September 22, 1902.]
Mr. Sharp said that would be an infringe- ment without the Lee & Perrins.
His Lordship remarked that the name would be the main thing in the trade-mark. Whoever it was who made the second watch deliberately copied the first, with the intention of enabling that swindle to be carried out. He thought the plaintiffs' must have been the earlier one becaus d the other side's was a cheaper watch. You did not find people making a better imitation.
Mr. Sharp said it might be that those watches were made by the same maker and that both bed an equal right.
His Lordship stated that ho was of opinion that the defendants should undertake not to sell or part with any watches of the pattern bearing the trade-mark similar to the Powai but minus the character Po-wai, also that they keep an account of the sales of watches bearing the mark Yee-nah with scalloped circular border. The question of costs would be deferred till the trial.
Parties acquiesced in this arrangement and it was agreed to draft an order and submit it to his Lordship in Chambers to-day for adjustment.
The Court adjourned.
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CHINA OVERLAND TRADE REPORT.
as
Evidence was afterwards given, similar to that already given when the case was before the Magistracy, and already reported in the Daily Press.
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His Lordship said that hardly applied here. Įsion under such circumstances as could only inducement held out to him. Wherever the Supposing, for instance, that a man made a lead to the assumption that he knew they police or person in authority said to a prisoner sauce similar in all respects to Lee & Perrins' | wers forged. He need not t- the jury that it would be better for him to make a sta1o- and put it in a bottle with wrapper and every- men of the world that in a charge of|ment, that statement was not admissible. Ho thing complete, lea ing a blank for the ❘ this kind it was almost invariably the case that had held that at last Sessions. However, ia signature ?
the jury had to draw its conclusions from evi. the other case referred to, Queen and Gavin, it dence not direct but circumstantial. He would was laid down that it was not proper for tho be able to prove to them without any doubt police to interroga'e a person in cas'ody. that the prisoner entered the Hongkong and In the case of the Queen and Brackenbury Shanghai Bank on a certain day and passed ¦ (17, Cor's Criminal Cases, p. 628), the evidence over the counter of that Bank notes which was admitted and the man was not actually unmistakably were forged, and then he would in custody at the time. That case, he thought, put to the jury certain circumstances from had a very important bearing upon the present which he would ask them as reasonable men to case. There the prisoner before being actually draw the conclusion that the prisoner knew taken into custody was inferrogated after being that the notes he thus passed over the count r of cautioned that anything he said might be taken the Bank were forged." If he could establish to down and used in evidence against him. The their satisfaction-as he had no doubt he should statements he made under these circumstances -the first fact that prisoner was the man who did were admitted as evidence. That case occurred pass the notes and if they felt themselves bound in February, 1893. In December of the same to draw the inference that he knew they were year, in the case of Regina v. Male referred forged then the prisoner must be found guilty io, Mr. Justice Cave held that after the arrest on the first count. Similarly with regard to of a prisoner the constable had no right to ask the second count, there would be no difficulty questions and that if the prisoner answered the in proving the fact that a certain number of answers were not admissible. His Lordship notes over and above those uttered were found did not like too many questions asked by the in his possession in a box in his house, and cir-police; be thought they should not ask questions cumstances would be agaiu placed before then at all. But looking at the circumstances of from which the Crown would ask the jury to this particular case, it was not certain that any draw the reasonable inference that the prisoner crime had been committed at all by the knew that these notes were forged.
Įrisouer. It was clear that the prisoner was seen to attempt to pass false notes, but that would be no crime unless he knew they were forged. In these circumstances the man stopped for some time at the Bank. The Bank people naturally wanted to have the matter investigated. They did not send to the police station and have the accused man arrested. so happened that Sergeant Watt was in the Bank at the time by the merest chance and to him it was given to make the desired investiga- tion. He naturally wanted to ask the man some questions. But he did not formally take the man into custody. It might be that the officer would not have been able to justify that arrest, He found that Lery could not converse in English and therefore took him to the police station, where he was sure to get an inter- prefer, Mr. Slade was justified perhaps in saying that if the man had attempted to run away he would have been taken into custody. But as he made no objection to go, he was not absolutely taken into custody. When inter- rogated at the police station, there was no in- ducement-no terrifying influence-to make bim say what he did say except, perhips, the presence of the interpreter, the only officer present in uniform His Lordship held that Levy wis not in custody at the time. If he had run away, the police would have taken that as an addi- tional evidence of bis guilt. Although he did not encourage the polica to ask unnecessary questions, he did not think these questions were unnecessary. The officers would have been wanting in their duty if they had not asked the man where he lived. Therefore bis Lordship held that the questions were rightly put and that the answers in this particular case were permissible.
Thursday, 18th September.
IN CRIMINAL JURISDICTION.
BEFORE HIS HONOUR W. MeiGH GOODMAN (CHIEF JUSTICE).
THE CALENDAR.
Four cases, implicating six persons, were down for trial, most notable among which were a charge of escaping from prison preferred against Wing Hoi and a charge of uttering and being in possession of forged bank notes brought against Saul P. Levy.
