September 18, 1895.]
that the appellants are affected or aggrieved by it, nor has it been shown that the seizure was unjustified. The conviction is set aside and the order of forfeiture being an order against the present apellants goes with it, but we are not in a position to make any order for the release of the opium. Each party having succeeded in an appeal there will be no order as to costs. TANG U, APPELLANT, V. INSPECTOR STANTON) RESPONDENT.
This was an appeal on a point of law from the decision of the Magistrate, who fined the appellant $100 for selling intoxicating liquors without a licence at 41, Queen's Road West.
Mr. H. E. Pollock represented the appellant, and Hon. W. M. Goodman (Attorney-General) appeared for the respondent.
Mr. Pollock said the appeal was upon a special case stated by the Magistrate under section 99 of the Magistrates Ordinance, 10 of 1890. The case was that the appellant was fined $100 on 17th June last upon information filed by the respondent for selling liquors without having a licence at 41, Queen's Road West. The evidence was that a police constable went to appellant's shop and bought three bottles of so called "medicine wine." The bottles were taken to the Assistant Government Analyst, Mr. F. Browne, who examined the contents of the bottles. One contained a liquor consisting of 34.79 per cent. of alcohol, 10.58 per cent. of solid matter, principally saccharine, and the balance was water. The other two bottles contained liquor consisting of 36.50 per cent. of alcohol, 9.5 per cent. of solid matter, principally saccharine, and the balance was water flavoured with cinnamon. The liquor would produce intoxication, but no known physiological effects. It must have. gone through two processes-fermentation and dis- tillation. For the appellant it was urged that the liquor did not come within the meaning of Chinese spirits; that, on the contrary, the liquor was a well known Chinese medicine; and that it was distilled from a grain grown in the north of China, and known as shuk mai, or maize; it was not drunk as a beverage, but was sold as a medicinal wine; it was often prescribed by Chinese doctors as medicine for rheumatism, weakness, and pains in the bones. It had a strong medicinal smell.
The Chief Justice-Have you got the liquor here? I don't want to tastelit. (Laughter).
Mr. Pollock-No, my lord.
The Attorney-General-Mr. Master will he able to give evidence on that point if your Lordship would like to call him.
The Acting Puisne Judge-As to the general effect upon him? (Laughter).
The Attorney-General-I do not know; I did not care to taste it myself. (Laughter).
Mr. Pollock, continuing, said the appeal was on a question of law only. Was the liquor sold in the bottles an intoxicating liquor within the meaning of the Ordinance under which a licence was required? The liquor produced "no known physiological effects. Counsel lid not know whether thein, Lordships understood that
term.
;
The Chief Justice--It means, I suppose, effects other than those of intoxication.
Mr. Pollock-Our contention is that the liquor which was bought at the appellant's shop not an intoxicating liquor within the mean- ing of the Spirit Licenses Ordinance, 21 of 1886. Section 2 said that intoxicating liquor included spirits, malt liquor, and any wine, or any other fermented liquor, whatsoever.
The Chief Justice-Is it a fermented liquor ? Mr. Pollock-That is the point. I do not think it was found that its a fermented liquor
The Chief Justice-Oh, yes; it is distinctly stated in the special case that there were two. processes-distillation and fermentation. There was no evidence against that, as far as I know.
Mr. Pollock-Well, the question is whether this is a fermented or intoxicating liquor within the meaning of this Ordinance. I submit there are a great many things that are fermented and liquors that are intoxicating, such as eau de Cologne, sal volatile, and sweet spirits of nitre which certainly would not be considered as intoxicating within the meaning of the Licens ing Ordinance.
The Chief Justice-"Any fermented liquor whatever." How do you get beyond that ?
CHINA OVERLAND TRADE REPORT.
Mr. Pollock-I submit that means fermented liquor ordinarily drunk as a beverage.
The Chief Justice-You say it does not mean anything whatever but wines, spirits and liquors ejusdem generis. The Legislature could not have pat it more clearly any fermented liquor whatever." You say it does not include every fermented liquor; the Legislature says it does.
[26
Mr. Pollock-It means fermented liquors ejusdem generis, Your Lordships will have to consider the whole scope of the Ordinance.
The Chief Justice-We have nothing to do with the intention of the Legislature as the words are unmistakeably expressed. We have to look at the whole Ordinance and see what was
meant.
Mr. Pollock Your Lordships will have to see what was the ordinary object of the Spirits Licenses Ordinance. It is quite obvious that the Spirit Licenses Ordinance is not intended to deal with intoxicating liquors used as medicine. Eau de Cologne and sal volatile contain a cer- tain amount of intoxicating liquor, but no one could possibly contend that they were intended to come within the Ordinance.
The Acting Puisne Judge-Brandy, so far as it is used as a medicine, would not then come under the Ordinance, and that is a spirit also.
Mr. Pollock-Your Lordships will have to deal with a liquor which has not, I believe, formed the subject of any previous case in the Supreme Court, and therefore your Lordships will have to consider what the nature of this liquor is, and the uses to which it is put by the Chinese. A. Chinese doctor who has been fourteen years at the Tung Wah Hospital states that the liquor is a medicine used by the Chinese. There is no evidence whatever on the other side to show that the liquor is ordinarily drunk by the Chinese whether they feel ill or well. Therefore your Lordships are bound to find that this liquor is used as a medicine by the Chinese.
