824
built up purely for the purpose. In view of that observation, it is for you to weigh the evidence on both sides. It is not Buggested by the defence that what the European witnesses say is incorrect but that they made a mistake. Inasmuch as their evidence was taken some days ago. I think it best that I shou'd read it shortly to you, so that you may have fresh in your minds what they said.
THE HONGKONG WEEKLY PRESS
The Foreman : Yes, my Lord."
We understood you to say that if we have no reasonable doubt that the man Captain Morgan saw leaving the rear of the ricksha is the prisoner in the dock we can find him guilty.'
The Chief Justice: That is exactly what I did say.
The Foreman: Irrespective of whether he saw him fire the shot, or not?
In reading over the evidence of the principal witnesses for the Crown the Chief Justice referred to Capt. Morgan's correction of a slip he made as to some- one's position and remarked: "It is a thing I constantly have to comment on in this Court, that intelligent European witnesses are always hazarding a guess he fired the shot or not? instead of saying I don't know.' They
"Oh, yes,
think it was so-and-so, say. and later have to withdraw it. And then counsel, naturally, comment on it."
The Chief Justice: Taking the whole of Capt. Morgan's evidence, if you have no reason to doubt the truth of it, you should find him guilty.
"The only observation I have to make on Capt. Morgan's evidence-1 leave it to you-is; that if the story put forward by the defence is true his vision is most defective. He saw nobody except the prisoner in front of him; the defence say there were several people. With regard to the fireman, I have only to say that his evidence, though he was called by the Crown, in a large measure corroborates the evidence of the defence; if his story was to be accepted it very largely broke down the case for the Crown so I ques- tioned him "
The Chief Justice read from a short
hand note of this part of the evidence.
Mr. Jenkin: Perhaps your Lordship would not mind stating that in the main. he gave the same evidence at the magis- terial inquiry.
On the prisoner's evidence, the Chief Justice remarked that it was for the Jury to say whether his silence when picked up after arrest was reasonable. Was his statement to the police that he was "pass ing the Hongkong and Shanghai Bank, I do not know what was the matter " reasonable remark in view of the fact that he himself said he had been run ning from Queen's Square in company with others who had run? A man with a clear conscience would desire to clear himself "I think," said the Chief Justice at this point, "that the evidence for the defence is fresh in your memory. I do not propose to read it, unless you desire it?
The Foreman: No, tuy Lord. The Chief Justice then noticed that he
had overlooked Mr. Larkins' evidence and he read salient portions of it.
At one point Mr. Jenkin intervened to read a portion from the Daily Press report "Your Lordship has not got it question and answer," he said.
(4
Mr. Jenkin : Irrespective of whether
VERDICT OF
<<
'GUILTY."
After a brief consultation with the Jury, in the box, the Foreman indicated that they were ready to give their ver- dict.
The Clerk of the Court: Are you un- animous?
The Foreman : Yes.
guilty?
Do you find the prisoner guilty or not
"GUILTY," replied the Foreman in firm and steady tones.
"
APPLICATION BY THE DEFENCE. Mr. Jenkin was on his feet immediately My Lord," he said, "I must ask you to entertain an application. I trust it will meet with greater favour than the one I made in the course of the trial. I move an arrest of judgment on three grounds and ask your Lordship to re- serve the point for legal argument. The first ground is misreception of the evi- dence of Mr. Larkins after the closing of the Crown case.'
it!
"
The Chief Justice: But you agreed to
[March 25th, 1922.
Mr. Jenkin: I did not waive it. It was admittedly a novel and new point of law.
I was driven, as a matter of strategy-I think you appreciated that- into the position I took up.
The is my third point (continued Mr. Jenkin) and that is this: A mis-direction by your Lordship to the Jury when they returned just now and asked whether they understood what a direction was. The misdirection is this: Your Lord- ship's direction to them was:
If they had no reasonable doubt that the pris oner was the man who left the rear of the ricksha they were to find him guilty, whether or not they could find that he fired the shot.
The Chief Justice: I said, taking the circumstances as a whole; the evi- dence as a whole.”
"
Mr. Jenkin: The question of the Fore- man was "irrespective of whether or not he saw him fire? and your Lordship lay "Yes tak- back in your chair and said, ing all the circumstances into effect.” So that the Jury were thereby invited to find him guilty merely on the ground
that he left the rear of the ricksha
The Chief Justice: I understood the question to be-(to the Foreman)-Kindly inform me of your question again.
