August 12, 1899.]
Seventy-two Dollars and Eighty-seven cents, to defray the Charges of the Year 1898.
The Hon. T. H. WHITEHEAD-May I ask the item "miscellaneous services $1017705.09" or the item "other miscellaneous $21,530.64 covers the cost of the litigation involved in connection with Beaconsfield P
The COLONIAL TREASURER-No, sir, it does not.
The Bill passed the committee stage.
ADJOURNMENT.
The Council then adjourned until Thursday fortnight.
SUPREME COURT
August 4th
CRIMINAL SESSIONS.
BEFORE HIS HONOUR W. MEIGH Goon. MAN (ACTING CHIEF JUSTICE.) AND A SPECIAL JURY,
THE UN. LOONG MURDER. The trial of Ng Ki Cheung, Ng Tang, and Liu Tuk Lap for the murder of Chan Kwai Tsui Tui at Un Loong on the 18th April was resumed.
The Acting Attorney-General (the Hon. H. E Pollock), instructed by Mr. Bowley (Crown Solicitor) prosecuted; Mr. Slade, in the absence of M. J. J. Francis, Q.C. (instructed by Messrs. Mouusey and Brutton), appeared for the two first prisoners, and Mr Melbourne for the third.
The following were the jurors:-Messrs. A. J, Rozario, F. C. P. Sachse, G. T. Veitch, A H. Bottenheim, J. F. C. Jebsen, G. Stewart, and A Denison.
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person who perpetrates the crime and, can be mur-responsible to the same extent as the notzal tried and convicted on an indictment charging them with committing the crime itself. In considering your verdict you must find each prisoner not guilty if with regard to him him guilt is not established to your satisfaction; by, the prosecution beyond any reasonable doubt, and I must remind you that in a case of murder the verdict, whether guilty or not guilty, must. be unanimous.
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consider their verdict. They returned shortly It was one o'clock when the jury retired to before two, the foreman reporting that they were unanimously of opinion that all the pri- · soners were guilty, but that they recommended the second prisoner to mercy for the reason that although actually present he took no responsi- ble part in the proceedings,
said he would first of all sentence the first and His Lordship having assumed the black cap, third prisoners, which he did in the usual form, both prisoners, when asked if they had anything to say why sentence of death should not be passed on them, repeating that they were not guilty.
On their being removed from the dock
His Lordship said-As regards the second prisoner, as the matter stands of course I shall have to forward your recommendation to the Governor, and I have no doubt that it will receive every consideration from His Excellen. cy. At the same time the counsel for the second prisoner says that upon that a verdict of not guilty should be returned. I had better read the exact words:-"For the reason that although actually present he took no respon- sible part in the proceedings." That is a little ambiguous.
CHINA OVERLAND TRADE REPORT, his murder. The popular idea of a derer is that he is the man who actually killed the victim. The legal definition of murderer goes far beyond that. In Sir James Fitzjamens Stephens' words "When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree in respect of every crime committed by any one of them in the execution of that purpose.
The first instance he gives is a well-known case reported in Hale's Pleas of the Crown and known as the Sissinghurst House Case, a case which occurred more than two conturies ago but is still quoted in the most modern books as good law at the present time. I will read you the case, but I will first give you Sir James Stephens' summary of it. He puts it thus:-"A constable and his assist- ants go to arrest A at a house in which are many persons, B, C, D, and others come from the house, drive the constable and his assistants Slade asked that a verdict of not guilty be In consequence of this recommendation, Mr. off, and one of the assistants is killed either by returned against the second prisoner. The B, C, D, or one of their party. Each of the jury had expressly found that he was only pre- party is equally responsible for the blow whe. sent, but took no active part in the proceedings, ther he actually struck it or not." It appears and under his Lordship's ruling the second that A, B, C, D, E, F, and others were in-prisoner would be not guilty. dioted for murder and tried at the King's Bench bar. Among the points unanimously agreed upon was this: That although the indictment was that B gave the stroke and the rest were present, aiding and assisting, though in truth C gave the stroke, or that it did not appear on the evidence which of them gave the stroke, but only that it was given by one of the rioters, yet that evidence was sufficient to maintain the indictment, for in law it was the stroke of all that party according to the resolu- tion in Mackally's case, 9 Coke's Reports, 67.b." But although all who aided and abetted in the killing of Chan Kwai Shu Tsai, and all who directly or indirectly counselled, procured, or commanded his death are in my opinion guilty of murder, I do not lay it down to you that mere presence at his death is sufficient, standing alone, to make everyone present a murderer. On the contrary Sir James Stephens, summing up the effect of the case of Regina v. Coney and others, puts it thus: "Mere presence on the occasion when a crime is committed does not His Lordship-That is the verdict of the jury make a person a principal in the second degree already given. It is a somewhat ambiguous even if he neither makes any effort to prevent verdict. A difficulty arises. I do not know the offence or to cause the offender to be appre-whether the jury mean he was a mere passive hended, but such presence may be evidence for spectator or that he was more than that--a con- the consideration of the jury of au active parti-acnting party. If the jury mean he was a oipation in the offence." Clearly the circum- stances must be considered, and I think the matter is well summed up by Mr. Justice Hawkins in the case I have cited, R v. Coney, 8 Queen's Bench. Law Reports. at pages 557 and 558. He says in giving judgment: "It is no criminal offence to stand by a mere passive spectator of a crime, even of a murder. Now interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and par- posely present witnessing the commission of a crime and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express His Lordship, in summing up, said he had in his dissent, might, under some circumstances, the first place to thank the jury for the very afford cogent evidence upon which a jury would great attention and care which they had paid to be justified in finding that be wilfully encouraged the evidence which had been given and to the and so aided and abetted. But it would be addresses of counsel in the case. It remained purely a question for the jury whether he did so. for him to lay down the daw applicable to the If any number of persons arrange that a criminal subject, then it would be for the jury to consi- offence shall take place and it takes place ac- der as to whether or not prisoners were guilty of cordingly, the mere presence of any of those murder or not. His Lordship, continuing, who so arranged it would afford abundant evi- said-Murder is unlawful homicide with matice dance for the consideration of a jury of an aid- aforethought. If A unlawfully kill B inten ing and abetting." Therefore, gentlemen, it tionally and without legal justification, the will be for you first to decide what are the facts malice is presumed. "Malice." says Bayley, J., in the present case, and then you can apply the in delivering the judgment of the. Court in law as I have laid it down in considering and de- Bromage v. Prosser, 4 Barnwell and Cresswell, ciding upon your verdiot, and in considering your pp. 247-255 "in common acceptation means ill verdict you must take the case of the three pri- will against a person, but in its legal sense it soners separately, one by one, and decide whether means a wrongful act done intentionally with-in regard to each of them the facts show an "aid-carried into effect or not. That may be some
All the evidence having been given,
Mr. Slade summed up for the defence, his address lasting from half-past ten in the morn- ing to well on into the afternoon. At the outset he expressed his regret that illness had prevented bis friend Mr. Francis from continuing the defence but added that he felt sure the jury would not allow any of his (Mr. Slade's) imper- fectious to weigh with them against prisoners. Alluding to the evidence, he said that either the witnesses for the prosecution or those for the defence had parjured themselves. Even if the jury were not altogether satisfied with the evidence for the defence, they could say that they did not think the evidence for the prosecu tion was sufficiently satisfactory to warrant their returning a verdict of guilty. Mr. Slade then proceeded to deal with the evidence for the prosecution. commenting upon it as he went along!
The Acting Attorney-General followed, and the case had not concluded when the Court
rose.
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5th August.
out just cause or exonse. If I give a perfect ing or abetting" or a "counselling, procuring, or stranger a blow likely to produce death, I do commanding," regarding the killing of the de- it of malice because I do it without just canse ceased man. The position of a mere passer-by or exguse. Now those who killed Chan Kwai or casual bystander would be very different Shu Tsai on the night of 17th April, or as the from the position of one who had counselled the evidence tends to show soon after midnight, and death of the deceased, or had carried him bound therefore on the 18th April (the date is immate-to the place of execution, or had assented to and rial) were undoubtedly guilty of murder. No lawful justification for the act, no lawful excuse, is even suggested. But, in this case, it is necessary to define the legal reponsibility of those who were present on the occasion of
was present at the man's death. Now let us proceed to examine the facts of the case, but before doing so I may remind you that at the present day principals, technically of the second degree, and accessories before the fact, are all
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Mr. Slade-With all due deference, my Lord, that is the verdict recorded.
mere passive spectator and not a consenting party, then I think it will be my duty to find him not guilty. We might ask the jury that question, or leave the matter as it stands.
Mr. Pollock-I am quite willing to leave matter as it stands. Your Lordship very clearly directed the jury that a mere passive spectator would not be guilty of murder.
any way. I only thought. Mr. Slade would His Lordship-I have no desire to alter itin prefer that question to be asked. If he prefers the verdict to remain as it stands I will take the verdict as it stands.
Mr. Slade assented.
sentence the second prisoner, and I shall for. His Lordship-Well, I think it is my duty to ward this recommendation to the proper an- thorities. Call upon the second prisoner if he should not be passed upon him. has anything to say why sentence of death
did not know about it..
Ng Tung had nothing to do with it. I
prisoner that I pass this sentence upon him, His Lordship (to the interpreter)—Tell ' the because the jury have found him guilty, and I am compelled by law to pass sentence, but you may tell him also the jury have strongly, commended him to mercy, and although I pass sentence upon him, that recommendation will be forwarded to His Excellency the Governor, who will consider whether this sentence shall be
comfort to him.
His Lordship then passed sentence of death. Mr. Slade-May I advance this on behalf of the prisoners? I ask your Lordship to forward the statement which was not put before the jury for the the consideration of His Excellency
His Lordship-Well, Mr. Slade, I-shall adopt the usual course in this matter; I shall makwa full report to the Governor upon the case, these cases are very fully considered by His Ex- celleney the Governor and the Judge's notes are always perused from beginning to end.
No comments yet.
Private notes are available after approval.