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the Captain was not at all to blame in retaining that Opium until he could report the matter to the Company or until an officer of police took possession of it; and his Worship would see that neither the constable nor the sergeant would take the responsibility of taking the opium. The Captain was quite justified in waiting for instructions from his superior or until an Inspector of Police took it, to be adjudicated upon in that court. If it had been handed over to Mr. Spooner on his first demand, would there have been any summons? No. Neither the Government nor anyone else would have heard of it.
Mr. Webber—Nothing of the kind.
His Worship—Your argument would be pertinent if they were pressing for a heavy penalty.
Mr. Francis said that if his Worship would study the Ordinance, he would see it absolutely ignored the possibility of anyone having in his possession prepared Opium for any purpose but one, namely, that of smoking it. The learned counsel read the sections of the Ordinance referring to the certificates to be held by the possessors of prepared Opium and said the only certificate provided for was that given by the vendor to the purchaser. Supposing the opium were being exported in due course, there was no certificate to be given to the Captain of the vessel by which it was to be exported. Now supposing the purchaser was a person authorised by the Farmer to export Opium and he shipped it in the ordinary way, the Captain of the ship would, so far as the absence of a certificate was concerned, be in unlawful possession of it.
Mr. Webber—He would have an export permit.
Mr. Francis said there were no export permits given for prepared Opium. It had been forgotten in the Ordinance to provide for a great many cases in which prepared Opium must be handled by different people. There were other transactions besides the simple one between a vendor and purchaser. What was the position of the Captain of a ship on board which prepared Opium was properly put under a bill of lading? He was lawfully in possession and could not be asked for a certificate under section 16.
His Worship—He would be a person in possession of prepared Opium without a certificate.
Mr. Francis—But could he be punished for it? He would be neither vendor nor purchaser. It was a case entirely omitted from the Ordinance. This was of very little importance in the present case; he was only arguing from analogy that for many purposes not provided for in the Ordinance, people might be lawfully in possession of prepared Opium although they could not have a certificate under section 16. This being a case unprovided for by the Ordinance, his Worship, he submitted, would say that the Captain was lawfully in possession of the opium in the performance of his duty.
His Worship—But that is the point, whether anyone can be lawfully in possession without a certificate.
Mr. Francis said the only certificate mentioned was the one given by the vendor to the purchaser. Captain Lefavour not having purchased the opium, it would be absurd to expect him to be in possession of such a certificate as that, and therefore if it was a thing he could not possibly have, the law would not demand it of him if otherwise the circumstances were such that he was lawfully in possession of it. His Worship would understand that there must be persons who must be in possession of opium every day of their lives, without any possibility of their being in possession of the certificate mentioned in section 16. He would tender the evidence of Mr. Logan, who had been for some time past with six men acting as excise officers for the steamers to prevent any opium being smuggled on board. About half-past seven, Mr. Logan got information from one of his men that he had been approached by the head coolie of a well-known licensed opium shop in Hillier Street, and that offers had been made to pay him and his fellows $2 per trip to wink at or allow opium to be smuggled on board, and that he was told opium was going on board that evening. A little after half-past seven, Mr. Logan and his men, being on the look-out, went forward into the crew's part of the ship. On the forward part of the main deck, there was a small engine house for the donkey engine, and looking through the window, they saw these tins of opium lying on the floor inside. They sent for the Captain, who had it carried upstairs and put in a locker. The next morning, three of the stokers' crew were missing from the ship. His Worship would see what happened. Within an hour or less, the Opium Farmer was in possession of the facts—and the information had not been obtained from Mr. Spooner or any of his officers, for the informant was unknown to Mr. Spooner—and when Mr. Spooner went on board, it was not to search the ship generally, but with special information that there was prepared Opium on board and that Captain Lefavour had seized it and locked it up in a particular locker on deck. Now, how did the Opium Farmer come to be in possession of that information?
His Worship—Is that relevant?
