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January 23, 1905.]
obtain from such agents by false personation and other false and fraudulent means a passage for one Hau Tin by one of the steamers of the said company to Australia; and in pursuance of the said conspiracy did cause and procure the said Han Tin to pay a sum of $50 to him (Wong Chenk Yan) and did give to the said Hau Tin a receipt in writing for the same, and also did give to the said Han Tin the letters of naturalisation of one Ah Wey as a subject of the Province of South Australia; and in like pursuance of the said conspiracy, confederation, and agreement the said Wong Tin did cause and procure the said Hau Tin to be photographed, and the said Wong Cheuk Yau and Wong Tin in further pur suance of the said conspiracy, confederation, and agreement divers other acts then did, with intent to deceive the said steamship company and divers other liege subjects of Our Lord the King as aforesaid and to procure for the said Hau Tin a
passage to Australia in the name of the said Ab Wey by false'y personating the said Ah Wey. against the peace of Our Lord the King His Crown and Dignity.
(2, That (etc.) with divers other persons to the Attorney-General unknown (etc.) did procure one Han Tin to endeavour to obtain a passage by a ship
same,
to Australia without the consent of the owner, charterer, agent or other person in charge of such ship, contrary to the Stowaways Ordi- nance, 1903, and in pursuance of said con- spiracy the said Wong Chenk Yau du cause and procure the said Hau Tin to pay a sum of $50 to him, and did give the said Hau Tin a receipt in writing for
and also did give to th- said Hau Tin the letters of naturalization of one Ah Wey as a subject of the Province of South Australia, and in like pursuance of the said conspiracy did cause and procure the said Hau Tin to be photographed, and the said Wong Cheuk Yan and Wong Tin in further pursuance of the said conspiracy, con- federation, and agreement did divers other acts with intent to procure the said Han Tin to commit such offence as aforesaid, against the peace of Our Lord the King His Crown and Dignity.
(3). That (etc.) unlawfully did aid, abet, counsel and procure one Hau Tin falsely to personate one Ah Wey with intent to defraud the China Navigation Company, Limited.
(4). That (etc.) unlawfully did aid, abet, counsel and procure one Hau Tin falsely to personate one Ah Wey with intent to deceive divers bigh subjects of Our Lord the King and against the peace of Our Lord the King His Crown and Dignity.
Mr. Ferrers--I move that this indictment be quashed or at least amended. It is proper for me to do so at this stage before the jury is empanelled. The grounds are not specific and there is uncertainty.
Mr. Calthrop-The first two charges relate to conspiracy to deceive by means of pretences. His Lordship-You cannot put two such distinct charges.
Mr. Calthrop-Yes, my Lord, we can put anything in an indictment. The two relate to the same act; both are Common Law offences.
Mr. Ferrers There is another point with reference to this indictment. The fourth count is clearly bad on two grounds. Conspiracy is not an offence unless you have intent to defraud; to deceive is not enough.
His Lordship-Cite authority for it: I am inclined to agree with you. You must charge with intent to defraud. If I go to a fancy dress ball you cannot charge me, though I may intend to deceive the whole community.
Mr. Calthrop-1 would point out to Your Lordship that it is an indictment for false pretences.
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CHINA OVERLAND TRADE REPORT.
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45
At the request of Mr. Ferrers His Lordship | any European language. I know the first asked if any of the jury were connected with defendant. On the 13th November I saw him steamship companies.
in the dining room of the Chan Hop. No. 151, Connaught Road West. The second defendant, a fohi, was also there.
They were not.
go there
Mr. althropaddressed the Court as fllows: - As you are probably aware, the Commonwealth of Australia has passed very stringent regula- tions as to allowing any aliens to enter the Commonwealth, and persons who from here have to prove that they know a certain amount of English, or that they are provided with papers of naturalization That relates to persons who before the passing of this Act had certificates; they would be readmitted whenever they chose to go back. In consequence of certain acts, one of the witnesses having received certain informa tion from the police went to the house occupied by Wong Chenk Yan, and while there he saw the second defendant, the first defendant's servant. Wong Chenk Yau described himself
as a broker. Hau Tin went to the second floor
and made certain inquiries. He saw the first prisoner, and at the same time the second prisoner. Ве made enquiries in order to see if he could obtain papers which would enable him to go to Australia. The first defendant promised to supply Hau Tin with the necessary papers to enable him to go into
Australia.
When he went there Hau Tin prid
who
5) to the first defendaut. who told him the amount requisite to get the necessary papers was $850. The man was photographed. The object of getting his photograph taken was that one copy might be sent in advance to Australia to some agent there so that when this man was landing with this certificate of naturalization he might be identified by the person to whom the photograph was sent. Hau Tin then went to this place with Inspector Hanson (Chief Detective-Inspector). arrested the first defendant and took various papers and documents of naturalization from the safe. There is no doubt that this certificato (produced), which was to have been given to Hau Tin, is the certificato of one Ah Wey, the certificate of a man who was naturalised in Australia. It does not apply to Hau Tin. but was to be given to him in order that he might get taken by the steamship company to Australia. The steamship companies will not issue tickets to anyone who likes to apply. They must be s-tisfied that he has a right to enter the country. If a shipping company receives a passenger on board who is not entitled to enter the country it renders it elf liable to certain penalties, and if he does not escape they must take him lack. I think you will be satis- fied that there was an endeavour to deceive the
steamship company. We have also charged them in connection with the offence they committed with other p rsons from whom thes
certificates were originally secured. Who these persons are we do not know, but if you are satisfied there were other persons then you are satisfied there has been some conspiracy with them. The steamship company would not give a ticket to a man not entitled to naturalization papers; it is clear that no steamship company would give a ticket to Han Tin knowing that he was not the man described in the papers of naturalization.
