The-Hong-Kong-Weekly-Press-1905-07-10 — Page 8

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IN ORIGINAL JURISDICTION.

QUESTION OF OWNERSHIP.

THE HONGKONG WEEKLY PRESS AND

The Chief Justice gave judgment in the case where both Lam Tung and the Nam Loong firm claimed the same money, $2,600. Mr. H. E. Pollock. K.C., instructed by Mr. Dizon (of Mr. John Hastings' office), appeared for Lam Tang, plaintiff, and Mr. H, N. Ferrers, instruct-i ed by Mr. J. Hays (of Messrs Johnson, Stokes | and Master), for the am Loong firm, claimants. The money in question was taken off the person of one Chow Kwan, whose extradition was applied for by the French authorities at Saigon, and it has since remained in the custody of the Authorities at Hongkong. The plaintiff, a ship's cook, alleged that he hid handed the money to Chow Kwan during had weather on the passage from Saigon. while the claimants submit that the money was that stolen from them at Saigon by Chow i wan

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His Lordship said :-This case was tried before me without a jury. It was essentially a jury case, and I shoul have preferred to have had the questions decided by a ju y. have taken the greatest pains to arrive at the truth; and I shall avail myself of the fact that in this Colony the verdict may be by a majority, a fact which may indicate to the successful party how near he has been to losing his case, to say that I feel very like a jury must feel which has brought in a verdict by a bare but legal majority. My anxiety has been naturally increased by the fact that the plaintiff only sues as bailee; the rights of other parties may there- fore be in issue, and I know no means of giving judgment which should protect their rights if for the plaintiff, to ensure their getting the money: if for the defendant, to protect them in case, owing to the weakness of the evidence, the jugdment should do them an injustice. I must, therefore, do the best I can with the material before me;

and I propose to analyse the evid- ence at the same length as I should if I were summing up the case to the jury.

There is undoubtedly an inherent im-

almost probability abont

every detail the plaintiff's story: but the initial improbability is met in some measure by an admission by the defendant that it is the practice of Chinamen to transmit money by hand, as it is alleged was done in this case; and when once that is admitted, it is difficult to say that what is alleged to have happened did not happen. But, says the defendant, this custom does not extend to large sums of money. That, however, is not a very stable hypothesis to go пров.

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There is a further admission that as to one of the sums$20, this plaintiff was probably entrusted with ita delivery as he alleged. This amounts virtually to an admission that judgment must go for the plaint for at least $20. This admission has further important consequences, which I will consider in due course.

The case being an interpleader issue, in which the question is whether either or which of the parties claiming the money in Court, is entitled to it, each party has a constructive as well as a destructive burden cast upon him. The plaiu- tiff has adduced a considerable amount of ..vidence. The defendant has endeavoured to He bas, however, been shake this evidence. unable to produce any positive evidence in support of his own case, but relies on the usual assumption that money found on a thief after a robbery of money, forms part of it. There had been an extensive robbery of money, bank notes and silver, from the defendant's premises in Saigon. I am disposed to think, though the evidence is not much more than an assump- tion, that there was a pursuit of Chow Kwan He certainly was by the police for some days. tracked to Hongkong: his extradition was demanded, and he was found guilty in Saigon of the robbery. On the whole I am disposed to think that the assumption can be applied to the bank notes found on Chow Kwan in Hongong, although there is no mark on them by which But even then, the they can be identified. assumption only holds good in the absence of proof of property in another person; is precisely the question here. This assumption, therefore, does not carry us very far, unless the

plaintiff's case breaks down completely.

which

Now, the plaintiff's case depends on how far the evidence he tendered has survived attack;

and how far the inherent improbabilities of the case are propped up by so much of the evidence as remains unsbaken.

Was

He answered

The main attack on the plaintiff's case directed to shaking Kwong Sung's And here I must notice that the evidence. original position taken up by the defendant was that Kwong Sung was an impostor, and had | never been to Saigon. This could not bs main- tained, and was wisely abandoned. The cross examination of the man was directed to testing his knowledge of Tai On in Saigon; and I can- not say that, making due allowance for his be- ing an illiterate man, he completely failed in showing some knowledge. The defendant thereupon took up another position: that the man know Tai On superficially and in a manner consistent with casual visits, but not with pro- longed residence for 15 years. some questions, but not others, satisfactorily. The new position assumed by the defendants is a possible one; but at the same time the partial admission, like the other admissions, renders the decision of the case all the more difficult. With regard to this witness another consideration arises. His bona files could have been tested by evidence from Saigon. Only one witness, Lan Ping, was call d'; and it cannot be said The that he advanced the case in any way. s ecial facts on which evidence was required were not within his knowledge. The answers to two questions put to the French authoriti-s in Saigon, would have disposed one way or the other of this witness, Kwong Sung and probably also of the whole case. I suggested that these two questions should be put to the French authori. ties-Had a permit of residence been granted to Kwong Sung Had a person of this name been a shipbuilder for 15 years in Tai On ?

