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motion as if it were an argument on thej, return to the writ, but that was a concession to the eminence of the counsel arguing, es is clear from what Willis J. said (at 41 of the Report in 10 C. B. N. 3) and from the sentence at the end of Byles J.'s judg- | ment, “I am by no means prepared to wide, even if the law were as the learned counsel con- tende, that this warrant is not perfectly good." The reason of the thing is is clear as this suthority, that this is not a case for a habeas corpus ; and, moreover that there is no denial of justice, because, as was pointed out in Howard v. Gossett, there is always an appeal to the justice of the court, In fact this motion has and can be minde: it could indeed have been sande on much wider grounds. The writ is therefore quashed. I now come to the substantive motion. It was argued that the sommitment was bad for three reasons: first, that the prisoners were not informed what statements made by them respectively constituted the alleged perjury: secondly that before sentence was passed upon them can opportunity was not given to them of being - heard in their own behalf : and thirdly, that an opportunity was not given to them of showing cause why they should not be so committed. These reasons are not based on the words of the section, but on the general principle that no man is to be condemned without being heard: and in order to introduce this principle into the dese, the words "if it appears to the Court' were paraphrased into "if it appears to the Court after the observance of all essential principles on which enquiries should be con- ducted". Already the very plain words of the section are becoming nebulons, and their purpose obscured: but when the meaning of this paraphrase is understood they are lost to sight completely. If there were any doubt as to the meaning of the expression "the essential principles on which enquiries should be conducted", it is supplied by the argument of counsel it must include the calling of witnesses, and obviously therefore ex- arsination and cross-examination: and ob viously also speeches from learned counsel. The paraphrase involves a petitio principii: for the question is whether the Legislature, in giving the Courts this power to deal summarily with perjury, did not mean to do away with the necessity of any further enquiry: and if there is no enquiry, the essential principles vanish. But putting this on one side, see what the suggested paraphrase brings us to. At the end of a trial the witnesses who, in the opinion of the Court, have committed perjury are to be allowed to call witnesses to show that what they bave mid is not perjury. Now, as perjury is a false statement of a fact material to the issue, this means practically that the case must bere tried. The witnesses who have been called will be called again: and, what is wotne, others will probably be extemporised for the occasion. And then, what of the witnesses on the other side? The other party to the action is not a party to this fresh enquiry: is the Court to call them, and conduct the case I really do not know; but what I do know is that the result would be a re-hearing : a re-bearing without the proper machinery for a hearing and the consequence might be I conceive it possible-a finding directly contrary to the finding already arrived at, for if it were found that the witnesses did not commit perjury, then the former finding was prob- Jably wrong, and would have to be reversed. This general consideration cannot be better éremplified than by the present case. It was put in mation by the, or some of the, oreditors. Although large number of creditors could, if the facts alleged had been true, have come into the box to speak to them, a few only did so. Being of opinion that these witnesses lied, I am told that I ought to have given them an opportunity of repeating or elaborating their Hes, and the other witnesses, who, for reasons best known to themselves, did not give evidence at the trial, an opportunity to come forward affer the twelfth hour hasstruok and make similar statements. It would be a travesty of justice if mon & thing were possible. It may be mid that all, this might happen if the presiding Judge directa » prosecution for perjury instead of acting summarily, and the jury acquitted the Bocused. An sequistal in znch circumstances, other than for some technical question involved
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THE HONGKONG WEEKLY PRESS AND
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(April 30, 1908.
in the law of perjury, is almost inornosivable, ↑ It has been held that a man is not to be unless very weighty evidence, entirely unsullied before he is heard. The distino by the original lying, were adduced.. Obviously those cases and the present one such evidence could not be forthcoming at the I should have thought it unnec close of the trial, hut if it is forthcoming it out. A summons must precede afterwards there is nothing to prevent the Judge distress for non-payment of a poði who has condemned the witnesses summarily that the party may show sumcient from dealing with it and doing justice. The the distress should not issue, as, for inst sum and substance of the whole matter he has already paid the rate to a parish can be put quite shortly: the exercise of this who has not accounted for it (per Lord Kenyo summary jurisdiction excludes the possibility C. J. in R. V. Bena). And so an order to com of any long-drawn-out enquiry and discretion is mit, for non-payment of an installment ander vested in the Judge, if he thinks the case not an old practice of imprisonment for debt might a proper one for summary punishment, to order only take place where the debtor has had a prosecution, when such an enquiry may be oportunity of showing that he had not com made. The fact that this discretion is given of mitted any delinquency, but that he hit một itself negatives the argument on this point, the means of paying the installment; the This method of looking at the case treats the principle of the statute being that there three grounds of the motion as one, as indeed to an inquiry into the property or means of pay they are; because there is an evident link meat which the debtor had (ex parte Kinnf,g). between all three. The witnesses afe to be The rector of St. Bennett, charged with haying told in what they have committed perjury been intoxicated during divine sorvive, had had in order that they may say