTS wore represented by Conusel makes any differ- enes, for I am clear that in a case where the prisoner was not represented by counsel the conviction in such circumstances must be grashed. But this point is fully covered by the authorities cited by Mr. Calthrop. Tu R. v. Bertrand, the irregalarity of reading the depo- sitious taken at the first trial, was acquivaved in by the prisoner's counsel, and not passively but actively, for he cross-examined witnesses on these depositions. The question resolved itself into whether any injustice to the prisoner resulted from it, and this is how this question was treated: "It is a mistake, moreover, to consider the question only with reference to the prisoner. The object of a trial is the administration of justice in a coarse as free from doubt or chance of miscarriage as mersly human administration of it can be-not the interests of either party. This remark very much lessens the importance of a prisoner's consent, even when he is advised by counsel, and substantially, not of course literally, affirms the wisdom of the common understanding in the profession that a prisoner can consent to nothing" In R. v. Moore the prisoners were represented by counsel, and in the course of the argument Hawkins J. said, "The
fact thut the prisoner's counsel has taken no objection dess not make the evidence admissible." The only case on which the Attorney-General could rely on this point was a remark in R. v. Ysmade by Erle J. which has some bearing on the relations between counsel and prisoner. The question was whether in a murder case in the year 1854 the Court could assign counsel to defoud the prisoner. What the learned judge said was "I should be very glad if I could do so, but by allowing counsel to appear without any communication with the prisoner, and without his sanction, I might be authorising a defence which the
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