1941-03-18 — Page 8

“You're picking winners well today- see if you can tell this whisky'

“It's White Horse, of course-

I could tell it blindfold'

any

The rare and subtle character of White Horse

from apart sets it

other whisky. You can tell it by its exquisite bouquet alone. But it is the perfect blending of fragrance with mell- owness and smoothness which makes White Horse Whisky the equal of a fine liqueur. The millions of gallons of finest Scotch whisky matured and maturing ensure that the quality of White Horse never varies.

WHITE HORSE

WHISKY

S. Agents for South Chima JARDINE MATHESON AND COMPANY LTD.

BAGGAGE TRANSFERS

Telephone

27761

to Engage our Service

Efficient and Secure CHINA PROVIDENT LOAN & MORTGAGE CO., LTD.

“Delicious”

the best HOME-MADE CAKES!

Try it once and you will

try it always.

*

Also Cigarettes, Chewing Gum, Chocolates, Candies and Cookies.

Buy them at:-

YEE SANG FAT'S

King's Theatre Bldg.

Tel. 21355.

I

THE CHINA MATL, MARCH 18, 1941.-

'BAD CASE OF COMMERCIAL ROGUERY: LEGAL ISSUE DECISION

WRITTEN JUDGMENT was delivered by Mr. H. G. Sheldon, K.C., at the Central Magis tracy this morning, when Chan Chai-sheung, manager of the Kin On Firm, was convicted of having in his possession for sale a mixture of saccharin and alum to which a false trade description had been applied, namely that the mixture was saccharin manufactured by W. S. Shirley & Company.

Sec 19 S.S.2 of the was for the Act 1899. Mr. D. H. Blake

and Mr. E. S. C. prosecution.

Act provides "In any prosecution. under this Aet

there must Brooks for the defence.

be served therewith a copy

uf The accused was fined $1,000 or three months' simple Imprison- any analyst's certificate obtained

on behalf

Prosecution,” of the ment, and ordered to pay $300 to-

Here the appellant Haynes had wards the cost of the prosecution.

been served with a summons The following was the judg

under the Act. On the ease com- ment:

ing on for bearing, the magis- This is a case of some interest rate was informed that no cert!- and importanO",

ficate of analysis had been served There were two summonses, the with summons in accordance with first under the Adulterated Food sec. 19 S.S.2. He thereupon dis-

the Ord. (No. 8 of 1935) | missed

summons. A fresh and Drugs the second under the Merchandise summons on the same facts was.

held The magistrate Marks Ord. (No. 4 of 1890). The taken out. first summons was dismissed dur- that Haynes had not been in per ing the proceedings and is of no on the first summons and con-

him. victed further concern.

Haynes appealed. The King's Bench Division by a the contention majority upheld of autrefois acquit and quashed not the conviction.

SHANGHAI'S

EFFORT WITH DOLLAR AT 3D.

Thanks largely to a last-minute effort, the required sum of £10,- 000 for the month ending March 15 was again raised by the British War Fund in Shanghai and remit- ted to the Treasury in London.

This remittance brings the total re- mitted to date to £122,000.--Reuter.

merits, followed by a judg- ment or order of acquittal. Chitty on Criminal Law, an old

I Vol 12.454 (1826) authority, states the proposition thus "The discussion always is point in

the defendant whether in fact could have taken a fatal excep- tion to the former indictment, for if he could, no acquittal will avail

Defence Fails

At the close of the prosecution. on the second day of the hearing,] Mr. Brooks submitted that Sec. 2 S.S.5 of the Ordinance had been complied with. He was

It seems to me that Haynes v. right.

a preliminary Davies has little bearing on the There had been

present case. It will be noted, him. discussion between the parties as

that both Ridley J. and Avory J. to hearing and certain amend-

were careful to point out that ments and the necessary inform- alion to the defendant or his.so- the omission to serve the certi-

On these authorities it seems licitor as to his right to trial on fleate was a matter of procedure

only, which could be waived, and to me that the defence of autre- indictment had not been given.

I do not think Mr. Brooks further submitted that the magistrate had jurisdic-fuis convict fails. that this ended the proceedings tion unless objection to the in-that in the first proceedings

In the pre-defendants ever were in 1898 formality was taken. and cited R. v. Cockshutt 1 Q.B. 542. Mr. Blake, for the sent case the defendants have an These proceedings were bad from complainant, did not traverse the absolute statutory direction that beginning to end, at any de- submission and the summons was dismissed.

Subsequently, having had an op- the au- portunity of looking at thorities, I came to the conclusion | that my decision was wrong and] I re-opened the case under Sec, 99 S.S. 5 of the Magistrates Ordinance (No. 41 of 1932).