The Court not having any inherent power to issue letters of request, I suggested that they should issue by consent. The plaintiff refused; his reason being an idea that the influence of the Nam Lung firm in Saigon is so great that the answers could not be relied on. This is not

a very satisfactory ground of refusal, as I had indicated that the questious would only be pat to French officials, and they were such that they would have been answered from the official records. At the same times the plaintiff's, advia rs were within their rights and in the face of the evidence the burden of disproof fell upon the defendants

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Here I must del with the fact that the Judge in Chambers had refused the defendant's application for a commission to gather evidence in Saigon.

the expression “gather evidenc advisedly. The application was for a commission for the examination at Saigon and at such other places in Annam or French Indo China as may be necessary of witnesses resident or carrying on business at Saigon or elsewhere in Annam or French Indo China.' I certainly sympathised with the defendant in not having evidence from Saigon but having regard to the roving nature of the propose i commission, it is more than likely that a mass of evidence would have been taken and expense incurred; whereas as events turned out, the very smallest amount of evidenc: was necessary. The defendant should have adopted the nor inexpensive procedure, and himself have taken out a snmmons for letters of request to issue to the French Courts. I am, therefore, put into the position of having to decide a case by inference: an an: atisfactory task, and more especially so, seeing that, the facts crucial to the decision could have been ascertained, by the defendant, before trial, or, by the plaintiff consenting. during the trial.

In considering the inherent improbab lities of the plaintiff's case, there is one to which attention was not called during the trial, but which arises out of a question put in the cross- exmination of the plaintiff. It seems inherently improbable that so large a sum as $300 should have been given to the plaintiff to carry to Hongkong in silver: 300 dollars would be a The point heavy weight to carry about. requires some careful consideration. From the letters themselves, we get the following facts:- From No. 1-That $1,500 was in notes" to be handed to Lam Tung."

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From No. 2-That $500 outside" (that is "ontside the envelope”) was "to be handed to Lum Tung."

From No. 3-That $300“in foreign money was "to be entrusted to Lam Tung,

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[July 10, 1905.

From No. 4-That there was $280 in foreigu money.'

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From No. 5-That there was $20 "outside." From the evidence of Lam Tsoi in the Police Court the $300 of No. 3 was in notes.

I do not think it possible to imagine that of the $500 to be handed to Lam Tung with letter * No. 2, $ '00 was in silver.

The plaintiff's story of the $300 in silver must, therefore, mean that the writers of Nos. 4 ad 5 gave their money to Lam Tung in silver. The $20 of N 5 may have been given "outside" the envelope in silver.

The improbabilities with re rafa t› the $230 of letter No.4 being in silvera re reduced to this - On the one side the fact that in the le.ter there is a ref rance to "foreign money," which s ems more applicable to not s sent with a letter; thugh the changing of the silver into notes may have boen den with the knowledge of the sender. On the other side this introduction of a reference to silver appears to be gratuitous, and an necessary complication to import into the facts of an already complicated story. If it was introduced for the purpose of vraisemblauc', it was part of a very deep laid and carefully thought out plot: for this independent exam'ntion shows that the details fit in in a somewhat remarkable manner.

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I do not think that the plot, if plot there was, has been thought out in a careful manner: on the contrary, looked at as a plot, it was very clumsily executed. The plaintiff's counsel was obliged to simit that th very weakness of the story attached to No. 4 letter, cous'itated an elomeut of strengt for the case gen-rally.

I come now to the question of why wrote the letters. The evidence is quite sufficient to show that Nos. 1 and 4 were written by the same person: this is derived from the opinion of the translator of the Court as to the similarity of the writing, and from the similarity, if not identity, of the chops used on these letters and envelopes. Kwong Sung said that his letter- No. 1-was written for him by the accountant A woon: afterwards, he said, by Pung Knook, a relative of Lamon. Lamon was the alleged sender of letter No. 4-with $280. There is, therefore, a scintilla of fact to account for the letters No 1 and 4 being written by the same writer.

With regard to the other letters, there is nothing to warrant any suggestion that they were written by the same person. The more they were examined, more especially with refer- once to identity of expression used in them, the more it seemed to be established that they were This is specially written by different persona. noticeable in connection with the phrass ' receive according to the amount" which, in some form or other, occurs in all of them. Mr. Li Hung Mi was called by me specially as to this point, and his evidence, together with the evidence of other witnesses, shows that there were at l-ast three writers of the four letters. Nothing very definite seems to result from this to favour the defendant's destructive cise,

I now come to the question as to how the 26 $100 notes were given by the plaintiff to Chow Kwong. The mate ial parts of the evidence on this subject are as follows:-

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I said but did not mentio

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Lani Tung says-I had 26 $100 notes. I wrapped them in a red silk handkerc ief and tied it round my waist: it was put in my gir lle. I took out the money and gave it to Clow Kwan asking him to take care of it.

plenty of money," specific sum. It had 26 $100 notes. This is textually from my note. It is not quite is made clear by the coherent, but it evidence of Chow Kwan, taken de bene esse He says:-He (Lam Tung) gave me some money wrapped up in a red silk handkerchief He said there was money in it, and asked me to take care of it. On receiving the parcel of money from Lam Tung I untied my girdle. I took out my own bank notes and put them on the handkerchief and rolled them up together. I never saw Lam Tung's notes and did not know how many there were. I kept the handker chief with all the notes in it until I got to Hongkong. The two men then appoir fo At this have gone to a boarding house. time" he adds "I was carrying the money on my person. I offered to return the money to Lam Tung: he said it' would do after we câme back from drinking tea." On their return to the boarding house he has a bath prepared, and then follows his arrest. In cross-examination

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