1932-09-12 — Page 7

MONDAY, SEPTEMBER 12, 1932.

THE CHINA MAIL.

FULL TEXT OF CHENG MURDER JUDGMENT

A

(Continued from page 5). accused offered $10,000 to Christie If he would kill Fung; that Christie, Zimmern and the accused remain to- gether during the day and discuss- ed the possibility of killing Fung either by shooting or by the use of potassium cyanide the accused ex- pressing his preference for shoot- ing: that Christie purchased hypodermic syringe and some potas- sium cyanide with money furnished by the accused and handed the same to the accused; that the accused" en- "couraged Christle to carry out the proposal by the promise of the chauffeur's assistance, and also by alleging that being under 21 years! of "age Christie was not liable to capital punishment. Christie. Zim- mern and the accused consulted one firm of solicitors, Messrs. Lo & Lo, to obtain, if they could a confirma-! tion of this opinion of the law; and that Zimmern and. Christie on the Invitation of the accused and with money" provided by him obtained two other solicitors' opinions. Fur ther that on the 22nd March the aceused told Zimmern und Christie that he had experimented-upon chicken with the hypodermic syringe and poison and that it had died but; that he had damaged the syringe:! also that at the request of the ac- cose Christie then purchased a second syringe on his behalf which

A

be delivered to the accessed. Far- ther that on the 25th March before Zimmern 350 at the same time gave

5 a.m. the accused who had given

The Chief Justice, Sir Joseph Kemp, K.C., who read his judgment in the Full Court this morning, concurring with the Puisne Judge, in affirming the conviction of Cheng Kwok-yau.

act is

Zimmern a Turther $10 to give to

by saying that an Christle. Firstly that on the even admissible because it is part of the ing of the 24th March Zimmern prb-

res gestae has never, so far as I dycell to the accused the receipt given by Messrs. La and Lo. Solici-am aware, been explained in a tors. far their professional, fee and satisfactory manner. I suspect it

paper.

that the accused destroyed this vide, a respectable legal cloak for of being a phrase adopted to pro-

a variety of cases to which no Deny Murder Intent. Zimmern and Christie have dis-formula of precision can be appli- affords an efficient classification of term nevertheless material. It is fundamental in the law of evidence. The authorita- tive statement of the law is to be

claimed any intention of killing Fung and have said their object was to obtain by fraud the money of the accused,

The evidence was not in fact analysed by Counsel before us In the above detail but I am satis- fied that I have set it out with 2 sufficient accuracy for the present "purpose.

It is to be observed that the evidence to which objection is taken printarily discloses a criminal in- citement by the accused which; formas no part of the particulars given in the indictment itself. The' evidence relates to an incitement of different persons from those named) in the indictment and also un invite- ment to use an alternative to the use of fire-arms different in kind! Trom those in fact used by, the per- Bons named in the indictment. It describes also ал incitement which was never effectual as tha witnesses themselves at no time in- tended to kill Fung. Moreover, the Incitement is not a link in the chain! of evidence alleged to have led from the criminal intent of the accused through the channel of his chauffeur Lau's activities to the murder off

ed."

The

found in Stephen's Digest of the Law of Evidence 7th Edition (1906) Article 3 which is as fol- lows: ..

"Relevancy of facts forming i part of the same transaction as the facts in issue). A transac-i tion is a group of facts so con-] nected together as to be referred

paper advertisement from which you can prove previous acts or other frauds followed Evidence wards of the accused to show he' of those other frauds was admit-entertained feelings of enmity to-: ted not as relevant to any parti-wards the deceased, and that is cular issue in the case but as form-evidence not merely of the mali- ing part of one fraudulent trans- clous mind with which he killed the action namely a bogus business. deceased, but of the fact that he On the other hand in "R. y. Ellis" killed him, You can give iz ANN 1910 2 K.B 748 the charge was for evidence the enmity of the accused defrauding A by false pretences in towards the deceased's life. connection with a sale of porcelain. Evidence of motive necessarily Reference Was made in cross goes to prove the fact of the homi- examination of the accused to other cide by the accused. This dictum and different false pretences by was also repeated by Lord Atkip- which It was alleged the accused son (In "Thompson v. The King' had fraudulently obtained money 1918 AC. at p. 227) where he said on other occasions but also from Ain his judgment "In a case of and also on a sale of porcelain. It homicide

evidence is admis-

was held that the question was sible to prove that the accused en- asked in breach of the 'Criminal tertained feelings of hatred to- Evidence Act 1898 S. 1 S.S. (f). Inwards, or a desire to be revenged | other words it was held that this upon the deceased, in order to was a series of separate fraudulent prove that he killed the deceased, transactions and not one fraudu- not merely quo animo he did no". lent business. There was no sys-This dictum as it seems to me can tematic course of swindling by the only be interpreted to mean what same methods" (Bray J. at P. 761) when a homicide has been proved (see also "R. v. Fisher, 1910 1 enmity against the deceased may K.B. 149).

