1928-07-04 — Page 4

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THE HONG KONG DAILY PRESS, WEDNESDAY, JULY 4th, 1928.

ASSISTANT ATTORNEY-GENERAL AND

MAGISTRATE.

IN A SEQUEL TO THE "SHUN PO" CASE.

THEIR DIFFERENT VIEWS REGARDING THE PRINTERS.

"CROWN'S UNIQUE" POSITION.”

The Assistant Attorney-General, Mr. H. "Somerset Fitzroy, and Lieut.-Colonel F. Eaves, D.S.O., the Magistrate who tried the case against the Shun Po (Hong Kong Morning Post), for publish ing two articles without first submitting them to the Secretariat for Chinese Affairs to be censored, and far advocating a Japanese boycott were, the only two protagonists in aequel to the case heard yesterday afternoon.

Mr. Fitzroy applied to the Magistrate to re-open or review a 'part of his decision in so far as the printers were concerned, giving as his opinion that the printers were a corporation, and the Magistrate could not penalise each individual partner of the company.

•

The Magistrate held that if the printing firm was in fact a "one-man concern," the ground for the application could not and did not arise. If the firm consisted of two or more partners, the ground for the application would then arise, but evidence must be adduced to that effect.

Mr. Fitzroy was not able to offer that evidence and said that even if he could he would not, as the Magistrate bad assumed that there was more than one partner in the firm. He maintained that - no evidence has been tendered throughout the protracted bearings to justify the Magistrate's assumption.

The case was then adjourned sine die until Mr. Fitzroy could adduce the required evidence.

Brief History Of The Case.

The case, it will be remembered,

the

has come to be known as

Chinese Press Censorship Case." The Shun Po's editor and printers (Cheung Fat Co.) were summonsed at the instance of the S.C.A. for publishing two articles on May 9th and 10th without having first sub- mitted them to the S.C.A. for censorship, and alap for advocating "an. anti-Japaärse, boycott.

Mr. M K. Lo, who appeared for the defendants, maintained that the two offending articles were sub- mitted and suggested that the censorship system was so slovenly that even the censors themselves

could not why whether or no the

His Worship asked if the defend- ant firm was a corporation way it was not registered as limited company.

of a protracted hearing concealed the individual identity of the part ner or partners comprising such fra The resulting convictions.were against each individual partner of the defendant Co." and the Orown "as prosecutor now applies for a review of that decision on the ground that partners in the firm cannot be individually penalized. If the defendant firm is in fact a one-man concern the ground for the application does not (and cannot) arise. If it consists of two or more partners the ground for the appli cation does arise, but when (and only when) evidence is adduced to that effect. As this evidence is not forthcoming I therefore have no alternative bus to adjourn the application sine din (that is to say) until the Crown is in a position to adduce the required evidence. Meanwhile I draw the attention of! the learned Counsel for the Crown' to the Courts of Exchequer and Exchequer, Chamber case of Region v. Dean (Meeson and Welshy's Re- porta Vol XII. at p. 30 et seq) in which two partners having been separately convicted for an offence under the Smuggling Prevention Act (3 and 4 W 4 c53 344) were, on an application for a new trial, each held liable to the penal. ties imposed by the Act. In his judgment Lord Abinger (C.B.) said

I own I was at first struck with the apparent hardship of involving ! several partners in separate penal- ties for the same identical act; but the words of the statute appear to me, to be decisive of the question. They are, that every person" who shall be concerned in the unship- ping of any goods, the duties for which have not been paid, or shall be guilty of any of the other offences mentioned in the section, shall be liable to the penalties there inflicted. Then all persons who are concerned in the illegal transaction are subject to the penalties"

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CHANG TSO LIN'STM

LAST HOURS.

DIED ON JUNE 4TH.

FOUR HOURS" AFTER THE. OUTRAGE.

BOMB FITTED INSIDE THE CAR?

The last hours of Generalissimo Chang Tse Lin, whose meteoric scent in the political firmament of China from a brigand near Hain.

