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THE CHINA MAIL. WEDNESDAY, SEPTEMBER 17, 1947. 27

On May 21, 1947, James Kenneth Gracie, in Hong Kong, was sentenced to eight years' hard labour for doing an act likely to assist the enemy with

CHINA MAIL intent to assist the enemy.

Windsor House

Managing Editor; W.J. Kestos.

Business Manager: W. H. Nolloth.

Telephones: Editors**** ***** 24854 Reporters & General Office 22312 (four lines)

On April 15, 1947, in the Court of Criminal Appeal, the conviction of Anthony Cedric Sebastian Steane on precisely similar charges was quashed.

Below we give the full text of the judgment on appeal, in the belief that it may recommend the desirability of reopening the Gracie Case.

REX VERSUS STEANE

This was the appeal of An, my knowledge and belief it is done by the appellant were acts thony Cedric Sebastian Stenne, all true, and must request it likely to asalst the enemy. Subscription Rates;

who was convicted at the Cen- ta be used in conjunction with More Difficult tral Criminal Court before Mr. my written report, dated July II.K.$18.00

8 months

6 months

One your

H.K,$30.00 HL.K.$72.00

over

K

The far more difficult ques- Jurtices Hean Collins on an in-5, 1945, to the American G-in-C. tion which arises, however, is dictment which charged him in Augsburg."- This previous in connexion with the direction with dalng nets likely to assist | statement or report was, how-to the jury with regard to whe the enemy with intent to annist ever, not produced. This was, ther these acts were done with THE GRACIE CASE

the enemy, contrary to regula- no doubt, inevitable, but none the intention of assisting the ilon 2A of the Defenes (Gen- the less unfortunate, especially chemy. The case, as opened, eral) Regulations, 1939. He as the appellant in his evidence and indeed as put by the Judge, When # little

three

was convicted on the first count before the jury maintained that appears to this Court to be months ago, James Kenneth of the indictment, and the jury many matters were contained | this: A man is taken to in- Gracie was, sentenced to eight were discharged from return in that report which he accord- tend the natural consequences rears' hard labour for an offence ing a verdict in respect of the ingly did not restate. In the of his acis. If, therefore, he in Shanghai against the Defence other eight counts which the statement which he vinudo to dues an act which is likely to Regulations, this journal criticised, indictment contained. He was the intelligence officer.

anist the enemy, it must be it as a savage

sentence, shocking sentenced to three years' penalj Common Ground sumed that he did it with

and on March 31 to the public conscience. Gracie servitude,

It seems, and this ngala was the intention of aBaiating the Jost obtained leave to appeal common ground, that had already spent ten months in a

before enemy. The first thing which Chinese gaol. The strongly mit on the grounds of milfree: the war he was employed in the Court would observe is gating circumstances the plight Appeal heart and allowed the was no engaged when the war offence.

Court of Criminal Germany as a film actor, and that, where the essence of in that menaced his wife and child, appeal on April 16, and dis- broke out. His wife und two stituent of an offence, is a refusal of assistance by the Bri-charged the appellant. It now tish Residents Association, the gave its reasons for so doing. compulsions that drove him to Mr. G. D. Roberts, K.C., and accept work under the Gemniaus Mr. E. Clarke appeared for the were never challenged by the appellant; Mr. Gerald Howard prosecution. On the contrary, and Mr. J. S. Busn for the Clown Corset pleaded warmly Crown.

his favour after the jury had verdict, confirming rendered in

ense of responsibility bi tadly revealed in acters and informing Gracie's

1914-

the genuine fora dals it's

Conduct

18 war

that

the

tion. The

WAR

The Judgment The LORD CHEF JUSTICE

following judg delivered the ment of the Court.-The count on which the appellant convicted charged him - with entering the service of the Ger! Joring

man broadcasting system on a was such that he was dute in January. 1940, and it made a King's Corporal on the was common ground, and ad- field, unique honour in that mitted by the appellant, that there are only eleven such Cor- he did no enter that service porals in the British Army. Our and on several occasions broad- ples in favour of a revision of cast certain mutters sentence was based, therefore, 'on that humanitarian grounds Inrgely, plus the feeling that Gracie had already been sufficiently punished having regard to all the

១៧

facts,

Service

"1 understand the charge. I admit working for the broadcasting station XRG9 but I had no latention of assisting the enemy. To me it was a case of necessity. Because I had a Japanese wife and child the British Residents' Association Shanghai, who were ponsible for the care British nationals after the war, refused to assist.

res

of

"It is easy for well-fed -people holding down good Jobs and who never served In the armed forces of the British Crown, to criticize my actions. If a man goes out to battle for a living, to his wife and chuld from the gutter...is wrong, then I have nothing more to say.”—Gracie.

save

RODA

were living in Germany.

in Oberammergau.

or a necessary con.

particular Intent, that intent must be proved by the Crown just as much as any other fact necessary to constitute the of fence. The wording of regula tion 2A itself shows that it is not enough merely to charge a an act prisoner with doing

fikely to asalst the enemy: he must do it with the particular intent specified in the regula tion. While, no doubt, the motive of a man's net und his intention I daing the act are

in law different things, it is

CITY.

