1918-05-02 — Page 3

Page

THE DEPORTATION

CASE.

ACTION AGAINST OFFICIALS MR HALLIFAX IN THE WITNESS

BOX.

THE PROPER INTERPRETATION OF THE ORDINANCE.

The Chief Justice said he was pre pared to conceive that it was quite possible that the

Attorney General considered that the ovidence was suff cient to support the charges, but he could not admit for one moment that that Court must assume that such evidence

was sufficient. As they know, the

Attorney-General cune into that Court from time to time, after framing indict. The action which Li Hong Mi, aments, against individuals. Sometimes solicitor's interpreter whose deportation the indictments were challenged and fodor's ordered is bringing against sometimes the cases were dropped. From the Captain Superintendent of Police, the mere fact of the Governor-in-Council the Secretary of Chinese Affairs and the acting upon certain allegations which Attorney-General was continued in the were supposed to be based on sufficient grounds they were not to conclude that Full Court yesterday.

those grounds were sufficient

The plaintiff is represented by Mr. HI. E. Pollock, K.C., and Mr. Alabaster, O.B.E. instructed by Mr. Wilkinson, of Messrs. Wilkinson & Grist, while Mr. B. H. Sharp, K.C., O.B.E., and the Attorney-General, Mr. J. H. Kemp, E.B.E., instructed by the Crown Bolici- tor, appear for the defendants.

Mr, Sharp completed his statement for the defence in the morning and the

afternoon was devoted to the examina- tion and cross-examination of the Secre tary for Chinese Affairs.

Mr. Sharp, referring to the plaintiff's elnim that he was wrongfully called upon to answer more than one charge at one time and in one and the same proceed. ing, pointed out the significance of the plural use of the words allegations." * reports" and "grounds" for deporta- tion which occurred in the Ordinace.

The Chief Justice: These charges or allegations are the outcome of evidence in the possession of the Secretary for Chinese Affairs. Ho is justified in fram- ing particular charges based on allegations as a whole.

the

Mr. Sharp That is the view before your Lordships. We do not think the Ordinance can be read in any other

Bense.

The plaintiff's claim that he was wrong fully accused of divers offences of such a vague and general character that it was impossible for him (in the absence of knowledge of the statements of the witnesses against him) to effectively. wake bis defence to such offences or to stato what witnesses or other evidence he desired to adduco in his own defence, was dealt with at some length..

Mr. Sharp contended that it was obviously right and reasonable that à person should be deported who had been found guilty of several wrongful acts and a course of misconduct, although it might be that if he had been guilty of one single act he would be given an ther chaner. Their Lordships, he submitted, must assume that there was proper and adequate evidenes on which to base these allegations, and he submitted that the

It was agreed. however, that this was an alternative point which would not arise if the Crown's contention was up- held that the Governor in Council was not obliged to act judicially

THE HONGKONG DAILY PREBS

THURSDAY, MAY 2ND, 1918.

"A man cannot defend himself against a perfectly vague charge unless he has some details to cling to?—He would have to confine himself to a plain deniał.

concerned, was police evidence. It had a man cannot call in witnesses to say never been the practice to allow the he had not made a practice of cham- accused to confront the witnessos perty No, I suppose not.” and

cross-examine them, to supply accused with the names of the witnesses, to allow him to appear before the Governor-in-Council For to allow him to be represented, at any Reference was then made to other stage, by Counsel or solicitor. It was charges against the accused and witness a common practice to include more than remarked that the whole series of those. are offence in the allegations and the general charges made a general" course grounds

Deportation Order of misconduct which meant that wit followed the allegations in question.he ages contractes on the other sido Orders were sometimes made on the could obviously be called, ground of a “course of misconduct," It Was very rare that the accused party was present when his witnesses were oxamined. In this case the plaintiff did not neks to be present when Mr Potter's evidence was taken.

CROSS-EXAMINATION.

:

Can you give the Court any good reason for charging a man with this general practice --It is often necessary" under this Ordinance to proved on a general course of conduct any one item of which would not be sufficient to come. to a criminal charge.

