SUPREME COURT.
29th July.
CRIMINAL SESSIONS.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE).
THE CHARGE AGAINST INSPECTOR WITCHELL. Job Witchell, Inspector in the Hongkong Police Force, was charged as follows-That at the time of the happening of the matters hereinafter mentioned, Job Witchell was a subordinate officer, to wit, an Inspector in the Police Force of this colony, and that as such Inspector it was his duty to aid in the enforcement of the law relating to garbling houses and to report to the Captain Superintendent of Police all unlawful common gaming houses which he knew to exist in the colony or the existence of which he had reason to suspect, and that he, the said Job Witchell, at Victoria, in this colony, on the 13th day of March, 1897, and on divers other days between the said 13th day of March, 1897, and the 18th day of June, 1897, did unlawfully, wilfully, and corruptly accept by way of bribe divers sums of money from the keepers and managers of certain unlawful common gaming houses situate in Cheung Hing Lane and Wa Lane offered to him by the said keepers and managers to induce him to refrain from the performance of his said duty in respect of the said gaming houses.
Hon. W. M. Goodman (Attorney-General) and Mr. J. J. Francis, Q.C. (instructed by Mr. H. L. Dennys (Crown Solicitor)), prosecuted and Mr. E. Robinson (instructed by Mr. G. C. C. Master) defended.
The information was read over to the defendant, who stood at the side of his counsel.
Mr. Robinson said that before the defendant pleaded he had to move that the information be quashed.
His Lordship-Que moment, Mr. Robinson. Why is the defendant not standing in the dock? Mr. Robinson replied that Witchell was charged with a misdemeanour and could sit near his counsel if he wished.
His Lordship-Do you want him near you? Mr. Robinson-It will be more convenient, my Lord.
His Lordship-The custom is for the accused to go into the dock.
Mr. Robinson-I should like to have the defendant near me.
His Lordship-But you are instructed?
Mr. Robinson-Yes, my Lord.
His Lordship-If you wish to have him near you you are entitled to do so, but I think it is always better for counsel not to have the defendant near him.
Mr. Robinson thereupon said he would not object to the defendant being placed in the dock.
Defendant then entered the dock.
Mr. Robinson said he had two objections to make. The information was bad for want of particularity; it was too general. In the first place he submitted, as a matter of comparatively small moment, that with regard to the gaming houses said to be situated in Cheung Hing Street and Wa Lane, it was not expressly alleged that either of the places was in Victoria in the colony of Hongkong or within the jurisdiction. It was alleged in the information that it was the defendant's duty to report to the Captain Superintendent of Police all unlawful gaming houses which he knew to exist in the colony and the existence of which he had reason to suspect and that Job Witchell, at Victoria in the colony, accepted by way of bribe divers sums of money from the keepers of certain unlawful gaming houses situated in Cheung Hing Street and Wa Lane. Those streets of course might be anywhere. The count did not show that the offence was in respect of any place over which the Court had jurisdiction. The second objection was that the count was bad for duplicity inasmuch as there was a want of particularity. It alleged that contrary to his duty the defendant, on the 13th March, 1897, accepted by way of bribe divers sums of money from the keepers and managers of certain unlawful gaming houses situated in Cheung Hing Lane and Wa Lane.
Mr. Robinson submitted that that was bad for duplicity. The defendant did not know of all the charges he was to meet and if the jury were to return a verdict of guilty against him generally it would be quite uncertain as to which of the charges they found him guilty of. Neither the house nor the keepers were specified. Counsel referred to Archbold, 21st edition, page 58, and to 14 Cox, 499. It had been ruled that it was not sufficient to charge a defendant generally with having committed an offence, but all the facts and circumstances constituting the offence must be set forth. The indictment must not be double, and counsel submitted that the present information was double for want of particularity. Not more than one offence could be charged in one count, but here there was only one count and several offences were charged.
His Lordship said that supposing a man made a single agreement to take bribes in respect of more than one place; was not that one transaction-one single bribe-although it might refer to different houses? How could that be broken up?
Mr. Robinson replied that there was nothing like that stated in the information. There were no particulars in the information in respect to the names of the keepers or the numbers of the houses. Of course if counsel's contention was upheld there would be no end to the information, but with regard to amendment, the depositions showed that the case was really brought in respect of one house and counsel had no objection if the information was amended by the name of the house at No. 2 Wa Lane being put in. Of course it was possible for the prosecution to put their cases in separate counts, but if that were done counsel would have to ask for an adjournment as he had not had notice of any other house but No. 2, Wa Lane and he would have to consider his position.
