516
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The most material facts were that the opium was found by the Captain smuggled on board his ship between half-past-seven and eight o'clock and the Opium Farmer had full knowledge of it and sent his officer to claim it within an hour afterwards. He did not know it was taken on board.
His Worship - Assuming that is so?
Mr. Francis - Of course the legal point may be entirely separated from that. It is only a question of greater or less justification.
His Worship - And they don't press for any penalty. That would have been very pertinent if they had pressed for a penalty.
Mr. Francis - If your Worship is of the opinion the Ordinance has been broken on a technical point it is perfectly useless for me to give any evidence at all, and if you decide that point I have nothing further to say.
His Worship - Without saying my mind is at all settled on that point I would like to hear your argument, but I cannot see how evidence could help me. All you say there remains the legal point. Assuming you prove...
Mr. Francis - I cannot offer one single word of argument more than I have.
His Worship - I will ask you to argue this point - assuming possession was legal until demand made.
Mr. Francis - Then I say at once we have a complete legal defence under the Ordinance, which says in section 7 "Every excise officer shall be supplied with a badge... shall declare his office and produce to the person against whom he is about to act his said badge." Mr. Spooner failed to do that. The badge is his sole justification, and without it, whether he is known or not, the person against whom he is about to act is perfectly justified in refusing to recognise him as an excise officer at all. If the strict letter of the Ordinance is to be enforced against us I ask you to enforce it with reference to the constable and sergeant who appeared; they don't come within the Ordinance at all; it says "every excise officer or Inspector of Police." If we are to be convicted on a purely technical ground against the moral justice of the case I submit we are entitled to shelter ourselves under that technical protection. Of course, if your Worship's decision amounts to this, that our duty is on discovering opium on board instantly to set a watch on it and send to the excise officer, that course will be implicitly followed in the future. We want guidance as much as anything else.
Mr. Webber said that although he asked for a small penalty, a fine of one cent, yet taking all the circumstances into consideration it was utterly absurd to suppose or to ask the court to believe that the defendant would ever have given that opium up to any officer at all. As to keeping it until business hours in the morning, the ship was going to leave at eight o'clock, before the office would be open, and the defendant would have had no greater facilities than in the evening. The intention was to take the opium to Canton and hand it over to the Imperial Maritime Customs, where he would have got half the value as a reward.
His Worship - I have no hesitation in saying there is nothing to warrant the assertion.
Mr. Webber - They have said the Opium Farmer is a smuggler, which is a mean insinuation.
His Worship - There is not an atom of evidence against the Opium Farmer.
Mr. Webber - But you have assumed it was smuggled.
His Worship - Simply for the argument.
Mr. Webber - said he wanted to show that those who came into court and talked so freely about smuggling had not such clean hands themselves.
( 19 )
Mr. Francis said that by an arrangement with the Customs no reward whatever was given to the officers of the steamers for the discovery of smuggled opium. Whatever was awarded was paid into the office and was disbursed by the Steamboat Company and Messrs. Butterfield and Swire for the purpose of keeping up this preventive staff, so that there was no reason whatever to suggest that it was the intention to take the opium to Canton. They had nothing to gain by taking it to Canton.
Mr. Webber - As we do not press for a penalty there is no need to pursue this, but if we are to be called smugglers we have a right to call them smugglers too.
His Worship - You say, Mr. Francis, this is a matter of some importance by way of guidance to the Company?
Mr. Francis - Yes.
His Worship - Well, then, I think I should like to reserve it until to-morrow morning.
Mr. Webber - I take it that whatever opinion is given here it won't last; it will be appealed.
Mr. Francis - If your Worship's opinion is against us I should not think of appealing.
Mr. Webber - That shows the weakness of their case.
Mr. Francis - I don't think so. The Company have no interest whatever except to save their steamers from the risk of forfeiture.
BEFORE MR. E. ROBINSON.
THE "HONAM" OPIUM CASE.
His Worship now gave his decision in the case in which Captain Lefavour of the Hongkong, Canton and Macao Steamboat Company's steamer Honam, was charged with an offence under the Opium Ordinance. Mr. Webber appeared on behalf of the Opium Farmer for the prosecution, and Mr. Francis, Q.C., for the defence.
His Worship - With regard to the charge under section 5 of Ordinance 1 of 1884, for assuming to act as an excise officer, there is no proof that the Captain did take the character of an excise officer within the meaning of the section. With reference to the charge under section 27 - read with section 3 of Ordinance 17 of 1880, which gives the same power to an excise officer as to an Inspector of Police - to obstruct an excise officer is an offence, but in this case no obstruction has been proved. Mr. Spooner has given evidence that when he went to exercise the right of search the Captain said that he might search. The Captain could not be called upon to do more than let him search.
With regard to the charge under section 2, for being in possession of opium without a valid certificate, I am of the opinion that it is absolutely prohibited to be in possession of prepared Opium without a certificate by the Opium Farmer or his licensees. It is an absolute prohibition, and even an innocent party cannot defend himself against that prohibition. That being so I don't know that it is necessary for me to say more in reference to the possible cases mentioned by the learned counsel for the defence in his very able argument than to point out that...