By Mr. Pollock: In spite of the fact

Do you mean to say this, that a whole that the Ordinance contemplated bail number of little items are heaped up Mr. Sharp then dealt with the point being allowed in order that an accused together in view of a Deportation Order Faised that members of the Executive party should not spend a longer timo Couned might have been misled into than was necessary in gaol, he personally

being made against. him 7 Oh, no. believing that all the evidence bad been

In view of such a possibility -Ok, no. shown to the plaintiff by the phrase that considered that it was in the nature of The Deportation Order is made follow "the accused had been duly examined."a special concession to Mr. Li Hong Ming a sufficient number of reports to

that his interview and application for establish a course of conduct. bail were cxpedited as they were He Then you suggest that a whole num-

Be pointed out that the phrase was "duly examined in accordance with the

provisions of the Ordinance" which, he contended, would induce anyone com- petent to deal with the matter to read

the Ordinance.

did not frame the charges against liber of reporta may be added together

Hong Mi. He could not say definitely who did frame them but presumed it was a Government official.

That is the view.

Do you suggest that is reasonable and fair to the accused party --That is the Witness was then asked when he reold interpretation of the Ordinance. eyed the reports upon which the charges Would you consider it reasonable and

Then there was the question that the order was invalidated by the presence of the Secretary of Chinese Affairs being were based, but the Attorney General fair if applied to yourself-If i came on the Executive Council when the Order objected on the ground that such a ques within the Deportation Ordinance, you.

was made, but the Chief Justice intimated that no argument was needed under this heading

THE SECRETARY FOR CHINESE AFFAIRS. » After the adjournment for tiffin Mr. E. K. Hallifax, the Secretary of Chinese Affairs, was called upon to give evidence. He said he became acting Registrar- General on October 30th, 1911, receiving the substantive appointment in 1912, The Deportation Urdinance, 1012, was the first Ordinance which imposed statu- tory duties on the Begistrar General in connection with deportation. He was a

tion might treach upon the point of privilege raised in regard to confidential matters

Continuing, witness said be had scen all the reports and all the charges before the interview with Li Hong Mi took place. He considered it quite reasonable that the accused should be asked to reply to a wide general chargo embracing a course of misconduct.

Surely you do not contend that would Le reasonable If it is necessary for the peace and good order of the Colony it would be reasonable.

Do you suggest that it is essential to the good order of the Colony, that not merely a solicitor's interpreter, but that a solicitor or a barrister might be charg Do you consider it reasonable that aed with an offence of a general course of man being tried for a criminal offence alleged conduct do you suggest that should have the evidence of witnesses would be reasonable? the witnesses withheld from him-1 don't follow your

point.

ons.

against him lurking in the background,

danger

member of the Executive Council about

afraid to come forward to stand the light month before that Ordinance came For the first time under this Ordinance of day. Do you suggest that is reason- into force. On November 6th, 1917, Mr. a British subject is liable to deportation|able] 11 so our liberties are in great Leu d'Almada case to his office and in for a criminal offence. Do you consider formed him of the arrest of Li Hong it reasonable for the Governor-in-Council Ni, proferring at the same time are to try a man for a criminal offence with the gist of Mr. Halifax's answers, He The Chief Justice: That is certainly quest regarding bail. Witness telephoned out giving hit an opportunity of know

He to the Captain-Superintendent of Police ing the evidence against him-Under say the end justities the means.

the circumstances contemplated here, says that the Ordinance is of exceptional asking bin to waive the usual formali- ties usual in such cases and-to-send yes. The Ordinance would be unwork character, passed for exceptional par plaintiff down for examination as soon able except for this practice in carrying Pos, and 1 understand bis statement to mean that the ordinary ideas with re- as possible. His object was to facilitate it