be used to connect an accused per son with it. (See also 13 Halsbury| "Laws of England" p. 447 par. 621).] To apply the doctrine to the pre The matter has been stated also in Rent case. The transaction under Halsbury "Laws of England" |

Conduct Important,

son listening to the narrative told

inquiry is the murder of George, Fung. The story of the transac-page 378. para 740 in the following tion commenced from the desertion terms "The prosecution must first of the accused by Lai Ming-fal and give a satisfactory proof of the cor- Fung. The conduct of the accused charged has been committed by culminated in the death of George Fus delicti .e. that the offence during this interval of time is an then prove that the defendant is sónteone. The prosecution must incident of this event. Any per the person who committed the' by the witnesses so far as the evi offence charged. Any facts which dence has been received without affirmatively prove either of these? form part of one chain of re-question, would naturally inquire for the prosecution." In neither of

propositions are relevant evidence! levant circumstances, and 5Q could not be excluded in the his chauffeur's agents on the 19th the dictum of Lord Atkinson has "Between the abortive attempt by the two cases reported, from which presentment of the case before March to murder Fung and their been quoted, was the evidence then the jury without the evidence successful attempt with his chauf- under discussion admitted that being thereby rendered unintel fuer's support upori the 24th ligible. Such prior acts March, what was the accused him- prove the corpus delicti. The pre- formed in point of history and self doing in the meantime?" per use of the evidence of hostility circumstantial connection, in Without this evidence the story, to the identity of the accused with the in the present case is to establish separable parts of the transac-use the word I have suggested, offender sought to tion which the jury had to in-would be "incomplete". The evi and the evidence is held admias- be identified, vestigate...... The relations dence comes under Stephen's classible for this purpose.

to fication "Evidence deemed to be re- his assailant, so far as they maylevant to the issue".

It is one

Case Properly Left reasonably be treated 2.9 ex-

piece of the puzzle which the jury planatory of the conduct of the are entitled to handle and fit into Chief Justice distinguished to the In his summing up that learned accused as charged in the indict-the whole to the best of their jury at the outset the two issues, ment, are properly admitted to ability. proof as integral parts of the

the fact of the incitement of Lau history of the alleged crime for

and the identity of his incitar. which the accused is on his It is not necessary to emphasize" That the case was properly left the fact that the prosecation is not to the jury on sufficient evidence is

"of the murdered man

trial."<

Not Restricted.

·As

The

I should like to have suggested debarred from telling the whole to my mind abundantly clear. to by a single legal name, as a to the learned judge in this con- story of the prisoner's doings mere Lord Buckmaster has remarked (I crime, Every fact which nection that the use of the wordly because it includes other of his quote again from Craig v. Glasgow is part of the same transaction "unintelligible" here narrows the criminal acts not specially charg Corporation cited supra) "If a bet as the facts in issue is deemed field too rigidly and that the word ed in the indictment. (Russell of circumstances are actually con- to be relevant to the issue, al-"incomplete" might take its place. "Crimes". 7th Edition p.2011 cited sistent with a number of varying though it may not be actually in The prosecution has a right to tell above). The same remark applied hypotheses no one can be selected issue He addas-

"the whole story of the prisoner's to all evidence adduced whether as the one that is true" doings" (Russell "Crimes" 7th strictly relevant or merely deemed standard of proof which a jury in "Whether any particular fact Edition p. 2,101) or "everything to be so. is or is not part of the same that may be fairly considered an

However the argument for the transaction as the facts in issue incident of the event (Taylor Crown before us has been direct is a question of law upon which "Evidence" 11th Edition par, 583) of this evidence to the main issue, ed to showing the strict relevancy no principle has been stated by authority and on which single judges have given different deci- sions."

(See also 18 Halsbury "Laws of England" p. 420 par. 585).

Like a Play..

is

a criminal trial must require described in 9 Halsbury "Laws of England" p. 588 para. 1190 "A facts were such as to be inconsis jury must be satisfied".. that the I have found a striking Illustra-whether the facts are to be includ- tent with any other rational con- tion in the prologue of a modern ed in one transaction with the clusion than that be (ie. the ac play-John Van Druten's "Some charge laid in the indictment, or cased) was the guilty person". body Knows," where a character in not, and in my viewthis contention

The duty of the trial judge is to discussion with a novelist is made will also prevail.

