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THE HONGKONG GOVERNMENT GAZETTE, 6TH JULY, 1878.
"The twelve Commissioners made their Report in 1866, agreeing to forbear to enter into the question; but 5 of the 12 resolved that capital punishment might safely, and with advantage to the community, be at once abolished.
"I refer to this, the result of public opinion, not to advocate the abolition of capital punishment here, which would be highly improper, but as a foundation for urging that the State here should, on such awful occasions, use the like effort for the elucidation of innocence, as it puts forth, through the leading Counsel and Attorney in the Colony, to prove guilt; for the Judge to attempt to do so on the trial greatly endangers his equal balance of impartiality. The elucidation of innocence can be effectually attained only by the assigning Counsel and Solicitor for the prisoner, with ample discretion to them. Fortunately, these trials are rare, but when any occasion arises, it is unseemly for the Judge to put himself under obligation to Counsel and Attorney, whilst, it seems to me to be the duty of the State to secure an efficient defence, and it should pay for it by a proper fee, and, in protracted cases, not by way of "refresher," but upon a due taxation by the Registrar, of work actually done, subject, as that always is, to the final decision of the Judges, who alone can, even approximately, know what work has been done in each case, and who act on a serious responsibility.
:
"Merely to hand the depositions to Counsel, and for him to defend a prisoner at a fixed fee, with them only as his instructions, is a mere delusion. All grounds of defence require to be ferreted out. They are often unknown or unthought of even by the accused. All this is painfully impressed on my memory by the fact that four absolutely innocent men were once convicted of murder through conspiracy to obtain an advertised reward. They would have been executed, but that an accident postponed the day of execution. Their innocence was afterwards absolutely proved, and they were discharged, but after weeks of agony, and the conspirators were convicted. On looking into that case, I came to the conclusion, with the light I then had, that if a witness, not called for the Crown, had been called for the prisoners, the conspiracy would have become patent at once; but Counsel, not having had time or opportunity to ascertain the facts, the witness was, probably in the exercise of a wise discretion under the special circumstances, not called.
"A defence, not to be a delusion, must be thoroughly got up."
"I have the
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Sir,
“Your most obedient St
JOHN SMALE,
"Chief Justice."
2. In addition to recording his opinion that a trial for murder where Counsel and Solicitors are not both assigned for the prisoner is a delusion, His Honour conveyed to me subsequently on two occasions his convictions that in this Colony especially, no exception whatever from this rule should be allowed, inasmuch as the majority of those that may be tried on a capital charge would probably be individuals unacquainted with the practice and procedure of our Courts and of whose language neither the Judge nor the Jury had any knowledge.
3. The Chief Justice's opinion, in which I entirely concurred, was not, however, acted upon in the recent case of CHEUNG ASHIN, who was convicted of murder and sentenced to death.
4. Inform the Acting Chief Justice and the Attorney General, that in all future cases where a man is tried on a capital charge, I think SIR JOHN SMALE's opinion and practice should be adhered to.
mourable
'TING COLONIAL SECRETARY.
J. POPE HENNESSY. 2nd July, 1878.
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