1948-12-22 — Page 5

THE HONGKONG TELEGRAPH, WEDNESDAY, DECEMBER 22, 1948.

JUDGMENT FOR COWIE

Former Police Officer's Appeal Successful

Judgment for Cowie was delivered by the Chief Justice, Sir Leslic Gibson, Sitting with his Lordship was Mr The appellant was William Henry Cowie, ex-Sub-Inspector of the Hongkong Police Force, while the respondent was the Attorney-General, who was represented by Mr A. Lonsdale (Crown Counsel), instructed by Mr L. R. Andrewes (Crown Solicitor).

at the Full Court of Appeal this morning. Justice Wicks (Acting Additional Judge).

Mr Brook A. Bernacchi (instructed by Mr Y. H. Chan, of T'so and Hodgson) appeared for Cowie,

Judgment was given this morning on an application that an order of Mr Justice Gould (then Acting Puisne Judge) made on September 2, 1948, that the appellant was estopped from saying that he was not guilty of misconduct as set out in the Statement of Claim, be set aside, and in lieu thereof it may be ordered that the appellant was not so estopped.

;

It will be recalled that there! was a hearing on September 14 as a result of which Mr Justice Gould held in favour of Cowie and ruled that Cowle might at the trial of the action prove there were breaches of natural justice nt the proceedings be fore the Board of Inquiry.

whether the Legislature has or has not given the Board exclusive juris- diction to decile the question of misconduct in connection with the dismissal of an officer.

A plea of res judicafa can only arise when more than one Court has jurisdiction to decide the particular but the effect of Mr Lonsdale's

declared that the Board,

mid construction would be that the law

is to have only the Board, is

power to as pronounce on the question of mis- conduct

and

has given no Its from

decision to Hppeal the

courts. ordinary

(Compare,

one.

9th

to

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Christmas

Tel-Aviv, Dec. 21. The Jewish Blate broadcasting station, "Kol Israci," will make broadcast a special Christmas from the Church of the 'An- nunciation in Nax:reth,

The Church, according to the ita tradition, was bullt on of the Jowlah

Bynagogue. where Jesus used to pray.

A Jewish military spoketenan

that sald

today

the Tarnell Chief of Staff had ordered all unit commanders to erant special Christinas leave of four days to all Christian volunteers Israell In the ranks of the Army. They number between 70 and 86.

Special

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Arab curfew restrictions in towns are to be lifted and re- llefous services held even in prisoner of war camps, It was stated.-Nruter.

TRIBUNAL

TESTIMONY

Belcher,

Five Men, Two Women On Serious Charges

The trial of five men and two women, arraigned on charges of armed robbery, possession of arms and ammunition and re- calving stolen property, opened before Mr Justice Reynolds at the Criminal Sessions this morning.

The charges allego that a tolni of four. robberies were carried out Between August 23 and September 8, 1940 and the Crown submitted that they formed the backbone of the other charges in the indictment The accused are You Lol, alias Yau Kut-lol, 27, unemployed: Chan Tit-ping. alias Κα Lo-kwal, 30, fire- wood dealor; Chan Moon, alias Chan Fat, 23,

28, travelling trader; Leung Sul-wah, allas Yin Chai, 21, vezeta-

ble gardener: Hung Yeung, Hung Fat, 21, travelling trader; Leung Koon-nin, 18, widow: Leung Koon-mui, married woman.

Mr M. Heenan (Crown Counsel), osalated by Det-Insp. C. Dowman, Is prosecuting. Accused were not legally represented.

allas

and

The Jury empanelled comprised three men and four women.

COMMON FEATURE Opening for the Crown, Mr Heenan said that evidence would show that a total of four robbertes were carried out between August 23 and September 8. It would also touk be shown that in all these

more persons robberies, two or were responsible and further that

in all four cases at least one of the alleged robbers was armed with a revolver.

Section 12 of the same Ordinance authorised the Inspector General to make such regulations as he might consider necessary for the general government and discipline of the pe Forec. Regulations were made un- der the latter section and were in Spackman v. Plumpstead District force at the time of Mr Cowle's dis-of Works, 10. A. . 220). missal.

