1928-08-04 — Page 20

14

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THE HONGKONG TELEGRAPH,

INDECENCY CASE APPEAL.

[Continued from Page 2.)

that certain rules have been laid down for the conduct of parades which ought, in our view, never to be departed from oxcept for the

most serious reasons.

For the purpose of recording what takes place on these parades sposini books are provided; and on the front page of each of them the rules are printed. This fact alone would be sufficient to show the im portance attached by the police authorities to compliance with these rules; but in addition, with what might at first sight appear an excess of caution, there is a note printed at the bottom of each page of the book in the following terms "For direction for holding lden- tification Parades see Front of this Book."

Now it is argued on behalf of de- fendant that on the particular parade in question in these pro. ceedings the rules were violated in certain most important respects Rule 1 (c) requires: (a). The accused to be placed among at least eight persons who are not to be police, if possible.

Explanation Not Clear. There were only seven persons. including defendant, paraded. The explanation for this breach of the rules was, to any the least of it. not clear; while though the other persons were, not police officers, they were police clerks, Sub-In- spelor Rozeskwy stated that he had endeavoured to obtain persons from outside to help to form the parade bat, na he quite reasonably explaines, it is diicult to induce persons of the class of defendant to go to a police station for that called in should be of similar age, height, general appearance and class of life as the defendant.

purpose.

(br Th

persons

Na complaint was made that the persons called in were not of siml- lar age as the defendant; though as regards height it was stated that at least two of them were con- siderably taller than difendunt.

Complaint was, however, made that the clothes defendant wore were such as to point him out as of a class different in the others. They wore collon coats and trous- ere, while defendant had un a fawn bench coat, striped shirt and collar, crystal buttons and white abardine trousers, It is at least unfortunate that more was not done to reduce the difference be tween defendant and the others caused by the clothes he was wear. ing. It would have been easy to provide him at feast with a coat

ike the others.

Vital Requirement. Rule 1 (d) requires:-(a) that the witnesses ahould be called by sonte person who does not know and has not seen the acensed, care being taken that the constable who has made the arrest should not be sont call the witnesses.

SATURDAY, AUGUST

vens the officer in charge of the cage and knew the defendant well, was present when A.S.P. Kent lined the men up for the parade. He went up to the latter's office after the parade was formed and brought down, first Mrs. Lea and then Mrs. Jeppard, to the parade. He stood by while they were engaged in the kentification of the defondant.

Breach of Rules.

We consider that in thus per- sonally conducting the ladies he 'committed a breath of the rules in A most serious particular which must affect our estimate as to the value of the Identification which took place at this particular par ade; and cannot help expressing our surprise that experienced. police officers should have been parties to the proceeding.

(b) That the witness identify ing en accused should touch him. This was not done on this oc casion,

1928.

CAPTAIN COURTNEY'S

FLIGHT.

A

MACHINE CAUGHT_FIRE.

London, Aug. 3. Captain Courtney has wirelessed to his wife that he had a very bad] time and that he was forced to de- scend because of an outbreak of fire in the machine, but that there was, no need to worry now.

The Ateamer Cedric reports that the plane. has been abandoned. Reuter,

A Flight to New York.

Paris, Aug. 3. Tho Polish airmen, Majora and Kubala have Idzikowski started on a flight to a New York, probably via Rochefort and the They ara equipped Azores, with two small collapsible rubber

bing within elght feet of a lamp.

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FREIGHT AND

"GLAUCUS" 7th Aug. M’les, Leádón, Bʻdam & Hats “PHILOOTETES” glat Aug. Mabé, Fáddɖu. B'dam & Rhkbirg BAEKEAB

4th Sept. M', Lókiện, I'dâm & Glasgow

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After stating that the defendant boats but no wireless. They carry

a danger rocket pistol and gave a completa denial to the bundle of small Polish flags which charge, bla Lordship proceeded to repent the story as bold by the de-dll be dropped out at intervals fendant, pointing out in parts that their progress may be fol- LONDON SERVICE where it was corroborated by his lowed.-Reuter, wife, after which ho aaid it was obvious that if the defendant's story was believed he could not be

In my opinion this explanation the person who committed the offence as he was away from the was an afterthought. He had not Hcene between 7 p.m. and a little appreciated the importance of Li after 8.15 p.m., when the time of the Chau's evidence until it offence, according to the proseca- brought out in the course of the henring before us; and seeing the tion, was 7.30 p.m.

