330
put as a matter of form.You (the witness) need not, I may say, answer it.)
Mr. Morgan Phillips-Had you anything to do with the abstraction of this box from the strong-room and from the custody of the Company?
-Witness-No, sir.
Witne 8-Yes, sir.
THE HONGKONG WEEKLY PRESS AND
Cross-examined One of the Chinese who | brought the box on board was better dressed than the other. He had no special reason for taking notice of the way the box was carried, but he remembered the matter.
Re-examined-e thought it was two days after reaching Manila that the box was missed. His Lordship-The box was in your The details of the Chinamen coming on board custody P
with the box were then fresh in his memory.
Mr. Morgan Phillips said that that was all the oral evidence he proposed to call. There was the evidence of one witness who was called before the commission in Manila. That was Henry G. Sharp, whose evidence Mr. Morgan Phillips proceeded to read.
His Lordship-And you were the only per- son who had access to the strong-room ?
Mr. Slade The chief officer, my Lord. His Lordship-Yes. But you went to the strong-room alone in company with a sailor at the time the box was there; and you swear positively that you did cot take that box out?
Witness-I did not.
His Lordship-I thought it only right to ask this question.
Mr. Slade-Certainly, my Lord. His Lordship-And you do not know who
took that box P
Witness-I do not know who took the box? Cross-examined-He had no idea when the box was abstracted. He did not notice whether or not it was there when he placed the mails in at Hongkong, nor when the parcels were put in. One man went into the room and another passed the parcels in. He directed where they should be put. The box was on a shelf in a partition by itself. The parcels were put in another partition. When he first opened the door one could not see into the room, but after standing for about two minutes one could see. The light was bad. It came down the ladder, and the strong-room was at the bottom of the ladder. The Court adjourned from one till two o'clock. Cross-examination continued-Witless first saw the box produced in Court at the Bank s month or six weeks ago. He was then informed of the weight for the first time. He did not remember whether or not they were carrying any Chinese passengers that trip. Any mem- ber of the crew had ready access to the 'tween deck. Any Chinese passengers who might have been on board would have no difficulty in getting there. Coolies came on board at Manila and discharged cattle from the portion of the 'tween deck 'where the strong room was. After the parcels were put in the strong-room nothing else was put in. No parcels were taken out of the strong-room before the box was missed.
By the Foreman of the Jury-If he had known that the box contained $500 in silver as well as the notes he would not have signed the receipt. Judging from the size of the box pro- duced in Court the box which he actually saw on board was not big enough to contain the sum in notes and silver which it was said to contain. After the box was put on the shelf he never saw the box. It was not possible for the box to have been taken when the mail was taken out; only one sailor went down with him and the sailor carried the mail up
Was
•
By the Court A Filipino and a Chinaman came on board at Manila with the delivery order. The Chinatnan did not look like a coolie nor like a wealthy man either. The Filipino the launch man, he thought. The Chicaman was dressed as a shopkeeper or a clerk. The Filipino did he talking. It was the Filipino who brought the delivery order.
Archibald Henderson, chief engineer of the Zafiro, deposed that on the morning of the 12th September be saw two Chinamen come on board. He was standing on the saloon deck about six yards from his cabin. That was close to the chief officer's cabin. One of the Chinamen was carrying a box and the better-dressed Chinaman was walking in front. The latter spoke to the chief officer. The box which the Chinaman was carrying was smaller than that produced in Court. There was a white cloth round the box. It was all round the box and the ends were made fast on the top. The Chinaman was carrying the box on his left arm, held up by the right hand. It appeared to be no exertion to the Chinaman tr carry the box. The Zafro went into dry dock on the 11th of July at 3 o'clock in the afternoon. She came out on the 15th, and went to the boy about the 21st. She was ying, between these dates, at the Dock Co.'s buoy. He was on board while she was in dry- dock; she underwent considerable repairs and people had access generally to the whole of the
steamer,
:
Mr, Slade said he proposed to call rebutting evidence on the subject of payments by American ships. Evidence had been given to the effect that American ships in Hongkong made payments only in local currency. He had evidence to show that American shits paid in gold and he had a witness who was prepared to say that he had recently received payment in gold from American ships for goods supplied.
Ching Yek Po, assistant, examined by Mr. Slade, said bis firm had acted as compradores for the German Navy for several years; they had also done business with American trans. ports, including the Sherman, which they pro- vided lately with coal, provisions, etc. Payment was made in American gold and banknotes, The firm was paid a total šum of $5,005 gold, Witness knew an American ship named the Hancock, another American transport, which his firm during the war provided with provisions and water. In this case also payment was made in United States money; neither Mexican or American silver money ever was paid.
Cross-examined by Mr. Morgan Phillips- The firm had furnished
the last twelve months provisions for United States war- ships on the China Station; the Monadnock had been so supplied during either June or July last year.
Provisions were furnished, and a cheque was received in return on the Hongkong & Shanghai Bank; it was in Mexican dollars, One or two other American warships had been catered for within the last twelve mouths, but Some witness did not remember their names. payments were in American money and others in Mexican currency.
