1908-06-24 — Page 5

Page

of jus

of

SUPREME COURT,

ΔΙΣ

a

THE HONGKONG DAILY PETES, WEDNESDAY, JUNE 24TH, 1908,

A

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THERAPION NĚ

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for - purity of

obtaining a warrant where circumstances permit perfectly voluntary". Now, I refer to these oonetquently the answers returned by the required. The grounds of the principle shortlyTHERAPIONIN1.2;

stand.

The Attorney General"applied for leave to appeal to the Privy Council hat the Chief Justice refused the application."

THE OPIUM QUESTION,

SIR F. SWETIENKAM 'SNUBI ALEXANDSE. I" The times," weiten Sir Edwettenbar, there is a letter, fom. Mr. Joseph Alexander, on the opinn question as it affect the Estera Crown coloris sad the Federated Malay Stats, and the writer rafer to me as the m with piecaof people who are explaining that the House of Commone is taking their money." Mr. Alexander is mistaken; I did not write to you the monthplace, or penpiese, of any ons, and I have heard no complaints that the Hous of Camous is taking the many of people in Hongkong, the Brita, the Federated. I lay Sists, and Ceylon. I am not eron wire that the Hons of Lomagens is in a position to take. their money

I rather, however, from M Alexander's letter that he thinks tho. II can do so, bat ha wales you to understand that no culoay can fairly object to a Ime of poradus which is deriva. from one selin of the community.

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"say would be taken down and used as evidence | suswer might hy uied at the trial. Bat he was ccurrence which make up this transaction. It against him". A confession was thereupon interrogating the socused mier, suah cirmm- would have been quite unnecessary to leave this made by the prioner. Counsel for the prisoner stanges that I am not satisfied that the answer confession to the jury. In my vlow, of cour (Continued from page 3.)

stating that the question was whether the obtained was a voluntary one, Assuming that I may be quite wrong, the question and answer been illegal I think it only reasonable to cos. words addressed by the constable to the the box did belong to the prisoner and that he might perfectly well be treated as an isolatal

“accused". held out to bin the promise" or

know the watch was inside it can it be for an incident inadmissible in itself but on which elnde either that the door was, open-or mors probably that it was opened to the police from assurance of any wordly advantage, as the instant supposed that had he not been gres nothing turned and leading to nothing: In my within. If this was so the circumstances would consequence of making a statement; or a threat, tioned he would have volunteered the informe-view gain the whole of the rest of the evidenes resemble those in the case of Smith Shirly of harm to himself as the consequence of retrain. tion that the box was his. It was pressed was semissible. The Chief Justion, however,

on us for the Crown that the prisoner was ruled and I understand that his raling still is (3.-C. B. 14) an notion of trespass where, the that nothing of the sort could be implied from ing from doing so the judges held unanimously

not taken into custody until after he had made that no part of what happened within the door baring heen opened from within to the

the statement, and that in the cases on confes houe of the prisoner subsequently to the ques defendant by an inmats of the house bad that the words, need and they also held that the con there being no warrant the Court thought a ples fession was rightly received in eridence because sione a sharp line le drawn between confessions tion put by the Sargeant was admissible in mads when the prisoner is and those when he is evidence at all, but in fact that the prisoner's justifiation would have been good if it had the prisoner must bave known that he need say

not under arrest.. I admit that the distinstion statement: his opening of the box sud the finding showed distinctly not only that there was reason nothing unless he chose to do so. In the course

may often be a very real one. Voluntary state of the watch by the police officer all went to to believe that the suspected person was within; of his judgment Pollock C. B. remarks A

ments may frequently be made to a police make up one continous transactise which mat but also that the defendant entered on reason eimple caution to the accused to tell the truth, if

officer by suspected persons who are unaware of stand or fall together: Now the fluding of the able saepision of felony and for the purpose of he says anything, has been decided Lot to be

for arresting him. Is not that case an authority anfficient to prevent the statement made being is indentity. Or again the circumstances watch was an integral part of the este for saying that the polico sergeant in the given in evidence. He is reminded that he might possibly be aneb as to make it apparent the Crown and the Court being unwilling to that the auswers of the sessed were, quite exclude it altogether, but boing doubtful if it circumstances before us might have a good need not say anything-but if he says any

