1928-07-27 — Page 4

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POLICE IDENTIFICATION METHODS

CRITICISED.

KENNEDY ROAD CASE CONCLUDED,

CHIEF JUSTICE MEETS WITH A NOVEL POINT.

JUDGMENT RESERVED.

The re-bearing of the case in which a young Chinese is charged with indecent behaviour in front of two Europian ladies on May gist at Kennedy Road was yesterday concluded by the Full Court of Appeal, judgment being reserved. The Chief Justice, Sir Henry Golian, and the Piese Judge, Mr. Justice .P, Jacks, sat till up to half" past five o'clock to hear the final addresses of Counsel engaged in the case.

Mr. F. C. Jenkin, instructed by Mr. F. H. Loseby, was for the appellant. Counsel reverely criticised the police methods at the identification parade and submitted that the rules had been radically departed from and that the parade was 1 farce.

Ahother point of interest was that Mr. II Somerset Fitzroy, Counsel for the Crown, raised a point, which his Lordship, the Chief Justice, said that he did not think he had heard before, It concerned s and that he would make a special note of it. statement made by the defendant's wife at the Police Station. the substance of which, Mr. Fitzroy used in cross-examination. Mr. Jenkin objected on the ground that he did not know of such a statement and that the least Counsel for the respondent could hare dore, was to tell him of the fact that such a statement would Le used.

Li

He Lordship overruled Mr. Jenkin's objection saying that if Mr. Fitzroy had done so, it would be making known his line of cross-examination. It was, however a novel point and he would anake a note of it

He had some papers with him, but after spending half an hour with the complainants he came out with only the names of the two ladies written on a sheet of paper.

Criticising this Mr. Jenkin said that it would have been more tisfactory if Sergt. Flattery had trusted to his memory for the names of the complainants and taken notes of what the ladies had iteld him about the case. In a case (of such serious import, the detec tive should have taken down a minute description of the man who was alleged to have committed the net. Sergt. Flattery came out with. nothing more in his memory than that the man was thick-set, short, looked like a Japanese and was wearing gaiters. If an investi- gating officer is satisfied with such mengre information, he may chase round the world for a man wear. ing gaiters."

Mr. Jenkin criticised the admis- sion by Sergt. Flattery that he did not take much trouble about, the case because the man had left his bicycle, and would sooner or later turn up to recover it. In taking Buch line, Sergt. Flattery was most remiss. I blame him for not taking note of the whole in- cident. He did not even get the information. from complainants that the man was wearing a white shirt," added Counsel.

The Identification Farade." Coming to the identifiention parade, Mr. Jenkin said: "When one finds that the rules governing an identification parade had been radically departed from, it makes one wonder whether the method of the identification parade had been scrupulously carried out. My case will be that the identification parade in this case was a farce,"

Counsel then went on to draw to the Mr. Fitzroy (continuing): "I his Lordships' attention

to ay we went for a ride fact that the gentlemen responsible Wike and Bail for drafting those rules did eo with on his motor

near St. the purpose of fair play for every entered the back tyre Paul's School and I left him at man put up for identification.

towards the miraculous way. which Mrs. Len identised the de fendant? Every essential point had been ignored, and according to Sub-Insp. Rozeskwy, the defen- dart was the most conspicuous man among the seven men put up for identification.

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All the probabilities, continued r. Jenkin, were very greatly in favour of the defendant not being the man: Was it likely that a young man like the defendant whom no one had suggested was not one of whom his father might be proud. "A lad who lives in the house decently, his father's only son who is a good husband to his SAMPLE PORT AND SHERRY. wife, a good son to his father, and

lovin father to his own chil dren," would do such a silly thing.

Was it conceivable, asked "conn sel, that "nch a young man, for no known reason-no one bad sug

that he was mentally gested deranged-should go out on his own motor cycle, almost as it were scattering his visiting card, by the number of his cycle, and commit "This stupid act for the purpose

KONG.

Mr. Jean Bund, a Frenchman. and a former resident of the Colony who was employed at the Houg Kong Hotel, appeared before Mr. R. E Lindsel at the Central Mag-stracy yesterday morning.

