236
[2]
7. Before entering upon the subject matter of the Petition presented by the Portuguese Community, I am anxious to relate what took place in the Supreme Court at the Trial of this Case of REG. v. SOUZA, as the Chief Justice has raised a very grave question in connection with the general administration of Criminal business in the Colony.
8. Sections 15 to 19 of Ordinance No. 3 of 1865, which relate to Prosecutions at the instance of private parties embody, in the shape of enactments, the old rules of the Supreme Court as to Criminal Proceedings of the 1st of March, 1847, (See old Edition of Hongkong Ordinances, page 445).
9. The right to institute a Private Prosecution has never been questioned, to my knowledge, and so recently as the 30th of March last, a Case was tried before the Chief Justice under those Sections, at the instance of a private party, who was represented by his Counsel.
10. Nevertheless, when this Case of REG. v. Souza was called on, I was summoned to the Court by the Chief Justice, who to my surprise announced that he considered there could be no such a thing as a Private Prosecution in this Colony. He "called upon me" to conduct this Prosecution on behalf of the Crown and repeated what he had previously urged in the Case of REG. v. SAINT, "that he was entitled to, and claimed my assistance." He peremptorily declined to hear the Case unless the Prosecution were conducted by me on behalf of the Crown, or until the point had been referred home for the Decision of the Secretary of State.
11. I strongly urged that such a delay would seriously impede the administration of Justice and would be oppressive to the Complainant having regard to the gravity of the charges hanging over him, but sooner than allow the difference of opinion between the Chief Justice and myself to cause such a delay, I expressed myself willing, under Protest, to let the Prosecutor's Counsel appear for me and carry on the Trial as a Public Prosecution.
12. The Chief Justice at last consented to the Case being carried on as a Private Prosecution provided it should not be considered a Precedent. Nevertheless, he postponed the Case for a month on no reasonable ground that I could discover, and to the infinite distress of the Prosecutor who had brought his witnesses from Macao at considerable expense.
13. The Chief Justice appears to think that the Attorney General in this Colony is a Public Prosecutor in the sense of an Officer in whom is vested the prerogative of conducting all Criminal Trials to the exclusion of Private Prosecutors. I can discover no authority whatever for such a proposition which, moreover, is quite inconsistent with Sections 15 to 19 of Ordinance No. 3 of 1865, as well as with Lord CAMPBELL'S Act, 6 and 7 Vic. 96, extended to this Colony by Ordinance No. 3 of 1854.
14. The "Public Prosecutor" question has been so much agitated and debated in England (see Report of Select Committee thereon in 1855), that it would be futile to make any remarks on the subject further than to state that, in my opinion, the system of Criminal Procedure in this Colony combines the advantages of the "ministère public" in France with the guarantees afforded by the English system in the conduct of Prosecutions, a combination which Mr. PREVOST PARADOL in his recent and able work "La France Nouvelle" (p. 179 ch. De la Justice) speaks of in terms of admiration. "Rien n'empêche (he observes), que l'existence "nécessaire de notre ministère public ne se concilie parfaitement avec l'établissement "et la jouissance des principales guaranties de la procédure criminelle Anglaise," by which he alludes to "cette lutte à armes égales que les Anglais appellent fair "play' entre l'accusation et la défense." He points out the weak point of the English system ("une lacune évidente de la Jurisdiction Criminelle Anglaise,”) in that "Les Anglais n'ont point de ministère public et laissent échapper bon "nombre de délits parce que la partie lésée ne se soucie point de les poursuivre.”
Enclosure 2
REG. v. SOUZA
MING SHAN, 30th March, 1869,
HAYAH for Prosecutor, WHYTE for Prisoner.
See Enclosure 2.
[3]
English system ("une lacune évidente de la Jurisdiction Criminelle Anglaise,”) in that "Les Anglais n'ont point de ministère public et laissent échapper bon "nombre de délits parce que la partie lésée ne se soucie point de les poursuivre.”
15. This is precisely the "lacune" which it is the duty and the province of the Attorney General in this Colony to remedy. Thus where there is no Private Prosecutor and the Case is one which in the interests of Public Justice should be carried on, the Attorney General prosecutes as a matter of course. But it must be perfectly clear, I think, to any one who reads Sections 15 to 19 of Ordinance No. 3 of 1865 that as the Attorney General is only called upon to sign, but not to file, an Information, he has no more reason than the Attorney General has in England to deprive a private Prosecutor of the right to employ his own Counsel. It is most desirable in my opinion that it should be so.
