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October 29, 1906. Į
officer to receive any sum of money with a view to influence his conduct as such public officer.
His Lordship-There is the definition of a bribe first.
Mr. Slade said a bribe included any money received which was not receivable by law, and 85 for a game of bridge could be included if the definition were stretched. What could, and what was possible to form a bribe? Money. But money which was receivable by law could not ander any circumstances be considered to be a bribe. That was the definition of a bribe.
His Lordship-It is not an exhaustive | definition, and cannot come under the Common Law definition of a bribe.
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CHINA OVERLAND TRADE REPORT.
judge in n case where such words were not strictly necessary for the decision in point.
His Lordship-Supposing as a matter of fact accused-had succeeded in removing this witness. Supposing he had persuaded him to leave the Colony?
Mr. Slade said it did not attempt to. The Ordinance said that money not received in pursuance of the law, money received by a public officer, would constitute an offence. Bat the intent had to be proved in the same way as the acceptance of the money. In this case they had to go further than the mere words of the ordinance. It was necessary to go to the indictment and see what was exactly the charge in this case.
The indictment said to influence accused's conduct as such sanitary officer in connection with latrines, so it was limited to latrines. The intent had to be proved, and intent could be proved by consequences. That he received the money with intent to influence his mind could be proved by his acts, by bis neglect of duty, and it had to be proved one way or the other. What was the evidence: That the man Chan Tsun gave him a sum of money as a Christmas present, and on two or three other occasions lent him some money. That was all the evidence the Crown had called, and he submitted that that evidence was not enough to support the charges. With regard to the last three counts of the indictment, they disclosed no legal offence. In one of the cases quoted by the learned Attorney-General, the Queen г. Price, 12 QB D., the justice laid down that there was nothing in a crime unless it was plainly forbidden by law. It had been laid down again in many, many cases, that the Judges could not make anything a crime which had not been laid down to be a crime clearly, or by Act of Parliament. Of course the applications of well-known principles to new sets of facts where they perfectly, clearly and unmistakably applied, was not the creation of a new crime; it was merely a new manifestation of some crime.
What were the grounds on which the learned Attorney-General contended that the acts alleged to have been done by the accused with regard to witnesses for the prosecution constituted a crime? First of all, what were those acts? It was alleged that he asked the man's father, and that he asked the man himself to go away from the Colony and not appear as a witness before the Commission. At that time Chan Tsun had not been summoned as a witness before the Com- mission. That was an important fact. No evidence was given as to when he was summoned. and as to when or how the subpoena was served What were the principles under which the Attorney-General submitted to his Lordship that those acts constituted a crime. He said first that the Commission was of the nature of a Court of Law. that it was something analagous to a Coroner's Inquiry, and that it was interference with a witness duly summoned to attend at a judicial inquiry. Counsel submitted that this Commission,
Mr. Slade-Even then, he was not a witness at that time. He had not been subpoenaed and might or might not have been called as a witness before the Commission.
The Attorney-General-Any attempt to stifle evidence is in Common Law a misdemeanour.
Mr. Slade That is an assertion my friend cites without any authority.
The Attorney-General referred to Chitty' Criminal Law, Volume 2, page 235, which said that this was an offence indictable at ommon Law. The mere attempt to stifle evidence was also criminal. though the persuasion should not succeed, on the general principle that intent to commit the crime was in itself criminal.
Mr. Slade-My learned frieod's quotation does not carry him far. He does not lay down what amounts to stiffling evidence.
His Lordship-I am of opinion. for the reasons explained to the jury. that there is a case for the jury on the first counts of bribery, by the fact of money having bren given to A public officer. The question of intent will be left for the jury to decide. On the second count I am of opinion that this is an offence against the Common Law on the general ground that the indictment lays, interfering with the performance of a duty which is imposed by statute.
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suggestion of getting the witness away. events were said to bare taken place while the Commission was sitting. If the jury came to the conclusion that the story of the witnesses for the prosecntion could not be received on certain material points, they should come to the conclusion that they ought not to accept the rest of it and find the accused not guilty.
Addressing His Lordship Mr. Slade ssid- There is one other point in which I wish to ask your Lordship's assistance: that is with regard to the Chinese which the accused is charged with having spoken to Chan Pui. The only evidence it seems to me which would be really of great weight with regard to the likelihood of his knowledge of advanced Chinese would be the evidence of an nuimpeachable character who understands Chinese himself. That evidence is not easily procurable, but I venture to ask that th Registrar might be allowed to make a statement on oath after examining him.
His Lordship-You wish to know whether a man two years in China could have arrived at this proficiency? As far as my permission is required I shall give it, but perhaps the Registrar would not care to undertake the task.
The Attorney-General-It depends on the man. I have known a man who could speak the language after being here three months. It is a matter for the jury.
His Lordship- It is quite legitimate to tender such evidence, but what consideration the jury will give to it is another matter. It is an important statement that a Chinese con- versation was held.