Defendant Cross-Examined. The defendant, Chung Yee Fan, wae closely cross-examined by Mr. Somerest Fitzroy during the mom ing session about the clothes he the school!"-No. I knew nothing That being so, how would they feel of offending two European ladies." brought with m several bottles of

was wearing on the day in ques tion. He maintained that he had not changed during the whole of the day, and that when it was wet be wore

an ordinary mackintosh sad a pair of leggings to the knee if using his cycle. He had never "posstred overalls such as had been

produced in court.

Mr. Fitzroy suggested that he had a striking counterance, which would not easily be forgotten, but Sir Henry Gollan disallowed the question remarking that we most

of us hoped the same thing.

of the kind and I did not say it.

Mr. Fitzroy You are sure you got to your mother's by tram - a quite certain.

Mr. Jenkin pointed out that the extracts taken by Mr. Fitzroy were not at the beginning of the state ment which was the impression given, but they were stray se

He remarked that tencee. statement should be taken chron ologically.

the

Mr. Fitzroy, continuing to resid the statement, neked witness if she also said, "At 8 p.m. I returned to my bouse by walking along Ken dy Road-I did not make that

statement,

And, you did speak there, did you not!-I was in great fear them because my husband had been so often fined for breaking the regula- tions: I was in fear, this time, that he might have run over some one and killed him. Therefore I

Mr. Fitzroy Did you also: sy, A Statement By Defendant's Wife..I was not one with the aman at Defendant's wile gave evidence Macdonel Road, neither did I and raid that be neband had meet his friend on the road No. always been dutiful and affection-

Can you suggest any reason why ata and that he was a good father they should be written down if jou to their children. Defendant was did not make thema They would in the habit of taking her pillion not allow me to speak a word and riding after, the day's work then, finally. I was taken to sa that particular day, witness waid other place. that she had dinuer with her father who is living at No, 19, Kennedy Rord She left there with her amah at 6.30 to go home and when she got to the junction of Garden and Kennedy Roads she met her husband. The rest of her story was corroborative of what was confused. had been raid by the defendant. Are you sure you did not my Cross-examined by Mr. Fitzroy, these things" I have asked you witnees admitted making a state-about-1 was in great terror then ment to Inspector Rozeswky at the I really forget what I said. Police Station. Mr. Fitzroy was Can you tell me what you did about to question her, with regardsay I forget to the statement; when Mr. Jenkin

Then how do you know you did interposed and objected to the not say these things -I really for statement being put in. Consider get and I cannot explain to you able legal argamat followed, and why. the cbjection was eventually over- ruled.

air. Jenkin said that the state ment was not mentioned when Mr. Fitzroy opened his case, and the least alt. Fitzroy could have done was to tell him about it.

Mr. Jenkin went on to say that

Isn't it possible that you did say them 1-Perhaps I did but I have forgotten.

Sir Henry Gollan remarked that he had taken the answer as Per haps I have said these thing and forgotten or perhaps I did not say them at all.”*'

he had no knowledge of the state- Mr. Fitzroy wald he thought that meat otherwise he could have was very accurate,

taken the opportunity, which had After corroborative evidence had now passed, of cross-examining been given by defendant's step- Sub-Inspector Rozeswky. By those mother as to the clothes defendant means he might have been able to had on that evening, the Chief show that the statement was made Justice intimated that he would sit under euch conditions as would late in order to finish the case." allow their Lordships to come to

the decision that it ought not to SPEECH FOR THE DEFENCE, be brought forward. As the point was novel he would ask their Lord- ehips to make a note of it.

on

'POLICE PROCEDURE

CRITICISED.

121

Mrs, Lea, Counsel said, had ad mitted that she only identified the defendant because he was thick-set, and according to her evidence, there were only two or three other thick-set men among the crowd.

His sympathies were as much with the ladies involved in this case as the sympathy of anybody, hut one had to consider whether or not the prosecution had proved the enac against the defendant. Although Occurrence did the

unfortunate

take place, the defendant was not the guilty person.

REPLY FOR THE CROWN.

COINCIDENCES IN DE

FENCE THEORY.

