1930-10-18 — Page 2

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THE HONGKONG TELEGRAPH. SATURDAY, OCTOBER 18, 1930.

HEALTH BUREAU

CASE.

NEW POINT RAISED BY THE DEFENCE.

LEGAL ARGUMENT.

saying that the autrefois acquit point is good, but I appeal against the decision in your favour when he ruled that Section 17 (2) is bad." In that case, the Full Court of Ap peal could be left to decide. Tho only point before the Full Court was whether the defendant was en- titled to raise the point of cutre- fois acquit. The Full Court said "No," and sent the case back to be heard de novo. It did not say that a ruling which was not argued by Kwok either party should be brought up Chun-sing, charged with uttering again. Assuming that your Wor- a forged voucher for $520 to the ship is in my friend's favour, that prejudice of the Health Intelli- would bring on a position which is gence Bureau, of which he was grotesque, If, after your Worship late manager, was again before has decided in his favour and dis- Mr. Lindsell at the Central Magis-charges the defendant, I were to tracy yesterday afternoon, when go before, the Full Court and it was argument was heard in regard to held that you should never have legal procedure and conduct of the heard it."

The

case.

case concerning

Mr. Lindsell: From a letter re- ceived from your office, Mr. D'Almada, I understand that you have abandoned autrefois acquit? Mr. D'Almada: Yes, for the moment. I plead "not guilty" now to the charge.

Mr. Lindsell: Do I understand that is the only plea to come for ward?

Mr. D'Almada: Yes, "not zuilty." and the argument I propose to raise is that I plead that the complainant is estopped by Section 17.(2) of the Forgery Ordinance from-

Mr. Lindsell: Showing that it is "in bar" and to be argued before the plea of "not guilty" arises?

Mr. D'Almada: Yes. I with draw my plea of "not guilty" and I plead "in bar" if your Worship will permit me.

to

Mr. Lo proceeded to develop fur- ther his point by saying that even if Mr. Lindsell were entitled hear Mr. D'Almada's new point, Mr. Lindsell should not depart from the ruling given by the co-ordinate furdisdiction of another Magistrate, Mr. Butlers. In other words, Mr. Lindsell should not depart from his learned colleague. "Obviously, your Worship could not eit as a separate Court of Appeal over your learned colleague", said Mr. Lo

Mr. D'Almada: Your Worship is not bound by the decision of an- other Magistrate.

Mr. Lindsell: The finding of the Court of Appeal, in vulgar parlance, has. "washed out" the whole of the proceedings before Mr. Butters.

Mr. Lo replied that the point 138 with which the Full Court called upon to decide was one of autrefois acquit, that the poin: hav ing been decided by the Full Court Mr. Lo: Before my friend be as being bad, it was the point on rins, i should like to clear up one which the Full Court sent the case point. I don't know if he meant it back to the Magistracy with a as sort of sotto voce, but he did say direction to "continue it." The that "for the moment" he did not same Magistrate as had entertained raise the plea of autrefois acquit.the plea might have to Does that mean that he has post- poned it again?

Mr. D'Almada: I shall raise it if our Worship decides against me and the defendant is sent to the Sessions.

continue

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with the case, but, for reasons of inconvenience, the direction was for another, Magistrate to take it de novo. "I say, my friend is estopped from raising the new point."

Pien Accepted. Mr. Lo: I am glad to hear that point. Clearly, as the preliminary Mr. Lindsell: I hold that the point of my friend raises, a ques-effect of the Fell Court's decision tion under the Section of the For-in this case was that it washed out gery Ordinance, I say now my all the proceedings before Mr. friend is estopped from doing so Butters, and that therefore, I have by reason of the judgment of Mr. now the jurisdiction. to entertain Buiters, who gave a direct written Mr. D'Almada's plea. On what decision on this point. It was grounds do you raise this question, open to

defendant-respondent be- Mr. D'Almada? fore the Full Court of Appeal, to Mr. D'Almada: Section 17 (2) have filed a cross-appeal against of the Forgery Ordinance, No. 11 the decision of the Magistrate, but of 1922, precludes the complainant my friend did nothing of the kind. from bringing these proceedings. I suggest that it is against all I refer your Worship to the words principles of jurisprudence if my of the Section: "Where an offence friend is permitted to raise the against this Ordinance is also an point now. The Magistrate had offence under the terms of any D'Almada on what he called two before or after the commencement points (1) autrefois acquit and (2) of this Ordinance, proceedings may Section 17 (2) which he contended be taken under such other Ordin- was a separate point. I submit ance or under this Ordinance..." that it is either part of the autre What were the proceedings? I fois acquit or no point at all. I have asked, your Worship, for the have asked your Chief Clerk to at- minutes of the proceedings in the tend to day to produce the original first case before Mr. Grantham, re- written judgment given by Mr.ferring to the 22 original charges Butters in this case. I read the against the defendant. I now parti- following words found in that ularly refer your Worship to judgment:

Charges 3, 4, 5, and 6 of these 22 "He also argued against the In-charges.

put

Mr. terpretation

by D'Almada upon Section 17 (2) of the Forgery Ordinance and submitted that the Section had nothing to do with the question of autrefois acquit, but was a saying in view of the fact that the Forgery Ordinance, 1922, was not inclusive of all local forgery. K. Leung. The falsification of legislation. I will say straight-accounts, your Worship, as I will away that I concur with Mr. Lo's show, is a forgers. They are both interpretation of this Section and practically the same, that I consider it affords no bar to the present, complainant." Mr. D'Almada: Your Worship is not bound by that judgment, this being a hearing de novo.

Finality Wanted,

Charge No. 3 was fraudlent con- version of $520; Charge 4 is larceny 91 $520; Charge 5 is falsification of books to show that $520 had been paid out; and finally, Charge 3 is making or concurring in the making of a false entry in a voucher to show that $520 had been paid to

Mr. D'Almada proceeded to quote authorities in support of his argu- ment that falsification of account books and forgery are akin. He went on to argue that the words "any other" occurring in the Sec- Hon had an alternative meaning, and that "or" was not conjunctive, Mr. Lo: My submission is that but disjunctive in its meaning. there must be some finality to some Although there was no charge of point. In this case my friend raises forgery of this particular sum of a point which was over-ruled by $520, defendant was charged with Mr. Butters. Mr. Butters also over-forgery of another document. ruled some other poluts brought Mr. Lindsell: Where the facts by Mr. D'Almada. The obvious would support an offence against course then for Mr. D'Almada to this Ordinance and also against an- pursue was to have filed a cross-other Ordinance, then you must appeal before the. Full Court, and elect under which Ordinance say "I support the Magistrate in (Continued on Page 15.)

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