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Section 37 provides a remedy for the public against the arbitrary exercise of the very extensive powers given to the Opium Farmer. If a frivolous charge is brought, the Magistrate can deal with it under that section very severely by fining the Opium Farmer. That seems to be for the protection of the public and to justify to a certain extent the extreme powers given under section 2. It is unnecessary for me to go further, but I should like to allude—not of course as founding my judgment upon it in any way—to the reference made to section 7. It is a very important section, I think, for the Opium Farmer and the excise officers to bear in mind. One reason for the section, I suppose, is that a person may be perfectly well known as an excise officer, but he may have forfeited his badge or warrant, and the only security the public can have against him is that of the production of the badge to show that he is acting up to that very day as an excise officer. The words are "acting against any person." Now in this case Mr. Spooner did not act against any person; the opium was not searched for; according to the evidence, it was given up; therefore section 7 would not apply. With regard to a penalty, no severe penalty is pressed for. There is force in the Opium Farmer's contention that the opium was kept from 7:30 until late at night in the possession of the Captain and that so far he did not allege any intention of surrendering it to the police any more than to the Opium Farmer.
I would like to say with regard to section 7, also, that it seems it is not on the same footing with section 2. It is not an absolute prohibition; it is simply for the protection of the subject. If the subject chooses to waive that protection absolutely, I think in this case the non-production of the badge could be excused by the waiver. The chief excise officer has sworn that he was known as such. There is absolute proof of this, because the Captain said, "you may search." The object of the production of proof of authority is for the protection of the subject. Here the proof of authority was formally dispensed with, but I think excise officers should carefully bear in mind this section 7. I shall say no more than that a purely nominal penalty of one cent is imposed.
Mr. Webber—That is all we ask for, simply a conviction.
His Worship—It is a conviction under section 2.
Mr. Webber—The opium, of course, will be forfeited to the Opium Farmer.
His Worship—The opium will be forfeited, but it is discretionary whether I order it to be handed over to the Opium Farmer or not.
Mr. Webber—I think it ought to be handed over under the Ordinance.
Mr. Francis—It is quite within your Worship's discretion.
His Worship—I will withhold any order for two or three days. I may say there is not an atom of evidence to show that the Opium Farmer was connected with this opium. The evidence rather points to one of his licensees, and I think as it is meritorious to have discovered it, I shall leave the case open for two or three days to see if anything by way of reward for meritorious services is tendered. Of course, there is no obligation to make it.
Mr. Francis—I may mention that the owners of these steamers intend to petition the Government to amend the Ordinance in that respect and to allow the opium seized in this manner to be either destroyed or handed over to the steamer owners to cover their risks and expenses.
His Worship—Of course, there cannot be any such thing as confiscation of opium unless the case comes before the Magistrate, but the Captain's duty is to hand it over to the first Inspector of Police or excise officer, both having equal power to take possession of it. If he likes, he can at the same time send a memo to the Police Station stating he has done so, if he wants to protect himself.
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2.—Declaration of James Henry Logan.
517
I, JAMES HENRY LOGAN, of Victoria, in the Colony of Hongkong, Preventive Officer, do solemnly and sincerely declare:
1. That I am employed by the Hongkong, Canton and Macao Steamboat Company, Limited, to prevent the smuggling of Opium and Saltpetre on board any of the said Company's steamers, and I have assistants under me.
2. That on the Twelfth September instant, about 6 o'clock p.m., Pun Kong, one of my said assistants, told me that he expected that some Opium would be put on board the Company's steamer Honam at about 7:30 o'clock that evening. On hearing this, I went on board the Honam at the last-mentioned hour, accompanied by four of my said assistants, to search the steamer. I first searched the forecastle, where I found nothing. I then went to the steam-winch room, which was locked. I looked into the window with a bull's-eye lamp and saw some mat packages lying on the floor, whereupon I went to the Captain and asked him to come down and help me to get the door of the steam-winch opened. He came down with me, and when we arrived at the room, we found that the door had been already opened. I found four mat packages in the room, each containing six tins of Opium, which the Captain, G. B. Lefavour, took charge of and removed to the store-room and had it locked up.
