1938-12-15 — Page 7

HONG KONG DAILY PRESS

MAJESTIC CABARET CASE APPEAL

SEQUEL TO DISMISSAL OF SUMMONS FOR CAUSING NOISE

The summons brought against "Frank Gray, Ucensee of the Ma- jestic Cabaret, by Mr. D. C. W. Fitches, Assistant Superintendent of Kowloon Central Post Office, before the Second Police Magistrale, Hongkong, on May 25, for creating, or permitting to be made or caused, a noise calculated to disturb or annoy, which was dismissed, had a sequel in the Supreme Court yesterday, when an appeal was lodged to have the Magistrate's decision reversed. Judgment was reserved.

Mr. M. J. Abbott, Assistant Crown Solicitor, appeared for appellant, while Mr. Gray was represented by the Hon Mr. Leo D'Almada Castro Jnr.. instructed by Mr. M. A. da Silva,

May 25

all; there was no reason why they could not be considered together.

Mr. Abbott quoted authorities to show that even if the spot where a nubance was being committed. was at or con- venient spot that constituted No excuse or defence for the set.

COURTS

MANAGER FINED OPIUM HAUL IN

ON CHARGE OF

RECEIVING

Stolen Cutlery, With "Jimmy" Engraved

Kwok Cheuk-him, manager of the Yau Shing Arm, was convicted dia charge of receiving stolen articles and was fined $300, in de- fault, three months. hart labour by Mr. T. J. Houston at the Cen- tral Court yesterday.

*

of

The articles. quantity knives, spoons and forks bore the Dame Jimmy." They were order- ed by Mr. Landau, proprietor of Jimmy's Kitchen, through Messrs. John D. Hutchinson and Company In April this year. On arrival a check was made and it was found that the case had been renalled Following further quotation or and that a portion of the cutlety authorities, Mr.. Abbott sun-was missing.

fication,

and my

sub

11

HARBOUR

Bundles Tied To A Rope

SIX MEN CHARGED

Early on the morning of Decem- ber 9, a Revenue Department motor boat, which was sent out to locate a craft that was alleged to be smuggling drugs On to A steamer, came across a sampan, As soon as the motor boat ap. proached the sampan there was a commotion and objects were ob- served to be dumped overboard.

Revenue Oficer F. Fowler, who was in charge of the Revenue Department motor boat, ordered his ship to go alongside the sam- pan and boarded the craft,

There were altogether six men on the craft and two were seen running towards a rope which was in the water. The rope was pulled. up and tled to it were six bundles which were later discovered to contain 1,120 taels of prepared and raw opium.

Mr. W. M. Thomson, Assistant Superintendent of the Import and

Opening his Case, Mr. Abbott said appellant lived on the top floor of the west end of the Gen- eral Post Office Building, the win- dows of which faced on Des Voeux Hoad, almost opposite the Majestic marised his submissions," "Before On November 17. the defendan* Cabarm. He was home at 9.30 there is any implied modification sold a quantity of cutlery, which p.m. on May 14 and was disturbed A Section 13 of the Summary Or- bore the name "Jimmy." to Mr. up to 2 a.m. on May 15 by the

fence Ordinance entitling respon-tandani. who Informed. Messrs Hole of the band playing and dent to plead his licence as a de- Hutchinson and Co. and the police There was a sequel before Bir. there had also been community fence to prosecution under that and defendant was arrested.

R. Edwards at the Central Court singing.

Ordiance there must be a neces-

Kwok denied the charge and yesterday when the six men, Chan He had a similar experience the sity for that modification shown said that he did not know the ar- Chuk, Tsol Chung, Foo Gun, Chan nest night. In fact, the notse, or there must be expressed words ticles were stolen. He admitted Yau. Lau Sing and Ip Stu-wing. *which he had first heard on April in the Miscellaneous Licence Or that he had suspicion when he appeared on charges of possession 13, continued every night up to dinance to carry out that modsaw the word "Jimmy" engraved of the 1.120 tals of opium and on the articles, but he was later "did do an act preparatory for the The Magistrate had also noted i "It is a fact that there are no told that the name, corresponded purpose of exporting the optum." that the noise made by the band expressed words

to that of the maker. was the ordinary noise that would mission is that the implication is De made by a 10-piece band, and not in the least necessary to en- that the general neighbourhood able the two Statutes to be read was not a residential one.