The Chief Justice-There is no exception in the Ordinance in favour of medicine.
Mr. Pollock-No, but submit that such an exception must be implied by the Court.
The Chief Justice-It is an intoxicating liquor.
Mr. Pollock-The question is the meaning of "intoxicating liquor." The learned Magistrate seemed to think that intoxicating liquor was liquor which can be used for the purposes of in- toxication.
The Chief Justice Is the Magistrate entitled to go beyond the Ordinance? He seems to have relied upon the evidence that the liquor produced intoxication, but no physiological. offects.
Mr. Pollock-I submit your Lordships ought to look beyond that.
44
The Chief Justice-I feel a very great difficulty in doing so. There is no definition of intoxicating liquor "in the Ordinance except that "intoxicating liquor shall consist of any How can yon go fermented liquor whatever." beyond that?
Mr. Pollock-I suggest that your Lordship should go beyond that
The Acting Puisne Judge-We cannot make law here.
The Chief Justice Any other fermented liquor whatever" cannot be confined to liquor ejusdem generis.
Mr. Pollock-I have not a case here, but I submit, my Lord, that that would be in ac- cordance with decisions that have been given. `
The Chief Justice-I am sure, Mr. Pollock, I know you sufficiently well to know that if there had been a case you would have brought it with you. You speak as if you could go and get one; I am quite certain you cannot.
Mr. Pollock—I submit in this case there being the evidence of the doctor to the effect that this liquor is used as a medicine by the Chinese, and there being no proof by the prosecution that it is used as a beverage, your Lordships ought to take that evidence into consideration. Although our opinions of medicine differ widely in some respects from those of the Chinese, it is a fact that the Chinese use the liquor as a medicine, The Chief Justice-If there was an exception in favour of any fermented liquor sold retail as a medicine that would be all right. Your argument merely tends to show that it would be advisable if such an exception were con-
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213
tained in the Ordinance; but such exception is not there now. If there were such an exception there would be nothing to prevent intoxicating liquor being sold as medical wine.
The Acting Puisne Judge-I do not think you can get over that definition, Mr. Pollock.
Mr. Pollock-Another point arises under the “Chinese interpretation clause, section 2. liquors shall mean intoxicating liquors com- Samshu is obtained monly known as samshu." from rice; the liquor which was bought at the appellant's shop comes from maize. Therefore I submit that the only Chinese spirit which is intended to be dealt with under this Ordinance is the liquor known as samshu.
The Chief Justice-A special licence is re- quired for a Chinese spirit shop.
Mr. Pollock Yes, my Lord. The Chief Justice Well, this is not samshu. Mr. Pollock-No, my Lord.
The Chief Justice Do you mean that they could sell any other fermented liquor that was not obtained from fermentation of rice? If that is so a fermented intoxicating liquor obtained from maize could be sold because it did not come within the definition of samshu.
Mr. Pollock-It is a matter for your Lord- ship to form an interpretation of the Ordinance. You are now considering, what your Lordship told me I could not do the general scope and intention of the Legislature.
The Chief Justice-I must apologise. Mr. Pollock concluded by asking their Lord- ships to allow the appeal.
The Chief Justice-We need not trouble you, Mr. Attorney-General. The appellant in this case has been convicted of selling intoxicating liquor without a license, and it is admitted he had no license.
It only remains to seen whether the liquor he sold comes within the definition of intoxicating liquor, which includes spirits, malt liquor, wines, and any other fermented wine whatever. It is not denied that this is fermented liquor, and it is also proved that it is intoxicating liquor; therefore, to my mind, there cannot be any doubt that it does came within this defini- tion. Whether it is regarded by the Chinese as possessing medicinal properties, and prescribed by the doctors for such purposes, or whether it would be wise on the part of the Legislature to make an exception in favour of such liquors, does not appear to me to be material. cannot possibly find that the liquor does not come under this definition, and I find that the Appeal appellant was properly convicted. disallowed.
The Acting Puisue Judge concurred. The Attorney-General pointed out that our local Ordinance did not contain a Section analogous to section 72 of the English Licens ing Act of 1872 excepting certain medicated spirits, etc. He pointed out that the exceptions in the English Act had given rise to questions between the public and the inland revenus authorities in England and that those authorities only allowed certain medicated wines to be sold in England without a licence if prepared in a certain way, and that as regards the liquor in question in this appeal there was really nothing to prevent it from being used as a cheap and strong intoxicating beverage. It was quite different with certain well known medicines, as regards which there was no fear of their being. used as purely intoxicating drinks, though called medicated wines so as to try and escape paying a licence fee.
The Chief Justice--I did not wish to suggest that there was a demand for an exemption clause here.
Appeal dismissed with costs.
12th September,
IN ORIGINAL JURISDICTION.
BEFORE SIR FIELDING CLARKE (CHIRE. JUSTICE) AND A JURY,
WONG PUNG §HI V. KWAN YUN FAT.
The plaintiff sought to recover possession of No. 42, Staunton Street, to set aside a deed alleged to have been made by plaintiff on 8th March, 1880, and to recover rents of the house from the defendant.
Mr. J. J. Francis, Q.C., (instructed by Mr. Dennys), represented the plaintiff, and Hon. Ho
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