it right at defence to an sation for trespasr 1 my thing let it be true. But where the admonition voluntary. In the present ese, however, the could be properly admitted thought

distinction seems to laok attality. It is im imagine that the transaction should to the

gö itto speak the ruth has boss coupled with any opinion it is. In any case I wish to make it clear tha; though it is highly desirable for a expression importing that it would be better for posible to doubt that from the moment the jarg as a whole, subject to the reservation of police offsor to bi fortifd with a warrant when him to do so, it has been held that the confession police had entered the house the accused was the point of law. Under t ess circumstances was not receivable, the objectionable words for all practical purposes as much nader re the law is lo my opinion perfectly clear. Thers he makes forcible entry, in order to run up risk being that it would be better to speak the truth,

straint as if he bad been formally arrested. I can be no doubt that a conviction is bad it evi possible complications I refuse to lay down. as a general principle that the police are under beons they import that it would be better make no doubt that if he had jumped up and dance which is inadmissible has be allowed t no circumstances justified in outoring withouts for him to say something. The trae distinction attempted to escape he would have been at ones go to the jury to the prejudice of the prisonst, secured and I think that he must have been well even if without it, there was legal evidence um warrant the house of a person reasonably between the present case and a case of that kind,

aware that he would not be allowed to leave the ply smolant to support a conviction.

This is suspected of felony if that person is in fact is, that here it it left to the prisoner as a matter

premises. Under these vircumstances it seems, though the objectionable evidence was not of prfect in difference whether he should opan within. Nor can

Recept the principle that.

to me that the mergeant bad to right to put any elicited by the prosecutee at all but spout ine OfBoers only justification would be that he had his mouth or not". Baron Parke said:"By

questions to the accused, or certainly not, with ously volunteered by a witness, and though pri entored, ca pursuit aftor s huo and ery. It is the law of Enghad in order to render the con..

out previously administerings caution, and that sonore Counsel raised no objection tits being hope unnecessary to point out the importance of fession admisible in evidence it must be of the desirability of at ofleer's making due judgments, especially to that of the Lord Chief Prisoner cannot be shown to hate been voluntarly stated are that s Court of Criminal Appal ha Barou, because of the stress there laid on given and are inadmissible against him. I no means of determining how for the jury in demand and clearly dedaring his authority.

Venture to think that the English decisions arriving at their decision have bu infusnicel I have given I think the importance of it being brought to the For the reasÖKE

I have no doubl knowledge

when weighed and considered as a whole will not by the inadmissible evideno3, of the ageused that he need that in the case before us there is 10

be found inconsistent with the conclusion at therefore that the verdict vanuot proof of any illegal entry and the first abjec not say anything at all, and I find there in

the solution of a very difoult problem the whlob I have arrived. In any case it would Further there is no question that the finding tion therefors falls to the ground, I desire, however, to remark that even if it were proper construction of the word "voluntary". have required vaty clear and unambiguous of a water alleged to be the property of one of THERAPION N1.3 rous clear that the sergeant bad in entering the Hore then we have a test suggested by the authority to lead ine to reject the principle I the persons whose death formed the subject of house committed an actionable trespass that Chief Baron and Mr. Baron Parka Applying find laid down in E. v. Budry, Now the this indictment in the possession of the ist would in my view be no ground whatever for that test to the materials before us, did the Attorney General argued that even if it were prisoner might have been accepted by the jury shatting out any evidenos otherwise admissible prisoner in this case make voluntary confession? held that the statemet of the prisoner was a soufirmation of the evidence of the informer THERAPION ipa Chemists and for what he may have discovered inside. Te Did be understand that when Sergeant Wilden inadmissible per se it should nevertheless have against all the soused and this being so the conviction it be qashed and all three put an absurd hypothesis: supposing a perzin seked him whose the box wie, he was at liberty been received in evidence because it led to burglariously entering the house, had by the answer or not as he thought fit and that if he the lading of the watch the rala bing prisoners must be discharged, use of torture foroad the prisoner to deliver replied the words of his Enswer would be proved that where property has been discoveral in all his valuables, could it be seriously argasd against him at is trial? There are a number of consequence of an inadmissible confession facb of the discovery of the that, Tr property tending to connect the earlier cases in which confessions made to the then the

