108
SUPREME COURT.
29th July.
CRIMINAL SESSIONS.
BEFORE SIE JOHN CARRINGTON (Chief
JUSTICE).
THE CHARGE AGAINST INSPECTOR WITCHELL, Job Witchell, Inspector in the Hongkong Police Force, was charged as follows:-That at the time of the happening of the matters hereinafter mentioned, Job Witchell was a subordinate officer, to wit, an Inspector in the Police Force of this colony, and that as such Inspector it was his duty to aid in the enforce- ment of the law relating to gambling houses and to report to the Captain Superintendent of Police all unlawful common gaming houses which he knew to exist in the colony or the existence of which he had reason to suspect, and that he, the said Job Witchell, at Victoria, in this colony, on the 13th day of March, 1897, and on divers other days between the said 13th day of March, 1897, and the 18th day of June, 1897, did unlawfully, wilfully, and cor- ruptly accept by way of bribe divers sums of money from the keepers and managers of certain unlawful common gaming houses situate in Cheung Hing Lane and Wa Lane offered to him by the said keepers and managers to induce him to refrain from the performance of his said duty in respect of the said gaming houses.
Hon. W. M. Goodman (Attorney-General) and Mr. J. J. Francis, Q.C. (instructed by Mr. H. L. Dennys (Crown Solicitor), prosecuted and Mr. E. Robinson (instructed by Mr. G. C. C. Master) defended,
The information was read over to the defen- dant, who stood at the side of his counsel.
Mr. Robinson said that before the defendant pleaded he had to move that the information be quashed.
His Lordship One moment, Mr. Robinsou. Why is the defendant not standing in the dock? Mr. Robinson replied that Witchell was charged with a misdemeanour and could sit near his counsel if he wished.
His Lordship-Do you want him near you? Mr. Robinson-It will be more convenient, my Lord,
His Lordship-The custom is for the accused to go into the dock.
Mr. Robinson-I should like to have the de- fendant near me.
3
His Lordship-But you are instructed? Mr. Robinson-Yes, my Lord.
His Lordship-If you wish to have him near you you are entitled to do so, but I think it is always better for counsel not to have the defendant near him.
Mr. Robinson thereupon said he would not object to the defendant being placed in the
dock.
Defendant then entered the dock.
Mr. Robinson said he had two objections to make. The information was bad for want of particularity; it was too general. In the first place he submitted, as a matter of compara- tively small moment, that with regard to the gaming houses said to be situated in Cheung Hing Street and Wa Lane, it was not expressly alleged that either of the places was in Victoria in the colony of Hongkong or within the jurisdiction. It was alleged in the information that it was the defendant's duty to report to all the Captain Superintendent of Police unlawful gaming houses which he knew to exist in the colony and the existence of which he had reason to suspect and that Job Witchell, at Victoria in the colony, accepted by way of bribe divers sums of money from the keepers of certain unlawful gaming houses situated in Cheung Hing Street and Wa Lane. Those streets of course might be anywhere. The count did not show that the offence was in respect of any place over which the Court had jurisdiction. The second objection was that the count was bad of duplicity in- asmuch as there was a want of particularity. It alleged that contrary his duty the defen- dant, on the 13th March, 1897, accepted by way of bribe divers sums of money from the keepers and managers of certain unlawful gaming houses situated in Cheung Hing Lane and Wa Lane. Counsel submitted that that was bad of
THE HONGKONG WEEKLY PREŠS AND
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duplicity. The defendant did not know of all the charges he was to meet and if the jury were to return a verdict of guilty against him generally it would be quite uncertain as to which of the charges they found him guilty of. Neither the house nor the keepers were specified. Counsel referred to Archbold, 21st edition, page 58, and to-14 Cox, 199. It had been ruled that it was not sufficient to charge a defendant generally with having committed an offence, but all the facts and circumstances constituting the offence must be set forth. The indictment must not be double, and counsel submitted that the present information was double for want of particularity. Not more than one offence could be charged in one count, but here there was only one count and several offences were charged.
His Lordship said that supposing a man made a single agreement to take in respect of more than one place; was not that one transaction-one single bribe-although it might refer to different houses? How could that be broken up ?
(August 4, 1897.