16. The Chief Justice is full of apprehension of "a want of moderation on the part of a paid Advocate for the Prosecution," but he seems to forget that by one of the tacit, but well recognized, rules which regulate the duties of Counsel, the Advocate in Criminal Cases is in reality an Officer assisting in the administration of Justice. Mr. FITZ JAMES STEPHENS in his "General View of the Criminal Law of England," at page 173, makes the following remark: "Under the present state of things, 'men who prosecute in one case defend in another; and this frequent change of "parts has a strong tendency to secure their impartiality and independence. If a "man were always to prosecute, he would come to sympathize with those who instruct "him, and to think it his official duty to secure as many convictions as possible. If "he were always to defend, he would come to look on the prosecutor as his natural "rival and antagonist."
17. It is seldom that Private Prosecutors do come forward in this Colony, but there are cases, such as these very cases of Libel, in which it is most desirable that they should exercise, what I conceive to be, their unquestionable right to prosecute by their own Counsel.
18. If the Contention of the Chief Justice were to prevail, the consequence would be that in every Case of Libel against a Private Person, the Attorney General, who signs an Information on a primâ facie case only, would be bound to prosecute on behalf of the Crown, and if the Judgment were for the Defendant, the Crown would have to pay the Costs, an evident proof ad absurdum of the improbability of such being really the Law at present, and the still more evident impolicy of establishing such a system. Nevertheless, we are now placed in this position that although there are no Costs in Criminal Cases, except such as are provided by LORD CAMPBELL's Act, 6 and 7 Vic. c. 96, in respect of Private Prosecutions for Libel, yet the Chief Justice having decided in the Case of REG. v. SAINT that Sec. 3 of Ordinance No. 4 of 1857 applies to Criminal as well as Civil Proceedings, the Crown is condemned even in the Costs of an ex officio Information, which is necessarily a Public Prosecution, and one in which the Prosecutor never can be a private Party.
19. I protested in vain at the time that the point had not been argued and that the Costs were not in the discretion of the Judge, but were regulated by LORD CAMPBELL's Act. It remains, however, part of the Judgment in that Case that the Crown is to pay the Costs. Nevertheless, in this present Case of REG. v. Souza it is part of the Judgment that "There must be no Costs against the Crown," which is surprising because it was a Private Prosecution coming, as to Costs, within LORD CAMPBELL's Act, and if the Decision of the Chief Justice that Sec. 3 of Ordinance No. 4 of 1857, applies to Criminal as well as Civil Proceedings is to be adhered to, it is manifest that the Editor of the Echo do Povo was entitled to his Costs whether the Prosecution be viewed by the Chief Justice as a Public or Private one.
$
236
[2]
7. Before entering upon the subject matter of the Petition presented by the Portuguese Community, I am anxious to relate what took place in the Supreme Court at the Trial of this Case of REG. v. SOUZA, as the Chief Justice has raised a very grave question in connection with the general administration of Criminal business in the Colony.
8. Sections 15 to 19 of Ordinance No. 3 of 1865, which relate to Prosecutions at the instance of private parties embody, in the shape of enactments, the old rules of the Supreme Court as to Criminal Proceedings of the 1st of March, 1847, (See old Edition of Hongkong Ordinances, page 445).
9. The right to institute a Private Prosecution has never been questioned, to my knowledge, and so recently as the 30th of March last, a Case was tried before the Chief Justice under those Sections, at the instance of a private party, who was represented by his Counsel.
10. Nevertheless, when this Case of REG. v. Souza was called on, I was sum- moned to the Court by the Chief Justice, who to my surprise announced that he considered there could be no such a thing as a Private Prosecution in this Colony. He "called upon me" to conduct this Prosecution on behalf of the Crown and repeated what he had previously urged in the Case of REG. v. SAINT, "that he was entitled to, and claimed my assistance." He peremptorily declined to hear the Case unless the Prosecution were conducted by me on behalf of the Crown, or until the point had been referred home for the Decision of the Secretary of State.
11. I strongly urged that such a delay would seriously impede the administra- tion of Justice and would be oppressive to the Complainant having regard to the gravity of the charges hanging over him, but sooner than allow the difference of opinion between the Chief Justice and myself to cause such a delay, I expressed myself willing, under Protest, to let the Prosecutor's Counsel appear for me and carry on the Trial as a Public Prosecution.
12. The Chief Justice at last consented to the Case being carried on as a Private Prosecution provided it should not be considered a Precedent. Neverthe- less, he postponed the Case for a month on no reasonable ground that I could discover, and to the infinite distress of the Prosecutor who had brought his witnesses from Macao at considerable expense.
13. The Chief Justice appears to think that the Attorney General in this Colony is a Public Prosecutor in the sense of an Officer in whom is vested the prerogative of conducting all Criminal Trials to the exclusion of Private Prosecutors. I can discover no authority whatever for such a proposition which, moreover, is quite inconsistent with Sections 15 to 19 of Ordinance No. 3 of 1865, as well as with Lord CAMPBELL'S Act, 6 and 7 Vic. 96, extended to this Colony by Ordinance No. 3 of
1854.
