1928-03-28 — Page 2

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THE HONGKONG TELEGRAPH,

LEE HYSAN, LIBEL CASE.

QUESTION OF PRIVILEGE

ARGUED.

The hearing was resumed in the Supreme Court, yesterday before the Chick Justice, Sir Henry Gollan, of the case in which Mr. Pedro Jose Lobo, of Macao, in auing Mr. Lee Hysan for damages for libel and is asking for an in- Junction to prevent. Mr. Lee Hysan from making further publication thereof,

The bel complained of was contained in an oxhibit attached to a petition which was sent to H.E. the Governor of Macao in which it was suggested that big sums had been paid by the Yus Sing Company to gain control of the Macao oplum monopoly.

The plaintiff is represented by Mr. C. G. Alabaster, KC, and Mr. H. G. Sheldon, while Mr. Eldon Potter, K.C., and Mr. F. C. Jenkin are conducting the case for the

defendant

Proof of Reading.

Mr. Potter submitted that there was no caso to answer.

WEDNESDAY, MARCH 28, 1928.

occasion and that thoro was evi- dance of express malice.

Bribery Suggested."

OBITUARY.

DR. J. H. McCARTNEY,

Dr. McCartney was the oldest foreign resident of Chungking and well known through all the Upper Yangtze. For many years. he had acted as Port Surgeon and

Mr. Alabaster continued it wAN suggested that there was a total The death to announced of Dr. sum of $120,000; pald, of which James Henry McCartney, of $70,000 was paid by Ah Nok and Chunging, Szechwan. $50,000 by Lo Bo, and the sugges Hon was that it was paid to per- sons and not properly paid as security to the Government. In fact it was suggested that bribery took place and that the plaintiff was a party to the bribery, although he did not handle the whole of the bribe that he, being the head of the administration, had handled 5/12tha, of the biba,

The other side had suggested that Tuk. Po was the way of pro- noencing security in Kongmoon, and it was quite clear that that word and Thoi Teng suggested a bribery to the extent of $120,000 of which the plaintiff had handled 5/12ths

Prior to opening his address for the defence his Lordship intimated to Mr. Potter that as far as his publication he (his Lordship) was case concerned the question of

with Mr. Polter, but he would have to diaprove the allegation of malice.

as proprietor and founder of the American Chinese Drug Compary. in Chungking. Dr. McCartney. was the first of the foreigners, who evacuated Chungking during the troubles, to return to his post. Ho then had considerable difficulty with the Chinese servants' union. His property, had been left un- touched by the looters, and his sprvants were reported to have du manded a large compensation for preserving it a demand which was re-inforced by throats from the union of physical violence, which was the occasion of a rum

our of his death at that time.

In 1890 he arrived in China as a member of the Methodist'

Girard, Ohta, in 1868. He was Dr. McCartney was born in educated at the local high school and Western Reserve University Mr. Potter said that they did Medical School, studying also at the Lakeside Hospital, the New admit publication of the libel and

York Post-Graduate. Medical When Mr. Alabaster replied also sending it out, but their gon-School, and the London School of there was considerable argument tention was that the interpretation Tropical Medicine. between him and his Lordship was not done in the senso in which with regard to whether thetho defendant intended it to be receiving of the documents was done. proof that they had been read, the After quoting authorities deal. former contending that once it ing with translations from for was proved that they had been feign languages Mr. Potter con- received that was proof that theytinued that if a libel was published had either bean read or translated and sent to anyone who could not read the language in which It was to the receiver.

written, then the onus lay on the prosecution to prove that the in- mondo was understood. The fact that an enquiry was held by the Macão Government, did not neces- sarily indicate that the letter in which the alleged libel was con- tained had-been read, or that the alleged libel had been understood. His Lordship asked could they leave out the innuendo and take the letter itself.

Mr. Alabaster continued that there was admitted publication both in Hongkong and Macao to

about 12 persons.

Mr. Potter remarked it was essential to prove that there was publication prior to the issue of the writ and there was not a single word about that. He added that he did not wish it to be un- derstood that he was agreeing.

Mr. Alabaster submitted that there was ample evidence of publication..

Referring to the question of privilege his Lordship said that point put by Mr. Potter was that the sending of the petition to the Governor and the enquiry were practically one, transaction and the privilege claimed by the de-,

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far as the report of the enquiry was concerned, if Mr. Alabaster wanted to use that in showing malice, he must first of all destroy the privilege of the occasion.