Continuing, Mr. Jenkin said that even his Lordship, the Chief Jus tice, had more than once expressed

In his final address for the his opinion that an officer in charge of an identification parade Crown. Mr. Fitzroy pointed out should be present in Court to give that the offence was committed by a man who was riding the defen- evidence. Mr. Fitzroy had agreed, and it was most surprising that dant's motor cycle. The story they Assistant Superintendent Kent had were asked to believe was that the

It was he who

offender, whoever he was. up- not been called. was in charge of the identificationparently picked up the cycle on in this instance. Mr. Jenkin sug- the road and rode it. It was gested that. in view of what his strange that such a man should be Lordship

in Kennedy Road already dressed Superintendent Kent had not been

for a cycle ride if he did not own called, it made one feel that the

a cycle One could have under identification was held with a total stood if it had been a man dressed disregard to the rules laid down.

in ordinary clothes. Also the man who rode it was apparently used to riding motor cycles.

had

said and

Mrs. Leppard's Evidence-A Discrepancy?

she

that

Defendant who is widely known

·BS Alphonse" has set up as Wine Merchant and on his arrival a few weeks ago from Shanghai he Port and Sherry, the duty on which had not been paid. "Alphonse,” is " accused of also being in possession of a number of Race sweep tickets.

Mr. Leo D'Almada Spr. appear- ed for the defence.

The defendant was described as Manager of the newly formed Inter- national Country Club of Shanghai. " He was arrested following the sale of a number of Race tickets for the forthcoming Autumn Race Meet- ing at Shanghai, and on visiting His residence at Hankow Road the police found the dutiable wine.

A. Wine Merchant! Mr. D'Almada said that the de-

fendant came to Hong Kong to get orders on the wines which he brought as samples.

His Worship:“Do you pleað

guilty or not guilty

Mr. D'Almada; I am not in a position to plead either way.

Magistrate: Is he a wine mer- chant?"

Mr. D'Almada: He is a wine merchant in Shanghai," and is a wine agent in Hong Kong"

Prepared To Pay. The Duty,

Mr. D'Almada said that when the defendant was told that the wind

"He

Solicitor for the defence addra that defendant had been in the.. Colony a fortnight, and that the bottles were in his trunk when be went to live in Hankow Road.

His Worship: "The fact remains that he did not pay the duty on the wine when be imported it into the Colony."

Touching upon the evidence The type of people who rode was dutiable he replied that he was given by Mrs. Leppard, which motor cycles were, as a rule, fair-willing to pay the duty. name, Mr. Jenkin aid, suggests ly respectable people. Many of the had no intention of evading the agility, Counsel said that when she lower-class Chinese drove cars but duty," commented Mr. D'Almada. The Magistrate: "I am afraid was in the witness box' she present they did not ride motor cycles,

Any person ed an attitude which was tanta-The people who rode motor cycles that is no defence. mount to saying "I will not he would tend to come into the same placed in such a position would be donc in by you. I will come category as the defendant belonged prepared to do that." through with it and come through to.

" allright, too. This attitude, Those, said counsel for the which many witnesses were prone Crown, were two points which he to adopt, had brought out a sur- wanted their Lordships to pay prising confession, Mr. Jenkin special attention to. He then said, when declared that pointed out improbabilities in the ske identified the defendant story for the defence, describing without hesitation. "Mrs. Lep certain incidents as told by the de pard had said that she saw fence as "incapable of belief" "not, the truth." He also the defendant's face clearly end and.. that she could point him out spoke of the defendant's chance any time in the street. Comment meeting with his wife. An ex- ing on this, Counsel said that it traordinary coincidence." was remarkable' that she did not tell A.S.P. Kent of this nor did the say so at the Magisterial pro ecedings. Mr. Jenkin suggested that why Mrs. Leppard had said this in the Higher Court was just because she adopted the attitude of not being outdone by Counsel for gulations had not been followed the other side. to that statement by, sheer thick out to the very letter. It was not headedness and instead of meeting only a question of the regulations the question with agility, she took being there, but the Superior Off- eer, of the Police Force thought so a blind leap."

Continuing, Mr. Jenkin said, much of the need for directing at tention to the regulations that at "If her evidence given here was the bottom of each page was stated

such an

"She was driven

The Judge's Comments. Counsel then went on to deal with the identification, and Sir Henry Gollan then passed some

strong comments.

His lordship said he thought it was most unfortunate that the re-

case."

with

unquestionably true, then why did "Directions for holding identifica-

experienced officer as Superintendent Kent record in his tion parndes see" Why are not

the regulations followed identification parade book words which could only mean that the de-scrupuleus care, asked his Lord "They were not in this ship.

