CO129-550-7 Rex v. Ng Loi Yuen- appeal to Privy Council 1-1-1934 - 31-12-1934 — Page 75

3

This in terms is the same as section 4 (1) of the Criminal

Appeal Act, 1907-7 Edward VII. Cap. 23.. A large number

of cases decided under the English Act have been cited to us

by learned Counsel for both the Appellant and the Crown and

considered by us, but as it is clear that each case must be

governed by its own circumstances, we do not consider it

necessary to refer to any of them in our judgment.

We now proceod to deal with the various grounds of

appeal and shall first consider those relating to points of

law.

1st.

been established.

75

The admissibility of the evidence of Mrs.

Fairburn. Counsel for the Appellant submitted that this

evidence was inadmissible and should not have been put to the

Jury in the absence of the evidence of Mary Fine, his submission

was that as Mrs. Fairburn's evidence related to "Similar Acts"

it was not admissible until a prima facie case had been

established against the Appellant, and that no such case had

Counsel for the Crown submitted that apart

altogether from the question of the admissibility of this

evidence under the heading of "Similar Acts", it should be

received as forming part of the "res gestæ ". We agree with

the latter submission for the reason that we are satisfied

that the evidence was relevant to the issue as it raised a

presumption as to the existence of the facts essential to

the issue.

We therefore feel no hesitation in coming to the con-

clusion that her evidence formed part of the res gestæ and

was therefore admissible.

2. With regard to the refusal of the learned Trial

Judge to withdraw the case from the Jury at the close of the

case for the Crown, we are satisfied that the cumulative effect

of the evidence for the prosecution was such as to call for an

explanation on the part of the Appellant. We therefore consider

that the learned Trial Judge was correct in refusing to withdraw