ARBAGE

By Dick Turner

COPR. 1947Ý KEA BENVIČE, NG, T, AL HÊS, 1. B. FAT, OFF.

6.7

"Well, there's some compensations-you never have to worry about politicians" being after your job!"

BARCLAY ON BRIDGE

By Shepard Barclay

"The Authority on Authorities?

none the less true that in many | DISCARDS DECIDE IT | strength. offences a specific intention is

a necessary Ingredient and

intent to do grievous bodily

The

the pro-

+

to lend safety to the game try, so way conservative bit Making of a suit contract at a calling his 4.Hearts.

South now took stuck, He de

con

8. Q 8 7 3

H. 0 4 2

I

D. 0 5 X

C. K J 9

verdlet S. J G

S. 6:42 H. 5

-

N W ED. K 398

S C. 10 R7

It:

was treating his suit as a four.. | carder to show 0 0.4 division. South therefore bid the slam in his four-card suit.

that the jury have to be satis-high level is usually a matter of fled that a particular act was getting rid of cards which other, cided that if, North had three or done with that specific intent, wise would represent using tricks four sanall diamonds, the heart, through

-cither by ruffing them or by islam might not be wakable, Hé. The systčin.

evidence

although the natural Conse-

"If discarding them on winning cards therefore bld the 4-Spades in the quences of the act might, called by the prosecution was

nothing else were proved, be of another suit in the opposite hope that North might have four that of one witness who did

Bald to show the intent for holding. When there is some one curds of that suit. He did, as ho- not carry the matter very far

secondary South had not held both the A. beyond proving that the ap- The appellant was at once ar which it was done. To take a side suit of equal length in the showed with his 5/Spades.

A man is two hands, and no and the knowledge that Gracie's but he also said that he had his wife and two sons remain. charged with wounding with honours high enough to finesse, and K, but only the A, that could ·

pellant did in fact broadcast; rested and taken to Berlin, and simple illustration:

the only possible way to eliminate have been a mere cue bid to show, value to the enemy was rated as acen a telegram in the appel; ed

Its losers is by means of discards, the K. But, having both of theses zero-zero by the Allied monitor lant's possession signed "Emmi only other evidence in the case did severely wound

harm. It is proved that ho That is why it pays to seek cards himself, he knew North Ing services.

We felt then, and Goering" which stated that the was that of the appellant him-

contract at which dlacards still feel, that if the Courts were appellant could expect to be re-self. It was to this effect. Ho the Crown can prove that the

secutor. Nevertheless, unless bo obtained. not disposed to vary the sentence, leased and be home very short was at once arrested and que intent was to do the prosecutor

principal net of executive clemency ly. The

evidence tioned, and the interview end-grievous bolly harm, he can- should have been exercised. There against the appellant was ed. with the order: "Say now enters into the case yet anatement taken from him by Hell Hitler you dirty wine. not be convicted of thint felony. It is always open to the Jury other element. There seems to be officer of the British Intel He refused, was thereupon

ligence

to negative by their in October, knocked down, losing several the intent, and to convict only H. 073 a possibility thint Gracie Was

19-16, which purported to give teeth, and was then interned. of the misdemeanour of uniaw-D. Q 10 4 wrongly convicted. In this page au account of his activities in This was we publish in extenso, the judg the German broadcasting er 1939.

on September 11 fut wounding. Or, again, C. AQ5 Just before Christmas ment of the Lord Chief Justice vice. It is to be observed that he was sent for by Goebbels, prisoner may be charged with in the Court of Criminal Appeal, this statement concludes in this who lasked him to broadcast der. Here, again, the prosecu- shooting with intent to mur taken from an August issue of way. "I have read this stute. He refused. He was there- "Times Law Reports." which nient over, and to the best of upon warned that he was in an jury of the intent, although the tion may fall to satisfy tho lays down a clear principle of

enemy country and that they natural consequence of firing, law that where intent is charged

had methods of making people

(Dealer: South. perhaps at close range, would on an indictment, it is for the.