Mr. Francis submitted it was relevant because if the opium came out of an opium shop, it was covered by the Opium Farmer's own licence. The shop was that of one of the sub-licensees.
His Worship—The point is, was there any certificate or permit covering it on board that ship? There might have been a licensed sale to the smuggler and the smuggler have destroyed the permit.
Mr. Francis said that supposing the case to have been as suggested by his Worship, there was a defect in the Ordinance. The certificate was not a transferable or negotiable document. There was no provision that the purchaser was to transfer the certificate every time he transferred the opium. There was no possibility of the Captain of a ship having such a certificate as was asked for in this case.
If the opium was honestly put on board, the Captain was in lawful possession of it, and if it was smuggled on board, it was his duty to the owners to seize it and retain it for a reasonable time until he could get instructions. If an Inspector of Police had turned up, the stuff would have been handed over to him. He thought Captain Lefavour was fairly and reasonably justified in keeping possession until the office should be open in the morning, and he could get instructions from Mr. Arnold or the Directors. That was the exact position Captain Lefavour took up, and the question for his Worship to decide was, what was his duty under the circumstances? He thought his Worship would see that he was lawfully in possession of that opium for the time being and exercised only a reasonable discretion in taking time to consider his position. He proposed to call Mr. Logan and his two informers so as to trace as far as they could where the opium came from. His Worship asked Mr. Francis if he would restate his argument briefly, so that he could take a note of it, treating it as smuggled opium.
Mr. Francis said it was the Captain's duty to his owners and to the Opium Farmer, or rather to the State, to take possession of the opium the moment it came to his knowledge that it was there. In taking possession of the opium, he could not possibly have a certificate under section 16, and at that time of night, and with a view to getting an investigation of the case, which would not have occurred if he had given it up instantly, he would have been justified in retaining it until business hours in the morning. No opium, he submitted, ought to be confiscated without investigation, but how it was intended the investigation should
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515
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the Captain was not at all to blaine in retaining that Opium until he could report the matter to the Company or until an officer of police took possession of it; and his Worship would see that veither the constable nor the sergeant would take the responsibility of taking the opium. The Captain was quite justified in waiting for instructions from his superior or until an Inspector of Police took it, to be adjudica- ted upon in that court. If it had been handed over to Mr. Spooner on his first demand would there have been any summons? No. Neither the Government nor any one else would have heard of it.
Mr. Webber Nothing of the kind.
His Worship--Your argument would be pertinent if they were pressing for a heavy penalty.
Mr. Francis said that if his Worship would study the Ordinance he would see it absolutely ignored the possibility of any one having in his possession prepared Opium for any purpose but one, namely, that of smoking it. The learned counsel read the sections of the Ordinance referring to the certificates to be held by the possessors of prepared Opium and said the only certificate provided for was that given by the vendor to the purchaser. Supposing the opinm were being exported in due course there was no certificate to be given to the Captain of the vessel by which it was to be exported. Now supposing the purchaser was a person authoris- ed by the Farmer to export Opium and he shipped it in the ordinary way the Captain of the ship would, so far as the absence of a certificate was concerned, be in unlawful possession of it.
Mr. Webber-He would have an export permit.
Mr. Francis said there were no export permits given for prepared Opium. It had been forgotten in the Ordinance to provide for a great many cases in which prepar ed Opium must be handled by different people. There were other transactions besides the simple one between a vendor and purchaser. What was the position of the Captain of a ship on board which prepared Opium was properly put under a bill of lading? He was lawfully in possession and could not be asked for a certificate
under section 16.
His Worship---He would be a person in possession of prepared Opium without a certificate.
Mr. Francis--But could he be punished for it? He would be neither vendor nor purchaser. It was a case entirely omitted from the Ordinance. This was of every little importance in the present case; he was only arguing from analogy that for many purposes not provided for in the Ordinance people might be lawfully in pos- session of prepared Opium although they could not have a certificate under section 16. This being a case unprovided for by the Ordinance his Worship, he submitted, would say that the Captain was lawfully in possession of the opium in the perform- ance of his duty.