The Foreman: What we were in doubt
if we
about was as to whether you said that doubt, that the man who left the rear were satisfied, beyond reasonable
of the ricksha and who was chased by Capt. Morgan-if he is the man in the dock-then we were to find him guilty irrespective of whether Capt. Morgan saw him fire the shot.
The Chief Justice: "Actually saw him fire"-in other words, whether you are satisfied that Capt. Morgan's evidence 18 correct that the prisoner is the man whom he chased, whoni he followed up as being the man who fired.
The Attorney-General :
May I say, Capt. Morgan did not say he saw the shot fired at all.
Mr. Jenkin: No; he merely surmised that he had fired the shot.
DECISION BY THE CHIEF
JUSTICE.
Mr. Jenkin: I will explain the circum- Your stances under which I agreed. aLordship refused when I applied that the point should be argued under Section 68 of the Code of Procedure. Considerable argument ensued and your Lordship said you would consult your learned brother (the Puisne Judge) in Chambers. I then, as your Lordship refused to reserve it, considered that I was driven into with- drawal of the objection because of the The Chief Justice: As regards the first fact that the effect of this evidence had point.--Mr. Larkins' evidence being in- been, to some extent, stated in the hear-admissible as I say, I might have re- ing of the Jury.
jected it but for the fact that you with- The second point is that there was drew the objection to it. Had I rejected handed to the Bench by the Attorney-it, no question could have been raised as General
way or the a police report, or statement to its inadmissibility one taken by the police, of one of the wit- other. I am not saying you have not power, to do it, but it is quite novel to nesses for the Crown whose evidence was
me, when counsel representing the accus- favourable to the defence and which was consistent, here, with every word he said ed, withdraws his objection to evidence going in-whatever the reason may be- in the Police Court. That statement was
and contends afterwards that it is inad- read by the Bench
misible.
The Chief Justice: No, Mr. Jenkin, it was not, I did not read it.
Mr. Jenkin: My Lord, I am sorry-- The Chief Justice: I have not the faintest idea what it is. I did not read it and I rejected it.
a
Mr. Jenkin: If your Lordship did not read it. I accept that fact without moment's hesitation. I
was under the impression that your Lordship did.
The Chief Justice: With regard to the
Finally," said the Chief Justice," if you accept the defence, you say that all the witnesses for the prosecution are in error about the man running. The ques- tion is whether, taking the evidence of the Crown as a whole you are satisfied as to proof. On the other hand, your verdict of guilty will involve saying that the whole of the evidence put forward for the defence is a conspiracy to defeat the ends of justice. If you think Capt. Morgan's story, corroborated as it is now by Mr. Larkins and other witnesses, is a truthful story you will find the pris-point as to Mr. Larkin's evidence, I oner guilty. If you have any reasonable doubt a doubt that leads you to say I shall always have it on my conscience that I felt a real doubt whether the Crown case was proved'; if such a doubt exists in your minds, you will find the prisoner not guilty.
After they had been in consultation for half-an-hour, the Jury returned to the Court and the Judge said to the Foreman (Mr. H. W. Bird), "You wish to ask me gomething?
offered, as I told you at the time, to con- sider the matter and to confer with my learned brother, but I quite understood the position which you took. It was that, having regard to the fact that the Attorney-General had mentioned the ad ditional evidence, the Jury might infer the import of it and hence you thought it desirable it should go in; if you in- sisted on your objection I might have decided to exclude it. I understood you waived it.
Mr. Jenkin : I respectfully submit I had no option but to withdraw on your refusal.
The Chief Justice: I objected to re- thought it unnecessary to do so. serve it for the Full Court because I Had it gone, as you suggested it should, and the jury convicted, it would have been a loop hole for quashing the conviction. It is quite possible that a conviction might have been quashed as a result. As you with- drew your objection I do not consider that is a ground for granting your application.
As regards the second point - the Attorney-General handing up to the Court some document-I did not read it. Even if I had, I have made no reference to it whatsoever to the Jury nor did I. in any way, reflect-in questions to the witnesses upon any statement they made to the police, that would have the slightest bearing on the case.
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