May 7, 1896.]
and I had opportunities of seeing from the time the milk left the cow to the time the milk got into the purchaser's hands, and I swear that no water was added." It was open to the Magistrate to believe or disbelieve the man. If the man had been a doubtful character it is probable the Magistrate would not have believed him, but as the case happened the Magistrate did believe him and the Magistrate refused appeal, and
to convict. There was an the Court above refused to disturb the de- cision of the Magistrate who refused to con- vict. In this case Mr. Kennedy seems to have attempted to put in the same kind of defence that was put in in England. Un- fortunately for him he had to deal with milk from a total of 129 cows, viz., 56 at the reposi- tory, 6 at the Mica Works, and 67 at Causeway Bay. He calls the witnesses who superintended the milking; he calls the witness who super- intended the milking at the Garden Road Repository and that gentleman gives evidence which makes it extremely doubtful whether any water was added there. Then Mr. David Kennedy is called, who superintended the milk- ing at the Mica Works. He said that there were six cows there and that the milk from these cows was all put eventually into one can and taken by him to Causeway Bay. The man at Causeway Bay, that is to say, Mr. George Bayford, attempts to account for the remaining cows, and he says that he saw the milking there, and he swears no water was put in there. Well, he said that the whole of the milk from these (7 cows was put into three cans, and accordingly they endeavoured to show on the part of the defence that no water was added to the milk that came either from Causeway Bay or from the Mica Works. But Mr. George Bayford says that there were three large cans from Causeway Bay and one from the Mica Works, whereas Mr. David Kennedy said there were four cans sent from Causeway Bay. Whe. ther that is a slip or not I cannot say, but it is a distinct flaw in the chain of evidence. It introduces by evidence given by the defendant's own witnesses an element of uncertainty into
the whole defeuce. It introduces a can which is not accounted for by anybody as having come from Causeway Bay. We have t in evidence that at Garden Road the milk is generally mixed
up.
We do not know what was in that can or whether water was in that can—whether it was milk or whether it was water and milk. It is at all events a charitable conclusion to come to that in some way there was milk of a quality in that can which was not perhaps intended by Mr. Kennedy to be mixed up with the milk that was to be sold. At all events, from the evidence it seems pretty clear that whatever milk did go to the Garden Road Repository was mixed up and sold. Therefore, the defence that all the milk was watched from the time it left the cows till it went into the bottles fails, for we have a whole canful of something which came from Causeway Bay with the four cans which is not accounted for by anybody. Under these circumstances, the Magistrate, as he very well might, said I reply prima facie upon the evidence of the analyst, and I do not think the case for the defence is sufficiently clear to make me refuse to rely upon the evidence of "the analyst." Under these circumstances, he con- victed and inflicted a fine of $50—the maximum fine by the Act is $100. Now, I do not see any reason myself for disturbing that decision. Í have read this case very carefully; I form simply my own conclusions upon it, and from the evidence I have come to the conclusion that I would have given the same decision if I had been sitting as a Magistrate, and under these circumstances I do not see why the appel- lant is entitled to have the case re-opened and reheard. If any further case comes on, and if these figures which Mr. Francis quoted to-day can be proved before a Magistrate, whether the result will be the same or not in another case I do not know, but there was every opportunity for the defendant in that case to bring forward all the evidence he wished to fring forward. He had an able solicitor to defend him, the Public Analyst was put in the witness-box and was cross- -examined, and under the circumstances I see no reason to disturb the decision which the Magistrate came to. If we opened the case on the mere suggestion that something else might bé proved, and if we had the case tried again,
CHINA OVERLAND TRADE REPORT.
there would never be an end to litigation and there would be a strong temptation to perjury, because a man having had his case once tried sees there is a link or two missing and there is great temptation to get witnesses to come for ward and supply the missing links. I do not think this is a case in which there is sufficient doubt to justify me in re-opening the matter and having the case reheard. I am therefore of opinion that the appeal must be dismissed
with costs.
381
He was secured to that firm to the extent o altogether $40,000 by the defendant, together with-Lo King Chee and a third person named Leung Man Shik. The amount for which defendant personally was security was $16,000. Wing Tsik Hing was indebted to Messrs. Douglas Lapraik in December, 1889, to the extent of at least $30,000, an amount which he admits was subsequently largely increased by share speculations, and eventually, on the 7th. The Acting Puisne Judge-What the Ma- December, 1890, he was adjudicated bankrupt. August, 1890, he had to leave, and on 1st gistrate had to decide on the evidence before Reverting, however, to the year 1889 when the him at the Magistracy was whether water had loan in question was made, it seems that about been added to the sample of milk produced in September or October, 1889, according to Wong Court. Upon one side there was the evidence Tsik Hing's evidence, the firm required him to of Mr. Crow, scientific and skilled evidence, find further security. He was asked to increase that in his opinion water had been added to the
his security as compradore from $40,000 to: extent of six per cent. He not only put in his $60,000. His then sureties were not in a posi- certificate stating that that was his opinion, but in tion to increase the amount and he, accordingly, the box in evidence he gave specific reasons for
entered into negotiations with the plaintiff, that opinion, being aware at the same time that who was introduced through one Lai Hing water in milk was a variable quantity. These Ting. The plaintiff declined to furnish the reasons I think I stated in my judgment at the $20,000 additional security, but agreed to become Magistracy. Then, I wish to remark that the
security for the whole $60,000 from the begin. opinion of Mr. Crow in such a case as this,ning of the ensuing Chinese year, which com- being the opinion of an expert, is legal evidence, menced on 21st January, 1890, and take half upon which a Magistrate cau come to a con-
the profits of the compradore. The defendant clusion. It is just one of those cases where an
and his co-sureties were willing to retire and, expert gives his evidence and a Magistrate is but for some difficulties which arose later on allowed; and perhaps is justified, in forming his
about the plaintiff's title, or "land deeds," as opinion upon it. On the other hand, you had a
he called them, probably, the change would large number of witness called on behalf of Mr.
