which
sillegal,
bret
(a)
u of
a.
wilful
breach of law.
It cannot be too clearly pointed out that the prosecution was one at the
of the Opium Farmers
instance.
r_ with which the Government had nothing
to do. He was the Respondent in the appeal :
The Court whilst u
upholding
Conviction refused costs because the
the
Farme t's Agent had acquieseed for a considerable time in the systems.
which he found
fault.
I have se
re
(Signed) J. Russell
Acting Chrief Irestine.
Extract from "Daily Press of
IN APPEAL.
BEFORE THE FULL COURT.
KO KAI, APPELLANT; CHU TONG, RESPONDENT.
Mr. Robinson, instructed by Mr. Ewens, ap- · peared for the appellant, and the Attorney-Gene- ral, instructed by Messrs. Wotton and Deacon, for the respondent.
The Court delivered the following judgment in this suit.
The Acting Chief Justics said-This m oomes before the Court ou a case stated fre Magistrates' Court, from which it appeces the appellant was fined in the sum of $20 for co travoning Seo. 10 of the Opium Ord. 22 of 1887. Besides stating cortain findings of fact, the Ma- gistrate returned the depositions and all doen. ments put in at the tearing before him, and this Court is thus enabled to see the whole cuso as laid before the Magistrate. The preamble of the Ordinance recites that "it is expedient to regulate and control the movement of Raw Opium within the Colony "-aud Section 1 en- acts that the Opium Ordinance of 1884, and "this Ordinance shall be construed as ons Or. ¡ dinance." Section 6 enacts that "no person except the Opium Farmer or the licensed retail dealers shall have in his possession or under his custody or control opium in quanti- ties less than one chest without a certi ficate of purchase from a licensee except he can show to the satisfaction of a Magistrate: (a.) That the said opium is covered by a Cer- tificate of one of the licensees. (b.) That he has received it under an official export permit." Sec. 9 regulates the landing of opium under "permit," and section 10 enacts that every person moving opium for exportation in chests shall before doing so send to the Superintendent a requisition in form of schedule C furnishing the particulars therein required, whereupou the Superintendent shall grant an export permit in the form of schedule D authorising the said opium to be exported. The owner or shipper shall cause such permit to be exhibited to the Opium Farmer or bis Ageat, and such permit shall be sigued by him or his Agent, and shall not be used or acted upon until it is s50 signed" Schedule C is as follows:-" To the. Superintendent of Imports and Exports. Sir,- Please issue a permit to export by ohests opium, numbered and marked as below,
the day of
18
to the said opium having been purchased by me from in whose (godown, house or shop) it is now stored for the same being now stored in my godown, shop or house}
of
On
destination
at
or sold by me to
of exporting it-Date.
who is desirous
18." Sehedule D
ie as follows Permit to Export. authorised to export by
of below, on the
to
is chests
opium, marked and numbered as having been purchased and now stored
by the Exporter from
in
and sold to
situated at
who
is required to export in terms of this permit.-- Date, 18. Superintendent. A copy
of this permit has beou served on me. -Opium Farmer, Data. Received this Opium. - Exporter." Section 11 makes similar provisions for the removal from store to store and for tran shipment in the harbour. It will thus be seet that the principle of the Ordinance is to place a complete check on the movement of opium within the Colony and its waters, and that this check is to be carried out by a Government of ficer and the Opium Farmer. The facts of this Case are few and simple. On the 14th Jannary, 7 applications were made for the exportation of opium by an opium dealer, giving the quantities, the names of the junks, and all particulars re- quired by schedule C and section 10. On the same day the permits were granted, every require ment of schedule D being complied with. But in addition to the permit authorised by law there was printed in bine lettors" with permission to take to the Chinese Customs bulk." This for some time had been added by Mr. Seth, the former
Imports
439
2 0 14 Mousty
EL
Imports and Exports Officer, and with the full ' knowledge of the Opinm Farmer are
JUN RA
seems to have prevailed, with the full knowledgeTM of the Opium Farmer's agent, that all the opium covered by a number of export permits might be lumped into ons beat and takon to the Chinese hulk, where it paid duty and was brought back into the Harbour and redistributed among the junks for which export permits had been previously granted. In the present case cargo boat 124 bad transferred into it the upiam to be exported (and the appellant was in charge of it) under the seven permits, and the master of the cargo boat had the seven permits with him. The boat was taken to the Chinese Customs hulk, which is outside the port, anchored in Chi- nese waters. There the Chinose duty and lekin of import to China were paid, but the opium was re-imported. It was quito "looso in the leaf-in open boxes, 32 in number. It was in- lended to be re-distributed, it is said, amongst the 7 junks. It is found by the Magistrate as a fact that no application was made for or granted to cargo boat 124 to export opium. The opina found on board that boat was therefore on board without a legal permit. It was intended for export as it was the same opium as that covered by the 7 export permits. From the Colonial Treasurer's evidence it appears that on the management of the Opium Farm recently passing into other hands a foar existed that abases might arise from the licensing and dispensing power which had been exercised by Mr. Seth and the Opium Farmor's Agents, in allowing a junk to carry opium and have pos- session of opium without the necessary permit. It is probable that au abuse would havearison, but so far as the Government was concerned Captain Rumsey, the present bead of the Imports and Exports Department, whilst at ones stopping the practice because it was illegal, declined to take any Police action against the appellant on learning that the practice had been allowed hy his predecessor under a misapprehension of his powers. This was obviously a proper thing to do. It is to be regretted that tho Opium Farmner was not content with simply putting au end to a system which was clearly illegal and an evasion of the law, which is one for coraplote control and constant supervision of opium.—the basis of the Ordinance The Magistrate find that the purple chop (with permission to taks to Chinese hulk) was stamped upon the export permits with the foll acquiescence of the Opium Farmer, and which, according to Mr. Seth allowed opium to he carried in any boat. I bave carefully con- sidered the able and ingenious argument of Mr. Robinson, but I am of opinion that the Magistrate was right in point of law in convicting the appellant of exporting opium without a legal permit. I think, however, I should have considered, if I had been deal- ing with the case, that a fine of 50 cents was a sufficient penalty to shew that the blue stamps were unauthorised by law, and that there had been a breach of law. The Opium Farmer should, in my opinion. have taken another method of stopping a practice to which he had been so long a party; and while upholding the con- viation I think there should be no order as to costs.
Mr. Justice Leach suid-1 concur in the judg ment of the Acting Chief Justice. I entertained, however, some doubt as to whether Mr. Robin- son's argument ought not to be accepted that the words "moving opin for exportation" in section 10 meant opium for the purpose of com merce and did not include moving opium to the opium hulk, outside the water of the colony for the purpose of paying duty and lekin, and there- fore that this was a casus omiseus from the Or- dinance. But in the absence of anything to the contrary in the Ordina ce I think those words ought to bear their primary or popular meaning, that is "moving for the purpose of being carried out" and not with the qualification of "being See carried out for the purpose of commerce." the case of Muller v. Baldwin reported L. R. 9 Q. B. p. 457, which removes all doubt I enter- tained.
188
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