Mr. Fitzroy replied that there

mintun in the course of little over was no reason why one could not

Alderson (B) in concurring said 20 years, is the wonder of all who register a corporation without "it

"We must look at the statute to know his history, were sadly tragic. being a limited company. He said see whether it was intended that They were worthy of a veteran that could be done if a person chose every person, offending should be genera, as he was one, who died to and it was necessary to be a punished, or merely that every a heroic death in the thick of a limited company in order to be re-offence should be punished. The battle, states the Manchuria Daily gistered.

Mr. Fitzroy then continued to say that the only thing to be done with a corporation under the circum stances was to fine them.

The Magistrate: I agree to that. Mr. Fitzroy then said that if his Worship agreed, then the only articles had been submitted.

person in the case was the cor. After protracted hearings, Lieut.porate body and therefore the fine Colonel Eaves convicted all the defendants. The printers (ie., all partners in the firm) and the publisher were each sentenced to one month's hard labour in addition to fines of 825 each for disregarding the censorship roles. Each partner in the printing firm was also fined 2250 for advocating the Japanese boycott. The publisher was fined

2500 for the same offence. "

ita

Leave to appeal within seven days was granted. The Magistrate also intimated that if the defen. were to apologise to the Japa sa through the medium of the for two consecutive days, he would at the end of a week recommend the release of all prisoners.

The defendants did not come be fore the Court within the 24 hours allowed them to find bail, and when a visit was made to the Shun Po, it was found that only two fokis were in charge of the premises.

Last week Mr. Fitzroy applied to the Magistrate to re-hear a part of the case, and his Worship fixed yesterday for the application in order that he might also hear Mr. M. K. Lo who was representing the aggrieved party.

When the Court sat yesterday to hear Mr. Fitzroy's application, Mr. Lo was not present. There was also no one from the Shun Po. It was an empty Court, only a few prean- men being present and of these cns represented a vernacular paper.

Mr. Fitzroy and Licut, Col. Eaves were the only two protagonists.

Opening his application, Mr. Fitzroy said that under the Magis- trates' Ordinance, his Worship could re-hear or review his decision There were four summonses against the printers, two of which were made under the regulation relating to newspapers and the other two were under the Emergency Ordin ance of 1995. They were dir. tinct summonses concerning distinct matters in two distinct issues of the

paper.

Continuing, Mr. Fitzroy said that his Worship had dismissed the summonses relative to the issue of May 10th and convicted the print

ers on the summonses relative to the issue of May 9th. "You then fined the printers each $25 or seven days' imprisonment."

The two second summonses," Mr. Fitzroy said, were framed under a different section which dealt with people who incited others to refrain from dealing, buying, trading and working for others. These two summons, Mr. Fitzroy said, were combined and his Worship convict ed the defendants on each charge.

Mr.. Fitzroy then went on to say that the summonses were taken out against a corporation, and that that corporation appeared in Court in the only way a corporation could appear and that was through & solicitor.. So far as you know, Sir, and everybody knows, it is a corporation, and it must be dealt with as such."

should not extend to each in dividual partner of the arm.

The Magistrate: Have you any evidence to show that the Cheung Fat Co. is a corporation with one partne or more than one?

Mr. tzroy: I have not and even if I had. I would not offer it. He then went on to say that his submission was that the Court could not fine anyone but the Cheung Fat

Co.

Mr. Fitzroy went on to explain that when a newspaper "did not print its own paper but gave the work to a firm of printers, those partners were placed in a very difficult position. They became printers by contract and if they did not bring out a paper, they would be liable to heavy damages. It was not their duty to say that thes could print this or that. Every thing given to them to print, they took in good faith. Of course, there was the other side of the story. If it could be be proved that the printer acted in collobe- ration with the paper to print certain things which they knew had Tot been censored, the printers would then be equally guilty. When such questions were brought to Court, Mr. Fitzroy added, they generally used their common sense and assumed that the printers knew what they were doing.

