CO129-123 - Sir MacDonnell - 1867 [7] — Page 410

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In the matter of the Petition of EDWARD HUTCHINSON POLLARD, one of Her Majesty's Counsel for the Colony of Hongkong, against the Honorable' the Chief Justice of the said Colony, and against the Sentence passed upon the said Petitioner, by the said Chief Justice, on the Second day of July, A.D. 1867.

I, JOHN CHARLES WHYTE, of Victoria in the Colony of Hongkong, Barrister at Law, make oath and

that:

say,

1. I was present in the Supreme Court on Thursday, the Twenty-seventh of June, as Counsel for the Defendant in OLYPHANT and Others veraus Loo-An-Huno, a case for trial before the Chief Justice and a common Jury,

After stating their case, it was intimated

2. Mr. POLLARD Q.c. appeared for the Plaintiffs. by the Chief Justice that perhaps the matter in dispute between the parties could be settled out of Court, Mr. POLLARD and I both expressed our readiness to accede to this suggestion, but I said I should like first to hear some of the evidence for the Plaintiffs, as, according to my instructions, the facts were very different from those stated by Mr. PoLLARD.

3. Mr. HITCHCOCK, one of the Plaintiffs, was then put in the witness lox and examined. Amongst other matters, he deposed to a conversation which he had had with the Defendant, at which, the Plaintiffs' Comprador had acted as interpreter; upon this, I suggested that it would be better to examine the Comprador first, which Mr. PoLLARD at once agreed to do.

4. The Comprador was then declared and examined by Mr. POLLARD. I objected, at one period, to a certain question being put to the witness, as it was, in my opinion, too leading a one. Mr. POLLARD at once put the question in such a shape that I withdrew my objection, and the examination proceeded.

ip,

5. During the direct examination of the Comprador, some difficulty was, at one time, experienced in getting the witness to understand a question which was put to him; a difficulty increased by some confusion or ignorance on the part of the Interpreter. To enable this difficulty to be cleared I made no objection to questions being put by Mr. POLLARD, which, strictly speaking, may have been leading ones; nor do I remember the Chief Justice doing so, until he suddenly interposed saying, "He is your own witness, you ought not to press him in this manner," Mr. POLLARD quietly remark,si that though the witness was his, the Interpreter was not; the Chief Justice said, "but be is the "Interpreter of the Court and, as such, may be said to be yours also.” I cannot recollect that anything further passed on this occasion, which was what his Lordship, when giving his judgment on the Second of July, designated as Mr. POLLARD's first contempt, and certainly the Chief Justice did not then act as if he deemed Mr. POLLARD's conduct censurable.

6. I cross-examined the witness and was informed by him that by orders of his master he had, on one occasion, examined some Sugar, the subject matter of the action, and that a coolie who was also in the employment of the Plaintiffs had been present at the examination. I asked for the name of the coolie, and when given it, I turned round to Mr. POLLARD and asked him if he intended to “produce that coolie,” Mr. POLLARD answered me jokingly "you cannot expect me to “produce” *a Chinaman as if he were a piece of paper." This was addressed to me, not to the Court. I turned to a Clerk of the Defendant's Attorney, and was directing him to have a subpœna issued for the coolie, when I was surprised to hear the Chief Justice say, in a loud and excited tone, "Mr. POLLARD do I understand you to say that you do not intend to produce that coolie?" Mr. PaLLARD rose and addressing the Court, in a firm, but respectful manner, said “No, my Lord, he is not one of my witnesses, "if my learned friend requires him, he can very easily get him." The Chief Justice then said in a very excited tone," then all I can say is, if he is not produced by you I shall deem it my duty to comment upon it very strongly when I come to charge the Jury." Mr. POLLARD again addressed the Court saying, that as Counsel for the Plaintiffs he was bound to use his best discretion, and would only call those witnesses that he deemed advisable, and that he must decline being taught his duty by any one. Mr. POLLARD'S manner was warm, but not disrespectful. The Chief Justice said, in an excited tone,

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