together. There is in fact no re- "I think it is unarguably, Mr. Pagnancy between them. It is the the respondent to use Abbott submitted, "on these facis, ¡duty of that licence or no licence, cefence every reasonable care and the best or no defence, there was a serious scientific means to ensure that no interference with the comfort and injury is caused to the neighbours. enjoyment which Messrs, Fiches and I say that respondent has not and Croucher are entitled to ex- pect in their homes: I would like to draw Your Lordships to what in my view must be the consequence of the Magistrate's decision. There are many consequences, and a few must go

beyond the realms of common-sense and penetrate Into the regions of "absurdity.

CONSEQUENCES

taken such reasonable. care nor used such scientias mens.

CASANOVA CABARET CASE

"That being the case. If I am right in my submissions, what Is the position? I submit that the "position is the same was the position in the case of the "Casunova Cabaret Case in 1933. In that case the Ma- gistrate did the other thing. He convicted the dance ball proprietor, and Mr. Justice Wood and Your Lordship up- held the conviction."

MR, D'ALMADA REPLIES

Mr. M. A. da Silva appeared for the defence, while Mr. R. M. M. King, assisted by Detective-Sergt. Ritchie, was for the prosecution.

KING'S BIRTHDAY

SALUTE

Export Department, appeared for the prosecution.

...

Mr. C. A. Sutherton Russ plead- ed hot guilty to all charges for all defendants, except Chan Chuk, who admitted the offences.

At the conclusion of the case for the prosecution, Mi. Edwards dis- missed the charges of preparing to export the opium against the five dressed overall defendants, on the submission of Mr. Russ who said that there was and a Royal Salute was dred yes in evidence to support the charge. terday on the Occasion of the

birthday anniversary of Majesty King George VI.

Warships were

HA

AGENTS SUMMONED

Messrs, M. H. Turner and H. J. Armstrong, agents for the second floor of No. 2, Swatow Lane,' were

After further evidence was given the hearing was adjourned to December 28,

WOUNDED CHINESE SOLDIERS IN COLONY

འ

summoned at the Central Court State Of Complete

yesterday before Mr. R. A. D. For- rest for permitting the premises to be used as a brothel, within

Exhaustion

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Judgment in writing was given FANCY DRESS PARTY

by the Full Court yesterday in the Severely wounded, and bearing appeal, which it had already dis- In reply, Mr. D'Almada said he three months of the notice of the

on December 1. and in fully agreed with the decision of fact that the occupiers of the said signs of the hardships they suffer-missed the Magistrate. The principle of premises have been cautioned for ed in the course of their 14 days' which Mr. Ng Pak-to, proprietor

the Central Theatre. roaming before they finally reach-of

had ječmmon law must be applicable to keeping a brothel there.

ed safety, three members of the sought to have set aside the this case but only by analogy, for Mr. W. A. Mackinlay appeared 153rd Chinese Regiment, which decision of Str Atholl MacGregor, the extent and conditions of this for the defence while Mr. J. B took part in the defence of the Chief Justice, in the latter's judg- particular licence-a dance hall Prentls, Assistant Crown Solleitor, Canton-Kowloon Railway, stagger-ment against him in the claim for gence-look it beyond the dictum assisted by Inspector E. G. Post, ed into Hongkong from across the $17.500 which the Unique Film jot, the well known cases that had of the S. C. A., was for the pro- Kwangtung frontler on Tuesday. Production Company had brought

secution

They were in a state of com- against him early this year.. The hearing was fixed for the plete exhaustion.. but after having Mr. Eldon Potter, K.C.. instruct- afternoon of December 29,

been rushed to the Kowloon Hos- ed"by the Hon. Mr. MK. Lo. re- pital and. given food and treat presented the film company, and ment, they were able to tell the Mr. H.C. Macnamara, instructed by Mr. W.A. Mackinlay, of Messrs. story of their adventures.

"Does not it go to this: that the Commissioner of Police says to respondent,' 'yon сап commit a nuisance and cannot be prosecuted at common law'? To go farther, the Commission- er of Police says, 11 artogate to myself the powers which are vested only in the legislature without the authority to do so, and he goes in to say, 'I grant you a licence permitting not only legal activities but also illegal.' These cense. quences must follow from the Magistrale's decision and they

been cited are, of course, absurd.