'
within
By the foreman of the Jury-United States of banknotes received in the transaction business were sold to Chinese banks or money changers. United States money received by witness's firm would not be locked up longer than a week.
4
That was the
This concluded the evidence, and Mr. Morgan Phillips addressed the jury. He said they would have, in one shape or another, to ask themselves the question-Bad the plaintiff satisfied them that the box placed on board the Zafiro contained $50,000 gold? question they had to ask and to answer too. The plaintiff must be dealt with in the light of any other business man in Hongkong, and the only documentary evidence he had produced to show that he had those notes in his possession on 12th September last was one single entry in one of the books exhibited in Court. He could not produce a balance sheet, and the jury knew how carefully English Chinese carrying on business in the Colony conducted their affairs.
Mr. Slade-I would ask my learned friend to be accurate in his statements. You asked only for entries relating to this particular mat- ter, and not for entries relating to the general There were about a course of his business.
hundredweight of books ready to show you if you had asked for them, but you carefully refrained from asking for them.
Mr. Morgan Phillips was proceeding to refer further to the absence of documentary evidence, when Mr. Slade again protested.
Mr. Morgan Phillips-My learned friend is so impulsive.
Mr. Slade-My learned friend is so inaccur- ate. (Laughter).
L
Mr. Morgan Phillips-Pray don't interrupt me ay more.
an honest man
|
Continuing, Mr. Morgan Phillips said that if the plaintiff was carrying on an honest trade nothing would have been easier than to prove it while he was in the witness box. Was it likely that he had this money lying idle in his private house for the time he stated? Certainly not. Then as to the explanation regarding the manner in
[May 9, 1903. which he came into possession of the money, it had been proved conclusively in evidence that payments from American warships were made in Mexican currency and not in American bank- notes or gold, and that the plaintiff could not possibly have obtained the money in that way. Dealing with the size of the box, Mr. Morgan Phillips said all the witnesses from the Zafiro were satisfied that the box placed on board the steamer was smaller than the one produced in Court, and the latter was the smallest into which $49,500 in notes and $500 in silver could be packed. Its weight, too, was much lighter than that of a box containing such an amount of money, and was only about 121bs where it should have been 534 lbs. Counsel pointed out the disparity exist- ing between the plaintiff's statement to Mr. Hastings and the evidence he had given in the box, and went on to say that, contrary to what the plaintiff had asserted, no security was required by the American Government in the Philippines when a tender was being submitted. It was highly improbable, farther, that this sum of $53,000 was being sent to Manila to cover future possible contracts; had money "been required for that purpose, Jackson, the partner in Manila, could have telegraphed to say so. Mr. Morgan Phillips, who went over much of the ground covered in his speeck when opening the case for the defendants on Saturday, con- tended that a deliberate plan had been concocted to defraud the steamship company. The onus of proof lay with the plaintiff, despite the position taken up by Mr. Slade, than whom Mr. Morgan Phillips said, he had never met, any counsel who could advance au untenable more apparent sincerity. proposition with (Laughter).) The case he would leave with confidence in the jury's hands, and all he asked for was that their decision should be given in acco dance with the evidence and with common
senze,
Mr. Slade began bis speech by contending that the onus of proof did not lie with the plaintiff It lay with the defendants, who were liable to pay the full declared value unless they could prove fraud.
His Lordship, after hearing quotations on the question of law, said it did not appear to him to be material upon whom the onus of proof lay. The jury had simply to decide whether or not in their opinion the box contained $50,000 gold..
Mr. Slade said freight had been charged on $117,000 or $118,000 Mexican, and it was contrary to one of the most elementary prin- ciples of law that, after having taken ad- vantage of the declared value, the ship- ping company should be allowed to turn The real value is only a few round and say, cents, but we will keep our $149 odd' (the rate charged on the box). "Blowing hot and cold in that fashion was never allowed in a court of
law.
After presentation of further arguments by Mr. Slade, in support of his contention, the Court adjourned.
Wednesday, 6th May.
Mr. Slade suggested to his Lordship that he should leave to the jury the following questions, the specific answers to which would settle posi. tively all questions of fact arising in this matter:-In the event of his Lordship raling in favour of defendant's contention, Are you satisfied that it has been proyed that the box shipped contained $50,0:10 gold? If the ruling was in favour of the plaintiff, Are you satisfied that it has been proved that the box shipped did not contain $50,000 gold? These questions, he thought, put the difference between the parties distinctly. Following out the sugges- tion made by his Lordship on the previous day he would propose that both these questions might be left to the jury, for whatever the ultimate result was the other side might appeal and it would be convenient that the answers of the jury should cover all conceivable questions on the same facts. (ne other question arose Was the plaintiff guilty of a false and fraudulent misrepresentation when he declared the contents of the box shipped were of the value of $50,000? Then there was the sub- issue-Has it been proved that the box shipped was abstracted? Proceeding to review the facts of the case, Mr. clade said the plaintiff's explanation why he kept all this gold money was perfectly reasonable; he said he might.
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