CO129-541-11 Cheng Kwok Yau- trial judge's notes 1-1-1932 - 31-12-1932 — Page 38

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It is to be observed that the evidence to which

objection is taken primarily disclones a criminal incitement

by the accused which forms no part of the particulars given

in the indictment itself. The evidence relates to an incit-

ment of different persons from those named in the indictment

and also to an incitement to use as m alternative to the

use of firearms means different in kind from those in fact

It describes used by the persone named in the indictment.

a so an indictment which was never effectual as the witneBBES

themselves at no time intended to kill Fung. Moreover, the

incitement is not a link in the chain of evidence alleged to

have led from the criminal intent of the accused through

the cha nd of his chauffeur lou's aŝtivities to the murder

of Yung. The story told in this evidence discloses crimes

other than the crime charged, which may be separately

designated and punished.

The relevance of this evidence to this prosecution

has been questioned before us for these reasons; and the

admi se ibility has been challenged on the plea that it has

ben used to prove complicity in the alleged offence by

showing com licity in a distinct but similar offence.

It is salutary here to recall the advice of Viscount

Birkenhead (which is to be found in "Rutherford v.

Richardson" 1923 A.C. 5) who there amid The i *sues

"pronounced upon by Courte in criminal

.matters are

standed with such decisive consequences that tõe adoption

"in matters ofvidence of a standard of admissibility which

"is so cautious as to be meticulous may not only be

"defended butis in fact essential".

In my opinion the evidence was rightly received.

I have reached the c.nclusion that the contention

by the defense that the evidence to which objection in

taken forms a different transaction from the transaction