1937-06-16 — Page 2

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GUNNER IN COURT

COURT OF APPEAL

Given Option Of Fine Echo To Manslaughter

Gunner John Webb of the RA was convicted on three charges of forging an agreement and assault. when he appeared before Mr. K. Keen at the Central Magistracy yesterday and was charged with obtaining a radio-set valued at $195 from the Tsar Fock Plano Company on December 23 last by forging an agreement between himself and the Company, obtain- ing the set under false pretences, and for assaulting Mr. Tsang Fook on June 5. A fine of $250 was imposed on the first charge, with an alternative of three months hard labour. A similar sentence was imposed on the second charge. and he WOLS fined $50 or 'bne month's hard labour on the third

charge.

4

USED ANOTHER NAME Mr. J. Prior who appeared for the accused stated that the defen- dant went to the Trang Fook Plano Company in December last and purchased a radio set, signing the name of J. Gunter. If Webb had signed his real name he would not have been able to ob tain the set, as in August he ob tained credit from the shop and if he had signed the name of Webb It would have been recognised: by

the shop.

On May 18. no payment WELS made by the defendant and u radio technician employed by Messis Trang Fook and Company recognised the set in the" Modern Radio Shop in Middle Road where it was under repair. On June 5, Webb came to the shop in Queen's Read and hit Mr. Tsang Fook in

the face.

Mr. Tsang Fook in the witness box stated that in the agreement. defendant, in the name of J. Gunter, agreed to pay. $45 down and in each subsequent month he would pay $35 for the radio which was an Emerson battery set. On December witness allowed defeh- dant to take possession of the set, as the defendant had promised to pay at the end of the month. Ever since the defendant had taken the set no payment had, teen made.

Kow-

Case In Sessions

In answer to submissions by the Hon. Mr. Leo D'Almada e Castro and Mr. M. J. Abbott at the Full Court of Criminal Appeal yester- day morning, the Chief Justice. Six Atholl MacGregor, and Mr. Justice J. A. Fraser, Announced that they would give theff decision in a writ- ten judgment in the course of a few days.

The appeal was on the grounds of misdirection of the Jury by the learned trial Judge and was against the conviction of Ahmed Din, an Indian constable B667, aged 33, who was sentenced to six months' hard labour by Mr. Justice RE Lindsell after the jury had return- ed a verdict of guilty of man- slaughter when the evidence of the case was heard in the May Crimin al Sessions.

The jury who heard the case were Messrs. Omar el Arculil' (fore- man), J. H. R. Hance, Ng Tse- fat. Leong, Ngal-pool, Frank Tock, R. F. Clark, and N, W. Smelry.

The Hon. Mr. Leo D'Almada è Castro Jar.. instructed by Mr. D. McCallum, appeared on behalf of the appellant, while the Crown was represented by Mr. M. J. Abbott, Assistant Crown Solicitor, assisted by Inspector F. T. J. Portallion.

|

JUNE 16, 1937.

EUROPEAN

CONVICTED

Appearing before Mr, K. Keen at

the Central Magistracy yesterday Gerald V. Rowland aged 45 unem-- ployed was fried $10 with the alternative of three weeks hard labour when charge with absenting himself from the House of Deten- tion."

Detective Sergeant P. H. Loughlin who prosecuted stated that the defendant had been granted cer- tain privileges to go and look for work from 9 am to 4 pm. every- day from the House of Detention. On June 11 Rowlands failed to re- turn" at 4 p.m. and did not return on Saturday or Sunday: He had not'behaved very well at the House several of Detention and had on other occasions returned later than the time given him, and sometimo much the worse for drink. Defen- dant was arrested when he went to the Benevolent Society to seek aid. When he discovered that there was a pallce 'nfficer present he tried to Ko away.

RADIO IN NEW ZEALAND

Wellington, N.Z-Two hundred and twenty-one persons took out radio licence in 1936. the 25s. Allowing four persons to a house, this means that there are rather, It will be recalled that Ahmed more than two receiving sets to Din was found guilty of the mans- every four homes in the Dominion. laughter of Tsang Wul, aged 50, of In addition, 994 amateur experi- an unnumbered hut near the Homental licenses were in force. The Wang Temple on March 23, when nec increase over the preceding be kicked deceased, rupturing de- year in receiving licenses, was 20

per cent ceased's greatly enlarged spleen, as a result of which deceased died.

NO EVIDENCE

Continuing, Mr. Abbott said that any unreliability in the evidence witness referred to, was

by the of the

evidence of wiped out others.