14. The "Public Prosecutor" question has been so much agitated and debated in England (see Report of Select Committee thereon in 1855), that it would be futile to make any remarks on the subject further than to state that, in my opinion, the system of Criminal Procedure in this Colony combines the advantages of the "ministère public" in France with the guarantees afforded by the English system in the conduct of Prosecutions, a combination which Mr. PREVOST PARADOL in his recent and able work "La France Nouvelle" (p. 179 ch. De la Justice) speaks of in terms of admiration. "Rien n'empêche (he observes), que l'existence "nécessaire de notre ministère public ne se concilie parfaitement avec l'établissement "et la jouissance des principales guaranties de la procédure criminelle Anglaise," by which he alludes to "cette lutte à armes égales que les Anglais appellent fair "play' entre l'accusation et la défense." He points out the weak point of the
Enclosure 2
REG.
23,
SOONO MING SHAN, 30th March, 1869,
HAYAH for Prosecutor, WHYTE for Prisoner.
See Enclosure 2.
[3]
English system ("une lacune évidente de la Jurisdiction Criminelle Anglaise,”) in that "Les Anglais n'ont point de ministère public et laissent échapper bon "nombre de délits parce que la partie lésée ne se soucie point de les poursuivre.”
15. This is precisely the "lacune" which it is the duty and the province of the Attorney General in this Colony to remedy. Thus where there is no Private Prosecutor and the Case is one which in the interests of Public Justice should he carried on, the Attorney General prosecutes as a matter of course. But it must be perfectly clear, I think, to any one who reads Sections 15 to 19 of Ordinance No. 3 of 1865 that as the Attorney General is only called upon to sign, but not to file, an Information, he has no more reason than the Attorney General has in England to deprive a private Prosecutor of the right to employ his own Counsel. It is most desirable in my opinion that it should be so.
CC
16. The Chief Justice is full of apprehension of "a want of moderation on the part of a paid Advocate for the Prosecution," but he seems to forget that by one of the tacit, but well recognized, rules which regulate the duties of Counsel, the Advocate in Criminal Cases is in reality an Officer assisting in the administration of Justice. Mr. FITZ JAMES STEPHENS in his "General View of the Criminal Law of England," at page 173, makes the following remark: "Under the present state of things,
'men who prosecute in one case defend in another; and this frequent change of "parts has a strong tendency to secure their impartiality and independence. If a "man were always to prosecute, he would come to sympathize with those who instruct "him, and to think it his official duty to secure as many convictions as possible. If "he were always to defend, he would come to look on the prosecutor as his natural "rival and antagonist."
17. It is seldom that Private Prosecutors do come forward in this Colony, but there are cases, such as these very cases of Libel, in which it is most desirable that they should exercise, what I conceive to be, their unquestionable right to prosecute by their own Counsel.
18. If the Contention of the Chief Justice were to prevail, the consequence would be that in every Case of Libel against a Private Person, the Attorney General, who signs an Information on a primâ facie case only, would be bound to prosecute on behalf of the Crown, and if the Judgment were for the Defendant, the Crown would have to pay the Costs, an evident proof ad absurdum of the improbability of such being really the Law at prescut, and the still more evident impolicy of establishing such a system. Nevertheless, we are now placed in this position that although there are no Costs in Criminal Cases, except such as are provided by LORD CAMPBELL's Act, 6 and Vic. c. 96, in respect of Private Prosecutions for Libel, yet the Chief Justice having decided in the Case of REG. v. SAINT that Sec. 3 of Ordinance No. 4 of 1857 applies to Criminal as well as Civil Proceedings, the where Costs would have been Crown is condemned even in the Costs of an ex officio Information, which is neces-
Extended to Hongkong by Ordinance No. 3 of 18si.
Section 3 of Ordinance 4 of
1837.
**In all Proceedings
recoverable by or front private
Parties, they shall be recover-
able by or from the Crown" sarily a Public Prosecution, and one in which the Prosecutor never can be a
private Party.
19. I protested in vain at the time that the point had not been argued and that the Costs were not in the discretion of the Judge, but were regulated by LouD CAMPBELL's Act. It remains, however, part of the Judgment in that Case that the Crown is to pay the Costs. Nevertheless, in this present Case of Rec. v. Souza it is part of the Judgroent that "There must be no Costs against the Crown," which is surprising because it was a Private Prosecution coming, as to Costs, within LORD CAMPBELL's Act, and if the Decision of the Chief Justice that Sec. 3 of Ordi- nance No. 4 of 1857, applies to Criminal as well as Civil Proceedings is to be adhered to, it is manifest that the Editor of the Echo do Povo was entitled to his Costs whether the Prosecution be viewed by the Chief Justice as a Publie or Private one.
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