Mr. Francis submitted that the count was a perfectly good one under the provisions of the local Ordinance, which differed considerably from the provisions of the law with reference to indictments in courts in England. The Ordinance regulating the subject is 3 of 1865 as amended by 2 of 1869. According to section 6 the Chief Justice could order further particulars to be delivered if he deemed it expedient to do so. The result of combining the effect of these two Ordinances was that it had always been deemed sufficient to allege in the broadest terms the nature of the offence charged, as murder, or manslaughter, or stealing, without going into great particularity as to names, places, dates, and weapons. If the defendant or his advisers had been in any real difficulty and wanted to be made acquainted with the names of the persons or the particular dates they had ample time to apply for such particulars. In this case there had been a preliminary inquiry in the Police Court and the names and the localities of at least two of the gambling houses were referred to in those proceedings. Counsel submitted that the information was perfectly good and complete.
His Lordship had already answered the second objection by the question put to Mr. Robinson. It did not necessarily follow from the wording of the information that two separate offences were charged. It might be that there was in fact one acceptance and one transaction although it had reference to different houses, and therefore the count was not double. It did not charge two separate and distinct offences in respect of which two separate and distinct punishments would be necessary to be inflicted or on which two separate and distinct verdicts would have to be given.
In answer to his Lordship Mr. Francis admitted that it would have been better if the locality of the streets had been mentioned.
Mr. Robinson replied and said that his friend had not dealt with the matter of particularity. As he had said, he was quite willing for an amendment to be made. He thought section 6 threw no burden whatever upon the defendant or his advisers.
His Lordship, in regard to the first objection, directed that the information be amended by stating that Cheung Hing Street and Wa Lane were situated in Victoria in the colony of Hongkong. The second point was that the information was bad for duplicity inasmuch as the charge was in respect of two sets of gaming houses in Cheung Hing Street and Wa Lane. That objection, if it was of any validity, might...
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X
SUPREME COURT.
29th July.
CRIMINAL SESSIONS.
BEFORE STR JOHN CARRINGTON (ÜMIEY
JUSTICE).
THE CHARGE AGAINST INSPECTOR WITCHELL. Job Witchell, Inspector in the Hongkong Police Force, was charged as follows-That at the time of the happening of the matters hereinafter mentioned, Job Witchell was a anbordinate officer, to wit, an Inspector in the Police Furce of this colony, and that as such Inspector it was his duty to aid in the enforce ment of the law relating to garbling houses and to report to the Captain Superintendent of Police all unlawful common gaming houses which he knew to oxist in the colony or the existence of which he had reason to suspect, and that he, the said Job Witchell, at Victoria, in this colony, on the 13th day of March, 1897, and on divers other days between the said 13th day of March, 1897, and the 18th day of June, 1897, did unlawfully, wilfully, and oor- ruptly accept by way of bribe divers sums of money from the keepers and managers certain unlawful common gaming houses situate in Cheung Hing Lane and Wa Lane offered to hire by the said keepers and managers to induce him to refrain from the performance of his said duty in respect of the said gaming houses.
Hon. W. M. Goodman (Attorney-General) and Mr. J. J. Francis, Q.C. (instructed by Mr. H. L. Dennys (Crown Solicitor), prosecuted and Mr. E. Robinson (instructed by Mr. G. C. C. Master) defended.
The information was read over to the defen- dant, who stood at the side of his counsel.
Mr. Robinson said that before the defendant pleaded he had to move that the information be quashed.
His Lordship-Que moment, Mr. Robinson. Why is the defendant not standing in the dock? Mr. Robinson replied that Witchell was charged with a misdemeanour and could sit near his counsel it be wished.
His Lordship---Do you want him near you? Mr. Robinson-It will be more convenient, my Lord.
His Lordship-The custom is for the accused to go into the dock.
Mr. Robinson-I should like to have the de- fendant near me.
His Lordship-But you are instructed ?
Mr. Robinson-Yes, my Lord.
His Lordship-If you wish to have him near you you are entitled to do so, but I think it is always better for counsel not to have the defendant near biu.
Mr. Robinson thereupon said he would not object to the defendant being placed in the dock,
Defendant then entored the dock.