have been duly made and the plaintiff Kennedy who deposed that during the several would in due course have been surety to the firm stages of the milking no water was added and
for the compradore instead of the defendant no water was found. In balancing these two and his two co-sureties. The sureties took a opinions the Magistrate had to take into account share in the compradore's profits and naturally two things. He had to remember that the required some consideration for the burden analyst was an solutely independent witness
imposed pon them. Pending the negotiations and in the sentol place he had to remember that for the change in the sureties the compradore, the eviden fin is very strong evidence Wour Teik Hing, told the plaintiff be indeed. On the oner haul, the Alagistrate had
must have $10,000 without delay, as he to consider that the evidence of defendant's
Bays, to pay certain compradore's office witnesses might possibly be not altogether disio.
accounts, though the plaintiff says he under- terested. Their own interests or the interests of
stood the 810,000 was to pay all that was owing, their master were very much involved; and again and offered to give a promissory note, as the Magistrate was justified in considering that security. The plaintiff said "How will it be the evidence of all these witnesses was evidence secured?" and (to quote Wong's evidence) Wong of persons probably not trained to accurate ob- servation, and there was also the fact that there thereupon begged the defendant and Lo King Chee to be security. They asked for how long? was a large uniber of tins which, very probably I said, two months. They said they would do it speaking, it would have been impossible for one
for two months; longer it would not do." Accord- man to look into and examine. There was a
ingly the agreement in writing of 17th Decem- case the other day in the House of Lords. It
ber, 1889, was drawn up between the plaintiff is not a case in which milk is involved, but I
and Wong Tsik Hing and shown to defendant, To adopt the words of the Lord Chancellor :
and the so-called promissory note was also drawn my mind, no evidence has been given by the
up later the same day, as I take it, on the other side leading to any such conclusion as
faith of that agreement. The agreement was as should upset the value. or the force, or the follows:-The persons who have agreed to make effect of the certificate and evidence given. this agreement are Tso Tz Ki and Wong Chik In saying that. I do not deny that everybody Hing. Now the compradore work of the Doug- on the other side may have given evidence
las firm has been hitherto performed by Wong perfectly bona fide in the belief that their
Chik Hing. Because the business is not very vigilance was not eluded. But what then? It is good this year, and, further, the proprietor not the first time in my experience that I have wishes the amount of security to be raised, heard a whole body of evidence given. from
therefore it is agreed that Tso Tz Ki shall be which, if you believed it, the logical conclusion
requested in the first moon next year, i.e., the would be that a certain fact was not so at all. Kang Yan year, to give as security the land and yet it was so, and this fact must be
deeds valued at $60,000, and to stand permanent accounted for." I concur in the judgment of
surety for Wong Chik Hing as compradore, and the Chief Justice.
in the future there shall be uo repentance on both sides. With regard to all the income derived from the compradore's office, the net profit, after deducting the expenses and amount paid for, provisions, etc., shall be equally divided between the two parties, each to take half the said (profit). · At present Tsz Ki consents to procure $10,000 and hand this money to Wong Chik Hing to pay up all his debts. All the interest on this loan shall be entirely paid by Wong Chik Hing himself. A promissory note shall also be made and handed over to Tso Ki to keep as proof.
Just now
Mr. Woo Lai Woon and Mr. Lo King Chi, the old sureties, may be allowed to sign as guarantors for the full payment of this amount, until the time comes for chang. ing the security in the first moon, when a pow promissory note will be made and the interest is still to be paid by Chik Hing himself. This new promissory note shall be handed to the new surety to hold and keep. This done, the old promissory note will be returned to the old guarantors to be cancelled. As to the. accounts of the compradore's office, it is. agreed that Tsz Ki shall employ one of his relatives to look after the keys of the safe and
30th April.
-**
IN ORIGINAL JURISDICTION.
BEFORE HON. W. M. GOODMAN (ACTING CHIEF JUSTICE.)
T80 TSZ KI, PLAINTIFF, AND U LAI WOON,
DEFENDANT.
Mr. J. J. Francis, Q.C. (instructed by Mr. Mounsey) appeared for the plaintiff, and Hon. Ho Kai (instructed by Mr. Ho Wyson) ap- peared for the defendant.
In this case, which was heard on the 22nd, 24th, and 25th April, his Lordship delivered the following judgment: In this suit the plaintiff claims $16,600, being $10,000 principal and $6,600 interest, as due to him from the defendant as one of two guarantors for the repayment by Wong Tsik Hing (the prin- eipal debtor) to the plantiff, of the sum of 810,000 lent by the plaintiff to Wong Tsik Hing on the 17th December, 1889. At the time of the loan Wong Tsik Hing was com. pradore to Messrs. Douglas Lapraik & Co.
+
业
No comments yet.
Private notes are available after approval.