THE FORGED BANK-NOTES CASE,
Saul Phinas Levy, a Jew, was charged with having on 3rd September uttered two forged bank-notes at the Hongkong and Shanghai Bank for $50 each, and with having had in his posse sion 13 bank-notes purporting to be of the H. & S. Bank for $59 each.
The prisoner, who spoke Arabic through an interpreter, pleaded not guilty on both counts.
The following jury was empanelled :-D. Encarnacao, J. Landolt, J. L. Start, C. F. H. Schumacher, W. Kidd, D. H. Silas, R. Douglas, When Mr. W. Kidd's name was called, be asked his Lordship to grant him exemption from serving upon the jury, on the grounds that the important work he was engaged in demanded his attention, his colleague, Mr. Houston, being absent from the Colony,
His Lordship said he could not grant exemp. tion on that ground but would see what could be done after that case.
Mr. Kidd-I presume your Lordship is aware of the important naval works on which we are engaged ?
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His Lordship replied that he was aware of that fact He could not dispense with Mr. Kidd's services altogether, but would go so far as to say that after the present case he would dispense with his services.
The prosecution was conducted by the Hon. Attorney General, Sir Henry S. Berkeley, instructed by Mr. H. L. Dennys, Crown Solicitor; Mr. M. W. Slade, barrister-at-law, appeared for the defendant, instructed by Mr. P. W. Goldring, solicitor.
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When Sergeant Major Gabob proceeded to give evidence concerning the statements made by the prisoner when he was interrogated by Sergeant Watt of the Detective Staff at the Central Police Station,
Mr. Slade objected to that evidence being admitted on the ground that the man was actually in custody at that time. The police bad no right to manufacture evidence; and when he was in the detectives' room and con- fronted by two superior officers of police he was to all intents and purposes in custody. He would not have been allowed to leave the room for a single moment.
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The Attorney-General contended that there was no irrefragable rule, as established by the latest decisions, which excluded from the con-
sideration of the Court the answers given by a man even in custody to the constable who had him in custody, and, a fortiori, there could be no rule which excluded the evidence given by á man who was not in custody at the time he gave the replies. As matter of fact, Lery was cautioned before being questioned, which was not essential, though proper. The prosecution was entitled to ask that the evidence be admitted if it was true that he was actually in custody at the time and was cautioned. But he submitted the prisoner was not then in custody. Authorities showed that in the circumstances the police constable did quite properly in interrogating the prisoner when not in custody. It would be exceedingly unwise to compel the constable to arrest a man without asking questions.
It being now after one o'clock,
His Lordship stated that he would give his decision on the point of objection after lunch.
When the Court resumed at ten minutes past two,
The
His Lordship said he had considered the objection taken by Mr. Slade, and he thought it was clear that there was a distinction laid down between questions asked of prisoners when actually taken into custody on a charge and of persons who had not been taken actually into custody on any par icular charge. person in custody was clearly liable from The Attorney-General in opening the case that time to be prosecuted in the ordinary said that the prisoner was indicted on a very course. In the case of persons who were not serions charge on two counts, the first of actually in custody it sometimes was quite right which accused him of having uttered to the and proper that questions should be asked of Hongkong and Shanghai Bank two bank-notes them in order to ascertain what were the cir- of $50 each, these notes being forged and he cumstances of the case and whether it would be knowing them to be so; and the second of which
necessary to take them into custody at all. He accused him of having been in possession of quite agreed that it was laid down in Queen v. other bank notes beyond those he attempted to Thomson that unless the prosecution showed pass at the Bank, these also being forged and that a confession by a person in custody had he knowing them to be so. The Crown would not been preceded by any inducement to the endeavour to show, first, that the prisoner did prisoner to make a statement, such confession issue notes that were forged, and, secondly, was not admissible. It had to be borne in mind that he knew them to be so; also that that in the case of Queen and Thomson the forged bank-notes were found in his posses- prisoner was in custody and there was some
It
Evidence was then resumed for the Crown, and afterwards evidence was taken for the defence..
Counsel baring addressed the jury, His Lordship summed up. In the course of the summing up,
Mr. Slade, interposing, said-Excuse me. your Lordship, but you are drawing inferences which are unfair to the prisoner and contrary to fact.
His Lordship (warmly) Excuse me, Mr. Slade. You must not interrupt the Judge. I Your zeal a little overcomes am summing up. your discretion.
Mr. Slade-I was only pointing out, your Lordship, what I thought it was fair to the prisoner to point out.
His Lordship-Well, you made an improper remark. I know you don't mean it. We are the best of friends, but you are very over-zealous. At times you say things you should not say.
Mr. Slade-I beg your Lordship's pardon. I said it without consideration.
The jury retired to consider their verdict at 4.40. i hey returned ten minutes later and the Foreman intimated that they bad, by a majority of 4 votes to 3, found the prisoner not guilty on
both counts.
His Lordship stated that that verdict could
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