About 9:15 o'clock that same evening, Mr. Spooner and some Excise Officers came to the steamer. Mr. Spooner told Mr. Thomas (the Chief Officer) that he had information regarding some Opium being on board and that he knew where the Opium was, at the same time pointing to the store-room. The Chief Officer called the Captain, and Mr. Spooner told him (the Captain) that he was informed that some Opium was on board and that he wanted to search for it. The Captain replied that he could go ahead and search and asked him if he had a warrant with him. Mr. Spooner said that he was an Excise Officer well known to the Captain and that no warrant was necessary. Mr. Spooner then sent for an Inspector of Police. A Sergeant and a European Constable came. The Captain, Sergeant, and Mr. Spooner had some conversation in the saloon, and I heard Mr. Spooner threaten to arrest the Captain, and again Mr. Spooner sent for the Inspector. While he was sending for him, the Captain sent me to Mr. Arnold, the said Company's Secretary, and I told him what had occurred. Mr. Arnold gave me an order that the Opium should not be handed to the Opium Farmer's men but to the Inspector of Police. I went back to the steamer and delivered that message to the Captain. Mr. Spooner and his Excise Officers were still there. I and the Captain waited for some time to see if the Inspector would come, but he did not come. About 11:15 o'clock that same night, the Captain told me to hand the Opium over to Constable Crawford, No. 75, the Constable in charge of the wharf, and I did so.
3. That I am acquainted with Wong Luk, the Chinese Excise Officer, No. 49. He has frequently given me information that Opium was going to be smuggled to Canton and particularly by the steamer Hankow. His information has always been correct. On one occasion, he himself sent a man up to Canton to inform the Customs there that a passenger on board was smuggling Opium. The Opium was seized at Canton, and he received a reward.
4. That Wong Luk has often told me that he has several times been sent by the Head Chinaman of the Opium Farmer with a permit to accompany Opium on board the Canton steamer at night for smuggling into China, and that so soon as the Opium was on board, he has returned with the permit, leaving the Opium on the steamer. His plan is to get the Opium seized either here or at Canton so that he may obtain a portion of the reward.
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Provisions of an Act made and passed in the Sixth year of the Reign of His late Majesty King William the Fourth, entitled An Act to...
( 20 )
section 37 provides a reinedy for the public against the arbitrary exercise of the very extensive powers given to the Opium Farmer. If a frivolous charge is brought the Magistrate can deal with it under that section very severely by fining the Opium Farmer. That seems to be for the protection of the public and to justify It is possibly to a certain extent the extreme powers given under section 2. unnecessary for me to go further, but I should like to allude--not of course as founding my judgment upon it in any way-to the reference made to section 7. It is a very important section, I think, for the Opium Farmer and the excise officers to bear in mind. One reason for the section, I suppose, is that a person may be perfectly well known as an excise officer, but he may have forfeited his badge or warrant, and the only security the public can have against him is that of the production of the badge to show that he is acting up to that very day as an excise officer. The words are "acting against any person." Now in this case Mr. Spooner did not act against any person; the opium was not searched for; according to the evidence it was given up; therefore section 7 would not apply. With regard to a penalty, no severe penalty is pressed for. There is force in the Opium Farmer's contention that the opium was kept from 7.30 until late at night in the possession of the Captain and that so far he did not allege auy intention of I would like surrendering it to the police any more than to the Opium Farmer.
to say with regard to section 7, also, that it seems it is not on the same footing with section 2. It is not an absolute prohibition, it is simply for the protection of the subject. If the subject chooses to waive that protection absolutely 1 think In this case the the non-production of the badge could be excused by the waiver. chief excise officer has sworn that he was known as such. There is absolute proof of this, because the Captain said, "you may search." The object of the production of proof of authority is for the protection of the subject. Here the proof of authority was formally dispensed with, but I think excise officers should carefully bear in mind this section 7. I shall say no more than that a purely nominal penalty of one cent is imposed.
Mr. Webber-That is all we ask for, simply a conviction.
His Worship-It is a conviction under section 2.
Mr. Webber-The opium of course will be forfeited to the Opium Farmer. His Worship-The opium will be forfeited, but it is in discretion whether
I order it to be handed over to the Opium Farmer or not.
my
The Ordinance
Mr. Webber I think it ought to be handed over under the Ordinance. Mr. Francis It is quite within your Worship's discretion. simply says it be handed over,
may
The Opium Farmer has no right to it at all.