Why do you say at

it would

gard to establishing a man's guilt do hair-tiging-ullewed. A man arrested in abld if you allowed the person primarily not grple bat to the effect of his

o unwork the ordinary way under the Deportation Ordinanc, might not quite probably, be interested to know the evidence 1--17 newera, and that may be the poor bus would be largely valueless.struction of the Udinance. He says examined by him on the same day Why valueless? Because there would that if he himself were charged under his arrest, and, in those circumstant be no further cases; no further evidence the Ordinance ho would not expect the he would have to remain in gaol for the The Chief Justice: It is quite obvious. usual rigats. niglit. When plaintiff was brought be It means that people would not come Mr. Justice Gompertz: His answer fore him he put to him the usual statu- forward with evidence. tory questions, and plaintiff raised no objection to answering them. There was no one present at the interview the European Sergeant, who accompanied the plaintiff from the gaol, being in- structed to wait outside the room. Towards the end of the interview witness

Mr. Pollock Do you mean that the witnesses would not come forward! You cannot even disclose the evidence of the witnesses to the accused No, that necessitates giving a clue to the wit

would be I am a good man and therc for could not do these things," and

suppose in that case be would call the Chairman of the Chamber of Commerce, the Chairman of the Club, and perhaps, a member of the Bur to testify for him.

The Chief Justice: Whether that

Court must assume the evidence juctifed told the Police Sergeant to arrange for party would have an opportunity of answer would prevail. I don't know.

the particular allegations Framed upon it.

one way or the other, but it was mon- strous for the Crown to ask the Court to assume that the evidence which was withhold was very damaging to the plaintiff

Do you mean a clue whereby the accused making his defence? A clue for iden

lying the witnesses,

a Police Magistrato to wait to hear the application for bail which would

is it not very important, By a matter shortly be made. He was convinced that Mr. Pollock admitted that the Court plaintiff understood the questions put to of fairness to the accused person, that him. During the reading of the allege should know the evidence against -could not go into the merits of the casetions plaintiff asked for a repetition him-It is more important to the peace here and there, showing that he was sind good order of the Colony to carry

out this procedure.

In the case of a British subject, charged Paying strict attention, When the rend out ing was concluded witness made a motion with a criminal offence, do you suggest as if to hand plaintiff the paper, accom-that it is for the peace and good order panying this motion with some such ques of the Colony that the accused should tion as "Are you satisfied?" but plaintiff not be told the evidence upon which the waved aside the paper, thus showing that allegations are based Yea Mr. Justice Gompertz: If the Gov-he was quite content. Had plaintúf ank- brnor-in-Council the tribunal before ed for a copy of the questions he would which, this case was heard-acted under have been supplied with one. Plaintiff made no request to be represented by a statutory power it is not for us to en- solicitor; if such a request had been quire further.

made, witness would have refused it.

The Attorney-General asked what was the practice in such cases, but Mr. Follock objected on the ground that any question of practice was irrelevant be a British subject of Mr. Li Hong Mi's status had been tried under this Urdiu- panceman AID

Mr. Pollock I never suggested that it was open to this Court to go into the case, but although the evidence is with

Mr. Pollock The members of the Executive Council must be exceedingly. soft hearted, if they pay much attention to that plea. I am afraid a hard-hearted Police Magistrate would not pay much attention to evidence of that character when a man was charged on evidence,

held from us your Lorships are asked cause this was the first occasion on which bring reliable witnesses to speak of his accused G

to give an endorsement of the facts, that as what I protest against.

Mr. Sharp Without going into the evidence at all your Lordships anust assume that proper evidence existed and must assume also it is the same point from a different aspect--that the evidence justified the particular allegations based upon them, that is to say, that the vidence enabled the legal advisers of the Crown to frame the allegations made,

The question was allowed, however, and witness stated that prospective de portees were never allowed to appear with a solicitor before the Secretary for

Chinese Affairs.

The Attorney General then asked what was the practice as regards allowing prospective deportees to consult legal advisers before the interview took place

Mr. Pollock, to witness: Assuming for the sake of argument that there is some evidence of the practice of dishonest con- dust, do you suggest that a man could get out of that by denying it and call- Mr Pollock: All I can say is that ing general ovidence i the sooner this Ordinance is repealed Several questions of a aimilar the better.