516
( 18 )
The most material facts were that the opium was take place he did not know. found by the Captain smuggled on board his ship between half-past-seven and eight o'clock and the Opium Farmer had full knowledge of it and sent his officer to claim it within an hour afterwards.
His Worship-Assuming that is so?
Mr. Francis-Of course the legal point may be entirely separated from that. It is only a question of greater or less justification.
His Worship-And they don't press for any penalty. That would have been very pertinent if they had pressed for a penalty.
your
Mr. Francis-If Worship is of opinion the Ordinance has been broken on a technical point it is perfectly useless for me to give any evidence at all, and if
you
decide that point I have nothing further to say.
His Worship-Without saying my mind is at all settled on that point I would like to hear your argument, but I cannot see how evidence could help me. all you say there remains the legal point. Assuming you prove
Mr. Francis-1 cannot offer one single word of argument more than I bave. His Worship-I will ask you to argue this point-assuming possession was legal until demand made.
Mr. Francis-Then I say at once we have a complete legal defence under the Ordinance, which says in section 7 "Every excise officer shall be supplied with a ..shall declare his office badge. ...and before acting against any person.
and produce to the person against whom he is about to act his said badge." Mr. Spooner failed to do that. The badge is his sole justification, and without it, whether he is known or not, the person against whom he is about to act is perfectly justified in refusing to recognise him as an excise officer at all. If the strict letter of the Ordinance is to be enforced against us I ask you to enforce the With reference to the constable and sergeant who strict letter as you find it here.
every excise appeared, they don't come within the Ordinance at all; it says officer or Inspector of Police." If we are to be convicted on a purely technical ground against the moral justice of the case I submit we are entitled to shelter ourselves under that technical protection. Of course if your Worship's decision amounts to this, that our duty is on discovering opium on board instantly to set a watch on it and send to the excise officer, that course will be implicitly followed in the future. We want guidance as much as anything else.
Mr. Webber said that although he asked for a small penalty, a fine of one cent, yet taking all the circumstances into consideration it was utterly absurd to suppose or to ask the court to believe that the defendant would ever have given that opium As to keeping it until business hours in the morning, the up to any officer at all. ship was going to leave at eight o'clock, before the office would be open, and the defendant would have had no greater facilities than in the evening. The intention was to take the opium to Canton and hand it over to the Imperial Maritime Customs, where he would have got half the value as a reward.
His Worship--I have no hesitation in saying there is nothing to warrant the
assertion.
Mr. Webber They have said the Opium Farmer is a smuggler, which is a mean insinuation.
His Worship--There is not an atom of evidence against the Opium Farmer. Mr. Webber-But you have assumed it was smuggled.
His Worship-Simply for the argument.
Mr. Webber-said he wanted to show that those who came into court and talked so freely about smuggling had not such clean hands themselves.
( 19 )
Mr. Francis said that by an arrangement with the Customs no reward what- ever was given to the officers of the steamers for the discovery of smuggled opium. Whatever was awarded was paid into the office und was disbursed by the Steam- boat Company and Messrs. Butterfield and Swire for the purpose of keeping up this preventive staff, so that there was no reason whatever to suggest that it was the intention to take the opium to Canton. They had nothing to gain by taking it to Canton.
Mr. Webber-As we do not press for a penalty there is no need to pursue this, but if we are to be called smugglers we have a right to call them smugglers too. His Worship-You say, Mr. Francis, this is a matter of some importance by way of guidance to the Company?
Mr. Francis-Yes.
His Worship-Well, then, I think I should like to reserve it until to-morrow morning.
Mr. Webber-1 take it that whatever opinion is given here it won't last; it will be appealed.
Mr. Francis-If your Worship's opinion is against us I should not think of appealing.
Mr. Webber-That shows the weakness of their case.
Mr. Francis-I don't think so. The Company have no interest whatever except to save their steamers from the risk of forfeiture.
BEFORE MR. E. ROBINSON.
THE "HONAM
OPIUM CASE.
His Worship now gave his decision in the case in which Captain Lefavour
of the flongkong, Canton and Macao Steamboat Company's steamer Honam, was charged with an offence under the Opium Ordinance. Mr. Webber appeared on behalf of the Opium Farmer for the prosecution, and Mr. Francis, Q.C., for the defence.
I don't think With regard to
With reference to the His Worship-There are three charges in this case, charge under section 5 of Ordinance 1 of 1884, for assuming to act as an excisc officer, there is no proof that the Captain did take the character of au excise officer Under section 27--read with section 3 of within the meaning of the section. Ordinance 17 of 1880, which gives the same power to an excise officer as to an Inspector of Police--to obstruct an excise officer is an offence, but in this case no obstruction has been proved. Mr. Spooner has given evidence that when he went to exercise the right of search the Captain said that he might search. the Captain could be called upon to do more thau let him search. the charge under section 2, for being in possession of opium without a valid certi- ficate, I am of opinion that it is absolutely prohibited to be in possession of prepared Opium without a certificate by the Opium Farmer or his licensees. It is an absolute prohibition, and even an innocent party cannot defend himself against that prohibition. That being so I don't know that it is necessary for me to say more in reference to the possible cases mentioned by the learned counsel for the defence in his very able argument than to point out that
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