His Worship-But that is the point, whether any one can be lawfully in pos- session without a certificate.
Mr. Francis said the only certificate mentioned was the one given by the vend- or to the purchaser. Captain Lefavour not having purchased the opium it would be absurd to expect him to be in possession of such a certificate as that, and there- fore if it was a thing he could not possibly have the law would not demand it of him if otherwise the circumstances were such that he was lawfully in possession of it. His Worship would understand that there must be persons who must be in pos- session of opium every day of their lives, without any possibility of their being in possession of the certificate mentioned in section 16. He would tender the evidence of Mr. Logan, who had been for some time past with six men acting as excise
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officers for the steamers to prevent any opium being smuggled on board. About half-past seven Mr. Logan got information from one of his men that he had been approached by the head coolic of a well known licensed opium shop in Hillier Street, and that offers had been made to pay him and his folis $2 per trip to wink at or allow opium to be smuggled on board, and that he was told opium was going on board that evening. A little after half-past seven Mr. Logan and his men, being on the look-out, went forward into the crew's part of the ship. On the for- ward part of the main deck there was a small engine house for the donkey engine, and looking through the window they saw these tins of opium lying on the floor inside. They sent for the Captain, who had it carried upstairs and put in a locker. The next morning three of the stokers' crew were missing from the ship. His Worship would see what happened. Within an hour or less the Opium Farmer was in possession of the facts--and the information had not been obtained from Mr. Spocner or any of his officers, for the informant was unknown to Mr. Spooner--and when Mr. Spooner went on board it was not to search the ship generally, but with special information that there was prepared Opium on board and that Captain Lefavour had seized it and locked it up in a particular locker on deck. Now, how did the Opium Farmer come to be in possession of that infor-
mation ?
His Worship-Is that relevant?
Mr. Francis submitted it was relevant because if the opium came out of an opium shop it was covered by the Opium Farmer's own licence. The shop was that of one of the sub-licensees.
His Worship-The point is, was there any certificate or permit covering it on board that ship? There might have been a licensed sale to the smuggler and the smuggler have destroyed the permit.
Mr. Francis said that supposing the case to have been as suggested by his Worship, there was a defect in the Ordinance. The certificate was not a trans- ferrable or negotiable document. There was no provision that the purchaser was to transfer the certificate every time he transferred the opia. There was no possibility of the Captain of a ship having such a certificate as was asked for in this case.
If the opium was honestly put on board the Captain was in lawful possession of it, and if it was smuggled on board it was his duty to the owners to If an seize it and retain it for a reasonable time until he could get instructions. Inspector of Police had turned up the stuff would have been hauded over to him. He thought Captain Lefavour was fairly and reasonably justified in keeping pos- session until the office should be open in the morning, and he could get instructions from Mr. Arnold or the Directors. That was the exact position Captain Lefavour took up and the question for his Worship to decide was, what was his duty under the circumstances? He thought his Worship would see that he was lawfully in possession of that opium for the time being and exercised ouly a reasonable discre- tion in taking time to consider his position. He proposed to call Mr. Logan and his two informers so as to trace as far as they could where the opium came from. His Worship asked Mr. Francis if he would restate his argument briefly, so that he could take a note of it, treating it as smuggled opium.
Mr. Francis said it was the Captain's duty to his owners and to the Opium Farmer, or rather to the State, to take possession of the opium the moment it came to his knowledge that it was there. In taking possession of the opiam he could not possibly have a certificate under section 16, and at that time of night, and with a view of getting an investigation of the case, which would not have occurred if he had given it up instantly, he would have been justified in retaining it until business hours in the morning. No opium, he submitted, ought to be confiscated without investigation, but how it was intended the investigation should
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