Where a man is charged with the practure were put and Mr. Hallifax re tice of making false evidence you don't lied that a man was charged with being say whether it is documentary or verbal and character and he was given the or what the transaction is in which he lines on which the charge of bad charac is alleged to make false evidence-howter was based in such a case a man can a man meet the case against him would produce evidence of good charse except by saying "I did not do such a ter if he could. Witnesa did not think thing -If the accused party can such a precedure was unfair to the

entirely face was such evidence docu- general character it will meet the caso With reference to the preparation of

Do you suggest, when a man is charged, on evidence, with making a mentary or verbal-1 cannot remember practice of preparing false evidence that the details and if I did remember I he can get out of that by calling some should have to refuse to answer. one to say he is a goud man-He must The Chief Justice: I do not under- bring a sufficient number of reliable staid that the Crown's contention is that witnesses to that effect and then he the ordinary criminal procedure has

best adopted in accordance with the. would be free,

Do you suggest seriously to the Court ordinary idons of natural justice in, a that a man can get out of a definite Criminal Court. I understand them to Mr. Follock objested that the Secretary charge of making false evidence by say that the Ordinance is on exceptional for Chiness Affairs could not possibly is a decent sort of chap-Reliable dure. I do not think that they contend bringing a number of witnesses to say lines, laying down exceptional proce

which did not happen before him. answer questions regarding anything

witnesses as to general character. Zor a moment, that the procedure is in

How can be deal with the actual charge! He can answer it as generally Criminal Court If they do say so I accordance with the procedure in a

have no hesitation in saying that the regards allowing the prospective de so much there is really only one point portes to consult legal advisers before pared false svidence" I-II. he can bring ordinary principles of justice bave not

All he can say is "I have never pre to be considered--whether the Governor the interview with the Secretary for witnessed to substantiate him on that been applied. The main point to decide in-Council, being satisfied that the Chinese Affairs, but during the time he point then the coac is finished, is whether their interpretation of the evidence was sufficient to allow the

is under the control of that official and How can he possibly call witnesses to Ordinance is correct, in that the Ordin- charges being made, was justified in

the answer was that the accused party support him? If he know the specificance provides a special procedure which was never allowed to consult legal ad charge he could, but he is not to know excludes the ordinary procedure of the acting upon the general charges sustain visers during such period.

General evidence in proof of Courts. ed by the general evidence and upon asked plaintiff to name say witnesses undesirability is always accepted

Continuing, witness stated that he desirability against the charge of his The Chief Justice remarked that he put that point as it might shorten Mr. the particular charges sustained by the that he would like to call Plaintiff Do you waggest that general evidence | Pollock's cross-examination. Mr. Pollock particular evidence,

mentioned two and witness cautioned of witueses as to character will be submitted that it had been laid down Mr. Justice Gomperta remarked that a him to think well, because it might be accepted as evidence that a man has not that the Court should lean against any done what someone slee, says he has construction of an Ordinance which was that the value of the evidenos given by eneral charge could not be supported witnesses be called to mind later would done --It is always

and given unreasonable and contrary to natural justice. The object of his erogeranina- What do you mean

struction of the Ordinance was an un- reasonable one.

The case was then adjourned.

first, the general charges and, secondly, Subsequently the question was allowed the particular charges. Having assumed in the form What is the practice as

稳定 it is made.

Dxcept by evider of particular in- not be so great. The plaintiff replied very full weight by the term "ition was to show that the Crown's con-

cidents.

Mr. Sharp suby not so. There mi general character. wan wholly truthf worthy.

that he understood this point. Subse

it up and could not get the mean What does it convey to your mind? Unnecessary promotion of litigation it starts with that.

quently after plaintiff had consulted proper exploitation of litigants 1

that that was his solicitors, the witness offered to evidence of a examine plaintiff again. It had not been the practice during his regime to show the accused parties the evidence upon it might include a dozen different which the allegations were based, exept things-It might include more than with trifling exceptions when the evidence ( one.

from ita source

sholly trust

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