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PERJURY CONVICTIONS QUASHED ON APPEAL

SUBMITTING THAT APPELLANTS WERE NOT INFORMED AS TO WHAT STATEMENTS MADE BY THEM CONSTITUTED THE ALLEGED PERJURY AND THAT, BEFORE BEING FINED, THEY WERE GIVEN NO OPPORTUNITY OF RE- MOVING ANY MISAPPREHENSION OF WHAT THEY HAD SAID, MR. H. SOMERSET-FITZROY, INSTRUCTED BY C. A. S. RUSS, SUCCESSFULLY APPEALED ON BEHALF OF LAU WONG AND CHIU TING-CHAN BEFORE THE CHIEF JUSTICE, SIR ATHOLL MACGREGOR, AND THE PUISNE JUDGE, MR. JUSTICE R. E. LINDSELL, IN THE FULL COURT OF APPEAL THIS MORNING.

In December, Lau Wong, first be remitted, first on the ground that appellant, was sued for $500 by the order was bad, inasmuch as the of- fences charged were not of themselves the Yee Choung Lung Sang Kee such contempts of court as legally con- Firm for money lena, Mr. E. H. stitated an offerce, and secondly, that Williams, sitting as acting-Puisne even if they had been so, no distinct Judge, gave judgment for plaintiff charge of the several alleged offences was stated, and no opportunity given firm and fined first appellant $75 to the party accused of being heard, or two months' imprisonment, and before passing sentence, second appellant $50 or one anonth's hard labour for alleged perjury.

This morning the Chief Justice ordered; the fines, to be set aside: He said

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In that case no judgment was given, but the report of their Lordships, sub- sequently confirmed by Her Majesty's Order in Council dated: the 19th June 1868 is published, and the relevant portions of that report are as follows: Their Lordships do agree humbly to On December 16, 1988, at the conclu- sion of a suit in Summary Jurisdiction report to Your Majesty that in their in which the appellants were respec- judgment no person should be punish- tively defendant and witness for the ed for contempt of Court, which is a defendant the learned trial judge be criminal offence, unless the specific lants had been guilty of wilful and tinetly stated and an opportunity

The later case Chang Hang. Kiu v. corrupt perjury and purporting to act answering it given to him. under the powers conferred on him, by section 01 of the Supreme Court Or Piggott, in re Lal Hing Firm (1909). dinance, 1875, fined the appellants in Appeal Cases, p.312 turns on the inter- the sums of $75 and $50 respectively. pretation to be placed on the very sec- At the outset, I desire to say that notion of the Supreme Court Ordinance appeal lies as of right or on a certi- 1878 with which we are concerned in ficate of a trial judge against a con- the present proceedings. viction for a criminal contempt, and The headnote in that case reads:-- this Court therefore cannot embark The appellants, having been sum- upon an examination of the evidence marily committed to prison by the or consider whether or no there were Chief Justice under Hong Kong Su the learned preme Court Ordinance 8 of 1878 sec- sufficient grounds for judge's coming to the conclusion to tion 31 for wilful and corrupt perjury which he in fact came. The functions before the Bankruptcy Court, moved of an appellate tribunal, on such an unsuccessfully for a discharge of the appeal as this must be limited to de-order on the grounds that they had ciding whether the order was so irre-not been informed by the Chief Jus- made by them gularly made as to offend against one's tice, what statements

constituted the perjury and that they elementary conception of justice.

The grounds of appeal are that nei-had had no opportunity of showing ther of the appellants was informed as cause before sentence: to what statements made by them res- Held (1) that the Ordinance did not. pectively constituted the alleged per contemplate the accusation being form- jury and further that before being fin-ulated in a series of specific allega÷- ed they were not given the opportun- tions of perjury, and that its gist, had ity of giving any reasons against sum- been made sufficiently clear; (2) that

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ing any explanation or removing any misapprehension as to what had been

said.

It becomes necessary for us there fore, to consider the course followed by the learned trial judge as disclosed in his notes of the hearing.

The relevant portion of the

reads' as follows:-

notes

giving the appellants an opportunity as the Ordinance did not dispense with before sentence of explaining or cor recting disapprehensions of their state- ments, it was essential that it should. be accorded to them.

From the judgment delivered by Lord Collins I quote as follows:

After the verdict was given, it ap pears from the shorthand note that the Chief Justice desired the eight Both defendant and Chui Tung witnesses who had given evidence in Chau are liars who have committed de-support of the affirmation, ie the ap- liberate perjury.

I fine defendant $75 or two months and Chui Ting Chau $50 or one month. Section 31 of Ordinance No. 8 of 1878."

The section relied on is in the follow ing_terma:--

pellants and one other who had left. the Court, to be called forward. He then addressed them as follows, the in- terpreter explaining what he said: "The eight witnesses have to my mind been guilty of the most flagrant con- spiracy to defraud the alleged part- "If in any cause, action, or suit, ner, Wong Ka Chuen. They have each civil or criminal, or in any proceeding one been guilty of the most corrupt connected therewith, it appears to the perfury, and in virtue of the provisions court that any person examined as a of the law which empowers me to deal witness upon oath has committed wil- at once with such cases 1 commit each ful and corrupt perjury, it shall be of them to prison for three months lawful for the Court to commit such without hard labour." en p witness as for a contempt of the Court, With regard to the first ground

to prison for any time not exceeding objection taken by the appellants, three months, or to fine such witness namely, that they were not informed: any sum not exceeding one hundred by the Chief Justice what statements dollars: Provided that the powers made by them respectively constituted hereinbefore given shall bo in full the alleged perjury, their Lordshipe force and operation notwithstanding are of opinion that it is not establish- any irregularity or want of form in the ed in point of fact. The statement made by the Chief Justice was to the adminstration of the oath."

There are two reported cases, both effect that the whole evidence given by strangely enough on appeals from the appellants convinced him of a con- Hong Kong, which are directly in point. spiracy on their part to make it ap- In ro-Pollard (Law Reports & Privy pear that Wong Ka Chuen was at the Council p. 106) the headnote reads: date of the presentation of the poti

(Continued on Pago 20) A contempt of court being, a crimin- al offence, no person can be punished for such unless the specifle offense charged against him be distinctly stat- ed, and an opportunity given him of answering.

A barrister engaged in his praten- sional duty before the Bupreme Court of Hong Kong was, without notice of the alleged contempt, or ruls to show caras, and without being heard in do- fence, by an order of the Court, fined, And adjudged to have been guilty of saverel: kontempts of Court in dierea- ly addrestluste Chler Justien

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