The Attorney.eneral-In respect to your Lordship's aunouncement of your intention of letting the case go before the jury on the first counts, I would like to call your attention to the wording of the Bribery Statute, I of 1898. Section 3, under which the accused is indicted, provides for any public officer taking a bribe with a view to influence his conduct as such public officer, or to incline him to do or omit to do any act contrary to his duty. The section constitutes two offences: the offence to take a tribe, and the other offence is to take a bribe to induce him to omit to do, or not to do his duty. Mr. Slade informed the jury that he was going to call accused himself as a witness under the new Ordinauce, to give evidence on his own behalf, and the learned Attorney-General would have full opportunity to cross-examine him. Counsel would not state anything accused was going to say beyond the statement that he denied the charges against him. There were five charges of bribery, and with regard to the first four it was impossible to call any evidence other than the man himself, as the alleged offence was committed so long ago. It was impossible for him to say where he was or what he was doing on any of those days, but by a piece of good luck his last bribe was alleged to have been taken when his movements could be stated by the evidence of other people. Most men could remember what they did on Christmas Eve, and accused would say that be went to mass at St Joseph's Church at ten o'clock that morning, and afterwards went to St. Patrick's Club where he remained until some. time in the afternoou with friends. With regard to the first of the five charges the man's bauk book had been produced, and he said it was મ correct copy. With regard to the last three charges, they being of more recent date, it had been possible to obtain some evidence with regard to his movements on one of those days, It would be proved by two lighthouse keepers from Green Island that he went there on one of the days on which he was alleged to have been persuading the witness not to appear before the Commission. One of the men could only say that he was over there on a Saturday at the end of June, but could not say which Saturday, would say he was sure it was the Saturday of the 23rd, because it was the day before St. John's day. With regard to the allegation made by Chan Tsun of what took place ou April 28th at the branch office of the Sanitary Board at Pokfulam Road, he was in the happy position of being able to call before the jury several other people who were present on that day, and they would prove what took place, which was not what was alleged to have taken place. What in fact took place was that he went there to get lime, asked for lime. and went away. The man who interpreted for the accused on that day would say there was no
the constitution of which was contained in the proclamation of the Governor in the copy of the Gazette put in, was not a Court of Justice in any sense of the word. It was a private inquiry, an inquiry in camera, which was to report merely to the Governor. It had no executive or judicial function of any description. It Was body of men got The other mau together Bud given certain powers, to report for the information of the Governor. What they reported might be acted upou, or it might not, at the Governor's pleasure. He submitted that such a body was in no sense analagous to a Court of Justice, and that the analogy presented by the Attorney-General broke down. Then the Attorney-General suggested as an
alternative that any act done to obstruct the performance by any person of & statutory duty, constituted a misdemeanour, and in support of that he quoted some somewhat loose words used by one
The Attorney-General-Aud the question is whether a man who is a sanitary inspector could learn that much Chinese in two years.
His Lordship—I see no objection to the evidence being given.
-Francis Ward was then called and sworn. He said he came te Hongkong in 1909 with a detachment of the Royal Engineers, in which he was an electrician. He purchased his discharge on November 11th. 1902, and joined the police. On March 1st, 1901, he transferred from the police to the Sanitary Department, in which he had continued to the present time. Witness could speak a little Chinese but could not say what he was supposed to have said to Chan Pui. He had been learning Chinese, but he did not know enough to pass the first examination. If he could pass this he would be promoted from a third to a second class inspector. His present pay was £170 a year. If he passed this examination he would rise to £200 a year. was not true that he had received 830 from Chau Tsun in December, 1901; at that time he did not know the man. He had never received the sum of 830 from him. Neither had he rec-ived $10 in April, 1905, 810 on the 10th August, $15 on the 25th August, nor $20 on December 24th, 1905. On the morning of 24th December last witness left his house about 930 a.m. to go to mass at St. Joseph's Church. The service was over about 11 o'clock, then he went to St. Patrick's Club where he remained until the afternoon. After the church service accused met
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Mr. O'Halloran, who is employed in the Naval Yard. After leaving St. Patrick's Club they walked down to Queen's Road and O'Halloran left him about 2.30. There were a number of soldiers aud civilians at the Club that morning. One man in particular he saw Was Lance Corporal Le Grove, of the Army Ordinance Department. He could not have gone to Chan Pui's house at seven o'clock on the evening of June 3rd as he was on Green Island at the time. To the best of his know- ledge he went to Green Island between four sad five in the afternoon. Mr. Nicholas, the light- house keeper invited him into his quarters and there he met the assistant keeper. After dinner witness went to his sampan with the object of returning home, but found that it had gone. Tben, he remained until 12 o'clock when Mr. Franco came off duty and told him to walk to the gunpowder wharf as there might be a bost there. a fishing boat in which he returned to Hong- kong. Witness remembered a conversation in which Franco's wife said to him that to-morrow would be St. John's day, and told him not to be long away. That was when Franco accompanied him to the gunpowder wharf, and how be fixed the date as 23rd June. It was not true that he
He got
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