August 12, 1905.j
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CHINA OVERLAND TRADE REPORT.
his friend Cbau Kwong for safe cust dy. This, therefore, was the issue that was tried before the learned Chief Justice, whose decision in favour of the plaintiff has been appealed from by the defendants. At the hearing of the appeal the counsel for the defendants (whom I shall call in the future the appellants) took a somewhat peculiar course. He divided his attack into two parts. In the one it is asked that the judgment appealed against may be reversed and that judgment may be entered for the appellants, and in the otter he asked for special leave to adduce further evidence on the appeal: I presume he means upon the appellants being success; ful on the first part. All of which I finally understood to mean a new trial before a judge and jury with power to produce further evidence. With regard to the first part a preliminary objection as to form was taken which was overruled. It was, however, to the second part that the peculiarity above re'erred to particularly appertains. It seems to me to be a belated attempt to get in further evidence, which attempt ought to have been strenuously urged in the earlier stages of the case. It appears that on or ab.ut 24th March. 1905, an application was made in Chambers on behalf of the appellants for a commission to examine witnesses in Brigon and other places. This application was refused by the then Acting Chief Justice. No reasons for a refusal were given, but a perusal of the papers in connection with the application points to an explanation. At any rate, the application must have been opposed on behalf of the plain tiff (respondent). No steps were taken to set aside this refusal and the case came on for trial before the learned Chief Justice on 16th June, 1905, and following days, so that the appellants had more than two months in which to appeal against the refusal, and of which they took no advantage. During the bearing in the ourt below the appellants made no more in this direction. even although the learned Chief Justice suggested that both parties should con sent to letters of request. This suggestion was not agreed to on behalf of the respondent, and
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what further arguments could be advanced on either side to make the matter clearer to my mind. I do not find anything to make me alter the decision I arrived at, nor any of the subordinate opinions on different parts of the case which went to compose the whole. I must, however, deal with the new suggestion as to the inception of the alleged conspiracy. I said in my judgment that Mr. Ferrers had admitted the story as to the letter No. with the accompanying $20; I said further, however, that
did not
how it could have been avoided. Mr. Ferrers said that I misunderetoed him, and that his admission was quite different. His new theory is that envelope No. 5 only is genuine but to this he adds a somewhat ingenions hypothesis:That the letter had in fact been delivered, together with the $20; that this money had been distributd and that the plaintiff had in some way or other become possessed of the envelope, and had based the other four stories on it. He suggested that this | envelope did not ferm part of the original five letters, and had no relation to the 320 alleged by the plaintiff to have formed part of the $2,600 and he, therefore, challenged my opinion that there ought to be judgment for the plaintiff for at least $20. There is really only one point, which at all supports this theory; that Lam Tung's name does not appear on the envelope but neither does it on envelope No. 4. The really serious part of the case made on this point is the discrepancy in the evidence of Kwong Kan Chung. At the Police Court he said he opened the envelope and that there were two envelopes inside. At the trial he said that when he opened the envelope there was a letter inside which he put back in the envelope. It is much to he regretted that the officials at the Police Court do not seem to have been too careful to see what became of the enclosure, whatever it was, as a record ought to have been precise upon the point. The envelope came to the Registrar of this Court opened, with no enclosure. Although this is a serious matte. I do not think that there is anything in it to support the theory that the envelope was an old one, and was not, in fact. " 'opened in the learned Judge did not consider that he had the presence of the Magistrate. All parties power to issue such letters exproprio motu. Atthe were present and it is not to be supposed that hearing of the appeal a number of cases were cited any sleight of hand could have been practised on the point on behalf of the appellants, and at without somebody noticing it. But again, this first the order for further evidence was claimed points to fraud and perjury, and we cannot come almost as of right, but later on it was asked for to a decision, which is only consistent with such more as a matter of indulgence, and the case of heinous offences, on no better evidence than in re Copiapo Mining Co.. Ld., exparte Mashiter, what seems to me a somewhat fantastic theory 10 Times Report 180, was strongly relied on. as to what actually took place. There is no I have examined that case and others that half-way house. Either the plaintiff's story is were quoted, and I have come to the conclu- true, or as I said in my former judgment. hesion that the appellants knew perfectly well was an accomplice in the robbery. In that judgment, on further consideration, I do not think it necessary to alter a single word.
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at the time of the trial what further evidence
they wanted, and that they had two oppor- tunities of attempting to get that further evidence, and had not availed themselves of them. There never had been a surprise so far as they were concerned; they acted with their eyes pen. Under the circumstances, if this sort of appeal were to succeed there would ba no fuality. See the judgment of Kay I. J. in the above case. I am strongly of opinion that in view of their laches they are not entitled to any indulgence, and that so far as this part of the appeal goes, it fails. That leaves us then to deal with the first application which, now that the admission of further evidence has been refused, may mean what it says, viz., that the decision should be reversed and judgment entered for the defendants, or it may mean a new trial before a judge and jury on the ground that the judgment was against the weight of evi- dence. Many cases were quoted to us as to the powers of the Court of Appeal in such questions, and I do not intend going through them at length, because it seems to me that so many judges have expressed the same principles in so many different ways that it would always be easy for counsel either for appellant or respon dent to cull sentences in their own faviur.