"

Mr. Fitzroy then added that if his Worship should insist on evi- dence as to how many partenre there were in the printing firm and who they were, he would, with much diffidence, abandon the case. He hoped that he would not have to go so far. He further maintained that he did not sue any partner of the firm. He had only sued a cor- porate body. **

"

B

His Worship said that that was the first time he heard the word said that throughout the long hear "corporate body" mentioned. He ings, he had asked who the part pers were. His Worship then again asked if Mr. Fitzroy could bring ang evidence to show whether "Brown or "Jones" was the head of the firm. If the defendant firm is in fact a one man concern then the ground for your application does not arise, but if it is more than you will have to prove that to one, me," added the Magistrate...

Mr. Fitzroy replied that if there was more than one partner, his Worship's judgment would become null and void, as he had fined each individual partner. He said that his Worship had only assumed that there was more than one partner and there was no evidence for that assumption..

His Worship then gave his de- cision na follows-

MAGISTRATE'S DECISION.

One Or More Partners? In these cases the Crown' finds Mr. Fitzroy then drew his Wor- itself in the somewhat unique posi- ship's attention to the fact that tion of having prosecuted to 200- no evidence had been given as to viction a person or persona the constitution of the corporation, known trading under the style or and therefore his Worship could Grm-name of the Cheung Fat Co. not assume that there was more who appeared and defended by than one partner.........

Counsel and throughout the whole.

un-

question is, whether an offence News. which is committed by several per- sons is to be visited by one penalty, or each person is to be visited by a penalty. Here each person who is concerned in the transaction is plainly subject to a penalty under the Act. Gumes (B.) and Rolfe (M) also concurred. The penalty sections in the Act quoted and in the Ordinance under which the pre- sent convictions were obtained are in identical terms in that they penalise every person."

Already Dying,

of the car was literally flooded with Chang's blood. At the Generalis- simo Office, Chang was carried into the Councillors' room on a stretcher. As he got inside the room, he vomited a large quantity of blood.. Surgeon-General Yao and Chang's family, who were present had to look on helpless.

British Doctor Summoned.

A British physician, an intimate friend of the Young General," residing at Hsiaohoyen, was aum- moned. He repeated camphor in- jections, but the distinguished victim expired at 10 a.m., that is, a little over four hours after the bombing incident. On the 8th inst., two carpenters were called ia from the Mukden Arsenal to make the colin and the remains were then placed in it.

Bömb Fitted Inside Jar? Engineer Wang Chang Chun, of the Mukden Arsenal, a member of the Chinese Committee of Inquiry who conducted a joint investigation of the scene of the recent bombing incident with the Japanese, has made a startling report to the "following effect.

At 6.40 a.. on the 4th inst., Chang Tao Lin, after the car, in which he travelled, was blown up,

Judging by the wreckage of the was helped out of the car by Major Giga, a Japanese adviser. As Chi railway cars left upon the ground, En Ming, in command of the Gen- the bomb that worked such terrible darmerie, galloped up at the news, havoc is believed to have been fitted Char was already dying. The face inside one of the cars. By 5.30 am, took on a dark colour. The blood on June 4thy the sun was already flowed copiously from the nose. So up. If the bomb had been laid on with the wound in the left arm. the railway track, it could not fail Mr. Fitzroy replied that the ease Nothing could be done in a pro- to have been noticed by some one of referred to by his Worship was not fessional way. About 20 minutes the 80 Chinese patrols. If the bomb & criminal one. It was only a civil were anent in getting a mater-car had been left suspended underneath netion and therefore could not apply in the hire of the Mukden Spinning the viaduct, the destruction of the to the case under discussion. He and Weaving Works and bringing locomotive would be inexplicable, also stated that at the time when it to the spot. No first aid treat and again, the bomb could not have the quoted case was heard, no laws ment was administered in the mean escaped notice. Therefore, the only had been passed for re-hearing of time. 15 more minutes lapsed as conclusion to be drawn is that the criminal cases. The appeal low was Chi En Ming, Tao Shang Ming and bomb must have been laid inside.

Major Giga escorted Chang to the the ear. A bomb of some extremely passed after that time.

Generalissimo's office within the ingenious design was fitted in the walls, the Japanese Major getting State car in which Chang Tao Lin off the car at West Gate on the was and exploded by an electrical way. In the meantime, the floor fuse.

His Worship said that he would adjourn the case sine die until Mr. Fitzroy could bring forward the re quired evidence.

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