He went on to say that "not without hesita fendant was picked out by the com-

paragraph 1A was of vital impor tion.

tance. That should never bo de plainants

parted from. It stated that officers in charge of a case, although pre sent, should take no part in the proceedings connected with the

The Double Identification.

identification. perienced officers in this particular

Sir Henry Gollan pointed out that if Mr. Fitzroy had mentioned the statement he would have been disclosing his line of cross-examina- Opening his address, Mr. Jenkin tion. He agreed, however, that it said that if he transcended the or was a novel point that he could not dinary rule in the course of his ad remember having come acroes be. dress, the Court would forgive him as the case was a serious and un- fore and he would make a note of

Counsel added, precedented one. it. His Lordship added that Mr.

that as the case was unprecedented, Jenkin might still have an opportu. he would the more severely criticise nity of cross-examining the

the general conduct of the police paint.

Mr. Fitzroy: Did you say to Bub officers in charge of it. The ex Inspector. Rozeeky on the evening case should be censured as they did el May 21st At about six o'clock not realise how serious it war and on the evening of this day my evidence had been overlooked. He husband took me on the back of would, however spare the women his cycle to my mother's house at complainants in view of the un- 48, Kennedy Road, where he left pleasantness they had been put to, me and I couldn't say where he but he would show that even per weat to "I forget.

sons gifted, with the highest faculty You won't say that you did not of perception have been known to say it, will you-1 merely received make the gravest mistakes. a telephone message to come up Sergt. Flattery, Counsel said to the police station. I did. zot investigated the case. In the wit know what had happened. Some ness box, he admitted that he knew questions were put to me but I for- it was serious and unprecedented; get what answers I gave.

He went into the quarters of the Mr. Fitzroy: Did you say this, complainants for half an hour, and "At about 9 p.m. my husband what did he gather in the shape returned to the house saying he of information? Sergt. Flattery was going to have his motorcycle should have been equipped with material for taking down notes. repaired 7"-I did not.

Revenue Officer Grimmitt told his Worship that sample bottles were liable to duty, and that of the six bottles which were seized, four were unopened while two others were practically empty,

.

Wasting Time. Mr. D'Almada remarked that bis client had certain letters in his possession which would show that he was a wine agent. These letters, he understood had been taken by Sub Inspector Elston who executed the

warrant.

His Worship: "Your plea is a waste of time." The mere fact that he brought the wines down to get orders does not excuse him from duty."

Hearing Adjourned.

Mr. Lindsell said he would also

hear the other charge and asked if the defendant had made any plea to the charge in question.

Mr. D'Almada Probably he bus. I ask your Worship to fix a date for the hearing.

Mr. Lindsell: Has he pleaded not guilty to that charge?

Mr. D'Almada: He has pleaded not guilty" to both charges. Mr. Lindself adjourned the hear

Sir Henry Gollan: Mr. Jenkin you just referred to Mrs. Lea's identification of the defendant as

Mr. Fitzroy agreed saying it miraculous, how would you then describe, the second lady's identifi ention. Isn't it remarkable that both that was not so it would lead to ing till 11.20 next Thursday, and ladies should identify the same the grossent fraud. man!

Sir Henry Gollan remarked that fixed bail at $300. Mr. Jenkin: My answer to this, these irregularities seemed to him My Lord, is that Bergt. Rozenkwy tos destroy all the care displayed should have had absolutely nothing in the case. He went on to refer value of the evidence though it to do with it. The rules specially to the Metropolitan regulations, might cause their Lordships to lay down that an officer in charge and asked "Why was this very scrutinise the evidence very closely. "I submit that it does not invali- of the case should not take part dangerous departure made?" in the identification parade, but in Mr. Fitzroy -replied that unfor- date it." this particular instance, Sergt. tunately, he had not at the moment did everything. He asked for permission to call the Razeskwy selected the men for the parade acting Superintendent who took and it was he who took the com- charge of the parade but there was doubt that the regulations plainants in, in fact he did every no thing except be in charge of the should never have beca departed

If the rules are worth from Counsel argued, however, as the case was a very serious one parade. anything, a more glaring infringe that the fact that they were depart from many points of view they pro- not destroy the posed to deliver written judgments. ment could not have been commited from did ted.

(Continued as foot of next column.) | Judgment was, therefore reserved.

Sir Henry Gollan "That is as much as you can say," Mr. Fitzroy agreed." Written Judgments To Be Given.

Sir Henry Gollan then said that