His Honour Mr. A. G. Wise summed up as follows-This is an interpleader issue, and the facts are shortly as follows:-Sometime in August, 1904, a burglary was committed on the premises of the defendants, who are Chinese merchants carrying on business near Saigon, and a large sum of money (amongst other things) was stolen. The plaintiff was a cook ou a French steamer which left Saigon on August 20th, and arrived in Hongkong on the 26th August, 1904. As a passenger on beare the same steamer WBS & man named Chad Kwong, who according to the evidence, had been acquainted with the plaintiff for some years. On the arrival of the steamer in Hong- kong the said Chau Kwong was arrested ou the application of the Fre ch authorities as being concerned in the above mentioned burg- lary. The usual extradition proceedings followed and, in due course, Chau Kwong was banded over to the French authorities, and afterwards convicted and punished. On the arrest of Chau Kwong in Hongkong over $3,000 (in French bank notes) and some silver were found upon him ($2,600 of which form the subject of the present litigation). The It seenis. however. to me, that although defendants demanded the restitution of the the opinion of the Judge in the Curt said moneys as being part of the proceeds of below, sitting without a jury (and who has the burglary, but the plaintiff claimed them as beard the witnesses), is bound to have great having received them. together with weight with the members of the Court of covering letters, in the capacity_of bailes Appeal, yet that his opinion is not by any from various persons in Saigon, means bind ng on them, and if they think (not its vicinity. for distribution to various merely on the ground that they might not have persons in China, and stated that in con- farrived at the same opinion themselves) that sequence of rough weather he handed them to the evidence did not warrant such a decision, or
or
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in other words, that it was unreasonable, then they will reverse or alter it in such a way as seems most in accordance with the demands of justice. Under these circumstancasa review of the evidence and of the judgment becom snecessary. The first statement which the counsel for the appellant dealt with was the improbability of the letters having been concocted on the steamer in consequence of the bad weather," and couns I pointed out that according to the evidence at the beginning of the voyage the weather was fine, and so the letters might have been written on board. However, counsel afterwards set up and relied on a theory that the letters were manufactured by a solicitor's elerk in Hongkong, so that point may be passed - over. With regard to the evidence as to the notes being wrai ped in a red handkerchief, the
learned Chief Justice came to the conclusion that there was no red handkerchief and, of course. the appellant does not object to that finding. Now as to the five letters. It may be mentioned here that the contention of the appellants is that the first four letters are for- geries concocted in Hongkong; that the fifth document (an empty envelope) was genuine' (the contents having been previously removed) and was produced to support this fraudulent claim. The first letter purported to contain 31,50) sent by one Kong Sang, residing at Cholon, Annam, to his mother. The evidence in support of this story is that of Lam Tung (the respondent) who, of course, states that he duly received the letter for delivery. Kong Sung, the alleged sender, was examined in the Court below, and of course corroborated the s'ory. His cross-examination was chiefly directed to proving his ignorance of the locality in which he was supposed to have lived fifteen years. It must be admitted that under cross-examination his knowledge did not appear to be very great, but it was clear that he knew something about the place, and his evidence, though perhaps shaken, was not materially damaged. As to the next letter said to contain $500, there is no evidence to corroborate the story of Lam Tung, which must, therefore, stand by itself. With reference to the third letter said to contain $300 (Lere the evidence of Lam Tung supported by that of Lam T'soi, who stated that he had sentthe money through Lam Tong. As to the fourth letter said to contain $280 sent by oue Lam On, in addition to Lam Tang's statement, a witness Lam Tso was called in the Court below, who claimed Lam On as a younger brother. and stated that he had received remittances before. However, he stated that this particular sum was intended to pay off credit rs of some fifteen years standing, and accounts for the fact that the letter contains no mention of such intention because it was referred to in
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previous correspondence. The learned Chief Justice in the judgment appealed from and commented on the improbability of this story and. no doubt. if it stood by itself. it could not be relied on, but taken in conjunction with the other evidence in the case it is entitled to a certain amount of attention. We now come to exhibit 5 which, in the state it arrived at the Court below, con. sisted of an envelope containing only a piece of pink paper. The envelope was endorsed to the effect that there were $20 inside. This is the most interesting exhibit of all, and is supported by the evidence of Lam Tung and Kwong Kam
sun. The appellants admit that this exhibit is genuine, and state that its contents were abstracted after its arrival in Hongkong, and state that this has been their theory all along. Now, Kwong Kem Tsun at the Magistracy stated that the letter on being opened contained two envelopes in the Court below he said that when he opened it at the Magistracy it contained a letter which he read. Now, although thera is a discrepancy in his vidence as to the contents of the envelope at the Magistracy, yet there is lie uncontradicted evidence of this man that there was an en- closure or enclosures in exhibit 5, and I am certain he was not merely referring to the piece of pink paper. Now, the theory of the appel lants is that the contents of that envelope had been previously removed. That being so, it is difficult to imagine why the witness was rot cross-examined on this state-
ment either in the Magistracy or in the Court below. The obvious conclusion, of course, would be that this theory was elaborated at a
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