property may be proved with so much of the prisoner with a serious crime were thereby police or other persons in whose custody they

confession xB strictly relates to such fact. I brought to light, the court would be bound to were by the accused have been held admissible, exolada from the jury the finding of that pro

on the ground that the negation of any induce fully admit the validity of the principle which perty and the facts attendant on such fading? etwas conclusive evidence that the statements however in my opinion has no application to the case. Here the scufession merely I think that no such argument would ere, voluntary, Bat as pointed out by the present

related to the ownership of the box and had no listened to. So much for the general objection learned editors of Cox's Criminal Law CaseS

reference whatever to the finding of the wat I will now proceed to examine the obnoxions in a note to Regina v. Garin, vol. 15, at p. 657, evidente in detail, Taking first of all the work in uit of the ass usually cited to establish though it did tend to pozueet the watch when found with the onset. Had the question been spoken by the prisoner "Il-this bax-belonge

this proposition the Judge are by no means anaoimons and almost all of them express where is the dead man's watch and had the to me" this clearly is in law "a confession" by which I understand any admission whether by disapproval of the practice while admitting prisoner in reply indicate the box-then no wards or conduct, not necessarily an acknow. its technical accuracy. In Beg. v. Karr, doubt when the watob was found, evidence of and P. 176 Farte says But Imus say that the finding aod, perhaps the itatement which dgment of fail guilt, made by the accused, which it is desired to use against him. Its in this particular oss there does not appear led to the fading would be properly admissible. admissibility therefore must of course be to have been anything improper in the conduct It does not appear that the finding ms a

consequence of the prisoner's reply because governed by the general rules applicable to this of the policeman though tresting it a s class of evidence. I think the principle may be general question I think it should not be was admitted for the Crown and indeed it sets stated emociutly as follows: a confession must done." In tag. v Thornton Mandy 27, the prolable under the circumstances that the bor. be excluded if it was made in consequence of majority of the judges bald the confession would have been searched whatever the reply of any inducement of a temporal character, con rightly received on the ground that n threat the prisoner had boon. On alle grounds there or promise bad been used, but Best, Chief fore I must hold that the prisoner's statem set acoted with the accusation, held out to the

was inadmissibls and was wrongly left to the prisoner by a person having some authority in Justin Bayley, and Holroyd, Jware of the the matter of the accusation and it must ale putrary opinicu. In Re... Wild Moody juxy I will next proceed to desi ae briefly as be excluded--I think it necessary to add these 15, the judges, white anosimsusly of opinion possible with the remainder of the evilbu

hid it is said was wrongly admitted that words if it was not made freely and voluntarily. that the confesion was strictly admissible,

As Mr. Alexander appear to tave visited the The burden of pmsing the admissibility of a much disapprovd of the mode in which it had ia, Secondly the opening of the box by confessios tendered in evidence lies on the been obtained. Now a sergeant of police is prisoner. I fully admit the contention that Maiar Peninsula in the autumn of 1906, and Bois or geatures may under certain circum another member of Parliament has been thera prosecution, the question of deciding admis clearly an offer of publio justice although ibility being for the Court. Now the subordinate one I End great difoulty instances by as much a confession as spoken fords.

ever more recently, it may seem presumptuous f and that the same test of their admissibility.

me to say anything further in the matter. I dil question of the admissibility of confession accepting the position that he may obtain

will then apply. But it must be quite dear

not write to you to provoke a controversy,, but constantly arising bath before Magistrate svidence out of the prison's own mouth in a

that if an act of gesture be no arplained by the for othus reason which have osoaped Mr. and at Criminal Sessions and it is very desirable manner of which the Court disapproves and

acompanying circumstances that it is quite Alora der. The fault is, no doubt, mine; bat that the in governing it should be clear and thinks worthy of censure, and that such

evident that it does not amount to a confession if I did not expres miys-If quit so plainly as I definite. But as a matter of fact, so difficult evidence may be used at the trial against

the

tho person who has faroished it If at all, that it is not an admission of anything might have done it was not an accident. I should, le it to apply a principle of law to