Mr. Robinson said he had two objections to make. The information was bad for want of particularity; it was too general. In the first place he submitted, as a matter of compara tively small moment, that with regard to the gaming houses said to be situated in Cheung Hing Street and Wa Lane, it was not expressly alleged that either of the places was in Victoria in the colony of Hongkong or within the jurisdiction. It was alleged in the information that it was the defendant's duty to report to the Captain Superintendent of Police all unlawful gaming houses which he know to exist in the colony and the existence of which he had reason to suspect and that Job Witchell, at Victoria in the colony, accepted by way of bribe divers sums of money from the keepers of certain unlawful gaming houses situated in Cheung Hing Street and Wa Lane. Those streets of course might be anywhere. The count did not show that the offence was in respect of any place over which the Court bad jurisdiction. The second objection was that the count was bad of duplicity in- asmuch as there was a want of partionlarity. It alleged that contrary to his duty the defen- dant, on the 13th March, 1997, accepted by way of bribe divers sums of money from the keepers and managers of certain unlawful gaming houses situated in Cheung Hing Lane and Wa
Y
Lane. Counsel submitted that that was bad of duplicity. The defendant did not know of all the charges he was to meet and if the jury were to return a verdict of guilty against him generally it would be quite uncertalu as to which of the charges they found him guilty of. Neither the house nor the keepers were specified. Counsel referred to Arobbold, 21st edition, page 58, and to 14 Cox, 499. It had been ruled that it was not sufficient to charge a defendant generally with having committed an offence, but all the facts and circumstances constituting the offence must be set forth. The indictment must not be double, and counsel submitted that the present information was double for want of particularity. Not more than one offence could be charged in ons count, but here there was only ono count and several offences were charged. His Lordship said that supposing a made a single agreement to take bribes in respect of more than one place; was not that one transaction-one single bribe-although it might refer to different houses? How could that be broken up?
mish
Mr. Robinson replied that there was nothing like that stated in the information. There were no particulars in the information in respect to the names of the keepers or the numbers of the houses. Of course if counsel's conteution was uphold there would be no end to the informa- tion, but with regard to amendment, the deposi- tions showed that the case was really brought in respect of one honse and counsel had no objection if the information was amended by the name of the house at No. 2 Wa Lane being put in. Of course it was possible for the prosecution to put their cases in separate counts, but if that were done counsel would have to ask for an adjournment as he had not had notice of any other house but No. 2, Wa Lane and he would have to consider his position. Mr. Francis submitted that the count was a perfectly good one under the provisions of our local Ordinance, which differed considerably from the provisions of the law with reference to indictments in courts in England. The Or- dinance regulating the subject is 3 of 1865 as amended by 2 of 1869. According to section 6 the Chief Justice could order further parti- culars to be delivered if he deemed it expedient to do so. The result of combining the effect of these two Ordinance was that it bad always been deemed sufficient to allege in the broadest terms the nature of the offence charged, as murder, or manslaughter, or stealing, without going into great particularity as to names, places, dates. and weapons. If the defendant or bis advisers had been in any real difficulty and wanted to be mado acquainted with the names of the persons or the particular dates they bad ample time to apply for such particulars. In this case there liad been a preliminary inquiry in the Police Court and the names and the localities of at least two of the gambling houses were referred to in those proceedings, Counsel submitted that the information was perfectly good and complete. His Lordship had already answered the second objection by the question put to Mr. Robinson. It did not necessarily follow from the wording of the information that two separate offences were charged. It might be that there was in fact one acceptance and one transaction although it had reference to different bonses, and therefore the count was not double. It did not charge two separate and distinct offensos in respect of which two soparate and distinct punishments would be necessary to be inflicted or on which two separate and distinct verdicts would have to be given.
In answer to his Lordship Mr. Francis admitted that it would have been better if the locality of the streets had been mentioned.
Mr. Robinson replied and said that his friend had not dealt with the matter of particularity. As he had said, he was quite willing for an amendment to be made. He thought section throw no hurdan whatever upon the defend- ant or his advisers.
His Lordship, in regard to the first objection, directed that the information be amended by stating that Cheang Hing Street and Wa Lane were situated in Victoria in the colony of Hongkong. The second point was that the information was bad for duplicity inasmuch as the charge was in respect of two sets of gaming houses in Cheung Hing Street and Wa Lane. That objection, it it was of any validity, might
435
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