In less technical language, to say "It's like one of those This is a case of criminal homi- see to it that the verdict of the jury Fung. The story told in this similar statement of the law it to novels. I don't mean the kind you cide. The Crown alleges that the is given, after proper Instruction evidence discloses crimes other than be found in 9 Halsbury "Laws, of write but the sort where the au- accused through Lau murdered in their functions, not in the field; England" p. 880 par. 740:- thor says "He came in, closed the Fung. The facts in issue which of supposition and conjecture but "The evidence must be confin- door and faced her" and that's the the Crown must prove are four in of facts and inference. He may re- ed to the facts which constituta end of the chapter and the next number.

or are connected with the offence one begins "Ten days later... . .” 1. That. Fung, was murdered. charged and proof cannot gen-¡I always want to say "But you're 2. That he was murdered erally be given by other facts cheating. You've got to tell us through Lau.: which have no connection with what happened."

3. That Lau himself had a prin-

cognise that the jury have before! them a choice of alternative in- ferences all of which may be re- sonable and he must explain to them the principles of selection which should guide them but ho are other facts which are so in-tion by the judge is perhaps `al 4. That this principal was the must not constitute himself a judge

of fact in their place. The indiet extrictably mixed up with the point on which little help may be accused, facts which constitute. the derived from precedent. To quote The first and second of these ment submitted to this jury was in offence charged as to form one a dietum of Earl Loreburn in facts are not here in doubt. That fact supported by cogent-I would transaction, proof may be given Kerr or Lendrum v. Ayr Steam Lau himself is the agent of some The jury in this case saw the wit- even say by convincing evidence. All Shipping Company Limited" 1916 one else has been shown by the

this offence. If, however, thera The demarcation of any transac- cipal.

of such other facta,

the crime, charged which may be separately designated and punished. The relevance of this evidence to this prosecution has been question- ed before us for these reasons and the admissibility has been chal- lenge on the plea that it has been used to proye, complicity in the alleged offence by showing compli- city in a distinct but similar offence: It is salutary here to recall the ad vice of Viscount Birkenhead (which is to be found in "Rutherford = v. Richardson" 1923 A.C. 5) who there! said "The issues pronounced upon the details of the alleged A.C. at p. 228 the learned judge absence of any motive of his own nesses and I have not seen them. by Courts in criminal .....mat criminal transaction are relevant there remarked "Nor am I impress and by his control of large sums But in these proceedings I have not to the case for the prosecution ed by arguments proceeding upon of money for the purpose of his been invaded by any doubt that consequences that the adoption in as being part of the res gestaes comparison between the facts of crime. The question arising here the verdict of the jury may not one case and the facts of another is upon the fourth issue. The pro have been both rationally, and to admissibility which is so cautious as The learned author in 18 Hals Precedents are valuable and au blem has become one of identity their minds necessarily, given. --- to be meticulous may not only be bury "Laws of England" p. 487 thoritative when they lay down a of the identity of the accused with defended but is in fact essential." par. 609 also states:--

principle. They are otherwise criminal known aliunde to exist. In my opinion the evidence was "In testifying to the matters merely illustrations of the way in To prove the identity with the rightly received.

in issue

. witnesses must which judges look at facts. actual perpetrator of a person state them not in their barest Different Judges look at facts dif-sought to be implicated in criminal I have reached the conclusion that possible form, but with a rea-ferently." In the same raport is homicide. proof of his hostility to the contention by the defence that sonable fullness of detail and to be found also a comment of ward the deceased is relevant evi- the evidence to which objection is circumstance."

Lord Finlay (quoted from "Craig dence. The evidence herein of taken forms a different transaction

v. Glasgow Corporation 1919 S.C. Zimmern and Christie to which ob- from the transaction under con- A judicial statement of the doc (HL) 1.No Inquiry is more jection has been taken is such mat sideration cannot be sustained. trine is contained in the judgment idle than one which is devoted to ter and is admissible. Evidence has to be received not of Kennedy J delivered in the re-seeing how nearly the facts of Ev ence of Hostility. merely in accordance with a stand-port of R. v..Bond (C.C.R.) 1906 casas come together. The use of Some

ters are attended with such decisive

matters of evidence of a standard of...' and should be proved."

Denies Defence Plea

Rules of Procedure

ard of its appropriateness, to prove a 2 K.B. at page 400- conclusion for which the prosecution

contents; but also because whate

its appropriateness in the

to whi

fact bek

cases is for the proposition. The general rule the the they ntain" The remark rule excluding prior criminal ready cited from conduct of the accused from the of

evidence); ***ca

the

ence

the

In my opinion the evidence of Zimmern and Christie which we are asked to reject, was rightly admitt ed and the case for the Crown was properly left to the jury,

The verdict must in my view be allowed to stand.

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