the law really allows such statements. to be then proof thereof cannot be objected to if it is varying eiroumstarices of individual that many of the most recent decisions obtained and the Courts, though disapproving, otherwise relevant to the issue. Now we base however, esteon it a favour if Mr. Alexander Federated Malay Stites, are governed by the. as to conflict with each other and the admit them as a proof of guilt it can not be it is evidence that Sergeant Wilden told the would any whether his statement that the text books after stating generally the broad blamable for a policeman to obtain them. He prisoner to open he box and that the prisoner Cosial Office and not by their Sultans" is Would it under these circum-made on the authority of the Secretary of State principles of the law as the learned authors may if the protest from the Bench have any did so, sonosive it, content themselves with marshalling weight, be endangering his own professional atances be possible for the jury to draz for the Colonies, or on that of the Saltons. Also, the ownership of would he quote the enactment or whatever it conflicting rages on either side of the line. It prospecte; but he can conscientionaly feel that any inferson as t is with the very greatest diffidemos therefore he is promoting the cause of justice and the the box from the fact that the ponen) by which the sale of opinn to Melaye is

One man orders another to that I stall andesverte to examine in the light safety of the public. During the course of a opens it

open a box that the other, believing that prohibited, and say what other rationalities are of previous decisions the circumstances of the very learned and exhaustive argument many

modern decisions were cited to us on-sither side. he is bound to obey does to, surely Do case before us, in the hops of arriving at s

One-nak in particular, Rogers v. Hawkin, inference of ownership lies? The action thus conclusion which I can suppurt by an appeal to legal principles. There is of course no doubt (79 L. 056) was relied on both by Mr. Blade explained becomes perfectly colourless and 3- that a sergeant of police fails within, is indeeds and by the Attorney-General, It was argued objectionable it is neither an admissiou for s typlos representative, of the class of persons for the Crown that the decision being that of a confession, for it neither admita por confessas having suthority in the matter of an accusation, Divisional Court was binding upon ourselves anything at all Then Thirdly: There is the

It then be said that there was here any

While it is quite clear that the only English evidence of Sergent Wilden. I searched the Calmout held out by him to the prisoner judgmente bine, there is no doubt that we

upon this Court are those of box and found a watch: and the watch and chain were theu put in as au exhibit. Now it was Did he work on the latter's feelings whether by the Privy. hope or fear in order to extort a disclosure? shall examine English decisions with very great asid that the finding wond het properly he The reply must be that there is no evidence respect and I desire to make a few remarks proved and that the watch and chain aught of anything of the kind. No expression or threst upon the mere recent cases. It is not easy to not to have been put in as evidence sgajnet- was profferred and no implication of anything reconcile Rug. v. Brackesburg, 16 Cor, 628. the prisoner. The evidence was objected to of the port is raised by the evidence. Then if (1893) with Rs. r. Gavin, 15 Cox, 657, (1985); because either the watch was found a cons there was no indu ement, was the confession or the rating of Hawking J. in Reg. Miller, quence of an inadmissible, confession-or if it therefor free and voluntary Here I begi to 18 Cox, 4, (1895), with that of the same learn was not so found because the sergeant had find myself in considerable difficulty. It steed judge in Reg. Histed 19 Cox, 17, (1898), acted illegally and imprnly throughout. I answer was free and cluntary it is of course Yet these four decisions were all delivered will deal very shorty with this part of the admissible. I have disposed of the question of within the space of 18 years and were daly re- argument. It is clear law that the fact that inducement therefore putting that question ported in Cox When come to compare property has been discovered, where the ds entirely on one side I will ask-matja azomer Regina v Male, (893), 17 Cox, 689 with covery takes place in consequence of an illegal from the accused to a person in authority be Hogers r. Hankis, 78 L.T. (1898), 655, I find co fossion may always be proved, Sse the that Lord Russell in giving judgment in the casas referred to at Phipser's Evidenca p. 232 held to be voluntary, provided only it was: prelatteroase states that he regards the oberva-1.and I would add to them the comparatively) Chiza. The dress in a fashita of their own, daded by

no inducement of any kind? Perhaps I had batter go further sad enquire when is a tions of Cave, J. in Regins v. Male sa. perfectly modern case of Rex v. Betsiman. 6 Cor 388, person la authority allowed by the law to patat, in the circumstances. Now the two devi. If therefore the watch was found in consta

of the confession the finding of it is admissible. questions to the scousel Lasying out of the sions.seem almost hopelessly at variance and it question the special provisions of the Cri is by no means easy to find any essential point I have slready said however that in my opinion mical Evidence Act-the reply must bear of differ-nos in their circumstances. If it were

the watch was not found in consequenes of the tainly not Neither. Judge tego decision confettion. That being so it there any reason