His Worship-I will withhold any order for two or three days. I may say there is not an atom of evidence to show that the Opium Farmer was connected with this opium. The evidence rather points to one of his licensees, and I think as it is meritorious to have discovered it I shall leave the case open for two or three days to see if anything by way of reward for ineritorious services is tendered. Of course there is no obligation to make it.
Mr. Francis-I may mention that the owners of these steamers intend to petition the Government to amend the Ordinance in that respect and to allow the opium seized in this manner to be either destroyed or handed over to the steamer owners to cover their risks and expenses..
His Worship-Of course there cannot be any such thing as confiscation of opium unless the case comes before the Magistrate, but the Captain's duty is to hand it over to the first Inspector of l'olice or excise officer, both having equal If he likes he can at the same time send a metno. power to take possession of it.
to the Police Station stating he has done so, if he wants to protect himself.
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2-Declaration of James Henry Logan.
517
I, JAMES HENRY LOGAN, of Victoria, in the Colony of Hongkong, Preventive
Officer, do solemnly and sincerely declare :---
1. That I am employed by the Hongkong, Canton and Macao Steamboat Company, Limited, to prevent the smuggling of Opium and Saltpetre on board of any of the said Company's steamers and I have assistants under ine.
2. That on the Twelfth September instant about 6 o'clock r.. Pun Kong, one of my said assistants told me that he expected that some Opium would be put on board the Company's steamer fonam at about 7.30 n'clock that evening. On hearing this I went on board the Honam at the last mentioned hour accompanied by tour of my said assistants to search the steamer. I first searched the forecastle where I found nothing. I then went to the steam-winch room which was locked. I looked into the window with a bull's-eye lamp and saw some mat packages lying on the floor whereupon 1 went to the Captain and asked him to come down and help me to get the door of the steam-winch opened. He came down with me and when we arrived at the room we found that the door had been already opened. I found four mat packages in the room each containing six tius of Opium which the Captain, G. B. Lefavour, took charge of and reinoved to the store-room and had it locked up.
About 9.15 o'clock that same evening Mr. Spooner and some Excise Officers cane to the steamer. Mr. Spooner told Mr. Thomas (the Chief Officer) that he had information regarding some Opium being on board and that he knew where the Opium was at the same time pointing to the store-room, The Chief Officer called the Captain and Mr. Spooner told him (the Captain) that he was informed that some Opiumo was on board and that he wanted to search for it. The Captain replied that he could go ahead and search and asked him if he had a warrant with him. Mr. Spooner said that he was an Excise Officer well known to the Captain and that no warrant was necessary. Mr. Spooner then sent for an Inspector of Police. A Sergeant and a European Constable came. The Captain, Sergeant and Mr. Spooner had some conversation in the saloon and I heard Mr. Spooner threaten to arrest the Captain and again Mr. Spooner sent for the In- spector. While he was sending for him the Captain sent me to Mr. Arnold, the said Company's Secretary, and I told him what had occurred. Mr. Arnold
gave ne an order that the Opium should not be handed to the Opium Farmer's men but to the Inspector of Police. I went back to the steamer and delivered that message to the Captain. Mr. Spooner and his Excise Officers were still there. I and the Captain waited for some time to see if the Inspector would come, but he did not come. About 11.15 o'clock that same night the Captain told me to hand the Opium over to Constable Crawford, No. 75, the Constable in charge of the wharf, and I did so.
3. That I an acquainted with Wong Luk, the Chinese Excise Officer, No. 49. He has frequently given me information that Opinn was going to be smuggled to Canton and particularly by the steamer Hankow. His information has always been correct. On one occasion he himself' sent a man up to Canton to inform the Customs there that a passenger on board was smuggling Opin. The Opium was seized at Canton and he received a reward.
4. That Wong Lnk has often told me that he has several times been sent by the Head Chinaman of the Opium Farmer with a permit to accompany Opium on board the Canton steamer at night for smuggling into China and that so soon as the Opium was on board he has returned with the permit leaving the Opium on the steamer.
His plan is to get the Opium seized either here or at Canton so that he may obtain a portion of the reward,
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Provisions of an Act made and passed in the Sixth year of the Reign of His late Majesty King William the Fourth entituled An Act to
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