do things. A week later дл Bockman official named von prosecution to prove it, and that

be to kill. The jury can find vulnerable.) In such a case on intent to do South saw him and dropped hints a grievous bodily harm; or they 2 H before any question of duress

to German methods of persu might find, if the person shot 3 H arises, a jury must be satisfied

al. A professor named Kos- that the prisoner had the inten-

at were a police constable, sutli- also warned him that tion laid in the indictment. With-

that, the

not prisoner 0,8

@ S

H. 5 these people could be danger- full out

record

guilty on the count charging of the

That was the most expert bid-D, 72 gus with those who gave trou-intent to murder but guilty of ding dose on this deat in a big CAJ 19 Gracie trial. .it is

ble. In consequence of these possible to insist that

The duplicate. North decided that his matters he submitted to a voice intent to avoid arrest. test, trying to perform as bad-Important thing to notice in spade Q and club K-J did, not this respect is that, where an constitute enough of the right ly as he could. The next day intent is charged in the indict- kind of honour strength to give a he was ordered to read news ment, the burden of proving positive response to the two.bid three times a day, and did so that intent remains throughout on the first round. But

1

not his

100 Years Ago

jown Jawa,

con-

oplum

4 3

49

C 2 S. A K 10 9 H. AKQ J 10 0 D. A 7 3 C. Nene

Neither side

East

as

It is good he did. At 0-Hearts the stem could be set unless West' was so foulish as to lead a club, Altice

diamonds otherwise two must be dropped. At 6-Spades, however, the contract was in the bug, with an extra trick, North's diamonds could be put on South's hearts. The heart slom. mers made their contracts only where West unwisely led a club

Tomorrow's Problem

S. 0

ILAK 9 8 7 2 D. A Q J

¡S, Q. &

2

West

North

Гава

2 NT

Pas

Pass

4 H

Pass

Passi

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C. Q 8 3

N WE H. 10 0

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D. 9

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when (Dealer; North.

North-South

paradoxient

Until April, 1940. In April ho on the prosecution. No doubt, South's heart rebid showed the vulnerable.) refused to do any more broad- if the prosecution prove an act suit to be at least five cards long, What apparently ably Gestapo) men called on which would be a certain re- this declaration. costing. Two "G" (préaum- the natural consequences of North had adequate support for principle of good bidding is ex- him and said: "If you don't ult, and no evidence or ex-

also sufficient emplified in this deal?

obey, your wife and children

camp."

He agreed to work for,

muy, on

is

act

in itself is criminal.

from

case is on all fours with Steane's. but it can be asserted that had

¡From the files of the "China the Lord Chief Justice's decision Mail?) been available to a legal repre- When Sir Henry Pottinger sentative of Gracie at his trial. negotiated the treaty with Key. he would have had a powerfuling in 1942, he proposed that the defence weapon at his disposal trade in oplum should be legalis The doctrine that has been fol-ed and the article taxed in the lowed, almost without exception. tariff of duties on, imports, To during the various trials of col-this Keying objected, and

will be put in a concentration plonation is given, then a jury neefdental acts, are, perhaps, arose with regard to the ques- laborators in Hong Kong, has sequence oplam, or the

a proper direction, not altogether a happy illustration of intent by so much being been that the inference must be trade, is not named In the treaty.

"In May three "G" men saw in that the prisoner is guilty tion. A nearer case would be it said with regard to the subject ...Nowwhere in the treaty or drawn that they intended the na-in the supplementary treaty does him, and he was badly braten dong the act with the in- a person deliberately took down of duress. Duress is a matter

Lent alleged; but if, on the up, one ear being partly torn totality of the evidence, there shutters, with the result 35,- tural consequences of their acts Great Britain bind herself to pro.

his "black-out" curtains or of defence where a prisonur la that forced by fear of violence or 300.- merely from the fact that they test the revenue laws of China

to do an room for more than one light appeared on the outside of imprisonment did them. The Steane judgment by seizing vessels trading at other his old employers in helping view at 250.-

to the intent of the his house, perhaps during

on which repudiates this doctrine and de- than the five ports or carrying to produce finis.

There Was prisoner, the Jury phould be air raid; it might well be, if no If the act is a criminal act, the 400,- clares that intent cannot be pre-enrgoes contraband of the Chin-depte directed that it is for the pro- evidence pr explanation

It is the duty of which he helped to prosecution to prove the intent to given, and if all that was proved that he was forced into doing It were prisoner may be able to show 200.-sumed; it must be proved. Cer-ese custome

every government to protect its wore or could be of any assist the jury's satisfaction, and if were that during that raid the by violence, actual or threaten tainly, the judgment warrants 350.-the most careful reading, with the own revenue, and to enforce its ance to the Germana or at all on a review of the whole evi-

harmful to this country. He dence they either think that reliberate act, a jury could in the consequences of that violence.

aed, and to save himself prisoner exposed lights by circumstances of the Gracie case