There is a great deal still to be said on the is permitted to interrogats a prisoner would merely way that I prefer the reasoning why the finding way not be proved as an in-

Leus of Mr. Justice Care to that of the Divisional dependent fast? I do not as that the question The question is sufficiently dificult even whot subject, a great deal to be carefully weighed. upon his trial. Any perfectly spontaneus statement the accused may Volunteer to the Court. The former is in conformity with the of any illegality committed by the peice Court can of course be used against bici. It principle recognized in Reg. V. Baldry and sup- anything to do with the mitior. I think you know something about it. Lord Ronaldabay stras that when any person is charged before plied a clear and intelligible rule of universal therefore that evidence of the finding of the and Sir Henry Blake have spoken and written of a magistrate with an indictable offence with a application. But possibly, in the later case the watch was clearly admissible. I will now aim what they know, and their fasts cannot be dis view to committal it is provided by Statute relative position of the parties may have had up the conclusions I have arrived at on this evid-regarded. I only suggested that, if the Imperat that be most be asked by the magistrate alter considerable weight with the Judges. The exce: Ifad firstly: that the prisoners' statement Government determines to act on the resolution. the case for the prosecution, hiss olcsod—whether owner of the horse and art might have sory it, the box lelongs to me," was inadmissible. of the House of Commons and issues orders to having heard the evidence he wishes to compulsion to answer the question put to him opened the box was quite mobjectionable: the monopoly and give up ait rovenus derived thora- well been aware that he we not under say I find secondly that the evile.en that the prisoner the Eastern Crown colonies to abolish the opitia anything in answer to the charge, Dat the same Act provides a formal caution which and if so his replies might be held to be free act of opening being under the circumstances from, it will be easy, while gratifying mofal feelings, to share the cost of that gratification begins" you are not ebliged to say anything and relatary Again it does not appear, that, neither confesion nor admision, bat 1. pufectly by arousing the elonies from any further dea unless you desire to do so". This, ny though a police countable was pressut, the colourless fact, part of three gesta. Thirdly tribution towards Imperial defen09. important provision, is intended of coutes to accused was at any time anler arrest or The evidence of the finding of the watch WAS make it absolutely clear to the prisoner that detention, or in any danger of anything of the rightly admitled. I know of

legal principle though the law allows him to speak he is nader kind. The charge again was for a petly offence in which it could bare bien excluded. It was of the defence csstribution (hithert derivedin no compulsion to say anything at all. Let us punishable summarily with a maximum fios of urget on us by the Attorney General that this larga part fromthe opium ravenne), nor yet the erongiastic mest ogs of Straits born Chinese in go back to the first arrival of the prisoner at the secund was presumably a householder statement of the prisoner was in fact no part of The Follce Station after his arrest. Here again and the uenal mode of proceeding would be by the oans for the Crown, that ho desized to omit favour of the suppression of the opinn m poply be may not be interrogated by any one, but it Bammons in the first instance. So on the whole it altogether and that had he been allowed to will put an end to the smoking, eating, or is necessary that he should understand what I think the Curt might well have held that the do so. It was still quite competent for the jury hypodermis injation of the drug. It is is the charge against him. Prisoners however defendant was a free agent when be made the to jufer from the box being in the prisoner mistake to lend the issue by ignoring, wid en being sharged very often make statements statement. I can ase no other way of reconcil-room, and quite cluse to his bed that it was in steling, or dislerling the facts. of one kind or another and therefore in this ing the decisions but I have endensoared to do fast the prisoner's property. The Crown not Colory at least, a formal caation is always so in view of the express apceptance by Lord depending on this statement and its a laission administered to them before any statement they Russell of the clear and unambiguous judgment not being of any possible benefit to the prisoner way make is taken down. This caution begins of Cave J. Inouy ons I recept the law as laid he maintained that it was the duty of the with the game words you are not obliged to dowa io, R. Male and I think it perfectly applicourt to instruct the jury to disregard it day anything unlces you desire to do so". Can cable to the cirgamstances of 1ae os before us. altogether, or oven, if neoary, to distarga any distinction be made when the prisoner has Wo find here that a pol as officer with a posee the jury and order a fresh trial. The not been charged and has not been avon, of men goes to the house of the accused in the Attorney-General further, argnal, and ↑ 1 formly arrested, but is interrogated by a morning before santise and puts to him a ques suppose ha felt bound to do that as the piece, Folice Offeer acting in his official capacity. tion the answer to which may tend to prove his of evidence was left to the jury against his ex- I think a very illuminating caso in this participation in an allegt wurder. Now I am press desire-its inadmissibility cannot ritiate connection is that of Regina v Baldrey (2 not suggesting that the police sergeant meant