It 18 now necessary

ia It is

construction is unnecessary to refer to these consider which

It is

stated regulations in detail. In substance, the correct

Maxwell,

edition at Cowle had originally bought a they provide that when a complaint in elaim for damages against the Hong- is made of a breach of discipline, page 303 that "If the subject is de kong Government for alleged breach the matter shall first be the sub-

prived of his right to resort to the of contract for wrongful dismissal, ject of a preliminary investigation Coucis of Law of his country, it must

hearing. tho

Crown Counsel,

charge of the divi- be by express enactment At

by the officer

(Continued from Page 1) dealing with the right of the Goversion or branch under whoso com- by-law." nor to dismiss Cowie, said that the mand the officer, against whom the

The case of Paul ve The Wheat

Evidence showed that Sidney Commission, 1837 A. C. 139 is cited defence was in fact a plea of res complaint to mado is employed.

a key and Stanley, stateless Pole and If, as a result of this investigation, in favour of this proposition judicata (an issue that has been

conalders the

Commissioner

that we refer to the following passage in Agure in the Inquiry, had complete court).! settled in

Access to

and through Giving

judgment, the Chief a prima facie case is made out, he the judgment at page 153:

Board consisting of two "Both Roche J. and all the learn-Belcher to the Board Board of Trade. Justice Bald:

appoints

The Tribunal would have to con- tted aficers to hold and con-ed judges in the Court of Appent This in an appeal from a decision gazetted

disciplinary enquiry." te unanimously found the by-law in sider whether this access was one of In an action brought by William duci

an officer to present question to be ultra vires of the the ways that Belcher, found of re- Henry Cowie, formerly a

case."

Wheat Commission. They agree in paying gifts received from Stanley, "Uc

Commenting on Belcher's admitted The regulations go on to provide affirming the general principle that

his right to resort to the Courts of when he had no way to repay inw of his country except by ex- Stanley, the Attorney-General sald: robbed press enactment, and they find in "The question the Tribunal will have case la whether no words statute

expressly to consider in this the

the jurisdiction of the perhaps he found a way." ousting Courts or expressly authorising the

OTHERS IN CASE Commission to frame

this Sir Hartley sald

of other Wheat laws which shall have this effect," leading lures in the case of Mr. George Gibson, Director of the Bank of England: "The Tribunal may feel that there is no evidence at all of any direct perruption, but on the other hand it might also wish to The main question to be decided consider, and find greater

dificulty question of is whether the occupant is a work-in' considering, the man so employed, and the regular whether duet, Critser fetit himself to tion might have been so framed as

conduct, Gibson lent to make this a good answer to the something like a confidence trick appilention for possession, still leav-by Sidney Stanley." ing that question to be decided by of Glenvil Hall, Financial Secre-

Sub- also accution

Inspector of the Hongkong Police, against the Attorney, General, as re-

WGS

on

presenting the Crown, for damages | for the procedure of the Board and, the subject cannot be deprived of embarrassment from time to time by the robbers to tie up the inmates

the

for wrongful dismissal from his particularly, provide for the making employment in the Hongkong Police of formal charges for the taking of defendant's plea and, if the Force. The

that plea is "not guilty," for the right trial Judge ordered certain points of law should be set of the defendant to make his de- down for hearing and disposal before fence. Finally, the regulations pro- raised vide that when a is the the trial of the issues of fact Totter Board is to notify the defendant that the "verdict will be promulgated in point of law with which we are con due course." cerned in this appeal is raised by

The Board is to

"Its record paragraph 4 of the amended State-

charges ment of Defence which

reads as findings on the charge or

and forward the record in the Com- missioner who is directed either to the make his award or forward proceedings with his recommenda- tions to the Governor through the Colonial Secretary,"

follows:-

#4. The Defendant says that the Plaintify ought not to be admitted to say that he was not guilty of misconduct as set out in paragraph 7. of the Statement of Claim because of the fact of the Snding of the Board of Enquiry which is final as a matter judicially determined and nol the subject of appeal."

which reads:-

Into

RES JUDICATA PLEA

In

Mr

We would refer also to the case of Chester v. Bateson, 1920 K.B. 829 in which the following passage nopears in the Judgment nt page 833:-

of

01

In addition, there was one fea- turo common to nil the robberies, Counsel sald, and that each occasion, wire, was employed

of the premises which were being Two of the robberies look place in what Counsel described an "built- lup" areas as opposed to village areas. In these robberies there was common feature in both cases. Mr Heenan sold. The robbers gained entry into the premises by intimating that they were from the Sanitary Department and Indicating routine tour of that they were on Inspection.

Outlining the facts of the Counsel said that the first robbery look place about 5.30 pm, on Aug

unnumbered hut in Ta Ku Ling village. Kowloon, where widow and her son were robbed of IK$0, a grey woollen jacket and three suits of clothing. In respect of this count, the indictment charged accused Nos, 1, 2 and 3. Evidence

case,

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| Laraine DAY in count, one of the articles stolen was found to be in the possession accused No. 2 when he was arrested on September 10.