Bis Lordship-The Ordinance under which you are charging him apples to stowaways; these men were not stowaways.
Mr. Calthrop-The title of the Ordinance does not bind the Ordinance.
His Lordship-I think what the legislators had in their mind was stowaways.
Mr. Calthrop continuing-Regarding the third count, these two defendants endeavoured to defraud by impersonation knowing that they made the steamship company liable to certain penalties; they would not have taken this man His Lordship-It must say whom you cheat.if they knew who he was, even if he did pay. Mr. Calthrop-That is not necessary; it It would render them liable to a fine of £100. affects the public generally.
His Lordship-For the purposes of this case must regard Australia as & foreign government.
Mr. Ferrers-Very foreign, indeed. His Lordship-When there is a d fference in legislation we must always regard such country as foreign.
His Lordship-The whole thing is so un-
certain.
Mr. Ferrers-The person he intended to d fraud must be named.
His Lordship-You must strike that clause out.
The following jury was empanelled:-Messrs. L. E. Lammert (foreman), W. C. Logan, H. A. L. Oldenberg, M. Simmons, W. Inglis, J. Mills,
und C. Pedersen.
we
Hau Tin, the polic agent, said:-I am a servant at No. 44, Lyndhurst Terrace. I come from Canton. I have never been to Australia,
or been naturalized.
I cannot read or write in
Mr Ferrers-Ca'l him a cool'e
4
Witness continuing We first of all made polite enquiries as to one another's names, and 80 on. The first defend nt asked me to sit down. After that I asked him if there were any papers to the Golden Hills, and she said yes He asked if I had money, and I said yes. He said he wanted 8850. I agreed to pay him, and he said he would give me an Australian paper to go to the Golden Hills. I paid $50 on account. For this he gave this receipt saying I would leave by a China Navigation or other steamer to land at
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Melbourne.
His Lordship, looking at the naturalization paper--This is a paper of the regime of Sir W. C. F. Robinson, of South Australia, given to one Ah Wey.
(ros-examined I never had any intention to go to this place, or to go anywhere as a stowaway.
Mr. Calthrop-We are not saying that he intended to go, but we say these two defendants tried to induce him to enter into that country.
His Lordship-He went to induce them; be never wanted to get a passage. This business ought to be stopped if possible, but that does not say that in this case you have a legal offence.
Chief Detective-Inspector Hanson gave avid nce.
He said that he took from the defendant's safe some bundles of old certificates of naturalization, and on each paper was attached a translation in Chinese.
His Lordship-He was evidently dealing in naturalization papers.
Mr. Ferra s-It proves that the papers were left there by friends for safety. Some were going back, according to the prisoner's state. ment, and some were not.
Chinese Police Serg ant 137 gave evidence—" I know that the Wing Tai used to be kept by Wong Cheuk Yau, the first defendant. He sold foreign goods, and produce from the Golden Hills He was also a money changer and shoe seller. The first and second floors were used for visitors from the Golden Hills. I knew him in 1894, and he was master of the shop then. He stopped being master in 1903 and I do not know where he went.
D Abbey, assistant in Messrs Butterfield nd Swire's Hongkong office. g ve evidence I am clerk in charge of booking pissages The moment the Australian steamer is on the berth the Chinese broker goes round the market to see what passengers are going to Australia.
His Lordship Is it a good trade? Witness-Not so good as it was; it is get- ting less and loss We examine the pas- sengers' papers allowing them to land in Australia If a man came with papers of someone else we would not take him
on as a passenger. A Chinese passage to Melbourne is $20 1; $235 to Adelaide; and $285 is the most payable by a Chinese second class passenger going to Australia. If a man not entitled got into Australia we would have to ray a penalty and the ship would be detained.
His Lordship-The first two charges are of conspiracy with intent to defraud.
Mr. Calthrop-Intent to deceive.
His Lordship-There is no such offence, and this was an agreement between these two men to make the China Navigation Company un- consciously do an unlawful act, carrying into Australia a person whose entry was prohibited by that country. There is no evidence of defrauding them; they were prepared to pay the passage money. The word "defraud must be followed by the word "of"; and of what were they trying to defraud the company? Mr. Cal hrop-In the first two counts the word used is to deceive.
His Lordship-It is not criminal to deceive except to defraud.
Mr. Calthrop - Yes, if it is injurious to the public interests.
His Lordship-What does it matter to the people of Hongkong? It may matter to those in Australia, but it is no offence in this country. What would the company be defrauded of ?
Mr. Calthrop-Their right to refuse this man (Laughter.)
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