See evidence
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4. (b.) "The shop and house (which are the same)." The living apartments ,are on the floor above the shop. "This house and shop he searched." It is to be observed that the search was here admitted, though it was strenuously denied on the trial, both of the defendant's witnesses having moreover denied that he went upstairs at all.
"He brought the shopman to the charge-room." From this it may be in- ferred that the Sergeant, as I had suspected, brought him there under arrest. It is true that LEUNG KING, the man who was thus "brought," says of the Sergeant in his evidence that " he asked me to go to the Station with him." But apart from the probability of a slight incorrectness of interpretation, by the substitution of asked" for "told," it may be supposed that a request from a Sergeant of Police, who, according to his own witnesses, was talking in a loud tone, and who had two constables to assist him was practically the same as an order which it was compulsory to obey.
5. (d.)
"The impression produced on my mind was, that the case was one that could be most properly dealt with in the first instance by the Civil Court of Summary Jurisdiction." Towards the end of the Memorial Mr. DEANE says "The offence appeared to me to be partly one of a civil nature, and partly one amenable to the criminal law under the Police Ordinance."
It would thus appear from his referring the complainant to his civil remedy that he regards the civil aspect of a case as more important than the criminal one, to say the least a singular view to be taken by a Chief of Police; and it is clear from the words "in the first instance" that he desires to be attributed to him the in- tention of ulterior proceedings after the question of civil grievance had been de- cided. Indeed in a subsequent part of the Memorial he more distinctly intimates that such had been his intention, though he still leaves in obscurity the nature of such proceedings. I refer to the words "The possibility of my having the matter in train, as was the fact, and of my taking such farther action as might be required at the proper moment does not seem to have been entertained."
6. On this point I must point out that the Police action which was the subject of the charge took place on the 24th July; that on the 25th of the same mouth the aggrieved person made his complaint to the Police, when he was referred to his civil remedy by Mr. DEANE'S Minute of that date in the following terms:-- "Inform petitioner that Sergeant SHEIK ALIM acted in his private capacity, and not as a Police Sergeant, or if he did so in either case he can bring an action against him in the Summary Court, if he pleases;" that on the 27th of the same month Mr. DEANE became aware that instead of following what he subsequently terms this advice," the complainant had appealed to the Governor through the Registrar General, and he then wrote a Minute in reply to the enquiry of the Registrar General in which he again refers to a civil remedy and no other; that in all these proceedings there is not the slightest indication of any consciousness on the part of Mr. DEANE that the case was one deserving of any action on his part, other than the giving of the above advice, and that it was not until the Governor had drawn his attention to the matter by the minute of the 1st August, that Mr. DEANE at the end of his Minute of the same date for the first time shows any such consciousness. Even then be apparently does not see that the credit and discipline of the Force is in any way involved; and merely states his willingness to have exercised his dis- cretion by sending the case before a Magistrate for trial, if the complainant had re- quested him to hear the case.
7. Had Mr. DEANE anywhere categorically stated his intention of taking ulterior proceedings, I should of course believe him, despite all appearances to the contrary, but in the absence of any such assertion, I cannot regard the suggestion of this secret intention as entitled to any greater weight in the consideration of his conduct than if its existence were a mere after-thought. I have dealt thus parti- cularly with the question of intention, not because it is very material to a ment on Mr. DEANE'S action in this particular case, but rather with a view to illus- judg trate the spirit and principles of his Police Government, and to shew the compla- cency, to say the least with which (whatever may have been his occult intentions) the Chief of the Police Force regards and treats the serious complaint of a respect- able Chinese Householder.
8. But even if Mr. DEANE be given full credit for the suggested intention, I respectfully submit that his action and attitude were an error of judgment, not of a venial character as he contends, but one which showed an unconsciousness of one of the first principles of Police Government, and a dangerous indifference to the rights and feelings of the race which furnishes the bulk of the population of this Colony.
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9. After the receipt of the Governor's Minute of 4th August, compelling him to take action in respect of the breach of discipline, (which from his preliminary statement in the Memorial it now appears was admitted by the principal offender) Mr. DEANE'S action gave additional evidence of the above defects of judgment. The view of it taken by me is contained in my Minute of 14th August; and Your Lordship will probably deem it sufficient if I add to the observations there made such as are needed by way of reply to the further statements and remarks which follow the copies of correspondence in Mr. DEANE'S Memorial, and in which are included the "points" (numbered i to xii) submitted by him for Your Lordship's consider-
ation.
10. (i.) "It would have been improper conduct on my part in any way to have anticipated the possible decision of the Court to which I had referred the Petitioner."
I submit (1) that he was wrong in so referring the petitioner under any cir- cumstances (2) that in the particular circumstances of this case he was specially wrong; as even if he is right in his denial as to Chinese reluctance to enter into legal conflict with the Police (a view which I shall deal with presently) he must have known very well, when he gave it, that his advice was not likely to be followed. For the slightest consideration would have shown the improbability of a Chinese risking the payment of costs however small with a view to obtain dama- ges from an Indian Sergeant of Police, who had just by his own admission lost a large sum of money, representing in all probability the whole, or the greater part, of his savings.
*
11. The case would have been somewhat different if the complainant had been informed that the punishment of the Sergeant would depend upon the evidence obtained in the civil suit. But in fact not the slightest intimation of the kind was given, and the terms of Mr. DEANE'S Minute were such as leave no room for doubt in the complainant's ruind that the civil remedy was all he could expect. (3) That it was Captain DEANE's duty, for the credit of his Force, to have made enquiry whether his advice was going to be taken with a view, if it was not, to immediate proceedings on his own part; (4) and even in the absence of such ,enquiry and on the assumption that the matter was going before a Civil Court, there was no reason whatever why the Sergeant should not have been at once punished by Mr. DEANE for the serious breach of discipline which he admitted. For this could in no way have affected the decision of the Court as to the damages suffered by the complainant.
12. "It will be observed that at the very outset His Excellency in his minute of the 1st August is pleased to take into his own hands the direction of the course to be pursued."
It only needs reference to this Minute to see that I did nothing of the kind. I simply made enquiry as to what had been done; and it is sufficiently obvious that by the words "the course to be pursued" I meant the course to be pursued by me, and not the course to be pursued by Mr. DEANE as he has conveniently assumed. The allegation would have been more plausible if made with reference to my Minute of the 4th August. But even then it would have been incorrect.
For as a matter of fact, Mr. DEANE did not take the course which I plainly intimated to him as in my opinion the best, and sent the case before a Magistrate instead of dealing with it himself on the facts admitted by the Sergeant.
13. Your Lordship will observe that at this point Mr. DEANE not only exercised his discretion by sending the case before a Magistrate, but also in respect of the nature of the charge and the manner of bringing it.
As pointed out by Mr. DEANE, the charge might have been brought either under section 23 of Ordinance 14 of 1887 as a breach of discipline; or under section 22 of the same Ordinance as "misconduct as a constable," involving on conviction a much severer punishment. Mr. DEANE chose the latter; and the question is why did he do so? Only the 23rd section gives the Captain Superinten- dent the option of trying a case himself, or, in his discretion, of sending it before a Magistrate, and as my attention had not been drawn to the 22nd section it was this 23rd section of course to which I alluded in my Minute of the 4th August instructing him to exercise his discretion. If Mr. DEANE, after considering the matter (according to his own statement) as one "which should be tried civilly and not criminally," chose the severer section because he had so entirely altered his
* I understand that the costs, which would have almost necessarily included the payment of a lawyer, could not have been otherwise than of much larger amount than that stated by Mr. DEANE,
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