Those conditions in fact, were so "To come to the

question of extensive that they contemplated licence, which is one point material the revocation of the licence if to this appeal, does that licence they were not complied with and granted to defendant affold him a therefore it could not be said that valid defence to prosecution under the licence left the public Section 13 of the Miscellaneous protected. The pubile could com- Licensing Ordinance Oi 1933?plain to the authority delegated #0 What is a Keence? A licence is issue the Hcence the Com- merely a permit to do something missioner of Police-who could which but for the grant and issue consider imposing further condi- of that Ecence would be illegal tious or withdrawing the licence.

(Section 4 of the Miscellaneous Licence Ordinance. 1933).

"The Magistrate says that the holding to this licence by defen- dant exempls him from liability under Section 13. The Magistrate has arrived at that view on taking into consideration the facts of unis

of a un-

square mile-the Hong- kong Hotel, Gloucester Hotel, St. Francis Hotel, Hotel Cecil, Majestic, Cathay and China Emporium - great importance was attached by the proprie- tors to the ruling of the Court. MẸ D'Almada quoted at length from numerous authorities.

The Magistrate had found “ on the evidence that the noise made by the dance band was not beyond the reasonable noise that could be made ünder the licence.

15

Following Mr. Abbott's reply Mr. Justice Lindsell announced that the Court would take time to con→ sider its judgment.

Mr. Abbott

thereupon" asked

It appeared that following their Deacons, was for Ng Pak-to. It regiment's encounter with the was on Mr. Macnamara's request at the conclusion of the hearing of Japanese between November 26 and 30, they had been cut off from the appeal on December 1 that] their comrades.

the written judgment was deliver- ed yesterday."

Badly wounded, they had tried to reach Hongkong, but it was not

after a nightmarish fortnight's wandering, often in fear of the Hives, that they had finally reach- led the border and safety,

FALSE TRADE MARK ON TOFFEE

וי

The Court was not now concern-whether the Court could give its case. There, I submalt, lies his ed with whether or not the licence decision before December 31, as A summons brought by Mr. W. A error. If this licence is to afford would protect respondent from' an a valid defence under Section 13 injunction under Common Law, the respondent's licence expired on that must arise on consideration It was

of the relative Statutes concerned

If this is so, that construction must

apply not only to that

granted respondent but also to every other licerice."

concerned only with the statutory aspect of the case.

If Section 13 were not modifleć

that date.

Hellwig, of Messrs. H. M. Hodges,

The Acting Chief Justice, Mr. Justice R.E Lindsell, and the Acting Puisme. Judge, Mr. Justice EH. Williams, sat as the Appeal Court.

The judgment, which was read by the Acting-Chief Justice, will be published to-morrow as a Supple- Įment to the "Dally Press."

FIL

against the Leung Hing Wah Con-AIRPORT MOVEMENTS The Acting Chief Justice: That Wan Road, charging the latter will arrive this afternoon: The fectionery Co.. of Cheung Sha Two Imperial Airways planes: is asking a lot. licence as the Magistrate had ruled, the what that has got to do with it. toffee in stock and with selling,

with having applied a false trade Air France plane is due from Hanol Mr. D'Almada: I do not see description to some quantity of also to-day, about noon. case could arise where a person

The Philippine Clipper leaves for living opposite the Roof Garden of The implication seems that if this for sale, and having in their pos Manila and America at 8.30 a.m. the Hongkong Hotel could summon appeal is upheld respondent's 1-session for sale will be heard by to day. The next Clipper from them under that Section and could cence should be revoked.

Mr. E. Himsworth at the Kowloon the United States is due here on succeed.

Mr. Justice Lindsell: I. am Court on January 6.

December 28. afraid I am not prepared to com-, Mr. Li A-chi is appearing for Three Imperial Airways' planes mit my brother or myself to a the complainants, and Mr.' J. M:|will leave Kal Tak to-morrow, judgment before the end of the D'Almada Remedios will contest morning with the last Christmas year.

the case for the defendants. mall for England and Australia.

NOTHING REPUGNANT Continuing his submissions, Mr. Abbott naked what was there that was repugnant in the two statutes he had quoted. He rubonitted there was absolutely nothing" at

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10-7