Mr. Alabaster replied that the short answer to that was that if the petition itself revealed malice it destroyed itself and if the in- quiry revealed malice' it destroyed itself.

Sinister Meaning.

Mr. Potter contended that they 'could not take that course.

His Lordship then remarked in that case they would leave the Governor of Macao in abeyance for the time being.

di

Governor of Macao. Mr. Potter said that if the Gov. ernor was brought into the matter then the defendant would be placed in a very awkward position. They had no jurisdiction over any- one in Madhe, irrespective of not bring the Governor to court to social standings, and they could prove in what manner they cons trued the letter.

Episcopal Mission and was sent up to Chungking. There he com- menced his long career of useful- ness in the city by founding and organizing the Men's General Hospital for the mission, building the Gouldy. Memorial building the Gouldy Memorial Men's Hospital the following year. He acted as manager of this hospital until 1914.

He was founder of the Amer-: ican Drug Store in Chungking about this time and in 1911 busied himself organizing the Chinese Red Cross in the port. In 1916 he. resigned from the Methodist Episcopal Mission and went into private practice, becoming Port. Surgeon. In 1921 he built and endowed "the International - Hos- pital in Chungking and for many years was in charge of it. His activities among Chinese and for- eigners in Szechwan made him one of the most popular foreigners in the neighbourhood and earned blp many friends in every walk of life.

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His Lordship suggested that they should confine the question to publication in Hongkong.

Continuing Mr. Potter said, that the alleged libel was sent to two Dealing with the translation Mr. persons in Hongkong. One of the Alabaster continued that in it persons who received it was the had been incorporated brackets Consul General for, Portugal; Mr. containing words which gave n || A. L. C. de Albuquerque and it was sinister meaning and such brac-sent to him at his own request, kets were not in the original. The That copy, continued Mr. Potter, adding of these brackets was evi- was sent to Mr. Albuquerque on dence of malice.

September 27, last year, which was Mr. Potter added that Mr. Lee Hy one week after the writ was served. san acted in a very straight for Therefore he could, not enter intoward manner by putting the letter: as an appendix, saying that it was n translation sent to him.

the case.

His Lordship said that surely a member of the community was entitled to bring to the notice of the Legislature

The other man who received a Government or matters in which they took a com-copy was Chun Choy and it was mon interest. The suggestion up to the plaintiff's counsel to was, that the Government, deciding prore on what date the petition to act under the Geneva Con- was sent to Chun Choy. It was ference, declared a certain policy.not for the defendant's counsel to Then they went back on that and prove that, but if they were asked followed the old policy. Certain to do so, they could easily prove facts had come to the attention of that the petition was sent to Chun persons who had been interested Choy after the writ was issued. in that trade. If such a person made a representation, leaving express mallee out, to the proper authority, would not that cause some privilege?

His Lordship commented that he agreed with Mr. Patter that the publication was privileged and sug gested that counsel should address the court on the question of malice. Inquiry Was Wanted

...

ed "On the Road to Tipperary."]

Speaking with regard to the sounde Tuk Pa and Chok Po Mr. Potter said Tule Po had been mis- represented by the defending counsel in order to give a sense of libel and suggest that it was the name of a person, They had it from the evidence of the Court interpreter that it was extremely diflcult to get the right sound in English for a Chinese sound, so that the sounds Chok Po could not have been a deliberate mistake.. If they had wanted to libel Mr. Labo they could very well have mis- represented Taof Teng which meant

It

Mr. Alabaster remarked it would not be privileged if something else was communicated. Nor did it Mr. Potter dealt with the matter "Treasurer" or "Treasury," instead- matter if a person thought that at length and analysed the evi-of misrepresenting the words Chok such people had a common: In-dence which has been given for Po which meant "security" terest in learning the translation the plaintiff. Speaking with regard would, added Mr. Potter, have been to the enquiry at Macao, he said much more to the point, to have Mr. Alabaster asked what duty that was what Mr. Loe Hysan connected Mr. Lobo with the had Mr. Les Hyaan to make a wanted done. There was ample Treasurer or Treasury had libel translation if it differed from the material in the petition to have been intended, Information that he had received. caused the Governor to call for an The case was adjourned until He submitted that the defendant enquiry apart from the letter this morning, when the case for had not shown it was a privileged which contained the alleged libel; the defence will be continued.

of the document.

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