the verdio, more especially as without this Denison 428). Here a constable having arrested to ast at all unfairly--Nor again do I suggest statement there was sufficient legal evidence t a man on a charge of morder told him the that he thought he was doing anything illegal. support the fading of the jary. Now this was nature of the charge and administered the He was merely doing what I expect many police

a matter depending on the point of view of the following caution. He need not say Bay-officers do in similar virsumstances: Perhaps judge who tried the case. Hel the learned thing to criminate himself what he did he was not ran thinking that the prisoner's Chief Jaatis taken the view I tako of the

ca366

༠བ ,

has

Paoluded in the prohibition.

Mr. Alexander states that it is the opium smokers of the Straits and Malay States who hare appealed to the British Government to forbid their being any longer solicited by tem resist It may be so but I find the language plation which they find themselves too weak to strange as coming from the opium smoker of the Chinese labouring population who are not opiam conferences, nor even amongst the man- deusly found at public meetings, nor at anli- pors of the Chinese Chamber of Commercs at Singapore. It is certainly curious that the opium smokore should never have raised their voices in this exceeding bitter dry in the past; and it would be interesting to hear in what language they addressed the enthusiastic meet- ings to which Me Alexauder relers.

Singapore and Padangзven the Federated Malay Statas taiu a considerable number of young Chinese who were barn and educated in the colony, and bold views, often excellent, which would not be regarded with entire approval in dispense with the quous and, at their debating society meetings, discuss the cpium and other questions. It is inst possible that the meetings referred to by your correspondent were organizad by Chiness, who are not themselves opium

smokars.

Neither the Government adist, nor the refusal.

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The Norwegina str. Christian Bore left Moji on 3rd fast. for this port, and is due to arrive here on or about the 28th inst,

The C.P.R. Lannox arriped Shanghai at 10a.m. on Monday, the 22nd inst., and loft again at 9 pm, same day for Vigasaki, where she is due to arrive at noon to day.

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66

Pa

DUBLIC ATTENTION is drawn to the fast last at the past time many brands of CONDENSED MILK are being, offered for sale bearing, labels Barly reprenting, that of the original "EAGLE" " Milk manifofuradal by BORDEN'S CONDENSED MILK "C0, of New York, as sie oceniat vita Jabira tha parchasers of the real article.

As an a Iditional protection, alf purchviors of BILDEN'S EAGLE" BRAND MILK are requested to note that every tia of: sama bears the signatur of Gau Borbes, the original manufacturer, on the label. BORDEN'S "EAGLE" BRAND MILK has the enviable reputation of being the milk par excellence and without á, rival in point of view

of quality and purity.

Owing to Bonoen's special and exclusive procesi · of manafastars bɔlh their *EAL" and-"GOLD SEAL" Brands are specially recommanded for use in tropical climates, they hang gasranteed to keep bitter than any other Condensed Milk offered to

the public.

For BOREN'S CONDENSED Milk Co.,

CONNELL BROS. COMPANY,

Sole Representatives in Hongkong-

Hongkong, th May, 1908.