what they have (according to the return to a mandamus. to say in their own behalf, and in order that opportunity of making any defence to the chán they may, by calling witnesses, show cause why brought against him: (B. v. Gaskin). they should not be committed. But I will take vicar of Watford, charged with borligibl the three grounds singly. They are to be told performing the duties of his parish oburch, in what the perjury consists. I see no reason held entitled to adduce evidence to prove why. It might involve a long statement and the charge was un ounded: (Capel v. Child) an elaborate analysis of the evidence, which The schoolmaster, removed from his once ön might lead to unseemly discussion and con- complaints as to his conduct, was held entitled troversy afterwards. In this case the statements to be heard on the charges made agulhat would have been complicated, because the him : (Fisher v. Jackson). The Comité- statemente which I considered perjury related sioners who had me to the conclusion to the main facts of the case in varying degree: that a certain person was non-resident on some, as in the case of Tsang Hung, not certain lands in Queensland, and had forf-ited perlapse by itself of sufficient gravity to be them, were held to have noted wrongly dealt with summarily bad it stood. What I because he had had no opportunity of explain. said was, that I considered the eight men ing or rebutting the evidence which had bien had been guilty of conspiracy to defraud given as to his non-residence, And Wo on Wong Ka-cheung, and bad given through all the ones in which such grietindes false evidence, obviously as to the facts have been redressed. But why wore those from which it was hoped that the alleged grievances redressed? Why was it nee partnership would be laferred. It was this to emphasise the doctrine andi alteram pa palpable conspiracy which made the perjury and to hold that "statutory powers mab of the different witnesses of the same degree legally exercised"? Because the facts wer in crime; although they were not in the same assumed against the persons sentenced or pezial- degres as to the importance of the facts spoken ised, and they had had no opportunity of to. It was surely superfluous for me to add disproving them. How oan those datées be "I disbelieve every material fact to which you applicable to the present case? Whất cần eight men have respectively sworn." If that audi alteram partem have to do with this is not the necessary inference from what I matter? The witnesses have said what they had said I know no other which is possib's. But to say, and the power is given to the Court to there is another consideration which throws declare that what they have said is poijdry. light on this part of the cas. Supposing the What conceivable saalogy is there between the witness not to be present, what then? There is que ions in the two cases? The summary power nothing in the section which says that the is given to the Court, and the Court is bound commitment can only be made if the witness is to exercise it to keep, if it be possible. Its trials present. It is hardly conceivable that the powers pare. Large powers indeed to be given to a of the Court are to be nullified by the witness Judge: but there is an appeal to the Justi je of stepping out of the Court directly he has heard the Court, to the Fall Court, and ultimately to the verdict, and evading pursuit n til the Can- the Privy Council. The appeal to H. E. the ton boat starts in the evening. It is more than Governor, which was referred to, is that le probable that Wong Tse has done something may exercise his prerogative of mercy, and "for like this: anyhow he was not present. Am I to
no other purpose. Let me add this: that in "the hold that my warrant was bad in his case ?
case of scandalous misuse of the power, and any is impossible to imagine such a thing. Mr. misuse of such a power would be scandaloda, Pollock, when I put this point to him, contend there is an appeal of another kind, to the ed that all I could do in such a case would be, highest authority of the land, to whom and therefore what I ought to have done in are all subject. I was pressed with Wong Tre's case should have been, to issue a decision of the Judicial Committee warrant of arrest, and then I suppose commit Pollard's case, by which I am bound if it is him afterwards should he be found. The section applicable to the present case. That was a cave does not give the Court such a power: and I of contempt of court: this, as ws pointed out feel certain that the subsequent commitment by counsel, is one of perjury: and though it is would be entirely inconsistent with the exercise said that the perjury is to be punished “as for of the power of summary punishment, and of a contempt ", it still remains perjury, governed very doubtful legality. Really this question, by the statute which confers the power of sum. as to which I have no doubt, that the warrant mary punishment, and is not con empt. Now the of commitment 'may issue even if the witness Judicial Committee said that in the case is not present disposes of those other of contempt the specific ononde imaginary conditions which have been attached is to be distinctly stated, and an opport
·Unwald to the exercise of the power, which of them of answering it given.” selves imply that the witness is present: that case which goes much further: rs the witness should be asked if he has anything (L.R. 8 P.C. 427), which he quotïs'in' to say in his own behalf, or be allowed to show that each step in the proceedings cause why he should not be committed. But if contempt should be fairly, proper] he be present it can hardly have been intended strictly taken. The report of the Judiciá that the Court which belleves the witness to have mittee seems to warrant this led should give him an opportunity of adding important part of it, however, another to his former lies. And as to the upon the present question, is that venerable formula which asks a prisoner if he out that the rule in the case has anything to say why he should not be without any evidenos that sentenced, it is disused by many Judges except was the person who had in capital cases: and though there is no objec. the letters which had been tion to its being put as was sugges ed in Bunder of court. These cases Singh's case by the Fall Court, I for one think | contempt of court is me it superfluous. I now come to the cases in which with summarily,
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