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The argument in the court below

a Court of law. But the regulatory to the Treasury: "I ask the on the point of law under consition as framed forbids the owner Tribunal to say that his involvement deration was devoted entirely to the

of the

property access to all legal in this case is a matter which is no This paragraph refers to para question of whether the Board's

tribunals graph 7 of the Statement of Claim decision gave rise to a

pica

regard to this matter. doubt a very grave misfortune for of This might, of

legally be him, course,

but for which he is in no way res judicata and the

learned

done by Act of Parliament; but I On 12th August, 1947, the

held that it did do so. Judge Plaintiff was held by a Department his judgment, he also deveted him inflicted only by direct onactment of think this extreme disability can be

whatever to key, Minister

Of Charles Works: There was no evidence of Beard of Enquiry to hue commitself to the question of whether the the Legislature itself, and that so ted the offence of conduct calculated

any monetary payments, or con- was res judicata.

grave an invasion of the rights siderations involved in his long to bring the publle service

From that judgment, the present all subjects was not intended by the friendship with the director of a disrepute by whilst on duty recely-

appeal has been lodged, ing $50.00 from Chan Yu Tong, a

Legislature to be accomplished by a firm which had applied for building with whom he had come Bernacchi (for the appellent) con- departmental order such as this one licences. His friendship with Stancy "person"

of the of the Minister of Munitions."'

Stanley might have been unfor- SECOND ROBBERY- into contact in the course of his tending that the decision

misconduct on the question him to Inspect 10 duty requiring

but whether their social

Referring to the second robbery that

tunate, that on

"JEALOUSLY GUARDED" final decision n

to vehicles, that they were in a road-is not.

friendships led anything ap which took place about 10 p.m. on These cases show how jealously proaching corruption was question, binding on his client, and

a very the same night and in the same rise the right of access to the ordinary different maiter. Reuter, that it cannot therefore givs

area, Mr. Heenan said that a Chinese woman lying in an unnumbered hut In order to appreciate the signl-10 a plea of res judicata, and Mr courts is guarded in England, an

about 40 to 60 yards away from the ficanes of these two paragraphs, it Lonsdale (for the Attorney-General) be it noted that, in the second case, and includes rules of court.

Court was considering emer **(3). All regulations shall, unless hut which, was robbed earlier in the contending that the Board's decision the

gency legislation made in time of otherwise provided, come into opera- night, was robbed of HK$13 by two This .count was the more readily of rcii upon

to make in the Gazette and shall have the against accused Nos.. 2, 4 and 5. some sacrilee of their constitutional same force and effect, shall be as Again, evidence would show that liberties.

binding and shall be construed for cach of these Notwithstanding

accused, when charged those decisions, ell purpoers as if they had been with the commission of the robbery, ordinary contained in the Ordinance empower-made statements in answer to the the jurisdiction of the

worthy condition."

LAW OF DISMISSAL

law which relnied, at the time in la final and binding on the part war when the people may be called tion on the day of their publication for more robbers. ;-

of

and

therefore, onc,

which is

sufficient.

to found

plea

is necessary to refer briefly to the question, to the dismissal from the Police Fores of officers

Mr or judicata, 10 of the Cowie's rank. Section Police Force Ordinance, 1932, .pro-

that it

vided

Any

were

In the course of the hearing of for the appeal, we intimated our doubly it should be the Governor, on the region as to whether, In either view of the courts could, no doubt, be ousted Ting them to be made; and any charge, and in the view of the Crown of the

General, to dismiss Interpretation of the legislation, the the regulations purporting to achieve reference to the Ordinance in dny they amounted to admission of gulit. any suspec

palice officer for question of res judicata arose and, this effect were entirely free from enactment or in any legal document Further, the robbery was committed

and on further consideration, we are of ambiguity any refusal or neglect of duty or

con- shall be construed as Including the under more or less similar circumi- insubordination or breach of dis- oplaton that it does not.

sistent with the statute under regulations in such reference." clpline

which or mitconduct or for

On Mr Bernacchi's construction of

they wero made. The As regards the effect of subsection stances as the first.

The third robbery occurred at contravention of any of the pro- the inw, it is clearly excluded and regulations in this case are not free (3) we were referred, on behalf of on Mr Lonsdale's construction, the frem ambigully. There is no pro- visions of the Ordinance or of any

the Attorney-General, to the cases of No. 75 Fuk: Wing Street on Septem- or departmental order question is not regulation

question of vision which expressly states that Institute of Patent Agents V. Locks ber 1. The crime was committed in made thereunder,

res judicata but a question of the verdict of the Board is to be wood, 1894 A.C. 347 and Minister of the day time and at, these premises binding as regards the issue of fact fealth v. Yaffe, 1931 A.C, 405 which $150, a wrist watch and two gold There are some features in the were cases on statutes containing a rings were stolen. The robbery was regulations which,

similar to that of sub-carried out by two or more persons provision an Inference

pearance. Accused No. 4 and 5 that the deelsion was intended to

topretation Ordinance.

were charged with this offence in be binding and there arė

"NO POSSIBLE DOUBT"" olher features which suggest an Inference But it is to be noted that

the Indictment.