That the Chinese government swore that in mind. It happens to be a fact as a perfect right to seizs every

was in continual the intent did not exist or are fer that he intended to signal There is very little learning to fear for his wife and children. left in doubt as to the intent, to or assist the enemy. But if be found in any of the books or clist by efflux of time, Gracie vessel at the opium stations from

When the Americans overran the prisoner is entitled to be the evidence in the case showed, cases on the subject of durces. has to his statutory right of ap- Cum-sing-moon to Woosung, few the part of Germany in which|

acquitted. peal. against the sentence: but will deny; and that no such nt. ho was he reported to them | Has To Be Proved

for instance, that he or someone and it is by no meana, certain this fact in itself cannot, we trust,tempt has been mode, though and gave a statement of his

doctrine extends, else was overcome by heat and how far the In In many offences It is

have the authority un-that he tore down the curtains though we prohibit rectification of a wrong vessels have been lying at these history during the war.

par- to ventilate the room, the jury both of Hale and of Fitzjamen if the Government's legal advisers stations for seven years, is preity October, 1945, an English off-cssary to allege any are satisfied that a wrong has been clear proof-that though the trade cial, Captain Shortor, saw him, cular Intent. The commonest would certainly have to considor Stephen that, while it does not the whether his act was done with apply to trenson, murder and done. Without the support of the legal in the eyes of the law, and to him the appellant made cane is in larceny, where

The ap- prisoner is simply charged with intent to assist the enemy it

or some other felonies, it doen op in sanctioned and taxed by the another statement. Strane judgment,. Gracie deserved Chinese executive officers whose pellant also asserted again stealing. If, the evidence shows with some other intent, so that, ply to misdemeanours; and of- better of his fellows than an eight-duty it is to enforce the law. and again, and Bald that that the prisoner picked a' per- while he would be guilty of an fences against the Defence year sentence. It is unnecessary British Consular officers have he had done. so in the won's pocket, there is no neces-offence against the "black-out" (General),, Regulations are mis- surely to urge that if the judg-driven. It from the open ports in written report. In July 6,sity to prove that he intended to regulations, he would not be ment appears to be clearly in his terms of treaty, but we nowhere which, as we have already said, seal, although he may give guilty of an offence of attempt favour that there should be inter- hear of Chinese ofteers Inter was not produced, that he some evidence in defence which ing to anaist the enemy. vention, either by way of anfering further than in levying a never had the slightest idea would lead the jury to believe Some Confusion · executive order or by formal re-duty upon it.

or intention of assisting the that he was not acting with a At this present moment there enemy, and that what he did felonious intent But wo repeat not but feel that some confusion hearing

are 20 yessels

permanently was done to save his wife and that, where a particular intent moored at the different stations children and could not have as uat bajaid, and charged, that BANK CLOSURE on the coast of the number, five sisted the enemy except in a intent has to be proved.

belong to American firms, and very technical, kense, Unlike lustration given by the Judge DISTURBS MARKET seven to Indian merchants, the the evidence which has been the course of his rather

others are English,

· * adduced lu many other similar brief summing-up related t These vessels are not under cases, there was no record of what are commonly called the

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(Continued on Page 73?

The Hong Kong Government

ed-yesterday serumzura cirenlated the protection 62% English or the actual broadcasta, made by "black-out regulations. He Civil Service List for 1947

that the Shing Fung Native Bank American law their traffic la the appellant. This, again, pointed out to the jury that 17:

of Bonham Strand West, which nominally contraband by the was no doubt. inevitable,--but person... accidentally omitted. We have been entrusted by the Goverment with the Printing had not opened for business since laws of China they are but poor, unfortunate, the actual tone to pilt up his "black-out cur- and Publishing of the only 1947 Edition of the Civil-Bervice List Monday morning, was fuvolved in ly manned and armed, and could of the broadcast might have tains, or lets some gap in them. This edition, the first since 1941 will contain about 400 page. remittances of Chinese National not perhaps daro not) resist throw some light on the mothen, although he would be de- and will be ready for publication at the end of September. ON 60.000.000.000 (equivalent to reisture, did the Chinese natives and intentions of the aping an act likely to assist the All orders for copies ($20 each) should be forwarded not later Currency to the extent HK$7,500,000).

boon capture them. But the Mandarins Pellant; but, in the opinion of enemy as it was accidental he than the 5th September to the Sacratary Sobodnevich trubering the cow gehiens gives muros evidence from which, with intent betalengke Up | Printing Pubilier and Lithe rephorigen, das De Dundill Btreft. does a volume or business know better Capture would be the Court there was undoubt would not be committing the ef. THE LOCAL PRINTING PRESS, LTD.

astusloat them; a daily stubbie, biis, quahal dury, could, dufor, that towel onerays Malienas, urwhich involve, Kela

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