Conducting the appeal, Mr. reality of course, no motive wis D'Almada said that the appeal was necessary in the charge of mans-

two laughter. against the conviction on grounds, the first being that the learned trial judge misdirected the jury when he said that they were no doubt aware that Indian con- stables did not always behave with complete propriety towards the lower-class Chinese and that they were entitled to take that into consideration. Counsel submitted that there was no evidence on that point, and that if there were, it would be inadralssible, and the jury would not be entitled to take it into consideration

tne

Mr. Abbott went on to say that the second ground of the appeal could not really be called mis- direction because, if the learned trial judge had only said that the spleen was no part of their delf- berations, the Jury would have been "in the "air" as they would not know whether the point was going to be considered at all. If the appeal were to be upheld by the Court of Criminal Appeal, then there was abundant evidence of the commission of the crime to

'ALMOST SOLD SET After "evidence had been taken by Mr. V. Novikor and Mr. Yuen Tim-yau, a clerk at the office of what they knew of the affair, Leung Sul-min, manager of the Modern Radio shop loon slated that Webb brought the set in March for repairs, and the cost of repairs was $16. After repairs had been made defendant took delivery of the set but made no payment Witness wrote him several letters asking him to make payments but the defendant brought back the set and said that there was something wrong with it. When witness asked him for payment, which now. amounted to $22.80, defendant asked him if he could sell the set for him. and that he was willing to accept $45, and that when he (witness) had sold the act he could take the money owing him from the 845 On several occasions witness almight show that there had been a substantial miscarriage of justice The case for the defence was that rightly or wrongly

Continuing. Counsel salo second point was that the learned trial judge's reply to the question put forward by the foreman of the Jury of whether the fact that the spleen of deceased was enlarged | order a re-trial went into mitigation. The judge's reply was that the question of the enlarged spleen had no bearing on their deliberationis. It might have a bearing if they returned a ver- diet of guilty and the question of sentence arose.

most sold the set.

Police Sergeant L C. Pennell then gave evidence of having, ar-

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In reply to Mr. Abbott, Mr. D'Almada explained that powers were not available to the Court of Criminal Appeal in Eng- land and that they had never been exercised in this Colony, sub- MISCARRIAGE OF JUSTICE

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rested the defendant. And after honestly believed that deceasen the course of a few days, be had entered the shop he was was attempting to interfere with informed that no payment had his searching him wherefor, hu been made and that Mr. Tsang pushed him with his foot. Evi- had been struck in the face.

dence showed that a slight kick Defendant then made a statement from a heavy service boot would that he had never suggested to

have ruptured the spleen. Mr. Leung Bul-min that he wanted, to sell the set and also alleged that Mr. Tsang failed to identify him at the Police Station.

OPTION OF FINE

there was no reason why the con- Counsel went on to say that

duct of the body of Indian police, good or bad, should have any bear- ing on appellant at all, just Second Lieutenant Moffat-Wi-because appellant was of the same son. RA who was present in race, yet the jury must have had Court then stated that the fact this in their minds as a primary that the defendant had bought

consideration when giving the the set in uniform and gave his verdict on account of learned trial address showed that the defendant.

Judge's misc rection had no intention of carrying out Fa thought of intention of fraud.

He also stated that the defendant

THE SECOND GROUND The second ground, of appeal. was of a moderate character and though not so strong, was cumula- in fact had been re-engaged for ative with the first, Counsel sub- further nine years by his committed, saying that the learned manding officer.

trial judge should have contented.

Mr. Prior then pointed out that with merely telling the jury that the alleged assault on Mr. Tsang the enlarged spleen was no part Fook was entirely unprovoked.of their deliberations, but the ela- His Worship in convicting defen-boration of that statement might dunt, and imposing the sentences have caused the fury to feel that stated that he had given the de- even if they did return a verdict fendant the option of a fine, and of guilty, the condition of the ordered the radio to be given back spleen would be taken into con

Bideration.

to Mr. Tsang Fook

SANO MOTIVE NECESSARY Alleged to have been severely Mr. Abbott, replying for the man-handled by fokis after he had Crown said the first Instance of been seen clambering down the misdirection alleged was taken drain pipe of 21 Canal Road, L from its context, and, following the Ying, 25, was found lying uncon remark about motive as it did, scious in the road and was remov-might quite well have reacted to ed by the police to the Government the appellant's advantage be- Olvil Hospital Living was mis cause the Jury might take it to Im- pected of having committed a ply that the Crown had falled to establish a motive, though, 13 burglary

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