Reopening Opposed

the

peril.

time

our statutory

to

they be informed of their right, from the time of plea the which, it seems, cannot be waived fendants could have said "We have (Cockshott's case, supra), and if not been given not given invalidates the subse-

We have had no oppor- rights. summary proceedings quent

tunity to be tried by a jury if we (Archbold 30th Edn. at p. 9).

so desire and therefore the Court In my opinion Davies v. Morton has no jurisdiction." They could the 1913 2 K.B. 479 is more in point. if they had wished, allowed In this case the defendant was case to proceed to conviction and summoned under the Betting Act raise the objection in the Court of 1853. He was not informed of of Appeal, whereupon the convic- his right to trial on indictment tion would inevitably be quashed. Mr. Brooks opposed the re-und as in the present case the In these circumstances it is opening on two grounds. First omission was not discovered until my mind impossible to say that he said the defendant had been the proceedings were well under, they had been in peril. acquitted and could not be tried way. The solicitar for the res- sume offence, and pondent with the consent of the again for the

With regard to Mr. Brooks' se- cited Haynes v Davies 1915 1 K.B. justices withdrew the summons-cond point under 5.99 (5) of the

Ordinance, 332; secondly, he submitted that I the solicitor for the appellant op-Magistrate's had no jurisdiction to re-open the posing such withdrawal. The meaning of the section appears to matter under Sec. 99 (5) becaus? Justices held that the withdrawal depend on the particular facts of the jurisdiction to do so depended did not invalidate a subsequent each, case as to whether or upon the words "power to deter- conviction. The King's Bench the magistrate has power to de- mine in a summary way" and that Division upheld the Justices and termine the matter in a summary by reason of Sec. 3 S.S. 5 there dismissed the appeal.

the was no power to determine matter in a summary way.

Withdrawal And Dismissal

the

not

Mr. way. In the present case, Brooks, as he had said, never had any intention of having the case summarily tried otherwise than

it opinion Irom which, in my

had must follow that the Court power so to deal with it.

The Facts

I overruled these two submis- sions. Mr. Brooks then applied that subject to his rights up to and including the disinissal of the

It is true that in this case the summons that the evidence al-

proceedings were withdrawn and ready taken be treated as the evi- not dismissed. In his short judg- dence for the prosecution and put ment, Avory J. deals with this in as such and not to be taken aspect and says: "I agree that the.

As to the facts, the defendants over again de novo as I held he withdrawal of the summons in the had in their possession for sale tins was entitled if he wished. The

particular circumstances of this

saccharin purporting to contain contents of Sec. 3 S.S. 5 were

case did not amount to a dismis manufactured by Messrs. Shirley with. formally complied

Mr.

sal or an acquittal. Even if it & Co. which in fact contuined Brooks did not want and never

saccharin did, as the justices had no juris-

approximately 2/3 of had wanted a trial on indictment. diction to hear and determine the

and 1/3 of alum. The complain- On Mr. Brooks' first point, 1

summons, their decision could not ant proved the existence of readily agree with him that

in Kowloon where man can be put in peril twice for be pleaded in bar to subsequent workshop

proceedings." the same matter.

these tins were opened - 1/3 of If he is, he carr

There are numerous -references the saccharin extracted and alum raise the plea in bar of autrefois

substituted, resealed, sent to Hong acquit which Mr. Brooks has rais- to the subject in the text books. ed. The question as to whether Paley on Summary Conviction Kong and offered for sale by the

true Kin On Firm. such plea is valid depends always. 9th Edn. 169. states "The upon whether the defendant has test to show that such previous I accept the evidence of been in peril or not.

acquittal is a bar, is whether the complainant in its entirety, and defence raised R. v. Cockshott (supra) is a de-evidence necessary to support the reject the only

have that of innocence which is sup- cision on Sec. 17 of the Summary second proceedings would Jurisdiction Act 1879, which sec-been sufficient to procure a legal ported by evidence demonstrably tion is of the same effect as Sec. conviction on the first. If how false.

Ordinance.

по

the

ro.

3 S.S. 5 of the Merchandise Marks ever, by reason of some defect in I think the complainant has In that case the de- the record, either in the indict-established beyond all doubt that fendant was not informed of his ment, place of trial, process or the manager and members of the right to be tried on indictment, he the like, the accused was not Kin On Firm were actively and → was convicted by the justices and lawfully liable to suffer judgment knowingly engaged in this frau- his conviction was quashed on ap- for the offence charged, the form-dulent business. It is a thorough- peal because he had not been so ed proceedings will be no bar. ly bad case of commercial informed. That case is a clear Lush J. in his dissenting judg-guery, which of undiscovered authority that if the present case ment in Haynes Davies (Supra) might has done incalculable harm had proceeded and the defendants at Page 338 Cites Russell .ou to the reputation of Messrs. had been convicted, the convic Crimes "A man is in jeopardy if Shirley & Co. It is a thoroughly tions would have been quashed on

(1) The Court was competent bad case of commercial- roguery. appeal; but the defendants were

to try him for the offence not convicted, the proceedings ter- minated at the close of-the-rose- cution.

Haynes Case

Haynon v. Davíðs (supra) rulled on by Mr. Brooks, was a...case under the Sale of Food and Drugs

(2) The Trial was upon a good indictment in which

valid judgment of convic- Fines of $50 were imposed by tion could be entered

Mr. H. C. Macnamara this morn- (3) The acquittal was on the ing on Yau Hung, 26, and Siu. merits.i.e. by verdict on Lam-chal, 22, who were caught the trial or in summary outside the Pel Ho Theatre yes- caves by dismissal on the tenday afternoon selling tickets.