The Crown argues that the wit-point that might be made against nesses are interested and should him he gives an explanation which, not bo believed; and further that neither in its substance nor in his

"LYCAON" 24th Aug. another very material piece of uvi- manner of giving it, has satisfied NEW YORK SERVICE dence given by them should also us of its truthfulness.

PREMIUS" 17th Sept. he disbelieved.

Defendant's Dress. Defendait says that he went to his father's shop on the morning of May 21, 1928, dressed in a fawn coloured palm bench coat, a khaki shift and grey trousers and wear ing a while topec. His father can-

s this statement and goes on to add that defendant was in the same clothes when the latter left the shop at about 6.30 p.m.

Defendant's wife states that he was thus clad when she met him at the junction of Kennedy and Garden Roads at about 7 p.m., and that when he left the house at about 8.15 p.m. to get his eyele he was similarly clad. The step- mother corroborated this state-

mexi.

The prosecution argues that de- fendant had an opportunity of changing his clothes when he went home after leaving his father's shop, that he must have done so or he could not have been wearing the clothes which Mrs: Lea and Mrs, eppard say they saw him in at 7.30 pm. Also that the atory of the defendant, his wife, and his stepmother in this respect is false and should not be accepted.

Defendant Disbelieved.

There is certainly a matter in which I do disbelieve the defendant. which tends to make us doubt, his story where it comes into conflict with the evidence offered on behalf of the Crown..

This requirement seems to us to

Defendant said that after leay- be of vital importance and shoulding No. 33 Robinson Rond at 8.15 be strictly adhered to, both in the letter and in the soirit. The dan rers that arise from a breach of it are obvious, Perhaps almost as serious consegneres, would arise from the destructisa of public con- fideres in the scrupulona fairnes: which should be shown to prison- ers, tha must occur, if it became known that this particular pro- vision of the rules is ever derari- ed from.

Now the evidence before us, is that Sub-Inspector Rozeskwy, who

pa, to retrieve his cycle, he walked along until he came to the junction of Kennedy and Garden Ronds and then proceeded East along the former. He says that he did not and his eyele where he bad parked it by St. George's Hotel and walked on, looking neither to the loft nar to the right; and not having found the cycle he turned back and then saw it on the North side of the road in a place where he could see the cycle very clearly because it was fairly light,

was

LIVERPOOL SERVICE

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Another point which affects the defence is that the defendant did PASSENGER SERVICE nol tell his story when first taken to the Central Police Station.

Story Withheki, ·

He says, that he felt the charge

against him would go on, and he proferred to keep his stor, until he was before the Pollee Magistrate. t is undoubtedly the right of an accused person to do this, but 1 lige more than once called atten- tion to the great assistance it is to a defendant for him to be able to say that, on the first opportunity he had, he gave an account which that agrees substantially with given at his trial.

The facts to which I have called attention show that there are serl- ous elements in this case which have not been altogether satisfac- torily met by the defence but it must always be remembered that the onus of proving the gulit of an arcused beyond reasonable | · doubt is on the Crown.

In, the circumstances of this ensc have come to the conclusion that I must differ from the decision given by the Police Magistrate but I differ with some hesitation.

It must be observed. I woyer, that the case was not so fully gone Into before him as it was in this Court. And in particular he did not have before him the detailed statement of what occurred at the identifiention parade,

matter which has seriously affected my view of the facts of the case.

Crown's Failure.

I have given the most careful consideration possible to those facts and have come to the con- elusion that the onus which is up! on the Crown of bringing home the charge beyond reasonable doubt has not been discharged and that I am bound to give the benefit of the doubt to the defendant,

The decision of the Police Magistrate must, therefore, be re- versed, and the defendant dis- charged."

Mr. Justice Jacks concurred.

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