nothing to show that there might not be a num- ber of houses in Cheung Hing Street and a num- ber of houses in Wa Lane; but he did not think the objection could prevail because it seemed that it might appear on the to him evidence that the transaction W86 single one and complete in itself. Under those circumstances it would certainly be in- convenient to break up what was really one of fence into two separate offences. If in the course of the trial it appeared that the takings and places were separate then his Lordship would put the prosecution upon its selection to say which of the places it would proceed on. He could not say that the information was double, The last objection was that the information was too general and that the Court ought to
clear. With regard to that his Lordship quash it on the ground that it was not sufficiently thought that the information should have set forth the particulars of the taking of the bribes somewhat more fully. In accordance with the rules which regulated the framing of informa- Mr. Robinson replied that there was nothing tions and indictments the defendant was entit- led to more precise information, and by the like that stated in the information. There were no particulars in the information in respect to power conferred by section 6 his Lordship di. the names of the keepers or the numbers of the rooted that the defendant be furnished with the names of the keepers and managers of the com- houses. Of course if counsel's contention was
mon gaming houses from whom the bribes were upheld there would be an end to the informa tion, but with regard to amendment, the depósi-alleged to have been received and also with the tions showed that the case was really brought numbers of the gaming houses in the several in respect of one house and counsel had streets. He understood Mr. Robinson would no objection if the information was amended agree if the particulars were furnished in the by the name of the house at No. 2 Wa course of the trial, Lane being put in. Of course it was possible for the prosecution to put their cases in separate counts, but if that were done counsel would have to ask for an adjournment as he had not had notice of any other house but No. 2, Wa Lane and he would have to consider his position.
Mr. Robinson said he left himself entirely in his Lordship's hands.
Defendant was then called upon to plead and he pleaded not guilty.
The following special jury was called Messrs. R. Marten, W. H. Potts, A. Findlay Smith, T. 1. Rose, St. C. Michaelsen, W. Mitchell, and F. G. Collins.
Mr. Francis then opened the case for the Crown. He said he appeared with the Attorney- General who, though unable to appear just then, would be present later on in the case. Everyone knew that among the vices possessed by the Chinese the one that had given the greatest trouble in connection with the govern ment of this colony had been their devotion to the rice of gambling, and since the early history of this colony efforts have been made in different forms to put down the vice of gambling. Gam. bling, that is, the keeping open of gaming houses for the profit of individuals who are occupiers or owners of these houses, was in the nature of a business and it was generally con dacted as a business, going on continuously, From the keeping of these public or common gambling houses there had always arisen in the history of the colony occasions on which it had been found that the managers and owners of the gambling businesses had, as it were, got the better of the Government and of the law by adopting underhand methods and corrupting the police force to prevent the law from being put into effect. Probably the jury would all know that at one time in the history of the colony the operations of the police were so great-
Mr. Francis submitted that the count was a perfectly good one under the provisions of our local Ordinance, which differed considerably from the provisions of the law with reference to indictments in courts in England. The Or- dinance regulating the subject is 3 of 1865 as amended by 2 of 1869. According to section 6 the Chief Justice could order further parti- culars to be delivered if he deemed it expedient to do so.
The result of combining the effect of these two Ordinances was that it had always been deemed sufficient to allege in the broadest terms the nature of the offence charged, as murder, or manslaughter, or stealing, without going into great particularity as to names, places, dates, and weapons. If the defendant or his advisers had been in any real difficulty and wanted to be made acquainted with the names of the persons or the particnlar dates they had ample time to apply for such particulars. In this case there had been a preliminary inquiry in the Police Court and the names and the localities of at least two of the gambling houses were referred to in those proceedings, Counsel submitted that the information was perfectly good and complete, His Lordship had already answered the second objection by the question put to Mr. Robinson. It did not necessarily follow from the wording of the information that two separate offences were charged. It might be that there was in fact one acceptance and one transaction although it had reference to different houses, and therefore the count was not double. It did not charge two separate and distinct offences in respect of which two separate and distincting punishments would be necessary to be inflicted or on which two separate and distinct verdicts would have to be given.
In answer to his Lordship Mr. Francis admitted that it would have been better if the locality of the streets had been mentioned.
Mr. Robinson replied and said that his friend had not dealt with the matter of particularity. As he had said, he was quite willing for an amendment to be made. He thought section 6 threw no burden whatever upon the defend ant or his advisers.
Mr. Robinson, interrupting, said his friend was going outside the case by introducing the history of the colony.
His Lordship said he thought it was not usual for counsel to be interrupted in his open- statement when facts of general knowledge were given.
Mr. Robinson said it might be general know- ledge, but he did not know it.
Mr. Francis, continuing, said that gambling position and the Force had taken such a had become so corrupted that one Governor thought it advisable that gambling should be licensed in the colony, That experiment was tried and to a certain extent was fairly successful, but it was put an end to by influence from England. With a view to preventing as far as possible the corruption of the Police Force, His Lordship, in regard to the first objection, the general body of police was withdrawn from directed that the information be amended all connection with gambling-the suppression by stating that Cheung Hing Street and Wa of gambling houses-and the duty of looking Lane were situated in Victoria in the colony of after gambling houses was entrusted to high Hongkong. The second point was that the officers in the colony who were specially paid
for
the purpose. That system did not work information was bad for duplicity inasmuch as the charge was in respect of two sets of gaming and other alterations were made, first in the the procedure, and houses in Cheung Hing Street and Wa Lane. law and secondly That objection, if it was of any validity, might ultimately the suppression of gambling in the be carried further by saying that there was colony came to be dealt with in the way in
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