SIDE GLANCES

0

It

By Galbraith argued, give rise to migrene section (3) of section 10 of our Inter- in which revolvers, made their ap

\old bird's-all mixed up-she

got your letter, Mafittiä man...butët didn't veritë him

to the contrary, but at least it cannot be said that the provisions clearly, create an exclusive jurisdiction in the Board.

CLEARLY IDENTIFIED Counsel said that the two accused were clearly Identified as

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COMMENCING THURSDAY

the statutes referred to in those cases did not contain a provision similar to, subsection (2) of section 40. It was contended on behalf of the two of the robbers. Further, the Nor, in our opinion, are the re- Attorney-General that nevertheless Crown submitted that s.atements gulations consistent with the Or

the provisions of the Interpretation made by them, in answer to dinince if they are to be takon ng Ordinance ought to be construed charge, amounted to admission. ousting the jurisdiction of the on the principle laid down in the -In, regard to accused No. 5, there. ordinary courts. If one construc- two. English cases. On the principle was further evidence in support of tion would have the effect of mak- laid down in the two English cases, the charge against him, and

12 regulations inconsistent.

Istent, we are of opinion at a construction was, one of the gold rings, which whereas another construction (that of the regulations in this case which was stolen was found in his posses- the Jurisdiction of

of the ordinary would make them inconsistent with slon when arrested. Further, his courts la not ousted) makes them the provisions of the Ordinance finger prints were found ..on consistent, then, quite clearly, should adopt the latter construction under which they were made, would furniture in the premises.

September #t. No. 29 Now, there is nothing in section be bad but be that as it may, the The fourth and last robbery took of the Police Force Ordinance;! Interpretation Ordinance has left no place on this occasion the

Talpo Road. · On" which enables the law as lold possible doubt as to the prlac/pic foliowly properW.8 stolen, from children's Balk Hours Alles in. Wonder.

int

12

down

in the ordinary courta,

WO

that

the

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Londen Relay)] 1.15; A. Visitors Im pressions of the Chinese Manufacturers afternoon by the Dutch authorities Union Fhibition: (Bludjo): 7.30, "Much.

1932.

In section 18 of that Ordinance to be applied,

The only regulations which are various occupants in the premises; to be modified by regulations. Under section 16, it is clear that the protected by subsection (8) are those HK$1.121. US$30. S'pore $20, eight (2), 1, e. silver dollars and three gold finger referred to in subsection

Accused Nos. 4 nu 5 were misconduct etc., if it is to be

those which are not inconsistent and, rings. be miscon basis of dismissal, duct. In fact which cost asted as we have said, the construction for charged on this count

Mr. Heenan said that statements which the Attorney-General contende in this case would make the regula-made by the accused in answer to

the Editorials': (London dolayı," the charge, iso, in the submission of,inding in the Marth (BBCTS 3.00. The Hague It may be argued

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This being so, we are of opinion tons, inconsistent.acht' this view | the Crown, amounted to admission." 9,10, Interlude: 8.15, in the Air Dutch forces have recaptured" {section. .40 of tha: Interpretation ounsel vext dealt at length with by Busan Howard, Btudio); 0.15, Benuts | Kallurand, near Jogjakarta, where

that any construction of the regul tations involving the ousting of the Jurisdiction of the ordinary courts would clearly make them Ince sistent with the provisions of ABC- tion; 10. This brings us to section

40 of the, Interpretation. 1011, sub-sections (2)&

which provide as follows:--

of the meaning of subsection (2) of ~

Close Dow

charges of receiving stolen pro- Ordinance would make subsection pachy part of the proceeds of the

and 276 (8) of no effect. We do not agree. In four robberies, alleged against ac consistency is only one of the cused Nos, 2, 3 and

In regard to the charge of posses on..which the validity of regulations can be challenged.sion of arms and ammunition against For these reasons, we oro of the first five accused, Counsel said the that when arrested together at: an (2) "Regulations, both in this opinion that Ud decision, of section and generally in this On learned trial judge must be set aside unnumbered lut in Shek Kop Melton were discovered. Evidence Indonesia were

as in all other and, instead thereof, it is ordered. village, the third accused pointed out would show that the revolvers were tako. Very tờng b enactments, means regulations that the plaintiff, be at liberty to to Us Police the place where two loaded when found and that both four for dyr months rules, and by-laws, not inconsistent say that he was not guilty of revolvers and 10 rounds of ammunt were capable of being fired; Counsel with the provisions of the Ormisconduct, as set out in paragraph|tion wore coricealed. Upon in concluded.

vestigation, the farms and ammuni- The trial li cortkuing dinunca under which they are marie. 7.of the Statement of Claim), 11/

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